sdj-60th day
WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-NINTH LEGISLATURE
REGULAR SESSION, 2010
SIXTIETH DAY
____________
Charleston, W. Va., Saturday, March 13, 2010
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by the Reverend Doug Craven, First
Presbyterian Church, Logan, West Virginia.
Pending the reading of the Journal of Friday, March 12, 2010,
On motion of Senator Green, 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 Chafin, the Senate recessed for five
minutes to permit Jordan Richardson to address the Senate on behalf
of the Judith A. Herndon Fellowship Program and Andrew Stacy on
behalf of the Legislative Information Journalism Internship
Program.
Upon expiration of the recess, the Senate reconvened and
proceeded to the fourth order of business.
Senator Stollings, from the Committee on Confirmations,
submitted the following report, which was received:
Your Committee on Confirmations has had under consideration
Senate Executive Message No. 3, dated March 3, 2010,
requesting confirmation by the Senate of the nominations mentioned
therein. The following list of names from Executive Message No. 3
is submitted:
1.For Member, School of Osteopathic Medicine Board of
Governors, Dr. John Manchin II, Farmington, Marion County, for the
term ending June 30, 2013.
2.For Member, Jobs Investment Trust Board, James Cava, Jr.,
Morgantown, Monongalia County, for the term ending June 30, 2013.
3.For Member, Ethics Commission, Monte Williams,
Morgantown, Monongalia County, for the term ending June 30, 2012.
4.For Member, Public Employees Insurance Agency Finance
Board, William Milam, Charleston, Kanawha County, for the term
ending June 30, 2012.
5.For Member, Commission on the Arts, Susan Hogan,
Wheeling, Ohio County, for the term ending June 30, 2012.
6.For Member, Commission on the Arts, Cindy McGhee,
Charleston, Kanawha County, for the term ending June 30, 2012.
7.For Member, Commission on the Arts, Rosa Lee Vitez-Hall,
Huntington, Cabell County, for the term ending June 30, 2012.
8.For Member, Commission on the Arts, Edward George III,
Wheeling, Ohio County, for the term ending June 30, 2012.
9.For Member, Northern Community College Board of
Governors, Gus Monezis, Weirton, Hancock County, for the term
ending June 30, 2013.
10.For Member, Bluefield State College Board of Governors,
James Palmer III, Bluefield, Mercer County, for the term ending
June 30, 2013.
11.For Acting Secretary, Department of Military Affairs and
Public Safety, Joseph Thornton, Culloden, Putnam County, to serve
at the will and pleasure of the Governor.
12.For Member, Workforce Investment Council, Shawn Daly,
Hurricane, Putnam County, for the term ending June 30, 2012.
13.For Member, Board of Examiners for Registered
Professional Nurses, Joyce Egnor, Summersville, Nicholas County,
for the term ending June 30, 2013.
14.For Member, Board of Examiners for Registered
Professional Nurses, Mary Friel Fanning, Morgantown, Monongalia
County, for the term ending June 30, 2012.
15.For Member, Board of Examiners for Registered
Professional Nurses, Teresa Ritchie, Big Springs, Calhoun County,
for the term ending June 30, 2014.
16.For Member, Board of Examiners for Registered Professional Nurses, Pamela Cain, Charleston, Kanawha County, for
the term ending June 30, 2010.
17.For Member, Fire Commission, Doug Mongold, Moorefield,
Hardy County, for the term ending June 30, 2013.
18.For Member, Fire Commission, Robert Miller, Glenwood,
Mason County, for the term ending June 30, 2013.
19.For Member, Blue Ridge Community and Technical College
Board of Governors, Keith Unger, Berkeley Springs, Morgan County,
for the term ending June 30, 2012.
20.For Member, Jobs Investment Trust Board, Robert Welty,
Charleston, Kanawha County, for the term ending June 30, 2012.
21.For Member, Jobs Investment Trust Board, Todd Fry,
Barboursville, Cabell County, for the term ending June 30, 2013.
22.For Member, Jobs Investment Trust Board, Edward Payne
III, Beckley, Raleigh County, for the term ending June 30, 2010.
23.For Member, Board of Funeral Service Examiners, Sarah
Lobban, Alderson, Greenbrier County, for the term ending June 30,
2013.
24.For Member, Workforce Investment Council, Philip Pfister,
Charleston, Kanawha County, for the term ending June 30, 2011.
25.For Member, Women's Commission, Kameron Miller,
Huntington, Cabell County, for the term ending June 30, 2010.
26.For Member, Eastern West Virginia Community and Technical College Board of Governors, Richard Gillespie, Franklin, Pendleton
County, for the term ending June 30, 2012.
27.For Member, Board of the College Prepaid Tuition and
Savings Program, Martin Gargano, Charleston, Kanawha County, for
the term ending June 30, 2014.
28.For Member, Board of the College Prepaid Tuition and
Savings Program, Donna Kuhn, Petersburg, Grant County, for the term
ending June 30, 2012.
29.For Member, Lottery Commission, Michael Adams, Weirton,
Hancock County, for the term ending June 30, 2012.
30.For Member, Lottery Commission, William Clayton, South
Charleston, Kanawha County, for the term ending June 30, 2010.
31.For Member, Lottery Commission, Kenneth Greear,
Charleston, Kanawha County, for the term ending June 30, 2013.
32.For Member, Lottery Commission, David McCormick, Jr.,
Morgantown, Monongalia County, for the term ending June 30, 2012.
33.For Member, Lottery Commission, David Lemmon, Nitro,
Kanawha County, for the term ending June 30, 2011.
And,
Senate Executive Message No. 4, dated March 3, 2010,
requesting confirmation by the Senate of the nominations mentioned
therein. The following names from Executive Message No. 4 are
submitted:
1.For Member, Fairmont State University Board of Governors,
Jack Robert White, Fairmont, Marion County, for the term ending
June 30, 2013.
2.For Member, Fairmont State University Board of Governors,
Bryan Towns, Fairmont, Marion County, for the term ending June 30,
2013.
And reports the same back with the recommendation that the
Senate do advise and consent to all of the nominations listed
above.
Respectfully submitted,
Ron Stollings,
Chair.
__________
The time having arrived for the special order of business to
consider the list of nominees for public office submitted by His
Excellency, the Governor, the special order thereon was called by
the President.
Thereupon, Senator Tomblin (Mr. President) laid before the
Senate the following executive messages:
Senate Executive Message No. 3, dated March 3, 2010 (
shown in
the Senate Journal of March 5, 2010, pages 2 to 5, inclusive).
And,
Senate Executive Message No. 4, dated March 3, 2010 (
shown in the Senate Journal of March 5, 2010, page 5).
Senator Stollings then moved that the Senate advise and
consent to all of the executive nominations referred to in the
foregoing report from the Committee on Confirmations, except the
nomination of Mary Friel Fanning to the Board of Examiners for
Registered Professional Nurses (being nomination number 14 in
Executive Message No. 3).
The question being on the adoption of the aforestated motion
by Senator Stollings,
The roll was then taken; and
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the motion by
Senator Stollings had prevailed and that all the executive
nominations referred to in the foregoing report from the Committee
on Confirmations, except the nomination of Mary Friel Fanning to the Board of Examiners for Registered Professional Nurses (being
nomination number 14 in Executive Message No. 3) had been
confirmed.
Senator Stollings then moved that the Senate advise and
consent to the nomination of Mary Friel Fanning to the Board of
Examiners for Registered Professional Nurses (being nomination
number 14 in Executive Message No. 3).
Prior to the call of the roll, Senator Fanning moved to be
excused from voting under rule number forty-three of the Rules of
the Senate, which motion prevailed.
The roll was then taken; and
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Foster,
Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe,
Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr.
President)--32.
The nays were: None.
Absent: Caruth--1.
Excused from voting: Fanning--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the motion by
Senator Stollings had prevailed and the nomination of Mary Friel Fanning to the Board of Examiners for Registered Professional
Nurses had been confirmed.
__________
Consideration of executive nominations having been concluded,
At the request of Senator Deem, and by unanimous consent, the
Senate returned to the second order of business and the
introduction of guests.
The Senate proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced
that that body had refused to concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. House Bill No. 4593, Relating to high school graduation
improvement.
On motion of Senator Chafin, the Senate refused to recede from
its amendments to the bill and requested the appointment of a
committee of conference of five from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Prezioso, Edgell, White, Boley and Guills.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced that that body had refused to recede from its amendments, and
requested the appointment of a committee of conference of three
from each house on the disagreeing votes of the two houses, as to
Eng. Com. Sub. for Senate Bill No. 480, Relating to public
higher education personnel.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates M. Poling, Paxton and Canterbury.
On motion of Senator Chafin, the Senate agreed to the
appointment of a conference committee on the bill.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Plymale, Laird and Guills.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
that that body had refused to recede from its amendment, and
requested the appointment of a committee of conference of three
from each house on the disagreeing votes of the two houses, as to
Eng. Com. Sub. for Senate Bill No. 230, Relating to Board of
Optometry.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Perdue, Campbell and Border.
On motion of Senator Chafin, the Senate agreed to the
appointment of a conference committee on the bill.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Bowman, Kessler and K. Facemyer.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
that that body had refused to concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. House Bill No. 4177, Dedicating five percent of coal
severance tax to the county of origin.
On motion of Senator Chafin, the Senate refused to recede from
its amendments to the bill and requested the appointment of a
committee of conference of three from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Fanning, White and K. Facemyer.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 38, Creating WV
Servicemembers Civil Relief Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 1F. PRIVILEGES AND PROHIBITIONS.
§15-1F-11. West Virginia Servicemembers Civil Relief Act.
(a) This section may be cited as the "West Virginia
Servicemembers Civil Relief Act".
(b) A member of the West Virginia National Guard called to
state active duty by the Governor for a period of thirty days or
more, shall have all of the protections, rights or benefits that
are afforded and may accrue to a person on federal active duty
under the provisions of 50 U. S. C. App., §501, et seq. as amended
by the Servicemembers Civil Relief Act, Pub. L. No. 108-189 (2003).
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 38, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 S. B. No. 38) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 213, Budget Bill.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the provisions of Committee Substitute
for House Bill No. 4025.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendment to the bill (Eng. Com. Sub. for S. B.
No. 213) and requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 219, Relating
to managing state motor vehicle fleet.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page three, section two, line thirty-one, after the word
"authorities" by changing the semicolon to a colon and inserting
the following proviso: Provided, That such vehicles and aircraft
shall not be used for personal purposes, other than for de minimis personal use;.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 219, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 Com. Sub. for S. B. No. 219) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 237, Authorizing issuance of revenue
bonds for public projects.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page twenty-three, section twenty-seven, line thirty-one,
by striking out the word "equally" and inserting in lieu thereof
the words "on a pro rata basis";
On page thirty, section twenty-seven, line one hundred sixty-
nine, by striking out the word "equally" and inserting in lieu
thereof the words "on a pro rata basis";
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 237--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new article,
designated §13-2H-1, §13-2H-2, §13-2H-3, §13-2H-4, §13-2H-5, §13-
2H-6, §13-2H-7, §13-2H-8, §13-2H-9, §13-2H-10, §13-2H-11 and §13-
2H-12; and to amend and reenact §29-22C-27 of said code, all
relating to funding distributions from state lottery revenues
generally; providing authorization for municipalities, county commissions and certain boards of education to issue revenue bonds
secured by lottery revenue for the purpose of acquiring or
constructing public projects; and changing the allocation of a
certain distribution from the lottery racetrack table games fund to
the purse funds of the thoroughbred racetracks from an equal
allocation among the tracks to a pro rata distribution.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 237, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--32.
The nays were: Hall--1.
Absent: Caruth--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 237) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Helmick, Jenkins, Kessler, Laird, McCabe,
Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr.
President)--32.
The nays were: Hall--1.
Absent: Caruth--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 237) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body to the title of the bill, passage as
amended, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 337, Requiring Racetrack
Video Lottery Fund be used for certain payments.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the title of the
bill was reported by the Clerk:
Eng. Com. Sub. for Senate Bill No. 337--A Bill to amend and reenact §19-23-10, §19-23-13 and §19-23-13b of the Code of West
Virginia, 1931, as amended; to amend and reenact §29-22-18a of said
code; and to amend and reenact §29-22C-27 of said code, all
relating to receipts and expenditures of moneys in the conduct of
the racing industry in the state generally; providing as an
additional purpose for which certain moneys may be used the purpose
of greyhound adoption programs to include spaying and neutering;
modifying the distribution of funds derived from horse racetrack
unredeemed pari-mutuel tickets and other sources to owners,
breeders and owners of sires of certain winning horses; providing
for the deposit of surplus funds held for those purposes into horse
racetrack regular purse funds; removing provisions requiring that
certain unexpended balances be paid to certain horse racetrack
licensees and expended for certain purposes; combining and
distributing funds derived from dog racetrack unredeemed pari-
mutuel tickets into the greyhound breeding development fund;
removing authority for racing commission to expend certain excess
moneys as purse money, to supplement purses and to establish stakes
races and racing handicaps; removing requirements that certain
moneys from unredeemed pari-mutuel tickets be allocated and paid by
the racing commission into the greyhound breeding development fund,
into a special account to be used for certain stakes races, into a
trust to provide health and disability benefits to eligible active or disabled West Virginia jockeys, and into an unspecified trust
administered by an organization representative of jockeys;
providing for the payment of claims received on purses won on or
before June 30, 2010; transferring a specified amount of funds from
the state excess lottery revenue fund and additional amounts from
certain special accounts to pay for those claims; extinguishing
obligation of the state for payments made on certain claims;
removing the requirement that a certain racing commission report to
the legislative auditor include certain information; authorizing
the racing commission to promulgate emergency rules; specifying
which racing secretary is to be a member of a certain committee;
removing expired requirements for the submission of a report;
providing for the contingent distribution of an annual amount from
the state excess lottery revenue fund into a certain thoroughbred
racetrack purse fund, into certain thoroughbred racetrack
unredeemed pari-mutuel tickets accounts, and into a certain
greyhound breeding development fund; and changing the allocation of
a certain distribution from the lottery racetrack table games fund
to the purse funds of the thoroughbred racetracks from an equal
allocation among the tracks to a pro rata distribution.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the title of the bill.
Engrossed Committee Substitute for Senate Bill No. 337, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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. No. 337) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 362, Prohibiting providing
false information to obtain controlled substances prescription.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page two, section four hundred ten, line nine, by striking
out the word "information";
On page two, section four hundred ten, line nine, after the
word "practitioner" by inserting a comma;
On page two, section four hundred ten, line seventeen, by
striking out the word "imprisoned" and inserting in lieu thereof
the word "confined";
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 362--A Bill to amend and
reenact §60A-4-410 of the Code of West Virginia, 1931, as amended,
relating to unlawfully withholding information from a medical
practitioner in order to obtain a prescription for a controlled
substance; clarifying language; and increasing penalties.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 362, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 S. B. No. 362) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect July 1, 2010, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 376, Relating to
residential mortgage foreclosure data.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §31-18-6 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §31A-2-4C of said code be amended
and reenacted; that §38-1-8a of said code be amended and reenacted;
that §44-13-4a of said code be amended and reenacted; and that §59-
1-10 of said code be amended and reenacted, all to read as follows:
CHAPTER 31. CORPORATIONS.
ARTICLE 18. WEST VIRGINIA HOUSING DEVELOPMENT FUND.
§31-18-6. Corporate powers.
The housing development fund is hereby granted, has and may
exercise all powers necessary or appropriate to carry out and
effectuate its corporate purpose, including, but not limited to,
the following:
(1) To make or participate in the making of federally insured
construction loans to sponsors of land development, residential
housing or nonresidential projects. Such loans shall be made only
upon determination by the housing development fund that
construction loans are not otherwise available, wholly or in part,
from private lenders upon reasonably equivalent terms and
conditions;
(2) To make temporary loans, with or without interest, but
with such security for repayment as the housing development fund determines reasonably necessary and practicable, from the operating
loan fund, if created, established, organized and operated in
accordance with the provisions of section nineteen of this article,
to defray development costs to sponsors of land development,
residential housing or nonresidential projects which are eligible
or potentially eligible for federally insured construction loans,
federally insured mortgages, federal mortgages or uninsured
construction loans or uninsured mortgage loans;
(3) To make or participate in the making of long-term
federally insured mortgage loans to sponsors of land development,
residential housing or nonresidential projects. Such loans shall
be made only upon determination by the housing development fund
that long-term mortgage loans are not otherwise available, wholly
or in part, from private lenders upon reasonably equivalent terms
and conditions;
(4) To establish residential housing and nonresidential and
land development projects for counties declared to be in a disaster
area by the Federal Emergency Management Agency or other agency or
instrumentality of the United States or this state;
(5) To accept appropriations, gifts, grants, bequests and
devises and to utilize or dispose of the same to carry out its
corporate purpose;
(6) To make and execute contracts, releases, compromises, compositions and other instruments necessary or convenient for the
exercise of its powers, or to carry out its corporate purpose;
(7) To collect reasonable fees and charges in connection with
making and servicing loans, notes, bonds, obligations, commitments
and other evidences of indebtedness, and in connection with
providing technical, consultative and project assistance services;
(8) To invest any funds not required for immediate
disbursement in any of the following securities:
(i) Direct obligations of or obligations guaranteed by the
United States of America or for the payment of the principal and
interest on which the full faith and credit of the United States of
America is pledged;
(ii) Bonds, debentures, notes or other evidences of
indebtedness issued by any of the following agencies: Banks for
cooperatives; federal intermediate credit banks; federal home loan
bank system; export-import bank of the United States; federal land
banks; Tennessee valley authority; United States postal service;
inter-American development bank; international bank for
reconstruction and development; small business administration;
Washington metropolitan area transit authority; general services
administration; federal financing bank; federal home loan mortgage
corporation; student loan marketing association; farmer's home
administration; the federal national mortgage association or the government national mortgage association; or any bond, debenture,
note, participation certificate or other similar obligation to the
extent such obligations are guaranteed by the government national
mortgage association or federal national mortgage association or
are issued by any other federal agency and backed by the full faith
and credit of the United States of America;
(iii) Public housing bonds issued by public agencies or
municipalities and fully secured as to the payment of both
principal and interest by a pledge of annual contributions under an
annual contributions contract or contracts with the United States
of America; or temporary notes, preliminary loan notes, or project
notes issued by public agencies or municipalities, in each case,
fully secured as to the payment of both principal and interest by
a requisition or payment agreement with the United States of
America;
(iv) Certificates of deposit, time deposits, investment
agreements, repurchase agreements or similar banking arrangements
with a member bank or banks of the federal reserve system or a bank
the deposits of which are insured by the federal deposit insurance
corporation, or its successor, or a savings and loan association or
savings bank the deposits of which are insured by the federal
savings and loan insurance corporation, or its successor, or
government bond dealers reporting to, trading with and recognized as primary dealers by a federal reserve bank: Provided, That such
investments shall only be made to the extent insured by the federal
deposit insurance corporation or the federal savings and loan
insurance corporation or to the extent that the principal amount
thereof shall be fully collateralized by obligations which are
authorized investments for the housing development fund pursuant to
this section;
(v) Direct obligations of or obligations guaranteed by the
state of West Virginia;
(vi) Direct and general obligations of any other state,
municipality or other political subdivision within the territorial
United States: Provided, That at the time of their purchase, such
obligations are rated in either of the two highest rating
categories by a nationally recognized bond-rating agency;
(vii) Any bond, note, debenture or annuity issued by any
corporation organized and operating within the United States:
Provided, That such corporation shall have a minimum net worth of
fifteen million dollars and its securities or its parent
corporation's securities are listed on one or more of the national
stock exchanges: Provided, however, That: (1) Such corporation
has earned a profit in eight of the preceding ten fiscal years as
reflected in its statements; and (2) such corporation has not
defaulted in the payment of principal or interest on any of its outstanding funded indebtedness during its preceding ten fiscal
years; and (3) the bonds, notes or debentures of such corporation
to be purchased are rated "AA" or the equivalent thereof or better
than "AA" or the equivalent thereof by at least two or more
nationally recognized rating services such as Standard and Poor's,
Dunn & Bradstreet, Best's or Moody's;
(viii) If entered into solely for the purpose of reducing
investment, interest rate, liquidity or other market risks in
relation to obligations issued or to be issued or owned or to be
owned by the housing development fund, options, futures contracts
(including index futures but exclusive of commodities futures,
options or other contracts), standby purchase agreements or similar
hedging arrangements listed by a nationally recognized securities
exchange or a corporation described in paragraph (vii) above;
(ix) Certificates, shares or other interests in mutual funds,
unit trusts or other entities registered under section eight of the
United States Investment Company Act of 1940, but only to the
extent that the terms on which the underlying investments are to be
made prevent any more than a minor portion of the pool which is
being invested in to consist of obligations other than investments
permitted pursuant to this section; and
(x) To the extent not inconsistent with the express provisions
of this section, obligations of the West Virginia state board of investments or any other obligation authorized as an investment for
the West Virginia state board of investments under article six,
chapter twelve of this code or for a public housing authority under
article fifteen, chapter sixteen of this code;
(9) To sue and be sued;
(10) To have a seal and alter the same at will;
(11) To make, and from time to time, amend and repeal bylaws
and rules and regulations not inconsistent with the provisions of
this article;
(12) To appoint such officers, employees and consultants as it
deems advisable and to fix their compensation and prescribe their
duties;
(13) To acquire, hold and dispose of real and personal
property for its corporate purposes;
(14) To enter into agreements or other transactions with any
federal or state agency, any person and any domestic or foreign
partnership, corporation, association or organization;
(15) To acquire real property, or an interest therein, in its
own name, by purchase or foreclosure, where such acquisition is
necessary or appropriate to protect any loan in which the housing
development fund has an interest and to sell, transfer and convey
any such property to a buyer and, in the event of such sale,
transfer or conveyance cannot be effected with reasonable promptness or at a reasonable price, to lease such property to a
tenant;
(16) To purchase or sell, at public or private sale, any
mortgage or other negotiable instrument or obligation securing a
construction, rehabilitation, improvement, land development,
mortgage or temporary loan;
(17) To procure insurance against any loss in connection with
its property in such amounts, and from such insurers, as may be
necessary or desirable;
(18) To consent, whenever it deems it necessary or desirable
in the fulfillment of its corporate purpose, to the modification of
the rate of interest, time of payment or any installment of
principal or interest, or any other terms, of mortgage loan,
mortgage loan commitment, construction loan, rehabilitation loan,
improvement loan, temporary loan, contract or agreement of any kind
to which the housing development fund is a party;
(19) To make and publish rules and regulations respecting its
federally insured mortgage lending, uninsured mortgage lending,
construction lending, rehabilitation lending, improvement lending
and lending to defray development costs and any such other rules
and regulations as are necessary to effectuate its corporate
purpose;
(20) To borrow money to carry out and effectuate its corporate purpose and to issue its bonds or notes as evidence of any such
borrowing in such principal amounts and upon such terms as shall be
necessary to provide sufficient funds for achieving its corporate
purpose, except that no notes shall be issued to mature more than
ten years from date of issuance and no bonds shall be issued to
mature more than fifty years from date of issuance;
(21) To issue renewal notes, to issue bonds to pay notes and,
whenever it deems refunding expedient, to refund any bonds by the
issuance of new bonds, whether the bonds to be refunded have or
have not matured except that no such renewal notes shall be issued
to mature more than ten years from date of issuance of the notes
renewed and no such refunding bonds shall be issued to mature more
than fifty years from the date of issuance;
(22) To apply the proceeds from the sale of renewal notes or
refunding bonds to the purchase, redemption or payment of the notes
or bonds to be refunded;
(23) To make grants and provide technical services to assist
in the purchase or other acquisition, planning, processing, design,
construction, or rehabilitation, improvement or operation of
residential housing, nonresidential projects or land development:
Provided, That no such grant or other financial assistance shall be
provided except upon a finding by the housing development fund that
such assistance and the manner in which it will be provided will preserve and promote residential housing in this state or the
interests of this state in maintaining or increasing employment or
the tax base;
(24) To provide project assistance services for residential
housing, nonresidential projects and land development, including,
but not limited to, management, training and social and other
services;
(25) To promote research and development in scientific methods
of constructing low cost land development, residential housing or
nonresidential projects of high durability including grants, loans
or equity contributions for research and development purposes:
Provided, That no such grant or other financial assistance shall be
provided except upon a finding by the housing development fund that
such assistance and the manner in which it will be provided will
preserve and promote residential housing in this state or the
interests of this state in maintaining and increasing employment
and the tax base;
(26) With the proceeds from the issuance of notes or bonds of
the housing development fund, including, but not limited to,
mortgage finance bonds, or with other funds available to the
housing development fund for such purpose, to participate in the
making of or to make loans to mortgagees approved by the housing
development fund and take such collateral security therefor as is approved by the housing development fund and to invest in,
purchase, acquire, sell or participate in the sale of, or take
assignments of, notes and mortgages, evidencing loans for the
construction, rehabilitation, improvement, purchase or refinancing
of land development, residential housing or nonresidential projects
in this state: Provided, That the housing development fund shall
obtain such written assurances as shall be satisfactory to it that
the proceeds of such loans, investments or purchases will be used,
as nearly as practicable, for the making of or investment in long-
term federally insured mortgage loans or federally insured
construction loans, uninsured mortgage loans or uninsured
construction loans, for land development, residential housing or
nonresidential projects or that other moneys in an amount
approximately equal to such proceeds shall be committed and used
for such purpose;
(27) To make or participate in the making of uninsured
construction loans for land development, residential housing or
nonresidential projects. Such loans shall be made only upon
determination by the housing development fund that construction
loans are not otherwise available, wholly or in part, from private
lenders upon reasonably equivalent terms and conditions;
(28) To make or participate in the making of long-term
uninsured mortgage loans for land development, residential housing or nonresidential projects. Such loans shall be made only upon
determination by the housing development fund that long-term
mortgage loans are not otherwise available, wholly or in part, from
private lenders upon reasonably equivalent terms and conditions;
(29) To obtain options to acquire real property, or any
interest therein, in its own name, by purchase, or lease or
otherwise, which is found by the housing development fund to be
suitable, or potentially suitable, as a site, or as part of a site,
for land development or the construction of residential housing or
nonresidential projects; to hold such real property or to acquire
by purchase or otherwise and to transfer by sale or otherwise any
ownership or equity interests in any other legal entity which holds
such real property; to finance the performance of land development,
residential housing or nonresidential projects on or in connection
with any such real property or to perform land development,
residential housing or nonresidential projects on or in connection
with any such real property; to own, operate and sponsor or
participate in the sponsorship of land development, residential
housing or nonresidential projects; or to sell, transfer and
convey, lease or otherwise dispose of such real property, or lots,
tracts or parcels of such real property, for such prices, upon such
terms, conditions and limitations, and at such time or times as the
housing development fund shall determine;
(30) To make loans, with or without interest, but with such
security for repayment as the housing development fund determines
reasonably necessary and practicable from the land development
fund, if created, established, organized and operated in accordance
with the provisions of section twenty-a of this article, to
sponsors of land development, to defray development costs and other
costs of land development;
(31) To exercise all of the rights, powers and authorities of
a public housing authority as set forth and provided in article
fifteen, chapter sixteen of this code, in any area or areas of the
state which the housing development fund shall determine by
resolution to be necessary or appropriate;
(32) To provide assistance to urban renewal projects in
accordance with the provisions of section twenty-eight, article
eighteen, chapter sixteen of this code and in so doing to exercise
all of the rights, powers and authorities granted in this article
or in said article, in and for any communities of the state which
the housing development fund shall determine by resolution to be
necessary or appropriate;
(33) To make or participate in the making of loans for the
purpose of rehabilitating or improving existing residential and
temporary housing or nonresidential projects, or to owners of
existing residential or temporary housing for occupancy by eligible persons and families for the purpose of rehabilitating or improving
such residential or temporary housing or nonresidential projects
and, in connection therewith, to refinance existing loans involving
the same property. Such loans shall be made only upon
determination by the housing development fund that rehabilitation
or improvement loans are not otherwise available, wholly or in
part, from private lenders upon reasonably equivalent terms and
conditions;
(34) Whenever the housing development fund deems it necessary
in order to exercise any of its powers set forth in subdivision
(29) of this section, and upon being unable to agree with the owner
or owners of real property or interest therein sought to be
acquired by the fund upon a price for acquisition of private
property not being used or operated by the owner in the production
of agricultural products, to exercise the powers of eminent domain
in the acquisition of such real property or interest therein in the
manner provided under chapter fifty-four of this code, and the
purposes set forth in said subdivision are hereby declared to be
public purposes for which private property may be taken. For the
purposes of this section, the determination of "use or operation by
the owner in the production of agricultural products" means that
the principal use of such real estate is for the production of food
and fiber by agricultural production other than forestry, and the fund shall not initiate or exercise any powers of eminent domain
without first receiving an opinion in writing from both the
governor and the commissioner of agriculture of this state that at
the time the fund had first attempted to acquire such real estate
or interest therein, such real estate or interest therein was not
in fact being used or operated by the owner in the production of
agricultural products;
(35) To acquire, by purchase or otherwise, and to hold,
transfer, sell, assign, pool or syndicate, or participate in the
syndication of, any loans, notes, mortgages, securities or debt
instruments collateralized by mortgages or interests in mortgages
or other instruments evidencing loans or equity interests in or for
the construction, rehabilitation, improvement, renovation, purchase
or refinancing of land development, residential housing and
nonresidential projects in this state; and
(36) To form one or more nonprofit corporations, whose board
of directors shall be the same as the board of directors of the
housing development fund, which shall be authorized and empowered
to carry out any or all of the corporate powers or purposes of the
housing development fund, including, without limitation, acquiring
limited or general partnership interests and other forms of equity
ownership.
(37) To receive and compile data into an electronic database and make available the raw mortgage foreclosure data that is
required to be reported to county clerks by trustees pursuant to
the provisions of section eight-a, article one, chapter thirty-
eight of this code, including all data that has been received by
the banking commissioner pursuant to subsection (a) of section
four-c, article two, chapter thirty-one-a of this code, as of the
effective date of the effective date of the amendments made to said
section during the regular session of the 2010 legislature. This
information shall be periodically forwarded by county clerks to the
housing development fund, in accordance with the provisions of
section four-a, article thirteen, chapter forty-four of this code.
CHAPTER 31A. BANKS AND BANKING
ARTICLE 2. DIVISION OF BANKING.
§31A-2-4c. County Clerk to file reports of trustees regarding
sales of residential real property pursuant to deeds of trust
and forward to the banking commissioner; transfer of powers
and duties relating to reports of trustees to the West
Virginia Housing Development Fund.
(a) In addition to the jurisdiction, powers, and duties set
out in section four of this article, the banking commissioner is
vested with the jurisdiction, powers and duties to receive and
compile the data into an electronic database and make available the
raw data that is required to be reported by trustees to county clerks pursuant to chapter thirty-eight, article one, section
eight-a section eight-a, article one, chapter thirty-eight of the
Code of West Virginia. The commissioner has the power to
promulgate rules in accordance with this section and the provisions
of article three, chapter twenty-nine-a of this code in order to
carry out the requirements of this section. The commissioner is
authorized to expend funds for this purpose.
(b) On and after July 1, 2010, the jurisdiction, powers and
duties vested in the banking commissioner in subsection (a) of this
section are hereby transferred and imposed upon the West Virginia
Housing Development Fund established in article eighteen, chapter
thirty-one of this code and all data that has been received and
compiled by the banking commissioner pursuant to subsection (a) of
this section shall be transferred to the West Virginia Housing
Development Fund.
CHAPTER 38. LIENS
ARTICLE 1. VENDOR'S AND TRUST DEED LIENS.
§38-1-8a. Reports by Trustee to County Clerk; additional
information to be filed with report of sale.
(a) This section applies to deeds of trust if the property
conveyed therein includes real property that is occupied, or is
intended to be occupied as a residence by the grantor at time the
deed of trust is executed and delivered.
(b) Beginning July 1, 2009, when a report of the sale of the
property sold pursuant to a deed of trust is placed of record by
the trustee with the clerk of the county commission as provided in
section eight of this article, the trustee shall include the
following information on a disclosure form submitted with and made
a part of the report of sale:
(1) Name or names of the grantor of the deed of trust;
(2) Street address, city, state and zip code of real property
subject to the trust;
(3) Original trustee name;
(4) Substitute trustee name, if any, and date of appointment;
(5) The address, telephone number and electronic contact
information for the trustee making the sale;
(6) Date, time and place advertised for sale;
(7) Name of original secured lender;
(8) Current holder of deed of trust, and the current holder's
address;
(9) Original principal amount of the secured debt;
(10) Original interest rate;
(11) Whether the loan was adjustable and if so current rate;
(12) Total secured indebtedness at time of sale;
(13) The number of months the loan is delinquent at time of
notice of sale; and
(14) The date, time and place of sale;
(15) The name of the purchaser;
(16) The appraised value at the time of loan, if available;
(17) The net amount applied to the secured loan;
(18) The date the report of sale is recorded; and
(19) Any other information the banking commissioner West
Virginia Housing Development Fund may require.
(c) The Commissioner of Banking West Virginia Housing
Development Fund established in article eighteen, chapter thirty-
one of this code shall publish a form setting out the information
required by subsection (b) and instructions as to how this
information is to be filed with the report of sale.
(d) Notwithstanding any other provision of this code, nothing
in this section shall be deemed to create a responsibility by the
Commissioner of Banking West Virginia Housing Development Fund to
provide any report other than a compilation into an electronic data
base of the data that is required to be submitted pursuant to
subsection (b) of this section and the compiled raw data submitted
from each county clerk. or The West Virginia Housing Development
Fund is not required to verify and is not responsible for the
veracity of the accuracy of the data submitted.
(e) Failure to comply with this the provisions of this section
shall not affect the validity of the sale or the title to the property sold by the trustee.
CHAPTER 44. ADMINISTRATION OF ESTATES AND TRUSTS.
ARTICLE 13. POWERS AND DUTIES OF CLERKS OF COUNTY COURTS IN
COUNTIES HAVING SEPARATE TRIBUNAL FOR POLICE AND
FISCAL PURPOSES.
§44-13-4a. Reporting of foreclosure statistics.
(a) Beginning with the third quarter of 2009 2010, the clerk
of each county commission shall file quarterly with the Division of
Banking West Virginia Housing Development Fund established in
article eighteen, chapter thirty-one of this code the disclosure
forms of deed of trust foreclosure sales that were recorded in that
county for the preceding calendar year quarter. Up until that
time, through the second quarter of 2010, such quarterly reports
shall be filed with the Division of Banking. The reports shall be
filed within fifteen days of the last day of September, December,
March and June of each year. The reports shall be filed in
electronic format, where possible.
(b) Notwithstanding any other provision of this code, nothing
in this section shall be deemed to create a responsibility on the
Division of Banking to provide any report other than the complied
raw data submitted from each county clerk or to verify the accuracy
of the data submitted.
CHAPTER 59. FEES, ALLOWANCES AND COSTS; NEWSPAPERS; LEGAL ADVERTISEMENTS.
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-10. Fees to be charged by clerk of county commission.
For the purpose of this section, the word "page" is defined as
being a paper or electronic writing of not more than legal size, 8
1/2" x 14".
The clerk of the county commission shall charge and collect
the following fees:
(a) When a writing is admitted to record, for receiving proof
of acknowledgment thereof, entering an order in connection
therewith, endorsing clerk's certificate of recordation thereon and
indexing in a proper index, where the writing is a:
(1) Deed of conveyance (with or without a plat), trust deed,
fixture filing or security agreement concerning real estate lease,
$15.
(2) Trustee's report of sale for any property for which
additional information and filing requirements are required by
section eight-a, article one, chapter thirty-eight of this code,
$40, provided that: Provided, That $20 of each recording fee
received pursuant to this subdivision shall be deposited into the
county's General Revenue Fund and $20 of each of the aforesaid
recording fees shall be paid quarterly by the county clerk of the
county commission to the state Treasurer quarterly and deposited in the Banking Commissioner's fund to cover its expenses in
aggregating, collecting and publishing the data West Virginia
Housing Development Fund established in article eighteen, chapter
thirty-one of this code.
(3) Financing, continuation, termination or other statement or
writing permitted to be filed under chapter forty-six of this code,
$10.
(4) Plat or map (with no deed of conveyance), $10.
(5) Service discharge record, no charge.
(6) Any document or writing other than those referenced in
subdivisions (1), (2), (3), (4) and (5) of this subsection, $10.
(7) If any document or writing contains more than five pages,
for each additional page, $1.
For any of the documents admitted to record pursuant to this
subsection, if the clerk of the county commission has the
technology available to receive these documents in electronic form
or other media, the clerk shall set a reasonable fee to record
these writings not to exceed the cost for filing paper documents.
(8) Of the fees collected pursuant to subdivision (1),
subsection (a) of this section, $10 shall be deposited in the
county general fund in accordance with section twenty-eight of this
article and $1 shall be deposited in the county general fund and
dedicated to the operation of the county clerk's office. Four dollars of the fees collected pursuant to subdivision (1),
subsection (a) of this section and $5 of the fees collected
pursuant to subdivision (6), subsection (a) of this section shall
be paid by the county clerk into the state Treasury and deposited
in equal amounts for deposit into the Farmland Protection Fund
created in article twelve, chapter eight-a of this code for the
benefit of the West Virginia Agricultural Land Protection Authority
and into the Outdoor Heritage Conservation Fund created in article
two-g, chapter five-b of this code: Provided, That the funds
deposited in the state Treasury pursuant to this subdivision may
only be used for costs, excluding personnel costs, associated with
purpose of land conservation, as defined in subsection (f), section
seven, article two-g, chapter five-b of this code.
(b) For administering any oath other than oaths by officers
and employees of the state, political subdivisions of the state or
a public or quasi-public entity of the state or a political
subdivision of the state, taken in his or her official capacity,
$5.
(c) For issuance of marriage license and other duties
pertaining to the marriage license (including preparation of the
application, administrating the oath, registering and recording the
license, mailing acknowledgment of minister's return to one of the
licensees and notification to a licensee after sixty days of the nonreceipt of the minister's return), $35.
(1) One dollar of the marriage license fee received pursuant
to this subsection shall be paid by the county clerk into the state
Treasury as a state registration fee in the same manner that
license taxes are paid into the Treasury under article twelve,
chapter eleven of this code;
(2) Fifteen dollars of the marriage license fee received
pursuant to this subsection shall be paid by the county clerk into
the state Treasury for the Family Protection Shelter Support Act in
the same manner that license taxes are paid into the Treasury under
article twelve, chapter eleven of this code;
(3) Ten dollars of the marriage license fee received pursuant
to this subsection shall be deposited in the Courthouse Facilities
Improvement Fund created by section six, article twenty-six,
chapter twenty-nine of this code.
(d) (1) For a copy of any writing or document, if it is not
otherwise provided for, $1.50.
(2) If the copy of the writing or document contains more than
two pages, for each additional page, $1.
(3) For annexing the seal of the commission or clerk to any
paper, $1.
(4) For a certified copy of a birth certificate, death
certificate or marriage license, $5.
(e) For copies of any record in electronic form or a medium
other than paper, a reasonable fee set by the clerk of the county
commission not to exceed the costs associated with document search
and duplication.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 376--A Bill to amend and
reenact §31A-2-4c of the Code of West Virginia, 1931, as amended;
to amend and reenact §38-1-8a of said code; to amend and reenact
§44-13-4a of said code;
and to amend and reenact §59-1-10 of said
code, all relating to gathering, compilation and publication of
residential mortgage foreclosure data; expanding the powers and
duties of the West Virginia Housing Development Fund to include the
receipt, compilation and publication of mortgage foreclosure data
and reports contained in reports of sale filed by trustees with
county clerks; providing the West Virginia Housing Development Fund
with the authority to require additional information to be filed
with the reports of sale; transferring the jurisdiction, powers and
duties relative to the receiving, compiling into an electronic data
base and making the data available from the Commissioner of Banking
to the West Virginia Housing Development Fund; providing that
mortgage financial data and reports received by the Commissioner on Banking under the code provisions prior to the effective date be
supplied to the West Virginia Housing Development Fund; providing
that the portion of the fee paid for recording the trustee's report
of sale that is paid by county clerks to the Division of Banking be
paid to the West Virginia Housing Development Fund; and
establishing an effective date of July 1, 2010.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 376, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 S. B. No. 376) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect July 1, 2010.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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. No. 376) takes effect July 1, 2010.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 398,
Prohibiting landfill disposal of certain electronic devices.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §22-15A-2 and §22-15A-22 of the Code of West Virginia,
1931, as amended, be amended and reenacted to read as follows:
ARTICLE 15A. THE A. JAMES MANCHIN REHABILITATION ENVIRONMENTAL
ACTION PLAN.
§22-15A-2. Definitions.
Unless the context clearly indicates a different meaning or
defined elsewhere in this chapter, as used in this article:
(1) "Beneficial use" means the use or reuse of whole waste
tires or tire derived material which are reused in constructing
retaining walls, rebuilding highway shoulders and subbase, building
highway crash attenuation barriers and other civil engineering
applications, feed hopper or watering troughs for livestock, other
agricultural uses approved by the Department of Environmental
Protection, playground equipment, boat or truck dock construction,
house or building construction, go-cart, motorbike or race track
barriers, recapping, alternative daily cover or similar types of
beneficial applications: Provided, That waste tires may not be
reused as fencing, as erosion control structures, along stream
banks or river banks or reused in any manner where human health or
the environment, as determined by the Secretary of the Department
of Environmental Protection, is put at risk.
(2) "Brand" means the name, symbol, logo, trademark, or other
information that identifies a product rather than the components of
the product.
(3) "Collected for commercial purposes" means taking solid
waste for disposal from any person for remuneration regardless of
whether or not the person taking the solid waste is a common
carrier by motor vehicle governed by article two, chapter twenty-
four-a of this code.
(4) "Computer" means a desktop, personal computer or laptop
computer, including the computer monitor. Computer does not
include a personal digital assistant device, computer peripheral
devices such as a mouse or other similar pointing device, a printer
or a detachable keyboard.
(5) "Court" means any circuit, magistrate or municipal court.
(6) "Covered electronic device" means a television, computer
or video display device with a screen that is greater than four
inches measured diagonally. "Covered electronic device" does not
include a video display device that is part of a motor vehicle or
that is contained within a household appliance or commercial,
industrial or medical equipment.
(7) "Department" means the Department of Environmental
Protection.
(8) "Litter" means all waste material, including, but not limited to, any garbage, refuse, trash, disposable package,
container, can, bottle, paper, covered electronic devices, ashes,
cigarette or cigar butt, carcass of any dead animal or any part
thereof or any other offensive or unsightly matter, but not
including the wastes of primary processes of mining, logging,
sawmilling, farming or manufacturing.
(9) "Litter receptacle" means those containers suitable for
the depositing of litter at each respective public area designated
by the secretary's rules promulgated pursuant to subsection (e),
section three of this article.
(10) "Manufacturer" means a person that is the brand owner of
a covered electronic device or television sold or offered for sale
in this state by any means, including transactions conducted
through retail sales outlets, catalogs or the Internet.
(11) "Person" means a natural person, corporation, firm,
partnership, association or society and the plural as well as the
singular.
(12) "Public area" means an area outside of a municipality,
including public road and highway rights-of-way, parks and
recreation areas owned or controlled by this state or any county of
this state or an area held open for unrestricted access by the
general public.
(13) "Recyclable materials" means those materials that would otherwise become solid waste for disposal in a refuse disposal
system and which may be collected, separated or processed and
returned to the marketplace in the form of raw materials or
products.
(14) "Remediate or remediation" means to remove all litter,
solid waste and tires located above grade at a site: Provided,
That remediation does not include clean up of hazardous waste.
(15) "Television" means any telecommunication system device
that can receive moving pictures and sound broadcast over a
distance and includes a television tuner or a video display device
peripheral to a computer in which the display contains a television
tuner.
(16) "Secretary" means the Secretary of the Department of
Environmental Protection.
(17) "Video display device" means an electronic device with an
output surface that displays or is capable of displaying moving
graphical images or visual representations of image sequences or
pictures that show a number of quickly changing images on a screen
to create the illusion of motion. Video display device includes a
device that is an integral part of the display and cannot easily be
removed from the display by the consumer and that produces the
moving image on the screen. A "video display device" may use a
cathode-ray tube (CRT), liquid crystal display (LCD), gas plasma, digital light processing, other image-projection technology or
imaging display technologies.
(18) "Waste tire" means any continuous solid or pneumatic
rubber covering designed to encircle the wheel of a vehicle but
which has been discarded, abandoned or is no longer suitable for
its original, intended purpose nor suitable for recapping, or other
beneficial use because of wear, damage or defect. A tire is no
longer considered to be suitable for its original intended purpose
when it fails to meet the minimum requirements to pass a West
Virginia motor vehicle safety inspection. Used tires located at a
commercial recapping facility or tire dealer for the purpose of
being reused or recapped are not waste tires.
(19) "Waste tire monofill or monofill" means an approved solid
waste facility where no solid waste except waste tires are placed
for the purpose of long term storage for eventual retrieval for
marketing purposes.
(20) "Waste tire processing facility" means a solid waste
facility or manufacturer that accepts waste tires generated by
sources other than the owner or operator of the facility for
processing by such means as cryogenics, pyrolysis, pyroprossing
cutting, splitting, shredding, quartering, grinding or otherwise
breaking down waste tires for the purposes of disposal, reuse,
recycling and/or marketing.
(21) "Waters of the state" means generally, without
limitation, natural or artificial lakes, rivers, streams, creeks,
branches, brooks, ponds, impounding reservoirs, springs, wells,
watercourses and wetlands.
(22) "Yard waste" means grass clippings, weeds, leaves, brush,
garden waste, shrub or tree prunings and other living or dead plant
tissues, except that such materials, which due to inadvertent
contamination or mixture with other substances which render the
waste unsuitable for composting, are not yard waste: Provided,
That the same or similar waste generated by commercial agricultural
enterprises is excluded.
§22-15A-22. Prohibition on the disposal of certain items; plans
for the proper handling of said items required.
(a) Effective June 1, one thousand nine hundred ninety-four,
it shall be It is unlawful to dispose of lead-acid batteries in a
solid waste landfill in West Virginia. Effective June 1, one
thousand nine hundred ninety-six, it shall be
(b) It is unlawful to dispose of tires in a solid waste
landfill in West Virginia except for waste tires collected as part
of the department's waste tire remediation projects or other
collection efforts in accordance with the provisions of this
article or the pollution prevention program and open dump program
or other state-authorized remediation or clean up programs: Provided, That waste tires may be disposed of in solid waste
landfills only when the state agency authorizing the remediation or
clean up program has determined there is no reasonable alternative
available.
(b) (c) Effective January 1, one thousand nine hundred ninety-
seven, it shall be It is unlawful to dispose of yard waste
including grass clippings and leaves, in a solid waste facility in
West Virginia: Provided, That such the prohibitions do not apply
to a facility designed specifically to compost such yard waste or
otherwise recycle or reuse such items yard waste: Provided,
however, That reasonable and necessary exceptions to such the
prohibitions may be included as part of the rules promulgated
pursuant to subsection (d) of this section (f).
(d) Effective January 1, 2011, covered electronic devices, as
defined in section two of this article, may not be disposed of in
a solid waste landfill in West Virginia.
(c) (e) No later than May 1, one thousand nine hundred ninety-
five, The Solid Waste Management Board shall design a comprehensive
program to provide for the proper handling of yard waste, and lead-
acid batteries, tires and covered electronic devices. No later
than May 1, one thousand nine hundred ninety-four, A comprehensive
plan shall be designed in the same manner to provide for the proper
handling of tires.
(d) (f) No later than August 1, one thousand nine hundred
ninety-five, The department secretary shall promulgate rules, in
accordance with chapter twenty-nine-a of this code, as amended, to
implement and enforce the program for yard waste, and lead-acid
batteries, tires and covered electronic devices designed pursuant
to subsection (c) of this section. No later than August 1, two
thousand, The department shall promulgate rules, in accordance with
chapter twenty-nine-a of said code, as amended, to implement and
enforce the program for tires designed pursuant to subsection (c)
of this section (d).
(e) For the purposes of this section, "yard waste" means grass
clippings, weeds, leaves, brush, garden waste, shrub or tree
prunings and other living or dead plant tissues, except that such
materials, which due to inadvertent contamination or mixture with
other substances which render the waste unsuitable for composting,
shall not be considered to be yard waste: Provided, That the same
or similar waste generated by commercial agricultural enterprises
is excluded.
(f) (g) In promulgating the rules required by subsections (c)
and (d) of this section, yard waste, as described in subsection (e)
of this section, The department secretary's rule shall provide for
the disposal of yard waste in a manner consistent with one or any
combination of the following:
(1) Disposal in a publicly or privately operated commercial or
noncommercial composting facility;
(2) Disposal by composting on the property from which domestic
yard waste is generated or on adjoining property or neighborhood
property if consent is obtained from the owner of the adjoining or
neighborhood property;
(3) Disposal by open burning, where such activity is not
prohibited; by this code, rules promulgated hereunder or municipal
or county codes or ordinances; or
(4) Disposal in a publicly or privately operated landfill,
only where none of the foregoing options are available. Such The
manner of disposal will shall only involve only small quantities of
domestic yard waste generated only from the property of the
participating resident or tenant.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 398--A Bill
to amend and reenact §22-15A-2 and §22-15A-22 of the Code of West
Virginia, 1931, as amended, relating to prohibiting disposal of
certain items in landfills; prohibiting the disposal of covered
electronic devices; requiring the Solid Waste Management Board to
create a program for the proper handling of certain items; and requiring the secretary to promulgate a rule to implement and
enforce the disposal program.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 398, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 Com. Sub. for S. B. No. 398) passed with its House of
Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body to the title of the bill, passage as amended, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 446, Clarifying deceased
public employees' survivors participate in comprehensive group
health insurance plans only.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the title of the
bill was reported by the Clerk:
Eng. Com. Sub. for Senate Bill No. 446--A Bill to amend and
reenact §5-16-13 of the Code of West Virginia, 1931, as amended,
relating to clarifying that the surviving spouse and dependents of
a deceased public employee participating in a plan of the Public
Employees Insurance Agency may only participate in comprehensive
group health insurance coverage provided by the Public Employees
Insurance Agency.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the title of the bill.
Engrossed Committee Substitute for Senate Bill No. 446, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 S. B. No. 446) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Chafin, and by unanimous consent,
the Senate proceeded to the sixth order of business, which agenda
includes the making of main motions.
On motion of Senator Chafin, the Senate requested the return
from the House of Delegates of
Eng. Senate Bill No. 237, Authorizing issuance of revenue
bonds for public projects.
Passed by the Senate in earlier proceedings today,
The bill still being in the possession of the Senate,
On motion of Senator Chafin, the Senate reconsidered the vote
as to the effective date and passage of the bill.
The vote thereon having been reconsidered,
The question again being "Shall
Engrossed Senate Bill No. 237,
as amended by the House of Delegates,
pass?"
On the passage of the bill,
the yeas were: Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Helmick, Jenkins, Kessler, Laird, McCabe,
Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr.
President)--31.
The nays were: Barnes and Hall--2.
Absent: Caruth--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 237) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question,
the yeas were: Boley, Bowman, Browning,
Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Guills, Helmick, Jenkins, Kessler, Laird, McCabe, Minard,
Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt,
Unger, Wells, White, Williams, Yost and Tomblin (Mr.
President)--31.
The nays were: Barnes and Hall--2.
Absent: Caruth--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S.
B. No. 237) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Com. Sub. for Senate Bill No. 457, Repealing certain
outdated code sections and eliminating penalties for displaying
certain flags.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On
page two, section seven, line four, by striking out the
words "one hundred" and inserting in lieu thereof "$100",
And,
On page three, section seven, line six, by striking out the
word "imprisoned" and inserting in lieu thereof the word
"confined".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 457, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 S. B. No. 457) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Chafin, and by unanimous consent,
the Senate again proceeded to the sixth order of business.
Senators Deem, Boley and Foster offered the following
resolution:
Senate Resolution No. 55--Congratulating the Walton Middle
School Boys' Varsity basketball team on an outstanding season.
Whereas, The Walton Middle School Boys' Varsity basketball
team had an extraordinary season, finishing with a 15-1 record; and
Whereas, The Walton Middle School Boys' Varsity basketball
team won the Western Division for the 2nd year in a row and was the
1st runner-up in the Central West Virginia Athletic Conference
Final Four Basketball Tournament held in Nicholas County; and
Whereas, The Walton Middle School Boys' Varsity basketball
team is coached by Tim Ashley and his assistant Joe Rector, and
consists of players Jacob Neal, Scotti Meadows, Zach McKown, Tyler
Harper, Alex Ashley, Eric Lowe, Hunter Miller, Jason Groves, Jordan
Simmons, Alex Pavalok, Cory Crihfield and Patrick McBrayer; and
Whereas, The Walton Middle School Boys' Varsity basketball
team
displayed their strong will and determination for an entire
season; and
Whereas, The Walton Middle School Boys' Varsity basketball
team
will be remembered as one of the best teams ever assembled in
school history; therefore, be it
Resolved by the Senate:
That the Senate hereby congratulates the Walton Middle School
Boys' Varsity basketball team on an outstanding season; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to the coaches and each member of the
Walton Middle School Boys' Varsity basketball team.
At the request of Senator Deem, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
On motion of Senator Chafin, the Senate recessed for one
minute.
Upon expiration of the recess, the Senate reconvened and
resumed business under the sixth order.
Senators Wells, Palumbo and Foster offered the following
resolution:
Senate Resolution No. 56--
Congratulating the Piedmont
Elementary Chess team for winning the 42nd Annual West Virginia
Scholastic Chess Championship.
Whereas,
The
West Virginia Scholastic Chess
Association's
philosophy is aimed at helping students believe in themselves and
in their ability to succeed in school
; and
Whereas,
The
West Virginia Scholastic Chess
Association uses
the game of chess as an educational tool to motivate children to
learn, to teach children to think and to show children they can
succeed in intellectual pursuits
; and
Whereas, The West Virginia Scholastic Chess
Association
believes that in learning chess, children develop self-confidence,
a willingness to work hard and the higher-order thinking skills
that lead to academic achievement
; and
Whereas, The Piedmont Elementary Chess team consists of
Vardhan Kasireddy
,
Clare Higgins
,
Malik Adams
,
Priscilla Richmond
,
Alex McMillian
,
Jeremiah Weintraub
,
Phillip Sears
,
Jakeen McNeil
,
Kevin Roy
, and
Vaneshia Smit
h
; and
Whereas, The Piedmont Elementary Chess team won the K-6 42nd
Annual West Virginia
Scholastic Chess Championship; therefore, be
it
Resolved by the Senate:
That the Senate hereby congratulates the Piedmont Elementary
Chess team for winning the 42nd Annual West Virginia Scholastic
Chess Championship
; and, be it
Further Resolved, That the Senate commends each member of the
Piedmont Elementary Chess
team
for its commitment and dedication to
the game of chess; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to each member of the Piedmont Elementary
Chess
team.
At the request of Senator Wells, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
On motion of Senator Chafin, the Senate recessed for one
minute.
Upon expiration of the recess, the Senate reconvened and resumed business under the sixth order.
Senators McCabe, Tomblin (Mr. President), Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams and Yost
offered the following resolution:
Senate Resolution No. 57--Memorializing the life of Gene
Carte, former Fayette County Commissioner, former employee of the
West Virginia Senate and dedicated public servant.
Whereas, Gene Carte was born on January 28, 1946, in
Charleston, West Virginia, the only child of the late Dorothy
Virginia and Gene Carte Sr.; and
Whereas, Gene Carte was raised in Smithers, West Virginia, and
graduated from Montgomery High School in 1963, West Virginia
University in 1967, and the West Virginia University College of Law
in 1970. Gene was a member of Sigma Chi Fraternity, Phi Delta Phi
Legal Fraternity, and was president of his law class; and
Whereas, Gene Carte served in the United States Navy and the
United States Army, attaining the rank of Captain in the Army Judge
Advocate General's Corps. In January 1974, Gene received the Joint
Service Commendation Medal from the Department of Defense for
meritorious service; and
Whereas, In addition to practicing law for 20 years in
Fayetteville, West Virginia, Gene Carte served as a Fayette County
Commissioner from 1986 to 2000, and prior to that as an assistant
Fayette County prosecutor; and
Whereas, Gene Carte served as counsel to the West Virginia
Senate Committee on Economic Development from 2000 to 2010; and
Whereas, Gene Carte was an avid reader, a tennis player, a
philosopher and poet, a trout fisherman, and an adventurer and
traveler; and
Whereas, Sadly, Gene Carte passed away on February 27, 2010,
leaving behind his beloved wife Ann, his sons Clint and David, and
a host of family and friends, all of whom will miss him dearly;
therefore, be it
Resolved by the Senate:
That the Senate hereby memorializes the life of Gene Carte,
former Fayette County Commissioner, former employee of the West
Virginia Senate and dedicated public servant; and, be it
Further Resolved, That the Senate extends its sincere sympathy
at the passing of Gene Carte; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to family of Gene Carte.
At the request of Senator McCabe, 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 Chafin, and by unanimous
consent, the remarks by Senators McCabe, Browning and Oliverio
regarding the adoption of Senate Resolution No. 57 were ordered
printed in the Appendix to the Journal.
On motion of Senator Chafin, the Senate recessed for one
minute.
Upon expiration of the recess, the Senate reconvened and,
without objection, returned to the third order of business.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the appointment of a committee of
conference of five from each house on the disagreeing votes of the
two houses, as to
Eng. House Bill No. 4593, Relating to high school graduation
improvement.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates M. Poling, Paxton, Stowers, Perry and Duke.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect July 1, 2010, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 471, Increasing circuit
clerks' copying charge.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page three, section eleven, line thirty-four, by striking
out "$1" and inserting in lieu thereof "seventy-five cents";
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 471--A Bill to amend and
reenact §59-1-11 of the Code of West Virginia, 1931, as amended,
relating to increasing the amount circuit clerks may charge for
copies.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 471, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Deem, Edgell, D. Facemire, K. Facemyer, Foster,
Green, Guills, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio,
Palumbo, Plymale, Prezioso, Snyder, Stollings, Wells, White, Williams, Yost and Tomblin (Mr. President)--27.
The nays were: Chafin, Fanning, Hall, Helmick, Sypolt and
Unger--6.
Absent: Caruth--1.
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 S. B. No. 471) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect July 1, 2010.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Deem, Edgell, D. Facemire, K. Facemyer, Foster, Green,
Guills, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo,
Plymale, Prezioso, Snyder, Stollings, Wells, White, Williams, Yost
and Tomblin (Mr. President)--27.
The nays were: Chafin, Fanning, Hall, Helmick, Sypolt and
Unger--6.
Absent: Caruth--1.
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. No. 471) takes effect July 1, 2010.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 490, Relating to domestic
violence.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
PART 2. DEFINITIONS.
§48-27-202. Domestic violence defined.
"Domestic violence" or "abuse" means the occurrence of one or
more of the following acts between family or household members, as
that term is defined in section two hundred four
of this article:
(1) Attempting to cause or intentionally, knowingly or
recklessly causing physical harm to another with or without
dangerous or deadly weapons;
(2) Placing another in reasonable apprehension of physical
harm;
(3) Creating fear of physical harm by harassment,
stalking, psychological abuse or threatening acts;
(4) Committing either sexual assault or sexual abuse as those
terms are defined in articles eight-b and eight-d, chapter sixty-
one of this code; and
(5) Holding, confining, detaining or abducting another person
against that person's will.
§48-27-503. Permissive provisions in protective order.
The terms of a protective order may include:
(1) Granting possession to the petitioner of the residence or
household jointly resided in at the time the abuse occurred;
(2) Ordering the respondent to refrain from entering or being
present in the immediate environs of the residence of the
petitioner;
(3) Awarding temporary custody of or establishing temporary
visitation rights with regard to minor children named in the order;
(4) Establishing terms of temporary visitation with regard to
the minor children named in the order including, but not limited
to, requiring third party supervision of visitations if necessary
to protect the petitioner and/or the minor children;
(5) Ordering the noncustodial parent to pay to the caretaker
parent a sum for temporary support and maintenance of the
petitioner and children, if any;
(6) Ordering the respondent to pay to the petitioner a sum for temporary support and maintenance of the petitioner, where
appropriate;
(7) Ordering the respondent to refrain from entering the
school, business or place of employment of the petitioner or
household or family members for the purpose of violating the
protective order;
(8) Ordering the respondent to participate in an intervention
program for perpetrators;
(9) Ordering the respondent to refrain from contacting,
telephoning, communicating, harassing or verbally abusing the
petitioner;
(10) Providing for either party to obtain personal property or
other items from a location, including granting temporary
possession of motor vehicles owned by either or both of the
parties, and providing for the safety of the parties while this
occurs, including ordering a law-enforcement officer to accompany
one or both of the parties;
(11) Ordering the respondent to reimburse the petitioner or
other person for any expenses incurred as a result of the domestic
violence, including, but not limited to, medical expenses,
transportation and shelter;
and
(12) Ordering the petitioner and respondent to refrain from
transferring, conveying, alienating, encumbering or otherwise dealing with property which could otherwise be subject to the
jurisdiction of the court or another court in an action for divorce
or support, partition or in any other action affecting their
interests in property;
(13) Awarding the petitioner the exclusive care, possession,
or control of any animal owned, possessed, leased, kept or held by
either the petitioner or the respondent or a minor child residing
in the residence or household of either the petitioner or the
respondent and prohibiting the respondent from taking, concealing,
molesting, physically injuring, killing or otherwise disposing of
the animal and limiting or precluding contact by the respondent
with the animal; and
(14) Ordering any other relief the court deems necessary to
protect the physical safety of petitioner or those persons for whom
a petition may be filed as provided in subdivision (2), section
three hundred five of this article.
§48-27-505. Time period a protective order is in effect;
extension of order; notice of order or extension.
(a) Except as otherwise provided in subsection (d), section
four hundred one of this article, a protective order, entered by
the family court pursuant to this article, is effective for either
ninety days or one hundred eighty days, in the discretion of the
court.
If the court enters an order for a period of ninety days, upon Upon receipt of a written request
for renewal from the
petitioner prior to the expiration of the
ninety-day period
original order, the family court shall extend its order for an
additional ninety-day period.
(b) Notwithstanding the provisions of subsection (a), the
court may enter a protective order for a period of one year if the
court finds by a preponderance of the evidence, after a hearing
that any of the following aggravating factors are present:
(1) That there has been a material violation of a previously
entered protective order;
(2) That two or more protective orders have been entered
against the respondent within the previous five years;
(3) That respondent has one or more prior convictions for
domestic battery or assault or a felony crime of violence where the
victim was a family or household member;
(4) That the respondent has committed a violation of the
provisions of section nine-a, article two, chapter sixty-one of
this code against a person protected by an existing order of
protection; or
(5) That the totality of the circumstances presented to the
court require a one year period in order to protect the physical
safety of the petitioner or those persons for whom a petition may
be filed as provided in subdivision (2), section three hundred five of this article.
(c) The court may extend a protective order entered pursuant
to subsection (b) of this section for whatever period the court
considers necessary to protect the physical safety of the
petitioner or those persons for whom a petition may be filed as
provided in subdivision (2), section three hundred five of this
article, if the court finds by a preponderance of evidence, after
a hearing of which respondent has been given notice, that:
(1) A material violation of the existing protective order has
occurred; or
(2) Respondent has committed a material violation of a
provision of a final order entered pursuant to subsection (c),
section six hundred eight, article five of this chapter has
occurred.
(b) (d) To be effective, a written request to
extend an order
from ninety days to one hundred eighty days renew a ninety or one
hundred eighty-day order must be submitted to the court prior to
the expiration of the original
ninety-day order period. A notice
of the extension shall be sent by the clerk of the court to the
respondent by first-class mail, addressed to the last known address
of the respondent as indicated by the court file. The extension of
time is effective upon mailing of the notice.
(c) (e) Certified copies of any order entered or extension notice made under the provisions of this section shall be served
upon the respondent by first class mail, addressed to the last
known address of the respondent as indicated by the court file, and
delivered to the petitioner and any law-enforcement agency having
jurisdiction to enforce the order, including the city police, the
county sheriff's office or local office of the West Virginia State
Police within twenty-four hours of the entry of the order. The
protective order shall be in full force and effect in every county
of this state.
(d) (f) The family court may modify the terms of a protective
order upon motion of either party.
(e) (g) The clerk of the circuit court shall cause a copy of
any protective order entered by the family court pursuant to the
provisions of this article or pursuant to the provisions of chapter
forty-eight of this code to be forwarded to the magistrate or
magistrate court clerk and the magistrate or magistrate court clerk
shall forward a copy of the protective order to the appropriate
state and federal agencies for registration of domestic violence
offenders as required by state and federal law.
PART 9. SANCTIONS.
§48-27-901. Civil contempt; violation of protective orders; order
to show cause.
(a) Any party to a protective order or a legal guardian or guardian ad litem may file a petition for civil contempt alleging
a violation of an order issued pursuant to the provisions of this
article. The petition shall be filed in the family court, if a
family court entered an order or in the circuit court, if a circuit
court entered the order, in the county in which the violation
occurred or the county in which the order was issued.
(b) When a petition for an order to show cause is filed, a
hearing on the petition shall be held within five days from the
filing of the petition. Any order to show cause which is issued
shall be served upon the alleged violator.
(c) Upon a finding of contempt, the court may order the
violator to comply with specific provisions of the protective order
and post a bond as surety for faithful compliance with
such the
order.
The bond may not be a personal recognizance bond and shall
be in an amount that does not exceed the ability of the violator to
post. The bond may not be waived by a fee waiver pursuant to the
provisions of section one, article two, chapter fifty-nine of this
code.
§48-27-903. Misdemeanor offenses for violation of protective
order, repeat offenses, penalties.
(a) Any person who knowingly and willfully violates:
(1) A provision of an emergency or final protective order
entered pursuant to:
(A) Subsection (a) or (b) of section five hundred two of this
article;
(B) If the court has ordered such relief; subsection (2), (7),
or (9),
or (14) of section five hundred three of this article;
(C) Subsection (b) or (c) of section five hundred nine,
article five of this chapter; or (D) subsection (b) or (c) of
section six hundred eight, article five of this chapter; or
(2) A condition of bail, probation or parole which has the
express intent or effect of protecting the personal safety of a
particular person or persons; is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in jail for a period of not
less than one day nor more than one year, which jail term shall
include actual confinement of not less than twenty-four hours
, and
,
shall be fined not less than $250 nor more than $2,000.
(b) Any person who is convicted of a second
or subsequent
offense under subsection (a) of this section is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for not less than three months nor more than one year, which jail
term shall include actual confinement of not less than
twenty-four
hours thirty days, and fined not less than $500 nor more than
$3,000, or both.
(c) A respondent who is convicted of a third or subsequent
offense under subsection (a) which the violation occurs within ten years of a prior conviction of this offense is guilty of a
misdemeanor, and upon conviction thereof, shall be confined in jail
not less than six months nor more than one year, which jail term
shall include actual confinement of not less than six months, and
fined not less than $500 nor more than $4,000.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 490--A Bill to amend and
reenact §48-27-202, §48-27-503, §48-27-505, §48-27-901 and §48-27-
903 of the Code of West Virginia, 1931, as amended, all relating to
prevention and treatment of domestic violence; authorizing family
court judges to issue protective orders that contain certain
provisions related to animals; providing that family court judges
may make protective orders with a one year duration upon a finding
of aggravating circumstances; authorizing family court judges to
extend protective orders with a one year duration; establishing
criteria for granting lengthier periods of protection; requiring
secured bonds to prevent future domestic violence; amending current
penalties for violations of protective orders; and creating a new
misdemeanor offense of third and subsequent offenses for violations
of a protective order.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 490, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, Fanning,
Foster, Green, Guills, Helmick, Jenkins, Kessler, Laird, McCabe,
Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr.
President)--31.
The nays were: K. Facemyer and Hall--2.
Absent: Caruth--1.
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 S. B. No. 490) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Rev. Com. Sub. for Senate Bill No. 498, Updating language
relating to adult social services.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On
page five, section one, lines sixty-five through seventy-
three, by striking out subdivision (13) in its entirety and
inserting in lieu thereof a new subdivision (13), to read as
follows:
(13) "Caregiver" means a person or entity who cares for or
shares in the responsibility for the care of an incapacitated adult
on a full-time or temporary basis, regardless of whether such
person or entity has been designated as a guardian or custodian of
the incapacitated adult by any contract, agreement or legal
procedures. Caregiver includes health care providers, family
members, and any person who otherwise voluntarily accepts a
supervisory role towards an incapacitated adult.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Revised Committee Substitute for Senate Bill No.
498, as amended by the House of Delegates, was then put upon its
passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Rev. Com. Sub. for S. B. No. 498) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Senate Bill No. 499, Changing names of certain community
and technical colleges.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page three, section seven-a, after line eighteen, by adding the following:
§18B-3C-8. Legislative findings and intent; statewide network of
independently accredited community and technical colleges;
operations and administration.
(a) Legislative findings. --
(1) The Legislature has enacted legislation, beginning with
Enrolled Senate Bill No. 653, passed during the two thousand
regular session, and continuing with Enrolled Senate Bill No. 703,
passed during the two thousand one regular session, Enrolled House
Bill No. 2224, passed during the two thousand three regular
session, and Enrolled Senate Bill No. 448, passed during the two
thousand four regular session, the purpose of which is to
strengthen the state's community and technical colleges, clarify
their core mission and establish essential conditions to be met,
and ensure the most effective delivery of services to business,
industry, and West Virginia citizens in every region of the state.
(2) The primary goal of the Legislature is to create a
statewide network of independently accredited community and
technical colleges that focuses on technical education, work force
training, and lifelong learning for the Twenty-first Century,
consistent with the goals, objectives, priorities and essential
conditions established in articles one, one-d and three-c of this
chapter.
(3) A necessary precedent to accomplishing the legislative
goal is to change the way that leaders at all levels of education,
including institutional governing boards, view community and
technical colleges. Specifically, that the mission of community
and technical colleges is different from that of traditional
four-year colleges in what they seek to accomplish and how they can
achieve it effectively and that the state can not compete
successfully in today's information-driven, technology-based
economy if community and technical colleges continue to be viewed
as add-ons or afterthoughts attached to the baccalaureate
institutions.
(b) Legislative intent. --
(1) Therefore, it is the intent of the Legislature that the
statewide network of independently-accredited community and
technical colleges as a whole and each independent community and
technical college individually provide the following types of
services as part of the core institutional mission:
(A) Career and technical education certificate, associate of
applied science, and selected associate of science degree programs
for students seeking immediate employment, individual
entrepreneurship skills, occupational development, skill
enhancement and career mobility;
(B) Transfer education associate of arts and associate of science degree programs for students whose educational goal is to
transfer into a baccalaureate degree program with particular
emphasis on reaching beyond traditional college-age students to
unserved or underserved adult populations;
(C) Developmental/remedial education courses, tutorials,
skills development labs, and other services for students who need
to improve their skills in mathematics, English, reading, study
skills, computers and other basic skill areas;
(D) Work force development education contracted with business
and industry to train or retrain employees;
(E) Continuing development assistance and education credit and
noncredit courses for professional and self-development,
certification and licensure, and literacy training; and
(F) Community service workshops, lectures, seminars, clinics,
concerts, theatrical performances and other noncredit activities to
meet the cultural, civic and personal interests and needs of the
community the institution serves.
(2) It is further the intent of the Legislature that each
community and technical college focus special attention on
programmatic delivery of their core mission services to unserved
and underserved populations to achieve established state
objectives. These include the following as highest priorities:
(A) Increasing the number of adults age twenty-five and above who participate in post-secondary education;
(B) Developing technical programs that meet the documented
occupational needs of West Virginia's employers;
(C) Providing work force development programs by implementing
the Adult Career Pathways Model, which provides opportunities for
the following:
(i) Adults to earn certifications through the completion of
skill-sets;
(ii) Ordered progression from skill-sets and certifications to
one-year certificate programs and progression from one-year
certificate degrees to Associate of Applied Science Degree
programs, and
(iii) Students to exit at any stage of completion in order to
enter employment with the option of continuing the pathway
progression at a later time and/or on a part-time basis.
(D) Offering programs in various time frames other than the
traditional semester delivery model and at different locations,
including work sites, convenient to working adults;
(E) Providing technical programs in modules or "chunks",
defined in competencies required for employment, and tied to
certification and licensing requirements.
(F) Entering into collaborative programs that recognize
high-quality training programs provided through labor unions, registered apprenticeships, and industry-sponsored training
programs with the goal of enabling more adults to earn a college
credential;
(G) Developing innovative approaches to improve the basic and
functional literacy rates of West Virginians in all regions of the
state;
(H) Developing "bridge programs" for disadvantaged youth and
adults to enable them to acquire the skills necessary to be
successful in education and training programs that lead to
high-skills, high-wage jobs; and
(I) Providing access to post-secondary education through the
delivery of developmental education for those individuals
academically under-prepared for college-level work.
(c) In fulfillment of the purposes and intent defined in
subsections (a) and (b) of this section, there is continued a
statewide network of independently accredited community and
technical colleges serving every region of the state. Each
free-standing and independent community and technical college is
strongly encouraged to serve as a higher education center for its
region by brokering with other colleges, universities and
providers, in-state and out-of-state, both public and private, to
afford the most coordinated access to needed programs and services
by students, employers and other clients, to achieve the goals, objectives, and essential conditions established in articles one,
one-d, and three-c of this chapter, and to ensure the most
efficient use of scarce resources.
(d) Statewide network of independently accredited community
and technical colleges. --
(1) By the first day of July, two thousand nine July 1, 2009,
each governing board of a community and technical college which
became independent on the first day of July, two thousand eight
July 1, 2008, shall make a determination by majority vote of the
board whether to keep the current name for its respective
institution or to select a new name. If a governing board chooses
to select a new name, any reference in this code to that
institution by a name in use prior to the first day of July, two
thousand nine July 1, 2009, means the institution under the name
designated by its board of governors.
(2) The statewide network of independently accredited
community and technical colleges is comprised of the following
independent state institutions of higher education under the
jurisdiction of the council:
(A) Blue Ridge Community and Technical College. --
Blue Ridge Community and Technical College is an independently
accredited state institution of higher education. The president
and the governing board of the community and technical college are responsible for maintaining independent accreditation and adhering
to the essential conditions pursuant to section three of this
article.
(B) The Bridgemont Community and Technical College at West
Virginia University Institute of Technology. --
(i) The Bridgemont Community and Technical College at West
Virginia University Institute of Technology is an independently
accredited state institution of higher education which may maintain
an association with West Virginia University Institute of
Technology, a division of West Virginia University, or directly
with West Virginia University, subject to the provisions of section
twelve of this article. The president and the governing board of
the community and technical college are responsible for maintaining
independent accreditation and adhering to the essential conditions
pursuant to section three of this article.
(ii) West Virginia University Institute of Technology may
continue associate degree programs in areas of particular
institutional strength which are closely articulated to its
baccalaureate programs and missions or which are of a high-cost
nature and can best be provided in direct coordination with a
baccalaureate institution. Any such program shall be delivered
under the authority of the council and through contract with the
community and technical college. The terms of the contract shall be negotiated between the governing boards of the community and
technical college and West Virginia University Institute of
Technology or directly with West Virginia University, as
appropriate. The final contract may not be implemented until
approved by the council except that any contract between the
community and technical college and West Virginia University
Institute of Technology or West Virginia University related to
program delivery under the terms of this section in effect on the
first day of July, two thousand eight July 1, 2008, shall continue
in effect until the first day of July, two thousand nine July 1,
2009, unless amended or revoked before that date by mutual
agreement of the contract parties with approval by the council.
Such a program shall be evaluated according to the benchmarks and
indicators for community and technical college education developed
by the council. If the council determines that the program is
making insufficient progress toward accomplishing the benchmarks,
the program shall thereafter be delivered by the community and
technical college.
(iii) Dual credit course delivery agreements. --
(I) Nothing in this article alters or abrogates any agreement
in place on the effective date of this section between West
Virginia University Institute of Technology and The Bridgemont
Community and Technical College at West Virginia University Institute of Technology relating to delivery of dual credit courses
as defined in section two, article one of this chapter;
(II) The community and technical college may deliver technical
courses that are part of a certificate or associate degree program
as early entrance or dual credit courses for high school students;
and
(III) Subject to an agreement between the baccalaureate
institution and the community and technical college, the latter may
deliver early entrance and dual credit courses as defined in
section two, article one of this chapter to students in high
schools which are not served by the baccalaureate institution.
(C) Eastern West Virginia Community and Technical College. --
Eastern West Virginia Community and Technical College is a
free-standing state institution of higher education seeking
independent accreditation. The president and the governing board
of Eastern Community and Technical College are responsible for
achieving independent accreditation and adhering to the essential
conditions pursuant to section three of this article.
(D) Marshall Mountwest Community and Technical College. --
(i) Marshall Mountwest Community and Technical College is an
independently accredited state institution of higher education
which may maintain an association with Marshall University subject
to the provisions of section twelve of this article. The president and the governing board of the community and technical college are
responsible for maintaining independent accreditation and adhering
to the essential conditions pursuant to section three of this
article.
(ii) Marshall University may continue associate degree
programs in areas of particular institutional strength which are
closely articulated to its baccalaureate programs and missions or
which are of a high-cost nature and can best be provided in direct
coordination with a baccalaureate institution. Any such program
shall be delivered under the authority of the council and through
contract with Marshall Mountwest Community and Technical College.
The terms of the contract shall be negotiated between the governing
boards of the community and technical college and Marshall
University. The final contract may not be implemented until
approved by the council except that any contract between the
community and technical college and Marshall University related to
program delivery under the terms of this section in effect on the
first day of July, two thousand eight July 1, 2008, shall continue
in effect until the first day of July, two thousand nine July 1,
2009, unless amended or revoked before that date by mutual
agreement of the contract parties with approval by the council.
Such a program shall be evaluated according to the benchmarks and
indicators for community and technical college education developed by the council. If the council determines that the program is
making insufficient progress toward accomplishing the benchmarks,
the program shall thereafter be delivered by Marshall Mountwest
Community and Technical College.
(iii) Dual credit course delivery agreements. --
(I) Nothing in this article alters or abrogates any agreement
in place on the effective date of this section between Marshall
University and Marshall Mountwest Community and Technical College
relating to delivery of dual credit courses as defined in section
two, article one of this chapter;
(II) The community and technical college may deliver technical
courses that are part of a certificate or associate degree program
as early entrance or dual credit courses for high school students;
and
(III) Subject to an agreement between the baccalaureate
institution and the community and technical college, the latter may
deliver early entrance and dual credit courses as defined in
section two, article one of this chapter to students in high
schools which are not served by the baccalaureate institution.
(E) New River Community and Technical College. --
(i) New River Community and Technical College is an
independently accredited state institution of higher education
which may maintain an association with Bluefield State College subject to the provisions of section twelve of this article. The
community and technical college is headquartered in or near Beckley
and incorporates the campuses of Greenbrier Community College
Center of New River Community and Technical College and Nicholas
Community College Center of New River Community and Technical
College.
(ii) The president and the governing board of New River
Community and Technical College are responsible for maintaining
independent accreditation and adhering to the essential conditions
pursuant to section three of this article.
(iii) Bluefield State College may continue associate degree
programs in areas of particular institutional strength which are
closely articulated to its baccalaureate programs and missions or
which are of a high-cost nature and can best be provided through
direct coordination with a baccalaureate institution. Any such
program shall be delivered under the authority of the council and
through contract with the community and technical college. The
terms of the contract shall be negotiated between the governing
boards of the community and technical college and Bluefield State
College. The final contract may not be implemented until approved
by the council except that any contract between the community and
technical college and Bluefield State College related to program
delivery under the terms of this section in effect on the first day of July, two thousand eight July 1, 2008, shall continue in effect
until the first day of July, two thousand nine July 1, 2009, unless
amended or revoked before that date by mutual agreement of the
contract parties with approval by the council. Such a program
shall be evaluated according to the benchmarks and indicators for
community and technical college education developed by the council.
If the council determines that the program is making insufficient
progress toward accomplishing the benchmarks, the program shall
thereafter be delivered by New River Community and Technical
College.
(iv) Bluefield State College may continue the associate of
science degree in nursing which is an existing nationally
accredited associate degree program in an area of particular
institutional strength and which is closely articulated to the
baccalaureate program and mission. The program is of a high-cost
nature and can best be provided through direct administration by a
baccalaureate institution. This program may not be transferred to
New River Community and Technical College or any other community
and technical college as long as the program maintains national
accreditation and is seamlessly coordinated into the baccalaureate
program at the institution.
(v) New River Community and Technical College participates in
the planning and development of a unified effort involving multiple providers to meet the documented education and work force
development needs in the region. Nothing in this subdivision
prohibits or limits any existing, or the continuation of any
existing, affiliation between Mountain State University, West
Virginia University Institute of Technology and West Virginia
University. The objective is to assure students and employers in
the area that there is coordination and efficient use of resources
among the separate programs and facilities, existing and planned,
in the Beckley area.
(F) Pierpont Community and Technical College. --
(i) Pierpont Community and Technical College is an independent
state institution of higher education seeking independent
accreditation. The president and the governing board of Pierpont
Community and Technical College, assisted by the president and
governing board of Fairmont State University, are responsible for
the community and technical college achieving independent
accreditation and adhering to the essential conditions pursuant to
sections three and thirteen of this article.
(ii) Fairmont State University may continue associate degree
programs in areas of particular institutional strength which are
closely articulated to their baccalaureate programs and missions or
which are of a high-cost nature and can best be provided in direct
coordination with a baccalaureate institution. Any such program shall be delivered under the authority of the council and through
contract with the community and technical college. The terms of
the contract shall be negotiated between the council and the
governing board of Fairmont State University. The final contract
may not be implemented until approved by the council except that
any contract between the community and technical college and
Fairmont State University related to program delivery under the
terms of this section in effect on the first day of July, two
thousand eight July 1, 2008, shall continue in effect until the
first day of July, two thousand nine July 1, 2009, unless amended
or revoked before that date by mutual agreement of the contract
parties with approval by the council. Such a program shall be
evaluated according to the benchmarks and indicators for community
and technical college education developed by the council. Such a
program shall be evaluated according to the benchmarks and
indicators for community and technical college education developed
by the council. If the council determines that the program is
making insufficient progress toward accomplishing the benchmarks,
the program shall thereafter be delivered by the community and
technical college.
(iii) Dual credit course delivery agreements. --
(I) Nothing in this article alters or abrogates any agreement
in place on the effective date of this section between Fairmont State University and Pierpont Community and Technical College
relating to delivery of dual credit courses as defined in section
two, article one of this chapter;
(II) The community and technical college may deliver technical
courses that are part of a certificate or associate degree program
as early entrance or dual credit courses for high school students;
and
(III) Subject to an agreement between the baccalaureate
institution and the community and technical college, the latter may
deliver early entrance and dual credit courses as defined in
section two, article one of this chapter to students in high
schools which are not served by the baccalaureate institution.
(G) Southern West Virginia Community and Technical College. --
Southern West Virginia Community and Technical College is an
independently-accredited, free-standing state institution of higher
education. The president and the governing board of Southern West
Virginia Community and Technical College are responsible for
maintaining independent accreditation and adhering to the essential
conditions pursuant to section three of this article.
(H) West Virginia Northern Community and Technical College. --
West Virginia Northern Community and Technical College is an
independently-accredited, free-standing state institution of higher
education. The president and the governing board of the community and technical college are responsible for maintaining independent
accreditation and adhering to the essential conditions pursuant to
section three of this article.
(I) West Virginia State Kanawha Valley Community and Technical
College. --
(i) West Virginia Kanawha Valley State Community and Technical
College is an independently accredited state institution of higher
education which may maintain an association with West Virginia
State University subject to the provisions of section twelve of
this article. The president and the governing board of the
community and technical college are responsible for maintaining
independent accreditation and adhering to the essential conditions
pursuant to section three of this article.
(ii) West Virginia State University may continue associate
degree programs in areas of particular institutional strength which
are closely articulated to its baccalaureate programs and missions
or which are of a high-cost nature and can best be provided in
direct coordination with a baccalaureate institution. Any such
program shall be delivered under the authority of the council and
through contract with the community and technical college. The
terms of the contract shall be negotiated between the governing
boards of the community and technical college and West Virginia
State University. The final contract may not be implemented until approved by the council except that any contract between the
community and technical college and West Virginia State University
related to program delivery under the terms of this section in
effect on the first day of July, two thousand eight July 1, 2008,
shall continue in effect until the first day of July, two thousand
nine July 1, 2009, unless amended or revoked before that date by
mutual agreement of the contract parties with approval by the
council. Such a program shall be evaluated according to the
benchmarks and indicators for community and technical college
education developed by the council. If the council determines that
the program is making insufficient progress toward accomplishing
the benchmarks, the program shall thereafter be delivered by the
community and technical college.
(iii) Dual credit course delivery agreements. --
(I) Nothing in this article alters or abrogates any agreement
in place on the effective date of this section between West
Virginia State University and West Virginia State Kanawha Valley
Community and Technical College relating to delivery of dual credit
courses as defined in section two, article one of this chapter;
(II) The community and technical college may deliver technical
courses that are part of a certificate or associate degree program
as early entrance or dual credit courses for high school students;
and
(III) Subject to an agreement between the baccalaureate
institution and the community and technical college, the latter may
deliver early entrance and dual credit courses as defined in
section two, article one of this chapter to students in high
schools which are not served by the baccalaureate institution.
(J) West Virginia University at Parkersburg. --
(i) West Virginia University at Parkersburg is an
independently accredited state institution of higher education
which may maintain an association with West Virginia University
subject to the provisions of section twelve of this article. The
president and the governing board of the community and technical
college are responsible for maintaining independent accreditation
and adhering to the essential conditions pursuant to section three
of this article.
(ii) Any contract between the community and technical college
and West Virginia University related to program delivery under the
authority of the council or related to delivery of baccalaureate
programs, in effect on the first day of July, two thousand eight
July 1, 2008, shall continue in effect unless amended or revoked by
mutual agreement of the contract parties with approval by the
council.
(iii) In recognition of the unique and essential part West
Virginia University at Parkersburg plays in providing education services in its region, the community and technical college may
continue delivering baccalaureate degree programs offered at the
institution on the effective date of this section, may implement
additional baccalaureate programs with the approval of the
commission and is strongly encouraged:
(I) To continue and expand its role as a higher education
center pursuant to subsection (c) of this section; and
(II) To broker from West Virginia University and other higher
education institutions, as appropriate, additional baccalaureate
level degree programs the community and technical college
determines are needed in its service region.
(III) Any baccalaureate degree programs offered at the
community and technical college shall be delivered under the
authority of the commission. The program shall be evaluated
according to the benchmarks and indicators for baccalaureate
education developed by the commission.;
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §18B-3C-7a; and that
§18B-3C-8 of said code be amended and reenacted, all to read as
follows:;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 499--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §18B-3C-7a; and to amend and reenact
§18B-3C-8 of said
code
, all relating to
community and technical colleges; name
changes for certain community and technical colleges; and modifying
the location requirement for certain community and technical
college headquarters.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 499, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S. B. No. 499) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 499) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Senate Bill No. 526, Finding and declaring certain claims
against state.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page ten, section one, line one hundred eighty-five, by
striking out "$231" and inserting in lieu thereof "$231.50".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 526, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 526) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 526) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 533, Revising statutory language
regarding child abuse.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 8D. CHILD ABUSE.
§61-8D-5. Sexual abuse by a parent, guardian, custodian or person
in a position of trust to a child; parent, guardian,
custodian or person in a position of trust allowing
sexual abuse to be inflicted upon a child; displaying
of sex organs by a parent, guardian, or custodian;
penalties.
(a) In addition to any other offenses set forth in this code,
the Legislature hereby declares a separate and distinct offense
under this subsection, as follows: If any parent, guardian or
custodian of or other person in a position of trust in relation to
a child under his or her care, custody or control, shall engage in
or attempt to engage in sexual exploitation of, or in sexual
intercourse, sexual intrusion or sexual contact with, a child under
his or her care, custody or control, notwithstanding the fact that
the child may have willingly participated in such conduct, or the
fact that the child may have consented to such conduct or the fact
that the child may have suffered no apparent physical injury or
mental or emotional injury as a result of such conduct, then such
parent, guardian, custodian or person in a position of trust shall
be guilty of a felony and, upon conviction thereof, shall be
imprisoned in the penitentiary a correctional facility not less
than ten nor more than twenty years, or fined not less than $500
nor more than $5,000 and imprisoned in the penitentiary a correctional facility not less than ten years nor more than twenty
years.
(b) If any Any parent, guardian, custodian or other person in
a position of trust in relation to the child shall who knowingly
procure procures, authorizes, or induces another person to engage
in or attempt to engage in sexual exploitation of, or sexual
intercourse, sexual intrusion or sexual contact with, a child under
the care, custody or control of such parent, guardian, custodian or
person in a position of trust when such child is less than sixteen
years of age, notwithstanding the fact that the child may have
willingly participated in such conduct or the fact that the child
may have suffered no apparent physical injury or mental or
emotional injury as a result of such conduct, such parent,
guardian, custodian or person in a position of trust shall be
guilty of a felony and, upon conviction thereof, shall be
imprisoned in the penitentiary a correctional facility not less
than five years nor more than fifteen years, or fined not less than
$1,000 nor more than $10,000 and imprisoned in the penitentiary a
correctional facility not less than five years nor more than
fifteen years.
(c) If any Any parent, guardian, custodian or other person in
a position of trust in relation to the child shall who knowingly
procure procures, authorizes, or induces another person to engage in or attempt to engage in sexual exploitation of, or sexual
intercourse, sexual intrusion or sexual contact with, a child under
the care, custody or control of such parent, guardian, custodian or
person in a position of trust when such child is sixteen years of
age or older, notwithstanding the fact that the child may have
consented to such conduct or the fact that the child may have
suffered no apparent physical injury or mental or emotional injury
as a result of such conduct, then such parent, guardian, custodian
or person in a position of trust shall be guilty of a felony and,
upon conviction thereof, shall be imprisoned in the penitentiary a
correctional facility not less than one year nor more than five
years.
(d) The provisions of this section shall not apply to a
custodian or person in a position of trust whose age exceeds the
age of the child by less than four years.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 533--A Bill
to amend and reenact §61-8D-5
of the Code of West Virginia, 1931, as amended, relating to sex
crimes involving a child; making it unlawful for a parent,
guardian, custodian or other person in a position of trust in
relation to a child to knowingly procure, authorize, or induce another person to engage in or attempt to engage in prohibited
sexual conduct.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 533, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 533) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 547, Correcting inconsistency in school
board levies' code.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §11-8-12 and §11-8-12a of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 8. LEVIES.
§11-8-12. Levy estimate by board of education; certification and
publication.
Each board of education shall, at the session provided for in
section nine of this article, if the laying of a levy has been
authorized by the voters of the district under article nine,
chapter eighteen of the code, ascertain the condition of the fiscal
affairs of the district, and make a statement setting forth:
(1) The amount due, and the amount that will become due and
collectible during the current fiscal year except from the levy of
taxes to be made for the year;
(2) The interest, sinking fund and amortization requirements for the fiscal year of bonded indebtedness legally incurred upon a
vote of the people, as provided by law, by any school district
existing prior to May 22, 1933, prior to before the adoption of the
Tax Limitation Amendment;
(3) Other contractual indebtedness not bonded, legally
incurred by any such school district existing prior to May 22,
1933, prior to before the adoption of the Tax Limitation Amendment,
owing by such district;
(4) The amount to be levied for the permanent improvement
fund;
(5) The total of all other expenditures to be paid out of the
receipts for the current fiscal year, with proper allowance for
delinquent taxes, exonerations and contingencies;
(6) The amount of such total to be raised by the levy of taxes
for the current fiscal year;
(7) The proposed rate of levy in cents on each $100 assessed
valuation of each class of property;
(8) The separate and aggregate amounts of the assessed
valuation of real, personal and public utility property within each
class.
The secretary of the board shall forward immediately a
certified copy of the statement to the Tax Commissioner Auditor and
shall publish the statement forthwith immediately. The session shall then stand adjourned until the third Tuesday in April, at
which time it shall reconvene except where otherwise permitted by
section nine of this article: Provided, That no provision of this
section or section nine of this article may be construed to
abrogate any requirement imposed on the board of education by
article nine-b, chapter eighteen of this code.
§11-8-12a. Adjourned session of board of education to hear
objections to proposed levies; approval of estimate
and levy by Tax Commissioner; first levy for bonded
and other indebtedness and indebtedness not bonded,
second for Permanent Improvement Fund, then for
current expenses.
Each board of education, when it reconvenes on the third
Tuesday in April as provided by section twelve of this article,
shall proceed in a manner similar in all respects to that provided
for in section ten-a of this article. The board shall may not
finally enter any levy until it has been approved in writing by the
Tax Commissioner Auditor. After receiving the approval, the board
shall enter the statement as approved in its record of proceedings,
together with the written approval: Provided, That for the fiscal
year 1993 only, each board of education may delay its final entry
of the levy until no later than the first Thursday in May, by which
time each board shall have entered the statement as approved in its record of proceedings, together with the written approval:
Provided, however, That any delay by a county board of education in
the entry of its final levy pursuant to the provisions of this
section in the fiscal year 1993 and any action taken prior to the
effective date of this section that is not inconsistent with the
provisions of this section or other applicable levy rate sections
of this code are hereby ratified and confirmed as having full force
and effect.
The board shall levy as many cents per $100 assessed valuation
on each class of property in the county or in the area of a
preexisting school district, as the case may be, as will produce
the amounts, according to the last assessment, shown to be
necessary by the statement in the following order:
First, for the bonded debt and for the contractual debt not
bonded, if any, of any school district of the county existing prior
to before May 22, 1933, and incurred prior to before the adoption
of the Tax Limitation Amendment;
Second, for the Permanent Improvement Fund;
Third, for general current expenses.
The rates of levy for each purpose shall may not exceed the
amounts fixed by section six-c unless another rate is authorized by
the Tax Commissioner or set by the Legislature in accordance with
this article. When less than the maximum levies are imposed, the levies on each class of property shall be in the same proportions
as the maximums authorized.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 547--A Bill to amend and reenact §11-8-12
and §11-8-12a of the Code of West Virginia, 1931, as amended, all
relating to the dates of certain meetings of county boards of
education related to levies.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 547, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S. B. No. 547) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 547) takes effect from passage
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 577, Clarifying definition
of "raffle".
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page six, section two, lines ninety-six through one hundred
two, by striking out all of subdivision (n) and inserting in lieu
thereof a new subdivision (n), to read as follows:
(n) "Raffle" means a game involving the selling or
distribution of paper tickets, not enhanced or aided by the use of
any electronic or mechanical raffle ticket dispenser, raffle ticket
reader or other electronic or mechanical device of whatever design
or function, entitling the holder or holders to participate in a
raffle game for a chance on a prize or prizes. This subsection
shall not be interpreted to prevent the use of:
(1) Hand cranked or motorized drum mixers which randomly mix
tickets or other indicia together for the purpose of allowing the
hand drawing of a ticket or winning indicia.
(2) A cash register for handling proceeds of sales and other
ordinary cash handling and record keeping functions of a raffle
licensee.
(3) Accounting and recordkeeping software for the purpose of
maintaining accounting and reporting records of the licensee, and
the computer for running those applications, not used in the play
of any game.;
On page eight, section twenty, line fifteen, after the word "function" by inserting a comma and the words "other than those
machines and apparatus allowed under subsection (n) of section two
of this article,";
And,
On page eight, section twenty, line twenty-three, after the
word "function" by inserting a comma and the words "other than
those machines and apparatus allowed under subsection (n) of
section two of this article,".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 577, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 S. B. No. 577) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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. No. 577) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 583, Updating references to Information
Services and Communications Division.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §5A-6-4 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §12-3-10e be amended and
reenacted, all to read as follows:
ARTICLE 6. OFFICE OF TECHNOLOGY.
§5A-6-4. Powers and duties of the Chief Technology Officer;
generally.
(a) With respect to all state spending units the Chief
Technology Officer may:
(1) Develop an organized approach to information resource
management for this state;
(2) Provide with the assistance of the Information Services
and Communications Division of the Department of Administration
technical assistance to the administrators of the various state
spending units in the design and management of information systems;
(3) Evaluate in conjunction with the Information Services and
Communications Division the economic justification, system design
and suitability of information equipment and related services, and
review and make recommendations on the purchase, lease or
acquisition of information equipment and contracts for related
services by the state spending units;
(4) Develop a mechanism for identifying those instances where
systems of paper forms should be replaced by direct use of
information equipment and those instances where applicable state or
federal standards of accountability demand retention of some paper
processes;
(5) Develop a mechanism for identifying those instances where
information systems should be linked and information shared, while
providing for appropriate limitations on access and the security of
information;
(6) Create new technologies to be used in government, convene
conferences and develop incentive packages to encourage the
utilization of technology;
(7) Engage in any other activities as directed by the
Governor;
(8) Charge a fee to the state spending units for evaluations
performed and technical assistance provided under the provisions of
this section. All fees collected by the Chief Technology Officer
shall be deposited in a special account in the State Treasury to be
known as the Chief Technology Officer Administration Fund.
Expenditures from the fund shall be made by the Chief Technology
Officer for the purposes set forth in this article and are not
authorized from collections but are to be made only in accordance
with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon
the fulfillment of the provisions set forth in article two, chapter
eleven-b of this code: Provided, That the provisions of section
eighteen, article two, chapter eleven-b of this code shall not
operate to permit expenditures in excess of the spending authority
authorized by the Legislature. Amounts collected which are found
to exceed the funds needed for purposes set forth in this article
may be transferred to other accounts or funds and redesignated for
other purposes by appropriation of the Legislature;
(9) Monitor trends and advances in information technology and
technical infrastructure;
(10) Direct the formulation and promulgation of policies,
guidelines, standards and specifications for the development and
maintenance of information technology and technical infrastructure,
including, but not limited to:
(A) Standards to support state and local government exchange,
acquisition, storage, use, sharing and distribution of electronic
information;
(B) Standards concerning the development of electronic
transactions, including the use of electronic signatures;
(C) Standards necessary to support a unified approach to
information technology across the totality of state government,
thereby assuring that the citizens and businesses of the state receive the greatest possible security, value and convenience from
investments made in technology;
(D) Guidelines directing the establishment of statewide
standards for the efficient exchange of electronic information and
technology, including technical infrastructure, between the public
and private sectors;
(E) Technical and data standards for information technology and
related systems to promote efficiency and uniformity;
(F) Technical and data standards for the connectivity,
priorities and interoperability of technical infrastructure used for
homeland security, public safety and health and systems reliability
necessary to provide continuity of government operations in times
of disaster or emergency for all state, county and local
governmental units; and
(G) Technical and data standards for the coordinated
development of infrastructure related to deployment of electronic
government services among state, county and local governmental
units;
(11) Periodically evaluate the feasibility of subcontracting
information technology resources and services, and to subcontract
only those resources that are feasible and beneficial to the state;
(12) Direct the compilation and maintenance of an inventory of
information technology and technical infrastructure of the state, including infrastructure and technology of all state, county and
local governmental units, which may include personnel, facilities,
equipment, goods and contracts for service, wireless tower
facilities, geographic information systems and any technical
infrastructure or technology that is used for law enforcement,
homeland security or emergency services;
(13) Develop job descriptions and qualifications necessary to
perform duties related to information technology as outlined in this
article; and
(14) Promulgate legislative rules, in accordance with the
provisions of chapter twenty-nine-a of this code, as may be
necessary to standardize and make effective the administration of
the provisions of article six of this chapter.
(b) With respect to executive agencies, the Chief Technology
Officer may:
(1) Develop a unified and integrated structure for information
systems for all executive agencies;
(2) Establish, based on need and opportunity, priorities and
time lines for addressing the information technology requirements
of the various executive agencies of state government;
(3) Exercise authority delegated by the Governor by executive
order to overrule and supersede decisions made by the administrators
of the various executive agencies of government with respect to the design and management of information systems and the purchase, lease
or acquisition of information equipment and contracts for related
services;
(4) Draw upon staff of other executive agencies for advice and
assistance in the formulation and implementation of administrative
and operational plans and policies; and
(5) Recommend to the Governor transfers of equipment and human
resources from any executive agency and the most effective and
efficient uses of the fiscal resources of executive agencies, to
consolidate or centralize information-processing operations.
(c) The Chief Technology Officer may employ the personnel
necessary to carry out the work of the Office of Technology and may
approve reimbursement of costs incurred by employees to obtain
education and training.
(d) The Chief Technology Officer shall develop a comprehensive,
statewide, four-year strategic information technology and technical
infrastructure policy and development plan to be submitted to the
Governor and the Joint Committee on Government and Finance. A
preliminary plan shall be submitted by December 1, 2006, and the
final plan shall be submitted by June 1, 2007. The plan shall
include, but not be limited to:
(A) A discussion of specific projects to implement the plan;
(B) A discussion of the acquisition, management and use of information technology by state agencies;
(C) A discussion of connectivity, priorities and
interoperability of the state's technical infrastructure with the
technical infrastructure of political subdivisions and encouraging
the coordinated development of facilities and services regarding
homeland security, law enforcement and emergency services to provide
for the continuity of government operations in times of disaster or
emergency;
(D) A discussion identifying potential market demand areas in
which expanded resources and technical infrastructure may be
expected;
(E) A discussion of technical infrastructure as it relates to
higher education and health;
(F) A discussion of the use of public-private partnerships in
the development of technical infrastructure and technology services;
and
(G) A discussion of coordinated initiatives in website
architecture and technical infrastructure to modernize and improve
government to citizen services, government to business services,
government to government relations and internal efficiency and
effectiveness of services, including a discussion of common technical
data standards and common portals to be utilized by state, county and
local governmental units.
(e) The Chief Technology Officer shall oversee
telecommunications services used by state spending units for the
purpose of maximizing efficiency to the fullest possible extent. The
Chief Technology Officer shall establish microwave or other networks
and LATA hops; audit telecommunications services and usage; recommend
and develop strategies for the discontinuance of obsolete or
excessive utilization; participate in the renegotiation of
telecommunications contracts; and encourage the use of technology and
take other actions necessary to provide the greatest value to the
state.
§12-3-10e. Purchasing Card Advisory Committee created; purpose;
membership; expenses.
(a) There is created continued a Purchasing Card Advisory
Committee to enhance the development and implementation of the
purchasing card program. The committee shall solicit input from state
agencies and make recommendations to improve the performance of the
Purchasing Card Program. The committee consists of fourteen members
to be appointed as follows:
(1) The Auditor shall serve as chairperson of the committee and
shall appoint:
(A) Four members from the State College System of West Virginia
and the University System of West Virginia;
(B) One member from the Department of Health and Human Resources; and
(C) One member from the Division of Highways and two additional
members at large from any state agency.
(2) The Secretary of the Department of Administration shall
appoint:
(A) One member from the Information Services and Communications
Division Office of Technology;
(B) One member from the Financial Accounting and Reporting
Section; and
(C) One member from the Purchasing Division;
(3) The Secretary of the Department of Revenue shall appoint one
member from the Department of Revenue; and
(4) The State Treasurer shall appoint one member from that
office.
(b) Committee members shall be appointed for a term of one year,
commencing on the July 1, 1998. Committee members shall receive
reimbursement for expenses actually incurred in the performance of
their duties on the committee.;
And,
By striking out the title and substituting therefor a new title,
to read as follows:
Eng. Senate Bill No. 583--A Bill to amend and reenact §5A-6-4
of the Code of West Virginia, 1931, as amended, and to amend and reenact §12-3-10e, all relating to changing references from the
Information Services and Communications Division to the Office of
Technology.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 583, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 583) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced the
amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 597, Requiring
women seeking abortion opportunity to see fetus ultrasound image.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §16-2I-10 of the Code of West Virginia, 1931, as amended,
be repealed, that §16-2I-2, §16-2I-8 and §16-2I-9 be amended and
reenacted, all to read as follows:
§16-2I-2. Informed consent.
No abortion may be performed in this state except with the
voluntary and informed consent of the female upon whom the abortion
is to be performed. Except in the case of a medical emergency,
consent to an abortion is voluntary and informed if, and only if:
(a) The female is told the following, by telephone or in person,
by the physician or the licensed health care professional to whom the
responsibility has been delegated by the physician who is to perform
the abortion at least twenty-four hours before the abortion:
(1) The particular medical risks associated with the particular
abortion procedure to be employed, including, when medically accurate, the risks of infection, hemorrhage, danger to subsequent
pregnancies and infertility;
(2) The probable gestational age of the embryo or fetus at the
time the abortion is to be performed; and
(3) The medical risks associated with carrying her child to
term.
The information required by this subsection may be provided by
telephone without conducting a physical examination or tests of the
patient, in which case the information required to be provided may
be based on facts supplied by the female to the physician or other
licensed health care professional to whom the responsibility has been
delegated by the physician and whatever other relevant information
is reasonably available to the physician or other licensed health
care professional to whom the responsibility has been delegated by
the physician. It may not be provided by a tape recording, but must
be provided during a consultation in which the physician or licensed
health care professional to whom the responsibility has been
delegated by the physician is able to ask questions of the female and
the female is able to ask questions of the physician or the licensed
health care professional to whom the responsibility has been
delegated by the physician.
If a physical examination, tests or the availability of other
information to the physician or other licensed health care professional to whom the responsibility has been delegated by the
physician subsequently indicate, in the medical judgment of the
physician or the licensed health care professional to whom the
responsibility has been delegated by the physician, a revision of the
information previously supplied to the patient, that revised
information may be communicated to the patient at any time prior to
before the performance of the abortion procedure.
Nothing in this section may be construed to preclude provision
of required information in a language understood by the patient
through a translator.
(b) The female is informed, by telephone or in person, by the
physician who is to perform the abortion, or by an agent of the
physician, at least twenty-four hours before the abortion procedure:
(1) That medical assistance benefits may be available for
prenatal care, childbirth and neonatal care through governmental or
private entities;
(2) That the father, if his identity can be determined, is
liable to assist in the support of her child based upon his ability
to pay even in instances in which the father has offered to pay for
the abortion; and
(3) That she has the right to review the printed materials
described in section three of this article, that these materials are
available on a state-sponsored website and the website address; and
(4) That the female will be presented with a form which she will
be required to execute prior to the abortion procedure that is
available pursuant to section three of this article, and that the
form to be presented will inform her of the opportunity to view the
ultrasound image and her right to view or decline to view the
ultrasound image, if an ultrasound is performed.
The physician or an agent of the physician shall orally inform
the female that the materials have been provided by the State of West
Virginia and that they describe the embryo or fetus and list agencies
and entities which offer alternatives to abortion.
If the female chooses to view the materials other than on the
website, then they shall either be provided to her at least twenty-
four hours before the abortion or mailed to her at least seventy-two
hours before the abortion by first class mail in an unmarked
envelope.
The information required by this subsection may be provided by
a tape recording if provision is made to record or otherwise register
specifically whether the female does or does not choose to have the
printed materials given or mailed to her.
(c) The form required pursuant to subdivision (4), subsection
(b) of this section shall include the following information: (1) It
is a female's decision whether or not to undergo any ultrasound
imaging procedure in consultation with her health care provider; (2) If an ultrasound is performed in conjunction with the performance of
an abortion procedure, the female has the right to view or to decline
to view the image; and (3) That the woman has been previously
informed of her opportunity to view the ultrasound image and her
right to view or decline to view the ultrasound image. The woman
shall certify her choice on this form prior to the abortion procedure
being performed.
(c) The female shall certify in writing, prior to before the
abortion, that the information described in subsections (a) and (b)
of this section has been provided to her and that she has been
informed of her opportunity to review the information referred to in
subdivision (3), subsection (b) of this section.
(d) Prior to Before performing the abortion procedure, the
physician who is to perform the abortion or the physician's agent
shall obtain a copy of the executed certification required by the
provisions of subsection subsections (b) and (c) of this section.
§16-2I-8. Administrative remedies.
(a) Any person or entity may make a complaint to the licensing
board, if any, of a person whose conduct is regulated by the
provisions of this article and may charge such person with a
violation of this article.
(b) Any physician or agent thereof who willfully violates the
provisions of this article is subject to sanctions by the licensing board governing his or her profession. For the first violation, the
licensing board shall issue a written reprimand to the violator. For
the second violation, the licensing board shall revoke the violator's
license.
(c) No penalty or civil liability may be assessed for failure
to comply with paragraph (3), subsection (b), section two of this
article or that portion of subsection (c) of said section requiring
a written certification that the female has been informed of her
opportunity to review the information referred to in paragraph (3),
of subsection (b) of said section unless the department of health and
human resources has made the printed materials available at the time
the physician or the licensed health care professional to whom the
responsibility has been delegated by the physician is required to
inform the female of her right to review them.
Any physician or agent thereof who willfully violates the
provisions of this article may be subject to sanctions as levied by
the licensing board governing his or her profession.
§16-2I-9. Severability.
If any one or more provision, section, subsection, sentence,
clause, phrase or word of this article or the application thereof to
any person or circumstance is found to be unconstitutional, the same
is hereby declared to be severable and the balance of this article
shall remain effective notwithstanding such unconstitutionality. The Legislature hereby declares that it would have passed this article,
and each provision, section, subsection, sentence, clause, phrase or
word thereof, irrespective of the fact that any one or more
provision, section, subsection, sentence, clause, phrase or word be
declared unconstitutional.
;
And,
By striking out the title and substituting therefor a new title,
to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 597--A Bill to
repeal §16-2I-10 of the Code of West Virginia, 1931, as amended, and
to amend and reenact §16-2I-2, §16-2I-8 and §16-2I-9 of said code,
all relating to physician assisted abortions; requiring prior notice
to the patient of the opportunity to view any ultrasound image
utilized and in conjunction with the abortion procedure; providing
the contents of a form to be provided to and signed by the female
undergoing the abortion relating to her right to view or not view the
ultrasound image; revising administrative remedies for physicians and
their agents that do not comply with the provisions of the Woman's
Right to Know Act; removing civil liability and civil remedies
associated with failure to comply with the Woman's Right to Know Act;
and providing for severability.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 597, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 Com. Sub. for S. B. No. 597) passed with its House of
Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced the
concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report, to
take effect from passage, as to
Eng. Senate Bill No. 611, Removing location requirement for
certain higher education offices.
A message from The Clerk of the House of Delegates announced the
amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate
in the House of Delegates amendments, as to
Eng. Senate Bill No. 635, Requiring State Fire Commission
approve certain county and municipal fire ordinances and regulations.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §29-3-5 of the Code of West Virginia, 1931, as amended, be
amended and reenacted to read as follows:
ARTICLE 3. FIRE PREVENTION AND CONTROL ACT.
§29-3-5. Promulgation of rules and State Fire Code.
(a) The State Fire Commission shall have the power to
promulgate, amend and repeal regulations
may
propose rules for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code
for the safeguarding of
life and property from the hazards of fire and explosion. pursuant
to the provisions of chapter twenty-nine-a of this code. Such
regulations The rules, amendments or repeals thereof shall be in accordance with standard safe practice as embodied in widely
recognized standards of good practice for fire prevention and fire
protection and shall have the force and effect of law in the several
counties, municipalities and political subdivisions of the state.
(b) Pursuant to the provisions of chapter twenty-nine-a of this
code, the State Fire Commission by January 1, 1977, shall propose and
promulgate comprehensive regulations rules for the safeguarding of
life and property from the hazards of fire and explosion to be known
as the State Fire Code. Regulations Rules embodied in the State Fire
Code shall be in accordance with standard safe practice as embodied
in widely recognized standards of good practice for fire prevention
and fire protection and shall have the force and effect of law in the
several counties, municipalities and political subdivisions of the
state. Whenever any other state law, county or municipal ordinance
or regulation of any new or revised code or standard is adopted by
the fire codes published by the National Fire Protection Association,
the State Fire Commission may propose and promulgate revised rules
reflecting such updated codes and standards: Provided, That such the
rules shall be effective as emergency rules when so promulgated until
acted upon by the Legislature: Provided, however, That the State
Fire Marshal shall provide compliance alternatives for historic
structures as provided for in section five, article one of this
chapter, which compliance alternatives shall take into account the historic integrity of said the historic structures; and shall
coordinate with the Director of the Archives and History Division the
application of the rules and regulations of that division.
(c) In interpretation and application, the State Fire Code
shall be held to be the minimum requirements for the safeguarding
of life and property from the hazards of fire and explosion:
Provided, That the State Fire Marshal shall provide compliance
alternatives for historic structures and sites as provided for in
section five, article one of this chapter, which compliance
alternatives shall take into account the historic integrity of said
the historic structures and sites. Whenever any other state law,
county or municipal ordinance or regulation of any agency thereof
is more stringent or imposes a higher standard than is required by
the State Fire Code, the provisions of such the state law, county
or municipal ordinance or regulation of any agency thereof shall
govern provided governs, if
they are not inconsistent with the laws
of West Virginia and are not contrary to recognized standards and
good engineering practices: Provided, That, on and after July 1,
2010, if a municipal or county fire ordinance or regulation of any
agency thereof is more stringent or imposes a higher standard than
is required by the State Fire Code, it must be presented for review
and approval and sanctioned for use by the West Virginia State Fire
Commission.
In any question, the decision of the State Fire Commission determines the relative priority of any such state law,
county or municipal ordinance or regulation of any agency thereof
and determines compliance with state fire regulations rules
by
officials of the state, counties, municipalities and political
subdivisions of the state.
;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 635--A Bill to amend and reenact §29-3-5
of the Code of West Virginia, 1931, as amended; and to amend and
reenact §29-3-5 of said code, relating to the State Fire Code;
clarifying the State Fire Commission's process for updating the
State Fire Code upon adoption of revised codes or standards by the
National Fire Protection Association; requiring review and approval
of county and municipal fire ordinances and agency regulations which
impose more stringent standards than those required by the State
Fire Code by the West Virginia State Fire Commission; and effective
date.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 635, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 635) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amended title, passage
as amended, of
Eng. House Bill No. 2485, Allowing pharmacy interns to vend
pseudoephedrine and other chemical precursors of methamphetamine.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. House Bill No. 4026, Relating to higher education capital
facilities generally.
A message from The Clerk of the House of Delegates announced that that body had agreed to the appointment of a committee of
conference of three from each house on the disagreeing votes of the
two houses, as to
Eng. Com. Sub. for House Bill No. 4166, Expanding the age for
firefighters over thirty-five years of age for persons already
employed by another paid fire department.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Michael, Skaff and Hamilton.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4397, Requiring the
Superintendent of the State Police to implement a plan to increase
the number of troopers.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4450, Relating to land
surveyors.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment, as amended by
the House of Delegates, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment to the
Senate amendment, as to
Eng. House Bill No 4524, Revising the definition of
"all-terrain vehicle" and including a definition for utility terrain
vehicle.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the Senate
amendment to the bill was reported by the Clerk:
On page thirty, section one, line two hundred ninety, after the
word "utility" by inserting the word "terrain".
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendment to the Senate amendment to
the bill.
Engrossed House Bill No. 4524, as amended, was then put upon
its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4524) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. House Bill No. 4589, Conforming article three of chapter
three of the Code of West Virginia, to the requirements of the
Military and Overseas Voter Empowerment Act of 2009.
A message from The Clerk of the House of Delegates announced
the passage by that body, to take effect from passage, and requested
the concurrence of the Senate in the passage of
Eng. House Bill No. 4668--A Bill making a supplementary
appropriation of federal funds out of the Treasury from the balance
of federal moneys remaining unappropriated for the fiscal year
ending the June 30, 2010, to the Crime Victims Compensation Fund,
fund 8738, fiscal year 2010, organization 2300, to the Department
of Education and the Arts - Division of Culture and History, fund
8718, fiscal year 2010, organization 0432, and to the Department of
Environmental Protection - Division of Environmental Protection, fund 8708, fiscal year 2010, organization 0313, all supplementing
and amending the appropriations for the fiscal year ending June 30,
2010.
At the request of Senator Chafin, and by unanimous consent,
reference of the bill to a committee was dispensed with, and it was
taken up for immediate consideration, read a first time and ordered
to second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
The bill was read a second time and ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 4668) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the elected to the Senate having voted
in the affirmative, the President declared the bill (Eng. H. B. No.
4668) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4668) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
adoption as amended, of
House Concurrent Resolution No. 43, The "Perdue Brothers
Memorial Bridge WWII Vets Walter, Riley, James, Norman, Omer, Earl".
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 75--Requesting the Joint
Committee on Government and Finance study the feasibility of
authorizing the Division of Motor Vehicles to adopt a program to
utilize electronic verification of insurance coverage to identify
uninsured motor vehicles.
Referred to the Committee on Transportation and Infrastructure;
and then to the Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 89--Requesting the Division of
Highways to name bridge number 08-28-7.78 on County Route 28 in Clay
County, West Virginia, the "Staff Sergeant Arthur Coulter and
Corporal E.J. Sizemore Memorial Bridge".
Referred to the Committee on Transportation and Infrastructure.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 102--Requesting the Joint
Committee on Government and Finance study the issues relating to
creating a matching grant pilot program to foster the implementation
of innovative planning strategies to develop and expand communities
that can maximize emerging economic opportunities and environmental
challenges and thrive in the twenty-first century.
Referred to the Committee on Economic Development; and then to
the Committee on Rules.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 103--Requesting the Division
of Highways to designate the intersection of new U.S. Route 35 and
Hurricane Creek Road the "Wilma Ellen Hodges Leslie Memorial".
Referred to the Committee on Transportation and Infrastructure.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 111--Urging the United States
Environmental Protection Agency to interpret the West Virginia Water Pollution Act in the manner that will
faithfully balance the
protection of the environment with the need to maintain and expand
opportunities for employment, agriculture and industry as set forth
in the Legislature's statement of public policy as contained in the
West Virginia Water Pollution Control Act.
Referred to the Committee on Energy, Industry and Mining.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the appointment of a committee of
conference of three from each house on the disagreeing votes of the
two houses, as to
Eng. House Bill No. 4177, Dedicating five percent of coal
severance tax to the county of origin.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Kominar, Eldridge and Walters.
A message from The Clerk of the House of Delegates announced
that that body had refused to concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 4207, Making it unlawful to
send obscene, anonymous, harassing and threatening communications
by computer, mobile phone, personal digital assistant or other
mobile device.
On motion of Senator Chafin, the Senate refused to recede from its amendments to the bill and requested the appointment of a
committee of conference of three from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Browning, Laird and Barnes.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Pending announcement of a meeting of a standing committee of
the Senate,
On motion of Senator Chafin, the Senate recessed until 2 p.m.
today.
Upon expiration of the recess, the Senate reconvened and, at
the request of Senator Green, and by unanimous consent, proceeded
to the twelfth order of business.
Remarks were made by Senator Green.
At the request of Senator Green, unanimous consent being
granted, the Senate stood in observance of a moment of silence in
recognition of two people killed by recent flooding in Raleigh
County.
At the request of Senator Stollings, and by unanimous consent,
the Senate returned to the second order of business and the
introduction of guests.
The Senate again proceeded to the sixth order of business,
which agenda includes the making of main motions.
On motion of Senator Kessler, the Senate requested the return
from the House of Delegates of
Eng. Com. Sub. for House Bill No. 4527, Limiting the liability
of apiary owners and operators.
Passed by the Senate on yesterday, Friday, March 12, 2010,
The bill now being in the possession of the Senate,
On motion of Senator Kessler, the Senate reconsidered the vote
as to the effective date, title amendment and passage of the bill.
The vote thereon having been reconsidered,
On motion of Senator Kessler, the Senate reconsidered the vote
by which on yesterday, Friday, March 12, 2010, it adopted the
Judiciary committee amendment to the bill (shown in the Senate
Journal of that day, pages 236 and 237).
The vote thereon having been reconsidered,
The question again being on the adoption of the Judiciary
committee amendment to the bill.
On motion of Senator Kessler, the following amendment to the
Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B.
No. 4527) was reported by the Clerk and adopted:
On page two, section four, after subsection (c), by adding a
new subsection, designated subsection (d), to read as follows:
(d) In order to effectuate the purposes of subsection (c), the
Commissioner shall propose for promulgation, legislative rules in
accordance with article three, chapter twenty-nine-a of this code:
Provided, That the initial promulgation may be by emergency rule.
The rule shall include best management standards for the operation
of apiaries. The limitation on liability contained in subsection (c)
shall not take effect until legislative rules are promulgated in
accordance with article three, chapter twenty-nine-a of this code.
The question now being on the adoption of the Judiciary
committee amendment to the bill (Eng. Com. Sub. for H. B. No. 4527),
as amended, the same was put and prevailed.
The bill, as just amended, was ordered to the third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4527) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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. No. 4527) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4527--A Bill to amend and
reenact §19-13-4 of the Code of West Virginia, 1931, as amended,
relating to limiting the liability of apiary owners and operators;
requiring the Department of Agriculture to promulgate best practices
rules; and authorizing emergency rulemaking power.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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. No. 4527) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, the Senate returned to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 2:23 p.m. today:
Eng. Com. Sub. for House Bill No. 4166, Expanding the age for
firefighters over thirty-five years of age for persons already
employed by another paid fire department.
Senator Chafin announced that in the meeting of the Committee
on Rules previously held, the committee, in accordance with Rule
number seventeen of the Rules of the Senate, had removed from the
Senate third reading calendar,
Engrossed Committee Substitute for
House Joint Resolution No. 101.
The Senate proceeded to the seventh order of business.
Senate Resolution No. 52, Honoring Gen. Louis L. Wilson, Jr.
On unfinished business, coming up in regular order, was
reported by the Clerk.
At the request of Senator Chafin, 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 eighth order of business.
Eng. Com. Sub. for House Joint Resolution No. 101, Commercial
and Industrial Tangible Personal Property Tax Exemption Amendment.
Having been removed from the Senate third reading calendar in
earlier proceedings today, no further action thereon was taken.
Eng. House Bill No. 4036, Establishing the Judicial Vacancy
Advisory Commission.
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: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4036) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4247, Providing counties the discretion to
accompany an electronic poll book with a printed poll book.
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: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4247) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4277, Authorizing the Secretary of the
Department of Environmental Protection to issue National Pollutant
Discharge Elimination System permits.
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: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4277) passed.
On motion of Senator Kessler, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. House Bill No. 4277--A Bill to amend and reenact §22-11-3
and §22-11-8 of the Code of West Virginia, 1931, as amended, all
relating to authorizing the Secretary of the Department of
Environmental Protection to issue National Pollutant Discharge
Elimination System permits; defining terms; and correcting
antiquated language.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4324, Extending the
expiration date of employment of retired teachers beyond the
post-retirement employment limit.
On third reading, coming up in regular order, with the right
having been granted on yesterday, Friday, March 12, 2010, for
amendments to be received on third reading, was reported by the
Clerk.
On motion of Senator Bowman, the following amendment to the
bill was reported by the Clerk and adopted:
On page one, after the enacting section by inserting the
following:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD
OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,
OFFICES, PROGRAMS, ETC.
ARTICLE 5. SALARY INCREASE FOR STATE EMPLOYEES.
§5-5-2a. Restrictions on hiring a retired state employee.
An employee who has retired from a spending unit and who on or
after July 1, 2010 is subsequently hired by a different spending
unit or rehired by his or her former spending unit shall be
considered a new eligible employee, and may not use the employee's
prior service to enhance his or her incremental salary increases and
accrual of annual leave:
Provided, That an employee who retires and
is eligible to suspend his or her annuity upon being rehired as a
regular employee on a full-time basis by a participating employer
of the same retirement system, and who again becomes a contributing
member of the retirement system, is not considered a new employee
and may use prior service toward recalculated retirement benefits
and to enhance incremental salary increases and accrual of annual
leave.
CHAPTER 18A. SCHOOL PERSONNEL.;
And,
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That the Code of West Virginia, 1931, as amended, be amended,
by adding thereto a new section, designated §5-5-2a; and that §18A-
2-3 of said code be amended and reenacted, all to read as follows:.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4324) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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. No. 4324) passed.
On motion of Senator Bowman, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4324--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §5-5-2a; and to amend and reenact §18-2-3 of
said code, relating to restrictions on rehiring a retired state
employee and the use of the employee's prior service to enhance
incremental salary increases and accrual of annual leave; suspension
of certain annuities when a retired state employee is rehired by a
spending unit on a full-time basis; extending the expiration date
of employment of retired teachers as substitute teachers in areas
of critical need and shortage without loss of monthly retirement
benefits; and requiring additional information to be reported to
Consolidated Public Retirement Board, the State Board of Education
and the Joint Committee on Government and Finance.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4339, Relating to collecting
debts through the United States Treasury Offset Program.
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: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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. No. 4339) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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. No. 4339) 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 No. 4354, Relating to conditions
and arrests in domestic violence matters.
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: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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. No. 4354) 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 No. 4486, Relating to tax tickets
and other required notifications concerning property taxes.
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: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Yost and Tomblin (Mr. President)--31.
The nays were: Hall and Williams--2.
Absent: Caruth--1.
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. No. 4486) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4486--A Bill to amend and
reenact §11A-3-52 and §11A-3-55 of the Code of West Virginia, 1931,
as amended, all relating to the procedures, notice and redemption
requirements which apply when Class II real property is auctioned
or sold for failure to pay taxes; requiring the purchaser of real
property at a tax lien sale or auction to provide the actual mailing
address for the Class II property as a part of the post-sale or
post-auction information provided to the deputy commissioner; and
requiring that a copy of the notice of the right to redeem the
property be sent to the actual mailing address of the Class II
property, in the name of "Occupant".
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 4521, Creating a sales tax holiday for
purchases of guns and ammunition.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
Pending discussion,
The question being "Shall Engrossed House Bill No. 4521 pass?"
On the passage of the bill, the yeas were: Boley, Bowman,
Browning, Chafin, Deem, D. Facemire, K. Facemyer, Fanning, Green,
Hall, Helmick, Jenkins, Kessler, Laird, Minard, Oliverio, Plymale,
Prezioso, Snyder, Stollings, Unger, White, Williams, Yost and
Tomblin (Mr. President)--25.
The nays were: Barnes, Caruth, Edgell, Foster, Guills, McCabe,
Palumbo, Sypolt and Wells--9.
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. No. 4521) passed.
The following amendment to the title of the bill, from the
Committee on Finance, was reported by the Clerk and adopted:
Eng. House Bill No. 4521--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §11-15-9n, relating to creating a sales tax holiday for
purchases of guns during the first weekend in October.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Thereafter, at the request of Senator Bowman, and by unanimous
consent, the remarks by Senators Helmick, Chafin Guills, Wells and
Foster regarding the passage of Engrossed House Bill No. 4521 were
ordered printed in the Appendix to the Journal.
Eng. Com. Sub. for House Bill No. 4541, Authorizing circuit
court judges and magistrates to utilize county or municipal jails
to detain persons charged with a crime up to ninety-six hours, or,
to confine persons convicted of a crime for not more than fourteen
days.
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: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (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. Com.
Sub. for H. B. No. 4541) 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 No. 4647, Relating to the
regulation and control of elections.
On third reading, coming up in regular order, with the right
having been granted on yesterday, Friday, March 12, 2010, for
amendments to be received on third reading, was reported by the
Clerk.
On motion of Senator Kessler, the following amendment to the
bill was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §3-9-14 of the Code of West Virginia, 1931, as amended,
be repealed; that §3-8-1, §3-8-1a, §3-8-2, §3-8-8 and §3-8-12 of
said code be amended and reenacted, all to read as follows:
ARTICLE 8. REGULATION AND CONTROL OF ELECTIONS.
§3-8-1. Provisions to regulate and control elections.
(a) The Legislature finds that:
(1) West Virginia's population is 1,808,344, ranking 37th among
the fifty states.
(2) State Senate districts have a population of approximately
one hundred six thousand three hundred seventy-three, and the
average Delegate district has a population of approximately
thirty-one thousand, one hundred seventy-eight. The size of these districts is substantially smaller than the United States Senatorial
and Congressional Districts.
(3) When the relatively small size of the State's legislative
and other voting districts is combined with the economics and
typical uses of various forms of electioneering communication,
history shows that non-broadcast media is and will continue to be
a widely used means of making campaign related communications to
target relevant audiences. Consequently, non-broadcast
communications are prevalent during elections.
(4) Disclosure provisions are appropriate legislative weapons
against the reality or appearance of improper influence stemming
from the dependence of candidates on large campaign contributions,
and the ceilings imposed accordingly serve the basic governmental
interest in safeguarding the integrity of the electoral process
without directly impinging upon the rights of individual citizens
and candidates to engage in political debate and discussion.
(5) Disclosure of expenditures serve a substantial governmental
interest in informing the electorate and preventing the corruption
of the political process.
(6) Disclosure by persons and entities that make expenditures
for communications that expressly advocate the election or defeat
of clearly identified candidates, or perform its functional
equivalent, is a reasonable and minimally restrictive method of furthering First Amendment values by public exposure of the state
election system.
(7) Failing to regulate non-broadcast media messages would
permit those desiring to influence elections to avoid the principles
and policies that are embodied in existing state law.
(8) The regulation of the various types of non-broadcast media
embodied within the amendments enacted during the second
extraordinary session of two thousand eight, in addition to
broadcast media, is tailored to meet the circumstances found in the
State of West Virginia.
(9) Non-broadcast media such as
mass mailing, telephone banks
and billboards newspapers, magazines or other periodicals have
proven to be effective means of election communication in West
Virginia. Broadcast, satellite and non-broadcast media have all
been used to influence election outcomes.
(10)
Mass mailing and telephone Certain non-broadcast
communications,
such as newspaper inserts, can be more effective
campaign methods than broadcast media because such communications
can be targeted to registered voters or historical voters in the
particular district. In contrast, broadcasted messages reach all
of the general public, including person ineligible to vote in the
district.
(11)
Mass mailings or telephone Non-broadcast media communications in the final days of a campaign can be particularly
damaging to the public's confidence in the election process because
they reduce or make impossible an effective response.
(12) Identifying those funding
mass mailing or telephone non-
broadcast media campaigns in the final days of a campaign may at
least permit voters to evaluate the credibility of the message.
(13) In West Virginia, contributions up to the amounts
specified in this article allow contributors to express their
opinions, level of support and their affiliations.
(14) In West Virginia, campaign expenditures by entities and
persons who are not candidates have been increasing. Public
confidence is eroded when substantial amounts of such money, the
source of which is hidden or disguised, is expended. This is
particularly true during the final days of a campaign.
(15) In West Virginia, contributions to political
organizations
, (defined in Section 527(e)(1) of the Internal Revenue
Code of 1986
), substantially larger than the amounts permitted to
be received by a candidate's political committee have been recorded
and are considered by the legislature to be large contributions.
(16) Independent expenditures intended to influence candidates'
campaigns in the state are increasingly utilizing non-broadcast
media to support or defeat candidates.
(17) Identification of persons or entities funding political advertisements assists in enforcement of the contribution and
expenditure limitations established by this article and simply
informs voters of the actual identities of persons or entities
advocating the election or defeat of candidates.
(18) Identification of persons or entities funding political
advertisements allows voters to evaluate the credibility of the
message contained in the advertisement.
(19) Disclosure of the identity of persons or entities funding
political communications regarding candidates bolsters the right of
listeners to be fully informed.
(b) Political campaign contributions, receipts and expenditures
of money, advertising, influence and control of employees, and other
economic, political and social control factors incident to primary,
special and general elections shall be regulated and controlled by
the provisions of this article and other applicable provisions of
this chapter.
§3-8-1a. Definitions.
As used in this article, the following terms have the following
definitions:
(1) "Ballot issue" means a constitutional amendment, special
levy, bond issue, local option referendum, municipal charter or
revision, an increase or decrease of corporate limits or any other
question that is placed before the voters for a binding decision.
(2) "Billboard" means a commercially available outdoor
advertisement, sign or similar display regularly available for lease
or rental to advertise a person, place or product.
(3) (2) "Broadcast, cable or satellite communication" means a
communication that is publicly distributed by a television station,
radio station, cable television system or satellite system.
(4) (3) "Candidate" means an individual who:
(A) Has filed a certificate of announcement under section
seven, article five of this chapter or a municipal charter;
(B) Has filed a declaration of candidacy under section
twenty-three, article five of this chapter;
(C) Has been named to fill a vacancy on a ballot; or
(D) Has declared a write-in candidacy or otherwise publicly
declared his or her intention to seek nomination or election for any
state, district, county or municipal office or party office to be
filled at any primary, general or special election.
(5) (4) "Candidate's committee" means a political committee
established with the approval of or in cooperation with a candidate
or a prospective candidate to explore the possibilities of seeking
a particular office or to support or aid his or her nomination or
election to an office in an election cycle. If a candidate directs
or influences the activities of more than one active committee in
a current campaign, those committees shall be considered one committee for the purpose of contribution limits.
(6) (5) "Clearly identified" means that the name, nickname,
photograph, drawing or other depiction of the candidate appears or
the identity of the candidate is otherwise apparent through an
unambiguous reference, such as "the Governor," "your Senator" or
"the incumbent" or through an unambiguous reference to his or her
status as a candidate, such as "the Democratic candidate for
Governor" or "the Republican candidate for Supreme Court of
Appeals."
(7) (6) "Contribution" means a gift, subscription,
loan,
assessment, payment for services, dues, advance, donation, pledge,
contract, agreement, forbearance or promise of money or other
tangible thing of value, whether conditional or legally enforceable,
or a transfer of money or other tangible thing of value to a person,
made for the purpose of influencing the nomination, election or
defeat of a candidate. An offer or tender of a contribution is not
a contribution if expressly and unconditionally rejected or
returned. A contribution does not include volunteer personal
services provided without compensation:
Provided, That a
nonmonetary contribution is to be considered at fair market value
for reporting requirements and contribution limitations.
(8) (7) "Corporate political action committee" means a
political action committee that is a separate segregated fund of a corporation that may only accept contributions from its restricted
group as outlined by the rules of the State Election Commission.
(9) (8) "Direct costs of purchasing, producing or disseminating
electioneering communications" means:
(A) Costs charged by a vendor, including, but not limited to,
studio rental time, compensation of staff and employees, costs of
video or audio recording media and talent, material and printing
costs and postage; or
(B) The cost of air time on broadcast, cable or satellite radio
and television stations, the costs of disseminating printed
materials,
establishing a telephone bank, studio time, use of
facilities and the charges for a broker to purchase air time.
(10) (9) "Disclosure date" means either of the following:
(A) The first date during any calendar year on which any
electioneering communication is disseminated after the person paying
for the communication has spent a total of $5,000 or more for the
direct costs of purchasing, producing or disseminating
electioneering communications; or
(B) Any other date during that calendar year after any previous
disclosure date on which the person has made additional expenditures
totaling $5,000 or more for the direct costs of purchasing,
producing or disseminating electioneering communications.
(11) (10) "Election" means any primary, general or special election conducted under the provisions of this code or under the
charter of any municipality at which the voters nominate or elect
candidates for public office. For purposes of this article, each
primary, general, special or local election constitutes a separate
election. This definition is not intended to modify or abrogate the
definition of the term "nomination" as used in this article.
(12) (11) (A) "Electioneering communication" means any paid
communication made by broadcast, cable or satellite signal,
mass
mailing, telephone bank, billboard advertising or published in any
newspaper, magazine or other periodical that:
(i) Refers to a clearly identified candidate for Governor,
Secretary of State, Attorney General, Treasurer, Auditor,
Commissioner of Agriculture, Supreme Court of Appeals or the
Legislature;
(ii) Is publicly disseminated within:
(I) Thirty days before a primary election at which the
nomination for office sought by the candidate is to be determined;
or
(II) Sixty days before a general or special election at which
the office sought by the candidate is to be filled; and
(iii) Is targeted to the relevant electorate:
Provided, That
for purposes of the general election of 2008 the amendments to this
article
shall be are effective October 1, 2008.
(B) "Electioneering communication" does not include:
(i) A news story, commentary or editorial disseminated through
the facilities of any broadcast, cable or satellite television or
radio station, newspaper, magazine or other periodical publication
not owned or controlled by a political party, political committee
or candidate:
Provided, That a news story disseminated through a
medium owned or controlled by a political party, political committee
or candidate is nevertheless exempt if the news is:
(I) A bona fide news account communicated in a publication of
general circulation or through a licensed broadcasting facility; and
(II) Is part of a general pattern of campaign-related news that
gives reasonably equal coverage to all opposing candidates in the
circulation, viewing or listening area;
(ii) Activity by a candidate committee, party executive
committee or caucus committee, or a political action committee that
is required to be reported to the State Election Commission or the
Secretary of State as an expenditure pursuant to section five of
this article or the rules of the State Election Commission or the
Secretary of State promulgated pursuant to such provision:
Provided, That independent expenditures by a party executive
committee or caucus committee or a political action committee
required to be reported pursuant to subsection (b), section two of
this article are not exempt from the reporting requirements of this section;
(iii) A candidate debate or forum conducted pursuant to rules
adopted by the State Election Commission or the Secretary of State
or a communication promoting that debate or forum made by or on
behalf of its sponsor;
(iv) A communication paid for by any organization operating
under Section 501(c)(3) of the Internal Revenue Code of 1986;
(v) A communication made while the Legislature is in session
which, incidental to promoting or opposing a specific piece of
legislation pending before the Legislature, urges the audience to
communicate with a member or members of the Legislature concerning
that piece of legislation;
(vi) A statement or depiction by a membership organization, in
existence prior to the date on which the individual named or
depicted became a candidate, made in a newsletter or other
communication distributed only to bona fide members of that
organization;
(vii) A communication made solely for the purpose of attracting
public attention to a product or service offered for sale by a
candidate or by a business owned or operated by a candidate which
does not mention an election, the office sought by the candidate or
his or her status as a candidate; or
(viii) A communication, such as a voter's guide, which refers to all of the candidates for one or more offices, which contains no
appearance of endorsement for or opposition to the nomination or
election of any candidate and which is intended as nonpartisan
public education focused on issues and voting history.
(13) (12) "Expressly advocating" means any communication that:
(A) Uses phrases such as "vote for the Governor," "re-elect
your Senator," "support the Democratic nominee for Supreme Court,"
"cast your ballot for the Republican challenger for House of
Delegates," "Smith for House," "Bob Smith in '04," "vote Pro-Life"
or "vote Pro-Choice" accompanied by a listing of clearly identified
candidates described as Pro-Life or Pro-Choice, "vote against Old
Hickory," "defeat" accompanied by a picture of one or more
candidates, "reject the incumbent
,"
; or
(B) communications Communications of campaign slogans or
individual words, that
in context can have no other reasonable
meaning than to urge the election or defeat of one or more clearly
identified candidates, such as posters, bumper stickers,
advertisements, etc.
, which say "Smith's the One," "Jones '06,"
"Baker"
, etc; or
(B) When considered in its entirety, the communication can only
be interpreted by a reasonable person as advocating the election or
defeat of one or more clearly identified candidates because:
(i) The electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning; and
(ii) Reasonable minds could not differ as to whether it
encourages actions to elect or defeat one or more clearly identified
candidates
(C) Is susceptible of no reasonable interpretation other than
as an appeal to vote for or against a specific candidate.
(14) (13) "Financial agent" means any individual acting for and
by himself or herself, or any two or more individuals acting
together or cooperating in a financial way to aid or take part in
the nomination or election of any candidate for public office, or
to aid or promote the success or defeat of any political party at
any election.
(15) (14) "Fund-raising event" means an event such as a dinner,
reception, testimonial, cocktail party, auction or similar affair
through which contributions are solicited or received by such means
as the purchase of a ticket, payment of an attendance fee or by the
purchase of goods or services.
(16) (15) "Independent expenditure" means an expenditure by a
person:
(A) Expressly advocating the election or defeat of a clearly
identified candidate; and
(B) That is not made in concert or cooperation with or at the
request or suggestion of such candidate, his or her agents, the candidate's authorized political committee or a political party
committee or its agents.
Supporting or opposing the election of a clearly identified
candidate includes supporting or opposing the candidates of a
political party. An expenditure which does not meet the criteria
for an independent expenditure is considered a contribution.
(17) "Mass mailing" means a mailing by United States mail,
facsimile or electronic mail of more than five hundred pieces of
mail matter of an identical or substantially similar nature within
any thirty-day period. For purposes of this subdivision,
substantially similar includes communications that contain
substantially the same template or language, but vary in nonmaterial
respects such as communications customized by the recipient's name,
occupation or geographic location.
(18) (16) "Membership organization" means a group that grants
bona fide rights and privileges, such as the right to vote, to elect
officers or directors and the ability to hold office, to its members
and which uses a majority of its membership dues for purposes other
than political purposes. "Membership organization" does not include
organizations that grant membership upon receiving a contribution.
(19) (17) "Name" means the full first name, middle name or
initial, if any, and full legal last name of an individual and the
full name of any association, corporation, committee or other organization of individuals, making the identity of any person who
makes a contribution apparent by unambiguous reference.
(20) (18) "Person" means an individual,
corporation,
partnership, committee, association and any other organization or
group of individuals.
(21) (19) "Political action committee" means a committee
organized by one or more persons for the purpose of supporting or
opposing the nomination or election of one or more candidates. The
following are types of political action committees:
(A) A corporate political action committee, as that term is
defined by subdivision (8) of this section;
(B) A membership organization, as that term is defined by
subdivision (18) of this section;
(C) An unaffiliated political action committee, as that term
is defined by subdivision (29) of this section.
(22) (20) "Political committee" means any candidate committee,
political action committee or political party committee.
(23) (20) "Political party" means a political party as that
term is defined by section eight, article one of this chapter or any
committee established, financed, maintained or controlled by the
party, including any subsidiary, branch or local unit thereof and
including national or regional affiliates of the party.
(24) (22) "Political party committee" means a committee established by a political party or political party caucus for the
purposes of engaging in the influencing of the election, nomination
or defeat of a candidate in any election.
(25) (23) "Political purposes" means supporting or opposing the
nomination, election or defeat of one or more candidates or the
passage or defeat of a ballot issue, supporting the retirement of
the debt of a candidate or political committee or the administration
or activities of an established political party or an organization
which has declared itself a political party and determining the
advisability of becoming a candidate under the precandidacy
financing provisions of this chapter.
(26) (24) "Targeted to the relevant electorate" means a
communication which refers to a clearly identified candidate for
statewide office or the Legislature and which can be received by
ten
thousand one hundred forty thousand or more individuals in the state
in the case of a candidacy for statewide office,
eight thousand two
hundred twenty or more individuals in the district in the case of
a candidacy for the State Senate and
five hundred two thousand four
hundred ten or more individuals in the district in the case of a
candidacy for the
Legislature House of Delegates.
(27) "Telephone bank" means telephone calls that are targeted
to the relevant electorate, other than telephone calls made by
volunteer workers, regardless of whether paid professionals designed the telephone bank system, developed calling instructions or trained
volunteers.
(28) (25) "Two-year election cycle" means the twenty-four month
period that begins the day after a general election and ends on the
day of the subsequent general election.
(29) (26) "Unaffiliated political action committee" means a
political action committee that is not affiliated with a corporation
or a membership organization.
§3-8-2. Accounts for receipts and expenditures in elections;
requirements for reporting independent expenditures.
(a) Except for: (1) Candidates for party committeeman and
committeewoman; and (2) federal committees required to file under
the provisions of 2 U. S. C. §434, all candidates for nomination or
election and all persons supporting, aiding or opposing the
nomination, election or defeat of any candidate shall keep for a
period of six months records of receipts and expenditures which are
made for political purposes. All of the receipts and expenditures
are subject to regulation by the provisions of this article.
Verified financial statements of the records and expenditures shall
be made and filed as public records by all candidates and by their
financial agents, representatives or any person acting for and on
behalf of any candidate and by the treasurers of all political party
committees.
(b)
(1) In addition to any other reporting required by the
provisions of this chapter,
any person making an independent
expenditure in the amount of one thousand dollars or more for any
statewide, legislative or multicounty judicial candidate or in the
amount of five hundred dollars or more for any county office,
single-county judicial candidate, committee supporting or opposing
a candidate on the ballot in more than one county, or any municipal
candidate on a municipal election ballot, on or after the fifteenth
day but more than twelve hours before the day of any election shall
report the expenditure,
any person who makes independent
expenditures in an aggregate amount or value in excess of $1,000
during a calendar year shall file a disclosure statement, on a form
prescribed by the Secretary of State,
that contains all of the
following information:
(A) The name of (i) the person making the expenditure; (ii) the
name of any person sharing or exercising direction or control over
the activities of the person making the expenditure; and (iii) the
name of the custodian of the books and accounts of the person making
the expenditure;
(B) If the person making the expenditure is not an individual,
the principal place of business of the partnership, corporation,
committee, association, organization or group which made the
expenditure;
(C) The amount of each expenditure of more than $1,000 made
during the period covered by the statement and the name of the
person to whom the expenditure was made;
(D) The elections to which the independent expenditure pertain,
the names, if known, of the candidates referred to or to be referred
to therein, whether the expenditure is intended to support or oppose
the identified candidates and the amount of the total expenditure
reported pursuant to paragraph (C) of this subdivision spent to
support or oppose each of the identified candidates;
(E) The name and address of any person who contributed a total
of more than $250 between the first day of the preceding calendar
year, and the disclosure date, and whose contributions were made for
the purpose of furthering the expenditure.
(F) With regard to the contributors required to be listed
pursuant to paragraph (E) of this subdivision, the statement shall
also include:
(i) The month, day and year that the contributions of any
single contributor exceeded $250;
(ii) If the contributor is a political action committee, the
name and address the political action committee registered with the
Secretary of State, county clerk or municipal clerk;
(iii) If the contributor is an individual, the name and address
of the individual, his or her occupation, the name and address of the individual's current employer, if any, or, if the individual is
self-employed, the name and address of the individual's business,
if any;
(iv) A description of the contribution, if other than money;
and
(v) The value in dollars and cents of the contribution.
(G) (1) A certification that such independent expenditure was
not made in cooperation, consultation, or concert, with, or at the
request or suggestion of, any candidate or any authorized committee
or agent of such candidate.
(2) Any person who makes a contribution for the purpose of
funding an independent expenditure under this subsection shall, at
the time the contribution is made, provide his or her name, address,
occupation, his or her current employer, if any, or, if the
individual is self-employed, the name of his or her business, if
any, to the recipient of the contribution.
(3) The Secretary of State shall expeditiously prepare indices
setting forth, on a candidate-by-candidate basis, all independent
expenditures separately, made by, or on behalf of, or for, or
against each candidate, as reported under this subsection, and for
periodically publishing such indices on a timely pre-election basis.
(c) (1) A person, including a political committee, who makes
or contracts to make independent expenditures aggregating $1,000 or more for any statewide, legislative or multi-county judicial
candidate or $500 or more for any county office, single-county
judicial candidate, committee supporting or opposing a candidate on
the ballot in more than one county, or any municipal candidate on
a municipal election ballot, after the fifteenth day, but more than
twelve hours, before the date of an election, shall file a report
on a form prescribed by the Secretary of State, describing the
expenditures within twenty-four hours:
after the expenditure is
made or debt is incurred for a communication, to the Secretary of
State by hand-delivery, facsimile or other means to assure receipt
by the Secretary of State within the twenty-four hour period
Provided, That a person making expenditures in the amount of $1,000
or more for any statewide or legislative candidate on or after the
fifteenth day but more than twelve hours before the day of any
election shall report such expenditures in accordance with section
two-b of this article and shall not file an additional report as
provided herein.
(2) Any person who files a report under subdivision (1) of this
subsection, shall file an additional report within twenty-four hours
after each time the person makes or contracts to make independent
expenditures aggregating an additional $500 with respect to the same
election, for any county office, single-county judicial candidate,
committee supporting or opposing a candidate on the ballot in more than one county, or any municipal candidate on a municipal election
ballot, as that to which the initial report relates.
(d) (1) A person, including a political committee, who makes
or contracts to make independent expenditures aggregating $10,000
or more at any time up to and including the fifteenth day before the
date of an election shall file a report on a form prescribed by the
Secretary of State, describing the expenditures within forty-eight
hours.
(2) A person who files a report under subdivision (1) of this
subsection, the person shall file an additional report within
forty-eight hours after each time the person makes or contracts to
make independent expenditures aggregating an additional $10,000 with
respect to the same election as that to which the initial report
relates.
(c) (e) Any communication paid for by an independent
expenditure must include a clear and conspicuous public notice
which
identifies the name of the person who paid for the expenditure and
states that the communication is not authorized by the candidate or
his or her committee that:
(1) Clearly states that the communication is not authorized by
the candidate or the candidate's committee; and
(2) Clearly identifies the person making the expenditure:
Provided, That if the communication appears on or is disseminated by broadcast, cable or satellite transmission, the statement
required by this subsection must be both spoken clearly and appear
in clearly readable writing at the end of the communication.
(d) (f) Any person who has spent a total of $5,000 or more for
the direct costs of purchasing, producing or disseminating
electioneering communications during any calendar year shall
maintain all financial records and receipts related to such
expenditure for a period of six months following the filing of a
disclosure pursuant to subsection (a) of this section and, upon
request, shall make such records and receipts available to the
Secretary of State or county clerk for the purpose of an audit as
provided in section seven of this article.
(e) (g) Any person who willfully fails to comply with this
section is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than $500, or confined in jail for not more
than one year, or both fined and confined.
(h) (1) Any person who is required to file a statement under
this section may file the statement by facsimile device or
electronic mail, in accordance with such rules as the Secretary of
State may promulgate.
(2) The Secretary of State shall make any document filed
electronically pursuant to this subsection accessible to the public
on the internet not later than twenty-four hours after the document is received by the secretary.
(3) In promulgating a rule under this subsection, the secretary
shall provide methods, other than requiring a signature on the
document being filed, for verifying the documents covered by the
rule. Any document verified under any of the methods shall be
treated for all purposes, including penalties for perjury, in the
same manner as a document verified by signature.
(i) This section does not apply to candidates for federal
office.
(j) The Secretary of State may promulgate emergency and
legislative rules, in accordance with the provisions of chapter
twenty-nine-a of this code, to establish guidelines for the
administration of this section.
§3-8-8. Corporation contributions forbidden; exceptions;
penalties; promulgation of rules; additional powers of
State Election Commission.
(a)
Notwithstanding any provision of section two-b of this
article, No An officer, agent or person acting on behalf of any
corporation, whether incorporated under the laws of this or any
other state or of a foreign country, may
not pay, give, lend or
authorize to be paid,
given or lent any money or other thing of
value belonging to the corporation
for the purpose of expressly
advocating the election or defeat of a clearly identified candidate for state, district, county or municipal office, to any candidate
financial agent, political committee or other person or candidate's
campaign for nomination or election to any statewide office or any
other elective office in the state or any of its subdivisions.
(b) No A person may
not solicit or receive any payment,
contribution or other thing from any corporation or from any
officer, agent or other person acting on behalf of the corporation
to any candidate or candidate's campaign for nomination or election
to any statewide office or any other elective office in the state
or any of its subdivisions.
(b) (c) (1) The provisions of this section do not prohibit a
corporation from
(A) Directly communicating with its stockholders and executive
or administrative personnel and their families on any subject:
Provided, That the communication is not by newspapers of general
circulation, radio, television or billboard advertising likely to
reach the general public;
(B) Conducting nonpartisan registration and get-out-the-vote
campaigns aimed at its stockholders and executive or administrative
personnel and their families;
(C) soliciting, through any officer, agent or person acting on
behalf of the corporation, contributions to a separate segregated
fund to be used for political purposes. Any separate segregated fund is considered a political action committee for the purpose of
this article and is subject to all reporting requirements applicable
to political action committees;
and
(D) Corporations may make disbursements for political purposes,
as such are defined by the provisions of subdivision (25),
subsection (a), section one-a of this article, that do not expressly
advocate for the election or defeat of a clearly identified
candidate. A disbursement for political purposes is permissible if
it:
(i) Does not reference an election, candidacy, political party,
opposing candidate or voting by the general public;
(ii) Does not take a position on any candidate's or
officeholder's character, qualifications, or fitness for office; and
(iii) Focuses on a legislative, executive, or judicial matter
or issue which either:
(I) Urges a candidate to take a particular position or action
with respect to the matter or issue; or
(II) Urges the public to adopt a particular position and to
contact the candidate with respect to the matter or issue; or
(iv) Proposes a commercial transaction, such as purchase of a
book, video, or other product or service, or attendance (for a fee)
at a film exhibition or other event.
(2) It is unlawful for:
(A) A
corporation or separate segregated fund to make a primary
or other election contribution or expenditure by using money or
anything of value secured: (i) By physical force, job discrimination
or financial reprisal; (ii) by the threat of force, job
discrimination or financial reprisal;
or (iii) as a condition of
employment;
or (iv) in any commercial transaction;
(B) Any person soliciting a stockholder or executive or
administrative personnel and members of their families for a
contribution to a
corporation or separate segregated fund to fail
to inform the person solicited of the political purposes of the
separate segregated fund at the time of the solicitation;
(C) Any person soliciting any other person for a contribution
to a
corporation or separate segregated fund to fail to inform the
person solicited at the time of the solicitation of his or her right
to refuse to contribute without any reprisal;
(D) A
corporation or a separate segregated fund established by
a corporation: (i) To solicit contributions to the fund from any
person other than the corporation's stockholders and their families
and its executive or administrative personnel and their families;
or (ii) to contribute any corporate funds;
(E) A
corporation or a separate segregated fund established by
a corporation to receive contributions to the fund from any person
other than the corporation's stockholders and their immediate families and its executive or administrative personnel and their
immediate families;
(F) A corporation to engage in job discrimination or to
discriminate in job promotion or transfer because of an employee's
failure to make a contribution to
the corporation or a separate
segregated fund;
(G) A separate segregated fund to make any contribution,
directly or indirectly, in excess of $1,000 in connection with or
on behalf of any campaign for nomination or election to any elective
office in the state or any of its subdivisions, or in connection
with or on behalf of any committee or other organization or person
engaged in furthering, advancing, supporting or aiding the
nomination or election of any candidate for any such office;
(H) A corporation to pay, give or lend or to authorize payment,
giving or lending of any moneys or other things of value belonging
to the corporation to a separate segregated fund for
any the purpose
of making a contribution to a candidate or a candidate's committee.
This provision does not prohibit a separate segregated fund from
using the property, real or personal, facilities and equipment of
a corporation solely to establish, administer and solicit
contributions to the fund, subject to the rules of the State
Election Commission as provided in subsection (d) of this section:
Provided, That any such corporation shall also permit any group of its employees represented by a bona fide political action committee
to use the real property of the corporation solely to establish,
administer and solicit contributions to the fund of the political
action committee, subject to the rules of the State Election
Commission promulgated in accordance with said subsection.
No
corporation may use its property, real or personal, facilities,
equipment, materials or services for the purpose of expressly
advocating the election or defeat of a clearly identified candidate
for state, district, county or municipal office.
(3) For the purposes of this section, the term "executive or
administrative personnel" means individuals employed by a
corporation who are paid on a salary rather than hourly basis and
who have policy-making, managerial, professional or supervisory
responsibilities.
(c) (d) Any person or corporation violating any provision of
this section is guilty of a misdemeanor and,
on upon conviction
thereof, shall be fined not more than $10,000.
No A corporation may
not reimburse any person the amount of any fine imposed pursuant to
this section.
(d) (e) To ensure uniform administration and application of the
provisions of this section and of those of the Federal Election
Campaign Act Amendments of 1976 relating to corporate contributions,
the State Election Commission shall propose rules for legislative approval in accordance with the provisions of article three, chapter
twenty-nine-a of this code to implement the provisions of this
section consistent, insofar as practicable, with the rules and
regulations promulgated by the Federal Election Commission to carry
out similar or identical provisions of 2 U. S. C. §441b.
(e) (f) In addition to the powers and duties set forth in
article one-a of this chapter, the State Election Commission has the
following powers and duties:
(1) To investigate, upon complaint or on its own initiative,
any alleged violations or irregularities of this article.
(2) To administer oaths and affirmations, issue subpoenas for
the attendance of witnesses, issue subpoenas duces tecum to compel
the production of books, papers, records and all other evidence
necessary to any investigation.
(3) To involve the aid of any circuit court in the execution
of its subpoena power.
(4) To report any alleged violations of this article to the
appropriate prosecuting attorney having jurisdiction, which
prosecuting attorney shall present to the grand jury such alleged
violations, together with all evidence relating thereto, no later
than the next term of court after receiving the report.
(f) (g) The Attorney General shall, when requested, provide
legal and investigative assistance to the State Election Commission.
(g) (h) Any investigation, either upon complaint or initiative,
shall be conducted in an executive session of the State Election
Commission and shall remain undisclosed except upon an indictment
by a grand jury.
(h) (i) Any person who discloses the fact of any complaint,
investigation or report or any part thereof, or any proceedings
thereon, is guilty of a misdemeanor and, upon conviction
thereof,
shall be fined not less than $1,000, nor more than $5,000, and shall
be
imprisoned confined in jail not less than six months nor more
than one year.
(i) (j) The amendments to this section enacted during the
second extraordinary session of 2008 are intended to conform to the
existing proscription to constitutionally permissible limits and not
to create a new offense or offenses.
(j) (k) The effective date of the amendments to this section
enacted during the second extraordinary legislative session of 2008
shall be is October 1, 2008.
§3-8-12. Additional acts forbidden; circulation of written matter;
newspaper advertising; solicitation of contributions;
intimidation and coercion of employees; promise of
employment or other benefits; limitations on
contributions; public contractors; penalty.
(a)
No A person may
not publish, issue or circulate, or cause to be published, issued or circulated, any anonymous letter,
circular, placard, radio or television advertisement or other
publication supporting or aiding the election or defeat of a clearly
identified candidate.
(b)
No An owner, publisher, editor or employee of a newspaper
or other periodical may
not insert, either in its advertising or
reading columns, any matter, paid for or to be paid for, which tends
to influence the voting at any election, unless directly designating
it as a paid advertisement and stating the name of the person
authorizing its publication and the candidate in whose behalf it is
published.
(c)
No A person may
not, in any room or building occupied for
the discharge of official duties by any officer or employee of the
state or a political subdivision of the state, solicit orally or by
written communication delivered within the room or building, or in
any other manner, any contribution of money or other thing of value
for any party or political purpose, from any postmaster or any other
officer or employee of the federal government, or officer or
employee of the State, or a political subdivision of the State.
No
An officer, agent, clerk or employee of the federal government, or
of this state, or any political subdivision of the state, who may
have charge or control of any building, office or room, occupied for
any official purpose, may
not knowingly permit any person to enter any building, office or room, occupied for any official purpose for
the purpose of soliciting or receiving any political assessments
from, or delivering or giving written solicitations for, or any
notice of, any political assessments to, any officer or employee of
the state, or a political subdivision of the state.
(d) Except as provided in section eight of this article,
no a
person entering into any contract with the state or its
subdivisions, or any department or agency of the state, either for
rendition of personal services or furnishing any material, supplies
or equipment or selling any land or building to the state, or its
subdivisions, or any department or agency of the state, if payment
for the performance of the contract or payment for the material,
supplies, equipment, land or building is to be made, in whole or in
part, from public funds may
not, during the period of negotiation
for or performance under the contract or furnishing of materials,
supplies, equipment, land or buildings, directly or indirectly, make
any contribution to any political party, committee or candidate for
public office or to any person for political purposes or use; nor
may any person or firm solicit any contributions for any purpose
during any period.
(e)
No A person may
not, directly or indirectly, promise any
employment, position, work, compensation or other benefit provided
for, or made possible, in whole or in part, by act of the Legislature, to any person as consideration, favor or reward for any
political activity for the support of or opposition to any
candidate, or any political party in any election.
(f)
Except as provided in section eight of this article, no a
person may
not, directly or indirectly, make any contribution in
excess of the value of $1,000 in connection with any campaign for
nomination or election to or on behalf of any statewide office, in
connection with any other campaign for nomination or election to or
on behalf of any other elective office in the state or any of its
subdivisions, or in connection with or on behalf of any person
engaged in furthering, advancing, supporting or aiding the
nomination or election of any candidate for any of the offices.
(g)
No A political organization (as defined in Section
527(e)(1) of the Internal Revenue Code of 1986) may
not solicit or
accept contributions until it has notified the Secretary of State
of its existence and of the purposes for which it was formed.
During the two-year election cycle, a political organization (as
defined in Section 527 (e) (1) of the Internal Revenue Code of 1986)
may not accept contributions totaling more than $1,000 from any one
person prior to the primary election and contributions totaling more
than $1,000 from any one person after the primary and before the
general election.
(h) It
shall be is unlawful for any person to create, establish or organize more than one political organization (as defined in
Section 527(e)(1) of the Internal Revenue Code of 1986) with the
intent to avoid or evade the contribution limitations contained in
subsection (g) of this section.
(i) Notwithstanding the provisions of subsection (f) of this
section to the contrary,
no a person may
not, directly or
indirectly, make contributions to a state party executive committee
or state party legislative caucus committee which, in the aggregate,
exceed the value of $1,000 in any calendar year.
(j) The limitations on contributions contained in this section
do not apply to transfers between and among a state party executive
committee or a state party's legislative caucus political committee
from national committees of the same political party:
Provided,
That transfers permitted by this subsection may not exceed $50,000
in the aggregate in any calendar year to any state party executive
committee or state party legislative caucus political committee:
Provided, however, That the moneys transferred may only be used for
voter registration and get-out-the-vote activities of the state
committees.
(k)
No A person may
not solicit any contribution, other than
contributions to a campaign for or against a county or local
government ballot issue, from any nonelective salaried employee of
the state government or of any of its subdivisions:
Provided, That in no event
shall may any person acting in a supervisory role
solicit a person who is a subordinate employee for any contribution.
No A person may
not coerce or intimidate any nonelective salaried
employee into making a contribution.
No a person may
not coerce or
intimidate any nonsalaried employee of the state government or any
of its subdivisions into engaging in any form of political activity.
The provisions of this subsection may not be construed to prevent
any employee from making a contribution or from engaging in
political activity voluntarily without coercion, intimidation or
solicitation.
(l)
No A person may
not solicit a contribution from any other
person without informing the other person at the time of the
solicitation of the amount of any commission, remuneration or other
compensation that the solicitor or any other person will receive or
expect to receive as a direct result of the contribution being
successfully collected. Nothing in this subsection may be construed
to apply to solicitations of contributions made by any person
serving as an unpaid volunteer.
(m)
No A person may
not place any letter, circular, flyer,
advertisement, election paraphernalia, solicitation material or
other printed or published item tending to influence voting at any
election in a roadside receptacle unless it is: (1) Approved for
placement into a roadside receptacle by the business or entity owning the receptacle; and (2) contains a written acknowledgment of
the approval. This subdivision does not apply to any printed
material contained in a newspaper or periodical published or
distributed by the owner of the receptacle. The term "roadside
receptacle" means any container placed by a newspaper or periodical
business or entity to facilitate home or personal delivery of a
designated newspaper or periodical to its customers.
(n) Any person violating any provision of this section is
guilty of a misdemeanor and, upon conviction thereof, shall be fined
not more than $1,000, or confined in
a regional or county jail for
not more than one year, or,
in the discretion of the court, be
subject to both
fine and confinement fined and confined.
(o) The provisions of subsection (k) of this section,
permitting contributions to a campaign for or against a county or
local government ballot issue shall become operable on and after
January 1, 2005.
(p) The limitations on contributions established by subsection
(g) of this section do not apply to contributions made for the
purpose of supporting or opposing a ballot issue, including a
constitutional amendment.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4647) was then read a third time and put upon its passage.
Pending discussion,
The question being "Shall Engrossed Committee Substitute for
House Bill No. 4647 pass?"
On the passage of the bill, the yeas were: Bowman, Browning,
Chafin, Edgell, D. Facemire, Fanning, Foster, Green, Helmick,
Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--26.
The nays were: Barnes, Boley, Caruth, Deem, K. Facemyer,
Guills, Hall and Sypolt--8.
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. No. 4647) passed.
At the request of Senator Kessler, as chair of the Committee
on the Judiciary, and by unanimous consent, the unreported Judiciary
committee amendment to the title of the bill was withdrawn.
On motion of Senator Kessler, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4647--A Bill to repeal
§3-9-14 of the Code of West Virginia 1931, as amended; and to amend
and reenact §3-8-1, §3-8-1a, §3-8-2, §3-8-8 and §3-8-12 of said
code, all relating to the regulation and control of elections;
providing certain legislative findings; amending and deleting certain definitions; expanding reporting requirements for
independent expenditures; providing for electronic filing of reports
of independent expenditures; authorizing the Secretary of State to
promulgate rules relating to reports of independent expenditures;
retaining prohibition on corporate contribution; and repealing the
ban on corporate independent expenditures.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bowman, Browning, Chafin,
Edgell, D. Facemire, Fanning, Foster, Green, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Unger, Wells, White, Williams, Yost and
Tomblin (Mr. President)--26.
The nays were: Barnes, Boley, Caruth, Deem, K. Facemyer,
Guills, Hall and Sypolt--8.
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. No. 4647) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Thereafter, at the request of Senator Barnes, and by unanimous
consent, the remarks by Senators Kessler, Guills, Hall and Jenkins
regarding the passage of Engrossed Committee Substitute for House Bill No. 4647 were ordered printed in the Appendix to the Journal.
The Senate proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill No. 4031, Providing flexibility
in the West Virginia public school support plan for funding regional
education service agencies.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Education, was reported by the Clerk and adopted:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-8a. Foundation allowance for regional education service
agencies.
(a) For the fiscal year beginning on July 1, two thousand six,
and for each fiscal year thereafter, Subject to subsections (b) and
(c) of this section, for each fiscal year, the foundation allowance
for regional education service agencies shall be equal to sixty-
three one-hundredths percent of the
sum of the following:
(1) The allocation for professional educators as determined in
section four of this article;
but plus
(2) The allocation for professional student support personnel
as determined in section eight of this article.
(b) The foundation allowance for regional education service
agencies may not
be more than four million two hundred thousand
dollars.
(c) When the state's fiscal conditions necessitate a reduction
in appropriation for state agencies including the Department of
Education, the amount of this foundation allowance determined
pursuant to subsections (a) and (b) of this section may be reduced
by the same percentage as the appropriation to the Department of
Education is reduced. For fiscal years after any reductions in the
foundation allowance pursuant to this subsection occur, the amount
of the foundation allowance shall be restored to the amounts
determined pursuant to subsections (a) and (b) of this section.
(d) The allowance shall be distributed to the regional
education service agencies in accordance with rules adopted by the
state board.
(e) The allowance for regional education service agencies shall
be excluded from the computation of total basic state aid as
provided in section twelve of this article.
The bill (Eng. Com. Sub. for H. B. No. 4031), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire,
K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4031) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (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. Com.
Sub. for H. B. No. 4031) passed.
The following amendment to the title of the bill, from the
Committee on Education, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4031--A Bill to amend and
reenact §18-9A-8a of the Code of West Virginia, 1931, as amended,
relating to the foundation allowance for regional education service
agencies; including the allocation for professional student support
personnel in the calculation of the allowance; and allowing
reduction in allowance when the state's fiscal conditions
necessitate a reduction in appropriation for state agencies
including the Department of Education.
Senator Chafin moved that the bill take effect July 1, 2010.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(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 H. B. No. 4031) takes effect July 1, 2010.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 4144, Relating to the board of veterinary medicine.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Government Organization, was reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 10. VETERINARIANS.
§30-10-1. Unlawful acts.
(a) It is unlawful for any person to practice or offer to
practice veterinary medicine, veterinary technology or animal
euthanasia in this state without a license, registration or
certificate issued under the provisions of this article, or
advertise or use any title or description tending to convey the
impression that they are a veterinarian, veterinary technician or
animal euthanasia technician unless such person has been duly
licensed, registered or certified under the provisions of this
article.
(b) A business entity may not render any service or engage in
any activity which, if rendered or engaged in by an individual,
would constitute the practice of veterinary medicine, veterinary
technology or animal euthanasia, except through a licensee,
registrant or certificate holder.
§30-10-2. Applicable law.
The practice of veterinary medicine, veterinary technology and
animal euthanasia, and the Board of Veterinary Medicine are subject
to the provisions of article one of this chapter, the provisions of
this article and the board's rules.
§30-10-3. Definitions.
As used in this article, the following words and terms have the
following meanings:
(a) "Animal" means any animal other than human, and the term
includes fowl, birds, amphibians, fish, and reptiles, wild or
domestic, living or dead.
(b) "Animal Control Facility" means a municipal or county
operated humane society or animal shelter incorporated and organized
under the laws of this state, or a humane society or an animal
shelter classified as 501(c)(3) by the Internal Revenue Service,
with at least one certified animal euthanasia technician.
(c) "Applicant" means a person making application for a
license, certificate, registration or permit, under the provisions
of this article.
(d) "Board" means the West Virginia Board of Veterinary
Medicine.
(e) "Business entity" means any firm, partnership, association,
company, corporation, limited partnership, limited liability company or other entity performing veterinary medicine, veterinary
technology or animal euthanasia.
(f) "Certificate" means an animal euthanasia technician
certificate issued under the provisions of this article.
(g) "Certificate holder" means a person holding a certificate
issued under the provisions of this article.
(h) "Certified animal euthanasia technician" means a person who
is certified by the board to euthanize animals in accordance with
the provisions of this article.
(i) "General Supervision" means the supervising veterinarian
is in the building where the animal is being treated, has given
instructions for treatment and is quickly and easily available.
(j) "Indirect supervision" means the performance of procedures
on the orders of a supervising veterinarian.
(k) "License" means a veterinary medicine license issued under
the provisions of this article.
(l) "Licensee" means a person holding a license issued under
the provisions of this article.
(m) "Permit" means a temporary permit to practice veterinary
medicine issued by the board.
(n) "Permittee" means a person holding a permit issued under
the provisions of this article.
(o) "Practice of veterinary medicine" means to diagnose, treat, correct, change, relieve or prevent any disease, deformity, defect,
injury, or other physical or mental condition, of any animal, or to
prescribe for or to administer to any animal any drug, medicine,
biologic, apparatus, application, anesthetic or other therapeutic
or diagnostic substance or technique, or to render advice or any
recommendation with respect to any of the foregoing.
(p) "Practice of veterinary technology" means the science and
art of providing all aspects of professional medical care, services
and treatment for animals with the exceptions of diagnosis,
prognosis, surgery, prescription and application of any treatments,
drugs, medications or appliances, where a valid veterinarian-
client-patient relationship exists.
(q) "Registered veterinary technician" means a person who is
duly registered to practice veterinary technology under the
provisions of this article.
(r) "Registrant" means a person holding a registration issued
under the provisions of this article.
(s) "Registration" means a veterinary technician registration
issued under the provisions of this article.
(t) "Supervising veterinarian" means a veterinarian, licensed
under this article, who assumes responsibility for the professional
care given to an animal by a person authorized by this article to
work under his or her general or indirect supervision.
(u) "Veterinarian" means a person who is licensed to practice
veterinary medicine under the provisions of this article.
(v) "Veterinary assistant" means a person who has not met the
requirements for becoming a registered veterinary technician. The
duties and tasks of a veterinary assistant are instructed from and
directly supervised by a licensed veterinarian, who is accountable
for the veterinary assistant's actions. The supervising
veterinarian is responsible for determining the ability and
competence of the veterinary assistant to perform the directed task
or procedure.
(w) "Veterinarian-client-patient relationship" means a
relationship between a veterinarian, a client and a patient, and
exists when:
(1) A veterinarian assumes responsibility for medical judgments
regarding the health of an animal and the client who is the owner
or other caretaker of the animal agrees to follow the veterinarian's
instructions; or
(2) A veterinarian, through personal examination of an animal
or a representative sample of a herd or flock, obtains sufficient
information to make at least a general or preliminary diagnosis of
the medical condition of the animal, herd or flock, which diagnosis
is expanded through medically appropriate visits to the premises
where the animal, herd or flock is kept.
§30-10-4. Board of Veterinary Medicine.
(a) The West Virginia Board of Veterinary Medicine is
continued. The members of the board in office on July 1, 2010,
shall, unless sooner removed, continue to serve until their
respective terms expire and until their successors have been
appointed and qualified.
(b) Prior to July 1, 2010, the Governor, by and with the advice
and consent of the Senate, shall appoint:
(1) A registered veterinary technician for a term of five
years; and
(2) A licensed veterinarian for a term of four years.
(c) Commencing July 1, 2010, the board shall consist of the
following nine members, appointed by the Governor by and with the
advice and consent of the Senate:
(1) Six members licensed to practice veterinary medicine in
this state;
(2) One member registered to practice veterinary technology in
this state; and
(3) Two citizen members, who are not licensed, registered,
certified or permitted under the provisions of this article, and who
do not perform any services related to the practice of the
professions regulated under the provisions of this article.
(d) After the initial appointment term, the appointment term is five years. A member may not serve more than two consecutive
terms. A member who has served two consecutive full terms may not
be reappointed for at least one year after completion of his or her
second full term. A member may continue to serve until his or her
successor has been appointed and qualified.
(e) Each licensed or registered member of the board, at the
time of his or her appointment, must have held a license or
registration in this state for a period of not less than three years
immediately preceding the appointment.
(f) Each member of the board must be a resident of this state
during the appointment term.
(g) A vacancy on the board shall be filled by appointment by
the Governor for the unexpired term of the member whose office is
vacant.
(h) The Governor may remove any member from the board for
neglect of duty, incompetency or official misconduct.
(i) A licensed or registered member of the board immediately
and automatically forfeits membership to the board if his or her
license or registration to practice is suspended or revoked.
(j) A member of the board immediately and automatically
forfeits membership to the board if he or she is convicted of a
felony under the laws of any jurisdiction or becomes a nonresident
of this state.
(k) The board shall elect annually one of its members as
chairperson and one member as secretary-treasurer who shall serve
at the will and pleasure of the board.
(l) Each member of the board is entitled to receive
compensation and expense reimbursement in accordance with article
one of this chapter.
(m) A majority of the members of the board constitutes a
quorum.
(n) A veterinary technician member may not be employed by a
veterinarian on the board.
(o) The board shall hold at least one annual meeting. Other
meetings shall be held at the call of the chairperson or upon the
written request of three members, at the time and place as
designated in the call or request.
(p) Prior to commencing his or her duties as a member of the
board, each member shall take and subscribe to the oath required by
section five, article four of the Constitution of this state.
§30-10-5. Powers and duties of the board.
The board has all the powers and duties set forth in this
article, by rule, in article one of this chapter and elsewhere in
law, including:
(1) Hold meetings, conduct hearings and administer
examinations;
(2) Establish requirements for a license, permit, certificate
and registration;
(3) Establish procedures for submitting, approving and
rejecting applications for a license, permit, certificate and
registration;
(4) Determine the qualifications of any applicant for a
license, permit, certificate and registration;
(5) Establish the fees charged under the provisions of this
article;
(6) Issue, renew, deny, suspend, revoke or reinstate a license,
permit, certificate and registration;
(7) Prepare, conduct, administer and grade written, oral or
written and oral examinations for a license, certificate and
registration;
(8) Determine the passing grade for the examinations;
(9) Contract with third parties to administer the examinations
required under the provisions of this article;
(10) Maintain records of the examinations the board or a third
party administers, including the number of persons taking the
examination and the pass and fail rate;
(11) Maintain an office, and hire, discharge, establish the job
requirements and fix the compensation of employees and contract with
persons necessary to enforce the provisions of this article;
(12) Investigate alleged violations of the provisions of this
article, legislative rules, orders and final decisions of the board;
(13) Conduct disciplinary hearings of persons regulated by the
board;
(14) Determine disciplinary action and issue orders;
(15) Institute appropriate legal action for the enforcement of
the provisions of this article;
(16) Maintain an accurate registry of names and addresses of
all persons regulated by the board;
(17) Keep accurate and complete records of its proceedings, and
certify the same as may be necessary and appropriate;
(18) Establish, by legislative rule, the continuing education
requirements for licensees, permitees, certificate holders and
registrants;
(19) Propose rules in accordance with the provisions of article
three, chapter twenty-nine-a of this code to implement the
provisions of this article;
(20) Sue and be sued in its official name as an agency of this
state;
(21) Confer with the Attorney General or his or her assistant
in connection with legal matters and questions; and
(22) Take all other actions necessary and proper to effectuate
the purposes of this article.
§30-10-6. Rule-making authority.
(a) The board shall propose rules for legislative approval, in
accordance with the provisions of article three, chapter twenty-
nine-a of this code, to implement the provisions of this article,
including:
(1) Standards and requirements for a license, permit,
certificate and registration;
(2) Educational and experience requirements;
(3) Procedures for examinations and reexaminations;
(4) Requirements for third parties to prepare, administer or
prepare and administer examinations and reexaminations;
(5) The passing grade on the examination;
(6) Standards for approval of courses;
(7) Establish a certified animal euthanasia technician's
program;
(8) Procedures for the issuance and renewal of a license,
permit, certificate and registration;
(9) A fee schedule;
(10) Continuing education requirements;
(11) Set standards for ethical conduct;
(12) Establish procedures and requirements for facility
inspections;
(13) Clarify the veterinarian-client-patient relationship;
(14) The procedures for denying, suspending, revoking,
reinstating or limiting the practice of a licensee, permittee,
certificate holder or registrant;
(15) Requirements for a revoked license, permit, certificate
and registration; and
(16) Any other rules necessary to effectuate the provisions of
this article.
(b) All of the board's rules in effect on July 1, 2010, shall
remain in effect until they are amended, modified, repealed or
replaced.
§30-10-7. Fees; special revenue account; administrative fines.
(a) All fees and other moneys, except fines, received by the
board shall be deposited in a separate special revenue fund in the
State Treasury designated the "Board of Veterinary Medicine Fund",
which fund is continued. The fund is used by the board for the
administration of this article. Except as may be provided in
article one of this chapter, the board shall retain the amounts in
the special revenue account from year to year. Any compensation or
expense incurred under this article is not a charge against the
General Revenue Fund.
(b) The board shall deposit any amounts received as
administrative fines imposed pursuant to this article into the
General Revenue Fund of the State Treasury.
§30-10-8. Requirements for Veterinary License.
(a) To be eligible for a license to practice veterinary
medicine under the provisions of this article, the applicant must:
(1) Be of good moral character;
(2) (A) Be a graduate of an accredited school approved by the
board; or
(B) Be a graduate of a foreign veterinary school and hold a
certificate of competence issued by a foreign veterinary graduate
educational organization as approved by the board;
(3) Have passed the examinations required by the board;
(4) Be at least eighteen years of age;
(5) Be a citizen of the United States or be eligible for
employment in the United States;
(6) Not have been convicted of a crime involving moral
turpitude;
(7) Not have been convicted of a felony under the laws of any
jurisdiction within five years preceding the date of application for
licensure which conviction remains unreversed; and
(8) Not have been convicted of a misdemeanor or a felony under
the laws of any jurisdiction at any time if the offense for which
the applicant was convicted related to the practice of veterinary
medicine or animal abuse or neglect.
(b) A person seeking a license under the provisions of this article shall submit an application on a form prescribed by the
board and pay all applicable fees.
(c) An applicant from another jurisdiction shall comply with
all the requirements of this article.
(d) A license to practice veterinary medicine issued by the
board prior to July 1, 2010, shall for all purposes be considered
a license issued under this article and may be renewed under this
article.
(e) An application for a license to practice veterinary
medicine submitted to the board prior to July 1, 2010, shall be in
conformity with the licensing provisions of this article and the
rules promulgated thereunder in effect at the time of the submission
of the application.
§30-10-9. Scope of Practice for a Licensed Veterinarian.
A person licensed to practice veterinary medicine may do the
following:
(a) Prescribe or administer any drug, medicine, treatment,
method or practice for an animal.
(b) Perform any operation or manipulation on or apply any
apparatus or appliance to an animal.
(c) Give instruction or demonstration for the cure,
amelioration, correction or reduction or modification of an animal
condition, disease, deformity, defect, wound or injury.
(d) Diagnose or prognosticate an animal condition, disease,
deformity, defect, wound or injury for hire, fee, reward or
compensation that is directly or indirectly promised, offered,
expected, received or accepted.
(e) Prescribe or administer any legally authorized drug,
medicine, treatment, method or practice, perform any operation or
manipulation, or apply any apparatus or appliance for the cure,
amelioration, correction or modification of an animal condition,
disease, deformity, defect, wound or injury for hire, fee,
compensation or reward that is directly or indirectly promised,
offered, expected, received or accepted.
§30-10-10. Requirements for a registered veterinary technician.
(a) To be eligible for a registration to practice veterinary
technology under the provisions of this article, the applicant must:
(1) Be of good moral character;
(2) Have a degree in veterinary technology from an accredited
school, approved by the board;
(3) Have passed the examinations required by the board;
(4) Be at least eighteen years of age;
(5) Be a citizen of the United States or be eligible for
employment in the United States;
(6) Not have been convicted of a crime involving moral
turpitude;
(7) Not have been convicted of a felony under the laws of any
jurisdiction within five years preceding the date of application for
registration which conviction remains unreversed; and
(8) Not have been convicted of a misdemeanor or a felony under
the laws of any jurisdiction at any time if the offense for which
the applicant was convicted related to the practice of veterinary
technology or animal abuse or neglect.
(b) A person seeking registration under the provisions of this
article shall submit an application on a form prescribed by the
board and pay all applicable fees.
(c) A person registered to practice veterinary technology
issued by the board prior to July 1, 2010, shall for all purposes
be considered registered under this article and may renew pursuant
to the provisions of this article.
§30-10-11. Scope of practice for registered veterinary technician.
(a) A registered veterinary technician may do the following
under general supervision:
(1) Administer anesthesia, including induction, intravenous
sedation, and maintenance and recovery from anesthesia;
(2) Perform dental prophylaxis;
(3) Establish open airways;
(4) Administer resuscitative oxygen procedures;
(5) Administer resuscitative drugs, in the event of cardiac arrest;
(6) Administer immunizations that are not required by law to
be administered by a licensed veterinarian;
(7) Prepare or supervise the preparation of patients for
surgery;
(8) Assist the veterinarian in immunologic, diagnostic,
medical, chemotherapeutic and surgical procedures; and
(9) Perform external suturing.
(b) A registered veterinary technician may do the following
under either general or indirect supervision:
(1) Perform diagnostic imaging;
(2) Perform intravenous catheterization;
(3) Administer and apply medications and treatments by oral
intramuscular, intravenous and subcutaneous routes;
(4) Apply bandages;
(5) Perform cardiac and respiratory monitoring;
(6) Perform appropriate procedures to control bleeding;
(7) Apply temporary splints or immobilizing bandages;
(8) Perform ear flushing;
(9) Collect specimens; and
(10) Perform laboratory procedures.
(c) A veterinary technician may, without supervision, use
emergency treatment procedures when an animal has been placed in a life threatening condition and immediate treatment is necessary to
sustain the animal's life. The registered veterinary technician
shall immediately take steps to secure the general supervision of
a veterinarian.
§30-10-12. Requirements to be a certified animal euthanasia
technician.
(a) To be eligible to be a certified animal euthanasia
technician a person must:
(1) Apply at least thirty days prior to the date the next
written examinations are scheduled, using a form prescribed by the
board;
(2) Have a high school diploma or GED,
(3) Pay application and examination fees;
(4) Complete the certified animal euthanasia technician's
program established by the board;
(5) Pass the written and practical skills examinations;
(6) Pass the prescribed background check; and
(7) Complete all the other requirements established by the
board.
(b) A certified animal euthanasia technician may practice
animal euthanasia at a legally operated animal control facility.
(c) A person certified as an animal euthanasia technician by
the board prior to July 1, 2010, shall for all purposes be considered certified under this article and may renew pursuant to
the provisions of this article.
§30-10-13. Requirements for certified animal euthanasia
technicians program.
(a) The board shall create a certified animal euthanasia
technician's program. The board shall design this program to teach
applicants for certification record keeping and the legal, safety
and practical information needed to become a certified animal
euthanasia technician.
(b) (1) The board shall administer written examinations to an
applicant for certification. The written examinations shall test
the applicant's knowledge of the following:
(A) Animal restraint;
(B) Drug enforcement agency regulations;
(C) Record keeping requirements for controlled substances;
(D) Handling, inventory, security and proper storage of
euthanasia drugs, solutions and syringes;
(E) The certification process;
(F) Legal requirements;
(G) Stress management;
(H) Approved animal euthanasia drug usage;
(I) Jurisprudence; and
(J) Other subject areas specified by the board in a legislative rule.
(2) The applicant shall pass the written examinations with a
minimum correct score, as determined by the board, in order to be
eligible to take the practical skills examination provided in
subsection (c) of this section.
(c) In addition to the written examinations provided under
subsection (b) of this section, the board shall administer a
practical skills examination to an applicant who has successfully
passed the written examinations. The board shall conduct the
practical skills examination in a manner that tests an applicant's
ability to properly restrain an animal, measure a correct dosage of
euthanasia solution, locate an injection site and perform an
injection. In order to pass the practical skills examination, an
applicant shall exhibit to the board that he or she can locate an
injection site and perform an injection and also perform euthanasia
correctly and humanely.
(d) An applicant who successfully passes the written
examinations and the practical skills examination required by this
section shall sign a form authorizing the board to make inquiries
through the United States Department of Justice, or any other legal
jurisdiction or entity, for the purpose of determining the character
and reputation of the applicant and other matters relating to the
certification of the applicant.
§30-10-14. Scope of practice for an animal euthanasia technician.
(a) A certified animal euthanasia technician may euthanize
animals assigned to the care of an animal control facility.
(b) A certified animal euthanasia technician shall practice
euthanasia within the limitations imposed by this article and rules
promulgated by the board under this article.
(c) A certified animal euthanasia technician may not practice
or offer to practice his or her profession outside the direct
authority of the animal control facility which employs him or her
or otherwise contracts for his or her services.
(d) A certified animal euthanasia technician is not qualified
and may not indicate that he or she is qualified to act in any
capacity relative to animals beyond his or her specified and
regulated authority to euthanize animals at the instruction of the
animal control facility by which he or she is employed.
(e) Annually, before January 15, a certified animal euthanasia
technician shall report to the board the number of animals
euthanized at his or her facility during the previous calendar year.
§30-10-15. Renewal requirements.
(a) All persons regulated by the article shall annually or
biennially before January 1, renew his or her license, registration
or certification by completing a form prescribed by the board,
paying all applicable fees and submitting any other information required by the board.
(b) At least thirty days prior to January 1, the board shall
mail to every person regulated by the article an application for
renewal.
(c) The board shall charge a fee for each renewal and a late
fee for any renewal not properly completed and received with the
appropriate fee by the due date.
(d) The board shall require as a condition of renewal that each
licensee, registrant and certificate holder complete continuing
education.
(e) The board may deny an application for renewal for any
reason which would justify the denial of an original application.
(f) The board may authorize the waiving of the renewal fee of
a licensed veterinarian or registered veterinarian technician during
the period when he or she is on active duty with any branch of the
armed services or the public health service of the United States or
a declared emergency.
(g) After July 1, 2010, a previously certified animal
euthanasia technician may renew his or her certification without
having obtained a high school degree or GED.
§30-10-16. Temporary permits for a veterinarian.
(a) Upon completion of an application and payment of the
applicable fees, the board may issue a temporary permit to a person to practice veterinary medicine in this state who has completed the
educational requirements set out in this article, is waiting to take
the state examination, and is working under a supervising
veterinarian.
(b) The temporary permit is valid for a period not to exceed
the next scheduled examination date first held following the
issuance of the temporary permit and expires the day after the board
gives written notice to the permitee of the results.
(c) A temporary permit may be revoked by a majority vote of the
board without a hearing.
§30-10-17. Exemptions from article.
The following persons are exempt from licensing under the
provisions of this article:
(a) An employee of the federal government performing his or her
official duties, as defined by the employing agency;
(b) A student of a veterinary school working under the direct
supervision of a licensed veterinarian;
(c) A person advising with respect to or performing acts which
the board has prescribed by legislative rule as accepted livestock
management practices;
(d) The owner of an animal, the owner's employees, or persons
assisting the owner without any fee or compensation, caring for and
treating the animal, except where the ownership of the animal was transferred for the purpose of circumventing the provisions of this
article;
(e) A member of the faculty of a veterinary school performing
his or her regular duties and functions, including lecturing, giving
instructions or demonstrations, at a veterinary school or in
connection with a board approved continuing education course or
seminar;
(f) A person selling or applying a pesticide, insecticide or
herbicide;
(g) A person engaging in bona fide scientific research which
reasonably requires experimentation involving animals;
(h) A person engaging in bona fide scientific research in
consultation with a licensed veterinarian in this state;
(i) A person treating or relieving a living animal in the case
of an emergency for no fee or other compensation;
(j) A person who disposes of the carcass of a dead animal; and
(k) Veterinary assistants acting under the general supervision
of a licensed veterinarian.
§30-10-18. Display of license, permit, registration and
certificate.
(a) The board shall prescribe the form for a license, permit,
registration and certificate and may issue a duplicate upon payment
of a fee.
(b) Any person regulated by this article shall conspicuously
display his or her license, permit, registration or certification
at his or her principal business location.
§30-10-19. Complaints; investigations; due process procedure;
grounds for disciplinary action.
(a) The board may upon its own motion and shall upon the
written complaint of any person cause an investigation to be made
to determine whether grounds exist for disciplinary action under
this article.
(b) Upon initiation or receipt of the complaint, the board
shall provide a copy of the complaint to the licensee, permittee,
registrant or certificate holder.
(c) After reviewing any information obtained through an
investigation, the board shall determine if probable cause exists
that the licensee, permittee, registrant or certificate holder has
violated any provision of this article.
(d) Upon a finding that probable cause exists that the
licensee, permittee, registrant or certificate holder has violated
this article, the board may enter into a consent decree or hold a
hearing for the suspension or revocation of the license, permit,
registration or certificate or the imposition of sanctions against
the licensee, permittee, registrant or certificate holder. The
hearing shall be held in accordance with the provisions of this article.
(e) Any member of the board or the executive director of the
board may issue subpoenas and subpoenas duces tecum to obtain
testimony and documents to aid in the investigation of allegations
against any person regulated by this article.
(f) Any member of the board or its executive director may sign
a consent decree or other legal document on behalf of the board.
(g) The board may, after notice and opportunity for hearing,
deny, refuse to renew, suspend or revoke the license, permit,
registration or certificate of, impose probationary conditions upon
or take disciplinary action against, any licensee, permittee,
registrant or certificate holder for any of the following reasons:
(1) Obtaining a license, permit, registration or certificate
by fraud, misrepresentation or concealment of material facts;
(2) Being convicted of a felony or other crime involving moral
turpitude;
(3) Being guilty of unprofessional conduct;
(4) Intentional violation of this article or lawful order;
(5) Having had a license or other authorization to practice
revoked or suspended, other disciplinary action taken, or an
application for licensure or other authorization refused, revoked
or suspended by the proper authorities of another jurisdiction,
irrespective of intervening appeals and stays; or
(6) Engaging in any act which has endangered or is likely to
endanger the health, welfare or safety of the public.
(h) For the purposes of subsection (g) of this section,
disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative fine, not to exceed $1,000 a day per
violation;
(4) Mandatory attendance at continuing education seminars or
other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee, permittee, registrant or
certificate holder to report to the board for periodic interviews
for a specified period of time; or
(7) Other corrective action considered by the board to be
necessary to protect the public, including advising other parties
whose legitimate interests may be at risk.
§30-10-20. Procedures for hearing; right of appeal.
(a) Hearings shall be governed by the provisions of section
eight, article one of this chapter.
(b) The board may conduct the hearing or elect to have an
administrative law judge conduct the hearing.
(c) If the hearing is conducted by an administrative law judge, the administrative law judge shall prepare a proposed written order
containing findings of fact and conclusions of law at the conclusion
of a hearing. The proposed order may contain proposed disciplinary
actions if the board so directs. The board may accept, reject or
modify the decision of the administrative law judge.
(d) Any member or the executive director of the board has the
authority to administer oaths, examine any person under oath and
issue subpoenas and subpoenas duces tecum.
(e) If, after a hearing, the board determines the licensee,
permittee, registrant or certificate holder has violated this
article, a formal written decision shall be prepared which contains
findings of fact, conclusions of law and a specific description of
the disciplinary actions imposed.
§30-10-21. Judicial review; appeal to Supreme Court of Appeals.
Any licensee, permittee, registrant or certificate holder
adversely affected by a decision of the board entered after a
hearing may obtain judicial review of the decision in accordance
with section four, article five, chapter twenty-nine-a of this code,
and may appeal any ruling resulting from judicial review in
accordance with article six, chapter twenty-nine-a of this code.
§30-10-22. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article
or otherwise, the board has reason to believe that a person has knowingly violated this article, the board may bring its information
to the attention of an appropriate law-enforcement official who may
cause criminal proceedings to be brought.
(b) Any person violating a provision of this article is guilty
of a misdemeanor and, upon conviction thereof, shall be fined not
less than $500 nor more than $1,000 or confined in jail not more
than six months, or both fined and confined.
§30-10-23. Single act evidence of practice.
In any action brought or in any proceeding initiated under this
article, evidence of the commission of a single act prohibited by
this article is sufficient to justify a penalty, injunction,
restraining order or conviction without evidence of a general course
of conduct.
On motion of Senator Bowman, the following amendment to the
Government Organization committee amendment to the bill (Eng. H. B.
No. 4144) was reported by the Clerk and adopted:
On page thirteen, section eight, line twenty-two, subsection
(e), after the words "shall be" by inserting the word "considered".
The question now being on the adoption of the Government
Organization committee amendment to the bill, as amended, the same
was put and prevailed.
The bill (Eng. H. B. No. 4144), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire,
K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 4144) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (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. H. B. No. 4144) passed.
The following amendment to the title of the bill, from the
Committee on Government Organization, was reported by the Clerk and
adopted:
Eng. House Bill No. 4144--A Bill to repeal §30-10A-1, §30-10A-
2, §30-10A-3, §30-10A-4, §30-10A-5, §30-10A-6, §30-10A-7, §30-10A-8
and §30-10A-9 of the Code of West Virginia, 1931, as amended; to
amend and reenact §30-10-1, §30-10-2, §30-10-3, §30-10-4, §30-10-5,
§30-10-6, §30-10-7, §30-10-8, §30-10-9, §30-10-10, §30-10-11, §30-
10-12, §30-10-13, §30-10-14, §30-10-15, §30-10-16, §30-10-17, §30-
10-18, §30-10-19 and §30-10-20; and to amend said code by adding
thereto three new sections, designated §30-10-21, §30-10-22 and §30-
10-23, all relating to the Board of Veterinary Medicine; prohibiting
the practice of veterinary medicine without a license; prohibiting
the practice of veterinary technology without a registration;
prohibiting the practice of animal euthanasia without a certificate;
updating definitions; adding two members to the board; setting forth
the powers and duties of the board; clarifying rule-making
authority; continuing a special revenue account; establishing
license, certificate, registration and permit requirements; creating
scopes of practice; establishing requirements for an animal
euthanasia training program; creating a temporary permit;
establishing renewal requirements; providing for exemptions from licensure; providing requirements for the display of a license,
certificate, registration and permit; setting forth grounds for
disciplinary actions; allowing for specific disciplinary actions;
providing procedures for investigation of complaints; providing for
judicial review and appeals of decisions; setting forth hearing and
notice requirements; providing for civil causes of action; providing
criminal penalties; providing for privileged communication and
providing that a single act is evidence of practice.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4164, Creating of a pilot
program for the placement of children four to ten years of age in
foster care which shall be known as Jacob's Law.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire,
K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4164) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (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. Com.
Sub. for H. B. No. 4164) 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 No. 4186, Relating to the
practice of nursing home administration.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §30-25-1, §30-25-2, §30-25-3, §30-25-4, §30-25-5,
§30-25-6, §30-25-7, §30-25-8, §30-25-9, §30-25-10 and §30-25-11 of
the Code of West Virginia, as amended, be amended and reenacted; and
that said code be amended by adding thereto seven new sections,
designated §30-25-12, §30-25-13, §30-25-14, §30-25-15, §30-25-16,
§30-25-17 and §30-25-18, all to read as follows:
ARTICLE 25. NURSING HOME ADMINISTRATORS.
§30-25-1. Unlawful acts.
(a) It is unlawful for any person to practice or offer to
practice nursing home administration in this state without a license
or permit issued under the provisions of this article, or advertise
or use any title or description tending to convey the impression
that they are a nursing home administrator unless the person has
been duly licensed or permitted under the provisions of this
article.
(b) A business entity may not render any service or engage in
any activity which, if rendered or engaged in by an individual,
would constitute the practice of nursing home administration, except
through a licensee or permittee.
§30-25-2. Applicable law.
The practice licensed under the provisions of this article and
the West Virginia Nursing Home Administrators Licensing Board is
subject to article one of this chapter, the provisions of this
article, and any rules promulgated hereunder.
§30-25-3. Definitions.
As used in this article:
(1) "Applicant" means any person making application for an
original or renewal license or a temporary or emergency permit under
the provisions of this article.
(2) "Board" means the West Virginia Nursing Home Administrators
Licensing Board created by this article.
(3) "License" means a license to practice nursing home
administration under the provisions of this article.
(4) "Licensee" means a nursing home administrator licensed
under this article.
(5) "Nursing home" means a nursing home as that term is defined
in subdivision (c), section two, article five-c, chapter sixteen of
this code.
(6) "Nursing home administrator" means a person who performs
or is responsible for planning, organizing, directing and
controlling a nursing home, whether or not such the person has an
ownership interest in the nursing home or shares the functions.
(7) "Permit" means a temporary permit or emergency permit issued under the provisions of this article.
(8) "Permittee" means any person holding a permit issued
pursuant to the provisions of this article.
(9) "Practice of nursing home administration" means any service
requiring nursing home administration education, training, or
experience and applying such to planning, organizing, staffing,
directing, and controlling of the total management of a nursing
home.
§30-25-4. West Virginia Nursing Home Administrators Licensing
Board.
(a) The West Virginia Nursing Home Administrators Licensing
Board terminates on June 30, 2010. The terms of the members of the
board serving on June 1, 2010, terminate on June 30, 2010.
(b) Prior to July 1, 2010, the Governor shall appoint, by and
with advice and consent of the Senate:
(1) Two persons who are licensed nursing home administrators,
each for a term of five years;
(2) One person who is licensed as a nursing home administrator
for a term of four years;
(3) One person who is licensed as a nursing home administrator
for a term of three years;
(4) One person who is licensed as a nursing home administrator
for a term of two years; and
(5) Two citizen members, who are not licensed under the
provisions of this article and who do not perform any services
related to the practice of the profession regulated under the
provisions of this article, one for a term of four years, and one
for a term of three years.
(c) After the initial appointment, the term shall be for five
years. All appointments to the board shall be made by the Governor
by and with the advice and consent of the Senate.
(d) Commencing July 1, 2010, the board is created and shall
consist of the following seven voting members and one ex-officio
nonvoting member:
(1) Five members who are licensed nursing home administrators;
(2) Two citizen members, who are not licensed under the
provisions of this article and who do not perform any services
related to the practice of the professions regulated under the
provisions of this article, for a term of three years; and
(3) The Commissioner of the Bureau for Public Health or his or
her designee is an ex-officio nonvoting member.
(e) Each licensed member of the board, at the time of his or
her appointment, must have held a license in this state for a period
of not less than five years immediately preceding the appointment.
(f) Each member of the board must be a resident of this state
during the appointment term.
(g) A member may not serve more than two consecutive full
terms. A member may continue to serve until a successor has been
appointed and has qualified.
(h) A vacancy on the board shall be filled by appointment by
the Governor for the unexpired term of the member whose office is
vacant and the appointment shall be made within sixty days of the
vacancy.
(i) The Governor may remove any member from the board for
neglect of duty, incompetency or official misconduct.
(j) A member of the board immediately and automatically
forfeits membership to the board if his or her license to practice
is suspended or revoked, he or she is convicted of a felony under
the laws of any jurisdiction, or he or she becomes a nonresident of
this state.
(k) The board shall elect annually one of its members as a
chairperson and one of its members as a secretary who serve at the
will of the board.
(l) Each member of the board is entitled to compensation and
expense reimbursement in accordance with article one of this
chapter.
(m) A majority of the members of the board constitutes a
quorum.
(n) The board shall hold at least two meetings each year. Other meetings may be held at the call of the chairperson or upon
the written request of two members, at the time and place as
designated in the call or request.
(o) Prior to commencing his or her duties as a member of the
board, each member shall take and subscribe to the oath required by
section five, article four of the Constitution of this state.
§30-25-5. Powers and duties of the board.
(a) The board has all the powers and duties set forth in this
article, by rule, in article one of this chapter and elsewhere in
law.
(b) The board shall:
(1) Hold meetings, conduct hearings and administer
examinations;
(2) Establish requirements for licenses and permits;
(3) Establish procedures for submitting, approving and
rejecting applications for licenses and permits;
(4) Determine the qualifications of any applicant for licenses
and permits;
(5) Prepare, conduct, administer and grade examinations for
licenses;
(6) Determine the passing grade for the examinations;
(7) Maintain records of the examinations the board or a third
party administers, including the number of persons taking the examinations and the pass and fail rate;
(8) Hire, discharge, establish the job requirements and fix the
compensation of the executive director;
(9) Maintain an office, and hire, discharge, establish the job
requirements and fix the compensation of employees, investigators
and contracted employees necessary to enforce the provisions of this
article;
(10) Investigate alleged violations of the provisions of this
article, legislative rules, orders and final decisions of the board;
(11) Conduct disciplinary hearings of persons regulated by the
board;
(12) Determine disciplinary action and issue orders;
(13) Institute appropriate legal action for the enforcement of
the provisions of this article;
(14) Maintain an accurate registry of names and addresses of
all persons regulated by the board;
(15) Keep accurate and complete records of its proceedings, and
certify the same as may be necessary and appropriate;
(16) Establish the continuing education requirements for
licensees;
(17) Issue, renew, combine, deny, restrict, suspend, restrict,
revoke or reinstate licenses and permits;
(18) Establish a fee schedule;
(19) Propose rules in accordance with the provisions of article
three, chapter twenty-nine-a of this code to implement the
provisions of this article; and
(20) Take all other actions necessary and proper to effectuate
the purposes of this article.
(c) The board may:
(1) Contract with third parties to administer examinations
required under the provisions of this article;
(2) Sue and be sued in its official name as an agency of this
state; and
(3) Confer with the Attorney General or his or her assistant
in connection with legal matters and questions.
§30-25-6. Rulemaking.
(a) The board shall propose rules for legislative approval, in
accordance with the provisions of article three, chapter
twenty-nine-a of this code, to implement the provisions of this
article, including:
(1) Standards and requirements for licenses and permits;
(2) Procedures for examinations and reexaminations;
(3) Requirements for third parties to prepare and/or administer
examinations and reexaminations;
(4) Educational and experience requirements;
(5) The passing grade on the examinations;
(6) Standards for approval of courses and curriculum;
(7) Procedures for the issuance and renewal of licenses and
permits;
(8) Procedures to address substandard quality of care notices
from the West Virginia Office of Health Facility Licensure;
(9) A fee schedule;
(10) Procedure to publish a notice of a disciplinary hearing
against a licensee;
(11) Continuing education requirements for licensees;
(12) The procedures for denying, suspending, restricting,
revoking, reinstating or limiting the practice of licensees and
permittees;
(13) Adoption of a standard for ethics;
(14) Requirements for inactive or revoked licenses or permits;
and
(15) Any other rules necessary to effectuate the provisions of
this article.
(b) All of the board's rules in effect on July 1, 2010, shall
remain in effect until they are amended or repealed, and references
to provisions of former enactments of this article are interpreted
to mean provisions of this article.
§30-25-7. Fees; special revenue account; administrative fines.
(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special
revenue fund in the State Treasury designated the "West Virginia
Nursing Home Administrators Licensing Board Fund", which is
continued. The fund is used by the board for the administration of
this article. Except as may be provided in article one of this
chapter, the board retains the amount in the special revenue account
from year to year. No compensation or expense incurred under this
article is a charge against the General Revenue Fund.
(b) Any amount received as fines, imposed pursuant to this
article, shall be deposited into the General Revenue Fund of the
State Treasury.
§30-25-8. Qualifications for license; exceptions; application;
fees.
(a) To be eligible for a license to engage in the practice of
nursing home administration, the applicant must:
(1) Submit an application to the board;
(2) Be of good moral character;
(3) Obtain a baccalaureate degree;
(4) Pass a state and national examination as approved by the
board;
(5) Complete the required experience as prescribed by the
board;
(6) Successfully complete a criminal background check, through the West Virginia State Police and the National Criminal
Investigative Center;
(7) Successfully complete a Health Integrity Protection Data
Bank check;
(8) Not be an alcohol or drug abuser as these terms are defined
in section eleven, article one-a, chapter twenty-seven of this code:
Provided, That an applicant in an active recovery process, which
may, in the discretion of the board, be evidenced by participation
in a twelve-step program or other similar group or process, may be
considered;
(9) Not have been convicted of a felony in any jurisdiction
within ten years preceding the date of application for license which
conviction remains unreversed;
(10) Not have been convicted of a misdemeanor or felony in any
jurisdiction if the offense for which he or she was convicted
related to the practice of nursing home administration, which
conviction remains unreversed; and
(11) Has fulfilled any other requirement specified by the
board.
(b) A license issued by the board prior to July 1, 2010, shall
for all purposes be considered a license issued under this article:
Provided, That a person holding a license issued prior to July 1,
2010, must renew the license pursuant to the provisions of this article.
§30-28-9. License to practice nursing home administration from
another jurisdiction.
The board may issue a license to practice to an applicant of
good moral character who holds a valid license or other
authorization to practice nursing home administration from another
state, if the applicant:
(1) Holds a license or other authorization to practice in
another state which was granted after the completion of educational
requirements substantially equivalent to those required in this
state and passed examinations that are substantially equivalent to
the examinations required in this state;
(2) Does not have charges pending against his or her license
or other authorization to practice, and has never had a license or
other authorization to practice revoked;
(3) Has not previously failed an examination for licensure in
this state;
(4) Has paid the applicable fee;
(5) Is a citizen of the United States or is eligible for
employment in the United States; and
(6) Has fulfilled any other requirement specified by the board.
§30-25-10. Temporary and Emergency Permits.
(a) The board may issue a temporary permit for a period of ninety days, to an applicant seeking licensure pursuant to section
nine of this article who has accepted employment in West Virginia,
but who must wait for the board to meet to act on his or her
application. The temporary permit may be renewed at the discretion
of the board.
(b) The board may issue an emergency permit to a person who is
designated as an acting nursing home administrator, if a licensed
nursing home administrator dies or is unable to continue due to an
unexpected cause. The board may issue the emergency permit to the
owner, governing body or other appropriate authority in charge of
the nursing home, if it finds the appointment will not endanger the
safety of the occupants of the nursing home. A emergency permit is
valid for a period determined by the board not to exceed six months
and shall not be renewed.
(c) The board shall charge a fee for the temporary permit and
emergency permit.
§30-25-11. Renewal requirements.
(a) All persons regulated by the article shall annually before
June 30, renew his or her license by completing a form prescribed
by the board and submitting any other information required by the
board.
(b) The board shall charge a fee for each renewal of a license
or permit and shall charge a late fee for any renewal not properly completed and received with the appropriate fee by the board before
June 30.
(c) The board shall require as a condition for the renewal that
each licensee complete continuing education.
(d) The board may deny an application for renewal for any
reason which would justify the denial of an original application for
a license.
§30-25-12. Inactive license requirements.
(a) A licensee who does not want to continue in active practice
shall notify the board in writing and be granted inactive status.
(b) A person granted inactive status is exempt from fee
requirements and continuing education requirements, and cannot
practice in this state.
(c) When an inactive licensee wants to return to active
practice, he or she must complete all the continuing education
requirements for every licensure year the licensee was on inactive
status and pay all the applicable fees as determined by the board.
§30-25-13. Display of license.
(a) The board shall prescribe the form for a license and
permit, and may issue a duplicate upon payment of a fee.
(b) Any person regulated by the article shall conspicuously
display his or her license or permit at his or her principal
business location.
§30-25-14. Complaints; investigations; due process procedure;
grounds for disciplinary action.
(a) The board may upon its own motion based on credible
information, and shall upon the written complaint of any person,
cause an investigation to be made to determine whether grounds exist
for disciplinary action under this article or the legislative rules
promulgated pursuant to this article.
(b) Upon initiation or receipt of the complaint, the board
shall provide a copy of the complaint to the licensee or permittee.
(c) After reviewing any information obtained through an
investigation, the board shall determine if probable cause exists
that the licensee or permittee has violated subsection (g) of this
section or rules promulgated pursuant to this article.
(d) Upon a finding that probable cause exists that the licensee
or permittee has violated subsection (g) of this section or rules
promulgated pursuant to this article, the board may enter into a
consent decree or hold a hearing for the suspension or revocation
of the license or permit or the imposition of sanctions against the
licensee or permittee. Any hearing shall be held in accordance with
the provisions of this article.
(e) Any member of the board or the executive director of the
board may issue subpoenas and subpoenas duces tecum to obtain
testimony and documents to aid in the investigation of allegations against any person regulated by the article.
(f) Any member of the board or its executive director may sign
a consent decree or other legal document on behalf of the board.
(g) The board may, after notice and opportunity for hearing,
deny or refuse to renew, suspend or revoke the license or permit of,
impose probationary conditions upon or take disciplinary action
against, any licensee or permittee for any of the following reasons
once a violation has been proven by a preponderance of the evidence:
(1) Obtaining a license or permit by fraud, misrepresentation
or concealment of material facts;
(2) Being convicted of a felony or other crime involving moral
turpitude;
(3) Being guilty of unprofessional conduct which placed the
public at risk, as defined by legislative rule of the board;
(4) Intentional violation of a lawful order or legislative rule
of the board;
(5) Having had a license or other authorization revoked or
suspended, other disciplinary action taken, or an application for
licensure or other authorization revoked or suspended by the proper
authorities of another jurisdiction;
(6) Aiding or abetting unlicensed practice; or
(7) Engaging in an act while acting in a professional capacity
which has endangered or is likely to endanger the health, welfare or safety of the public.
(h) For the purposes of subsection (g) of this section,
disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative fine, not to exceed $1,000 per day per
violation;
(4) Mandatory attendance at continuing education seminars or
other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee or permittee to report to the board
for periodic interviews for a specified period of time; or
(7) Other corrective action considered by the board to be
necessary to protect the public, including advising other parties
whose legitimate interests may be at risk.
§30-25-15. Procedures for hearing; right of appeal.
(a) Hearings shall be governed by the provisions of section
eight, article one of this chapter.
(b) The board may conduct the hearing or elect to have an
administrative law judge conduct the hearing.
(c) If the hearing is conducted by an administrative law judge,
at the conclusion of a hearing he or she shall prepare a proposed
written order containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the
board so directs. The board may accept, reject or modify the
decision of the administrative law judge.
(d) Any member or the executive director of the board has the
authority to administer oaths, examine any person under oath and
issue subpoenas and subpoenas duces tecum.
(e) If, after a hearing, the board determines the licensee, or
permittee has violated any provision of this article or the board's
rules, a formal written decision shall be prepared which contains
findings of fact, conclusions of law and a specific description of
the disciplinary actions imposed.
§30-25-16. Judicial review.
Any licensee or permittee adversely affected by a decision of
the board entered after a hearing may obtain judicial review of the
decision in accordance with section four, article five, chapter
twenty-nine-a of this code, and may appeal any ruling resulting from
judicial review in accordance with article six, chapter
twenty-nine-a of this code.
§30-25-17. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article
or otherwise, the board has reason to believe that a licensee has
committed a criminal offense under this article, the board may bring
its information to the attention of an appropriate law-enforcement official.
(b) A person violating section one of this article is guilty
of a misdemeanor and, upon conviction thereof, shall be fined not
less than $100 not more than $1,000 or confined in jail not more
than six months, or both fined and confined.
§30-25-18. Single act evidence of practice.
In any action brought or in any proceeding initiated under this
article, evidence of the commission of a single act prohibited by
this article is sufficient to justify a penalty, injunction,
restraining order or conviction without evidence of a general course
of conduct.
The bill (Eng. Com. Sub. for H. B. No. 4186), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire,
K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4186) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (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. Com.
Sub. for H. B. No. 4186) passed.
The following amendment to the title of the bill, from the
Committee on Government Organization, was reported by the Clerk and
adopted:
Eng. Com. Sub. for House Bill No. 4186--A Bill to amend and
reenact §30-25-1, §30-25-2, §30-25-3, §30-25-4, §30-25-5, §30-25-6,
§30-25-7, §30-25-8, §30-25-9, §30-25-10 and §30-25-11 of the Code
of West Virginia, as amended, be amended and reenacted; and that
said code be amended by adding thereto seven new sections,
designated §30-25-12, §30-25-13, §30-25-14, §30-25-15, §30-25-16, §30-25-17 and §30-25-18 all relating to the practice of nursing home
administration; continuing the West Virginia Nursing Home
Administrators Licensing Board; prohibiting the practice of nursing
home administration without a license; providing other applicable
sections; providing definitions; providing for board composition;
setting forth the powers and duties of the board; clarifying
rulemaking authority; continuing a special revenue account;
establishing license requirements; providing for licensure for
persons licensed in another state; establishing renewal
requirements; providing permit requirements; requiring display of
license; setting forth grounds for disciplinary actions; allowing
for specific disciplinary actions; providing procedures for
investigation of complaints; providing for judicial review and
appeals of decisions; setting forth hearing and notice requirements;
providing for civil causes of action; providing criminal penalties
and providing that a single act is evidence of practice.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 4582, Creating reciprocity for West
Virginia small, women and minority-owned businesses who receive such
preferences in other states.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §5A-3-14, §5A-3-21, §5A-3-22, §5A-3-23, §5A-3-24, §5A-3-
25, §5A-3-26, §5A-3-37a, §5A-3-38, §5A-3-39, §5A-3-40, §5A-3-41,
§5A-3-42, §5A-3-54, §5A-3-55 and §5A-3-55a of the Code of West
Virginia, 1931, as amended, be repealed; that §5A-3-1, §5A-3-2, §5A-
3-3, §5A-3-4, §5A-3-12, §5A-3-18, §5A-3-36 and §5A-3-37 of said code
be amended and reenacted; and that said code be amended by adding
thereto a new section, designated §5A-3-59, all to read as follows:
ARTICLE 3. PURCHASING DIVISION.
§5A-3-1. Division created; purpose; director; applicability of
article; continuation.
(a) The Purchasing Division
of within the Department of
Administration is continued for the purpose of establishing
centralized offices to provide purchasing, and travel services to
the various state agencies.
(b) No person may be appointed The director of the Purchasing
Division
unless that person is shall, at the time of appointment:
(1) Be a graduate of an accredited college or university; and
(2) has Have spent a minimum of ten of the fifteen years
immediately preceding his or her appointment employed in an executive capacity in purchasing for any unit of government or for
any business, commercial or industrial enterprise.
(c) The provisions of this article apply to all of the spending
units of state government, except as otherwise provided by this
article or by law.
(b) (d) The provisions of this article do not apply to the
judicial branch, the legislative branch,
unless otherwise provided
or the Legislature or either house requests the director to render
specific services under the provisions of the chapter nor to
purchases of stock made by the Alcohol Beverage Control
Commissioner,
nor and to purchases of textbooks for the State Board
of Education.
§5A-3-2. Books and records of director.
The director shall keep
in his offices accurate books, accounts
and records of all transactions of his
or her division, and such
books, accounts and records shall be public records, and shall at
all proper times be available for inspection by any taxpayer of the
state.
§5A-3-3. Powers and duties of director of purchasing.
The director, under the direction and supervision of the
secretary, shall be the executive officer of the Purchasing Division
and shall have the power and duty to:
(1) Direct the activities and employees of the Purchasing Division;
(2) Ensure that the purchase of or contract for commodities
shall be based, whenever possible, on competitive bid;
(3) Purchasing or contract for, in the name of the state, the
commodities and printing required by the spending units of the state
government;
(4) Apply and enforce standard specifications established in
accordance with section five of this article as hereinafter
provided;
(5) Transfer to or between spending units or sell commodities
that are surplus, obsolete or unused as hereinafter provided;
(6) Have charge of central storerooms for the supply of
spending units,
as the director deems advisable;
(7) Establish and maintain a laboratory for the testing of
commodities and make use of existing facilities in state
institutions for that purpose as hereinafter provided,
as the
director deems advisable;
(8) Suspend the right and privilege of a vendor to bid on state
purchases when the director has evidence that such vendor has
violated any of the provisions of the purchasing law or the rules
and regulations of the director;
(9) Examine the provisions and terms of every contract entered
into for and on behalf of the State of West Virginia that impose any obligation upon the state to pay any sums of money for commodities
or services and approve each such contract as to such provisions and
terms; and the duty of examination and approval herein set forth
does not supersede the responsibility and duty of the Attorney
General to approve such contracts as to form:
Provided, That the
provisions of this subdivision do not apply in any respect whatever
to construction or repair contracts entered into by the Division of
Highways of the Department of Transportation:
Provided, however,
That the provisions of this subdivision do not apply in any respect
whatever to contracts entered into by the University of West
Virginia Board of Trustees or by the Board of Directors of the State
College System, except to the extent that such boards request the
facilities and services of the director under the provisions of this
subdivision; and
(10) Assure that the specifications and commodity descriptions
in all "requests for quotations" are prepared so as to permit all
potential suppliers-vendors who can meet the requirements of the
state an opportunity to bid and to assure that the specifications
or descriptions as written favor a particular brand or vendor or if
it is decided, either before or after the bids are opened, that a
commodity having different specifications or quality or in different
quantity can be bought, the director may rewrite the "requests for
quotations" and the matter shall be rebid.
§5A-3-4. Rules of director.
(a) The director shall propose rules for legislative approval
in accordance with the provisions of article three, chapter twenty-
nine-a of this code to:
(1) Authorize a spending unit to purchase specified commodities
directly and prescribe the manner in which such purchases shall be
made;
(2) Authorize, in writing, a spending unit to purchase
commodities in the open market for immediate delivery in
emergencies,
define such defines emergencies and prescribe the
manner in which such purchases shall be made and reported to the
director;
and for the purposes mentioned in subdivision (1) and this
subdivision (2), the head of any spending unit, or the financial
governing board of any institution, may, with the approval of the
director, make requisitions upon the Auditor for a sum to be known
as an advance allowance account, in no case to exceed five percent
of the total of the appropriations for any such spending unit, and
the Auditor shall draw his or her warrant upon the Treasurer for
such accounts; and all such advance allowance accounts shall be
accounted for by the head of the spending unit or institution once
every thirty days or more frequently if required by the State
Auditor or director
(3) Prescribe the manner in which commodities shall be purchased, delivered, stored and distributed;
(4) Prescribe the time for making requisitions and estimates
of commodities, the future period which they are to cover, the form
in which they shall be submitted and the manner of their
authentication;
(5) Prescribe the manner of inspecting all deliveries of
commodities, and making chemical and physical tests of samples
submitted with bids and samples of deliveries to determine
compliance with specifications;
(6) Prescribe the amount
and type of deposit or bond to be
submitted with a bid or contract and the amount of deposit or bond
to be given for the faithful performance of a contract;
(7) Prescribe a system whereby the director shall be required,
upon the payment by a vendor of an annual fee established by the
director, to give notice to such vendor of all bid solicitations for
commodities of the type with respect to which such vendor specified
notice was to be given, but no such fee shall exceed the cost of
giving the notice to such vendor, nor shall such fee exceed the sum
of $125 per fiscal year nor shall such fee be charged to persons
seeking only reimbursement from a spending unit;
(8) Prescribe that each state contract entered into by the
Purchasing Division shall contain provisions for liquidated damages,
remedies or provisions for the determination of the amount or amounts which the vendor shall owe as damages, in the event of
default under such contract by such vendor,
as determined by the
director;
(9) Prescribe contract management procedures for all state
contracts except government construction contracts including, but
not limited to, those set forth in article twenty-two, chapter five
of this code;
(10) Prescribe procedures by which oversight is provided to
actively monitor spending unit purchases, including, but not limited
to, all technology and software commodities and contractual services
exceeding $1 million, approval of change orders and final acceptance
by the spending units;
(11) Prescribe that each state contract entered into by the
Purchasing Division contain provisions for the cancellation of the
contract upon thirty days' notice to the vendor;
(12) Prescribe procedures for selling surplus commodities to
the highest bidder by means of an Internet auction site;
and
(13) Provide
for such other matters as may be necessary to give
effect to the foregoing rules and the provisions of this article;
and
(14) Prescribe procedures for encumbering purchase orders to
ensure that the proper account may be encumbered before sending
purchase orders to vendors.
(b) The director shall propose rules for legislative approval
in accordance with the provisions of article three, chapter twenty-
nine-a of this code to prescribe qualifications to be met by any
person who
on and after the effective date of this section is to be
employed in the Purchasing Division as a state buyer. The rules
must provide that a person may not be employed as a state buyer
unless he or she at the time of employment either is:
(1) A graduate of an accredited college or university; or
(2) Has at least four years' experience in purchasing for any
unit of government or for any business, commercial or industrial
enterprise.
Persons serving as state buyers are subject to the provisions
of article six, chapter twenty-nine of this code.
§5A-3-12. Prequalification disclosure and payment of annual fee by
vendors required; form and contents; register of
vendors; false certificates; penalties.
(a) The director may not accept any bid received from any
vendor unless the vendor has paid the annual fee specified in
section four of this article and has filed with the director
an
affidavit a certificate of the vendor or the
affidavit certificate
of a member of the vendor's firm or, if the vendor is a corporation,
the
affidavit certificate of an officer, director or managing agent
of the corporation, disclosing the following information:
(1) If the vendor is an individual, his or her name and city
and state of residence and business address, and, if he or she has
associates or partners sharing in his business, their names and city
and state of residence and business addresses;
(2) If the vendor is a firm, the name and city and state of
residence and business address of each member, partner or associate
of the firm;
(3) If the vendor is a corporation created under the laws of
this state or authorized to do business in this state, the name and
business address of the corporation; the names and city and state
of residence and business addresses of the president, vice
president, secretary, treasurer and general manager, if any, of the
corporation; and the names and city and state of residence and
business addresses of each stockholder of the corporation owning or
holding at least ten percent of the capital stock thereof;
(4) A statement of whether the vendor is acting as agent for
some other individual, firm or corporation, and if so, a statement
of the principal authorizing the representation shall be attached
to the
affidavit certificate or whether the vendor is doing business
as another entity;
(5) The vendor's latest Dun & Bradstreet
number and rating, if
there is any rating as to the vendor;
and
(6) A list of one or more banking institutions,
if such institution is available, to serve as references for the vendor;
and
(7) The vendor's tax identification number.
(b) Whenever a change occurs in the information submitted as
required, the change shall be reported immediately in the same
manner as required in the original disclosure
affidavit certificate.
(c) The
affidavit certificate and information received by the
director shall be
kept in a register of vendors which shall be made
a public record.
and open to public inspection during regular
business hours in the director's office and made readily available
to the public
(d) The director may waive the above requirements in the case
of any corporation listed on any nationally recognized stock
exchange and in the case of any vendor who or which is the sole
source for the commodity in question.
(e) Any person who
makes an affidavit falsely submits a false
certificate or who knowingly files or causes to be filed with the
director,
an affidavit a certificate containing a false statement
of a material fact or omitting any material fact, is guilty of a
misdemeanor and, upon conviction, shall be fined not more than
$1,000, and, in the discretion of the court, confined in jail not
more than one year. An individual convicted of a misdemeanor under
this subsection may never hold an office of honor, trust or profit
in this state, or serve as a juror.
§5A-3-18. Substituting for commodity bearing particular trade name
or brand.
If a spending unit requests the purchase of a commodity bearing
a particular trade name or brand,
and if the commodity is covered
by standard specifications adopted as provided by section five of
this article the director may substitute a commodity bearing a
different trade name or brand, if the substituted commodity
reasonably conforms to the adopted standard specifications and can
be obtained at an equal or lower price.
§5A-3-36. Inventory of removable property.
The director
shall have has the power and duty to
(1) make and
keep current an inventory of all removable property belonging to the
state. Such inventory shall be kept on file in the office of the
director as a public record. The inventory shall disclose the name
and address of the vendor, the date of purchase, the price paid for
the property therein described and the disposition thereof.
(2) Provide for the maintenance and repair of all office
furniture, machinery and equipment belonging to the state, either
by employing personnel and facilities under his director or by
contract with state agencies or private parties.;
§5A-3-37. Preference for resident vendors; preference for vendors
employing state residents; preference for veteran
residents; exceptions.
(a)
Other provisions of this article notwithstanding, effective
July 1, 1990, through June 30, 1994, in any instance involving the
purchase of construction services for the construction, repair or
improvement of any buildings or portions thereof, where the total
aggregate cost thereof, whether one or a series of contracts are
awarded in completing the project, is estimated by the director to
exceed the sum of $50,000 and where the director or any state
department is required under the provisions of this article to make
the purchase, construction, repair or improvement upon competitive
bids, the successful bid shall be determined as provided in this
section. Effective beginning July 1, 1992, in any instance that a
purchase of commodities or printing by the director or by a state
department is required under the provisions of this article to be
made upon competitive bids, the successful bid shall be determined
as provided in this section. The Secretary of the Department of
Revenue shall promulgate any rules necessary to: (i) Determine that
vendors have met the residence requirements described in this
section; (ii) establish the procedure for vendors to certify the
residency requirements at the time of submitting their bids; (iii)
establish a procedure to audit bids which make a claim for
preference permitted by this section and to reject noncomplying
bids; and (iv) otherwise accomplish the objectives of this section.
In prescribing the rules, the secretary shall use a strict construction of the residence requirements set forth in this
section. For purposes of this section, a successful bid shall be
determined and accepted as follows:
(1) From an individual resident vendor who has resided in West
Virginia continuously for the four years immediately preceding the
date on which the bid is submitted or from a partnership,
association, corporation resident vendor, or from a corporation
nonresident vendor which has an affiliate or subsidiary which
employs a minimum of one hundred state residents and which has
maintained its headquarters or principal place of business within
West Virginia continuously for four years immediately preceding the
date on which the bid is submitted, if the vendor's bid does not
exceed the lowest qualified bid from a nonresident vendor by more
than two and one-half percent of the latter bid, and if the vendor
has made written claim for the preference at the time the bid was
submitted:
Provided, That for purposes of this subdivision, any
partnership, association or corporation resident vendor of this
state, which does not meet the requirements of this subdivision
solely because of the continuous four-year residence requirement,
shall be considered to meet the requirement if at least eighty
percent of the ownership interest of the resident vendor is held by
another individual, partnership, association or corporation resident
vendor who otherwise meets the requirements of this subdivision, including the continuous four-year residency requirement:
Provided,
however, That the Secretary of the Department of Revenue shall
promulgate rules relating to attribution of ownership among several
resident vendors for purposes of determining the eighty percent
ownership requirement; or
(2) From a resident vendor, if, for purposes of producing or
distributing the commodities or completing the project which is the
subject of the vendor's bid and continuously over the entire term
of the project, on average at least seventy-five percent of the
vendor's employees are residents of West Virginia who have resided
in the state continuously for the two immediately preceding years,
and the vendor's bid does not exceed the lowest qualified bid from
a nonresident vendor by more than two and one-half percent of the
latter bid, and if the vendor has certified the residency
requirements of this subdivision and made written claim for the
preference, at the time the bid was submitted; or
(3) From a nonresident vendor, which employs a minimum of one
hundred state residents or a nonresident vendor which has an
affiliate or subsidiary which maintains its headquarters or
principle principal place of business within West Virginia and which
employs a minimum of one hundred state residents, if, for purposes
of producing or distributing the commodities or completing the
project which is the subject of the vendor's bid and continuously over the entire term of the project, on average at least seventy-
five percent of the vendor's employees or the vendor's affiliate's
or subsidiary's employees are residents of West Virginia who have
resided in the state continuously for the two immediately preceding
years and the vendor's bid does not exceed the lowest qualified bid
from a nonresident vendor by more than two and one-half percent of
the latter bid, and if the vendor has certified the residency
requirements of this subdivision and made written claim for the
preference, at the time the bid was submitted; or
(4) From a vendor who meets either the requirements of both
subdivisions (1) and (2) of this subsection or subdivisions (1) and
(3) of this subsection, if the bid does not exceed the lowest
qualified bid from a nonresident vendor by more than five percent
of the latter bid, and if the vendor has certified the residency
requirements above and made written claim for the preference at the
time the bid was submitted; or
(5) From an individual resident vendor who is a veteran of the
United States Armed Forces, the Reserves or the National Guard and
has resided in West Virginia continuously for the four years
immediately preceding the date on which the bid is submitted, if the
vendor's bid does not exceed the lowest qualified bid from a
nonresident vendor by more than three and one-half percent of the
latter bid, and if the vendor has made written claim for the preference at the time the bid was submitted; or
(6) From a resident vendor who is a veteran of the United
States Armed Forces, the Reserves or the National Guard, if, for
purposes of producing or distributing the commodities or completing
the project which is the subject of the vendor's bid and
continuously over the entire term of the project, on average at
least seventy-five percent of the vendor's employees are residents
of West Virginia who have resided in the state continuously for the
two immediately preceding years and the vendor's bid does not exceed
the lowest qualified bid from a nonresident vendor by more than
three and one-half percent of the latter bid, and if the vendor has
certified the residency requirements of this subdivision and made
written claim for the preference, at the time the bid was submitted;
or
(7) Notwithstanding any provisions of subdivisions (1), (2),
(3), (4), (5) or (6) of this subsection to the contrary, if any
nonresident vendor that is bidding on the purchase of commodities
or printing by the director or by a state department is also
certified as a small, women or minority-owned business pursuant to
section fifty-nine of this article, the nonresident vendor shall be
provided the same preference made available to any resident vendor
under the provisions of this subsection.
(b) If the Secretary of the Department of Revenue determines under any audit procedure that a vendor who received a preference
under this section fails to continue to meet the requirements for
the preference at any time during the term of the project for which
the preference was received the secretary may: (1) Reject the
vendor's bid; or (2) assess a penalty against the vendor of not more
than five percent of the vendor's bid on the project.
(c) Political subdivisions of the state including county boards
of education may grant the same preferences to any vendor of this
state who has made a written claim for the preference at the time
a bid is submitted, but for the purposes of this subsection, in
determining the lowest bid, any political subdivision shall exclude
from the bid the amount of business occupation taxes which must be
paid by a resident vendor to any municipality within the county
comprising or located within the political subdivision as a result
of being awarded the contract which is the object of the bid; in the
case of a bid received by a municipality, the municipality shall
exclude only the business and occupation taxes as will be paid to
the municipality:
Provided, That prior to soliciting any
competitive bids, any political subdivision may, by majority vote
of all its members in a public meeting where all the votes are
recorded, elect not to exclude from the bid the amount of business
and occupation taxes as provided in this subsection.
(d) If any of the requirements or provisions set forth in this section jeopardize the receipt of federal funds, then the
requirement or provisions are void and of no force and effect for
that specific project.
(e) If any provision or clause of this section or application
thereof to any person or circumstance is held invalid, the
invalidity shall not affect other provisions or applications of this
section which can be given effect without the invalid provision or
application, and to this end the provisions of this section are
severable.
(f) This section may be cited as the "Jobs for West Virginians
Act of 1990."
§5A-3-59. Small, women and minority-owned businesses.
(a) As used in this section:
(1) "Minority individual" means an individual who is a citizen
of the United States or a noncitizen who is in full compliance with
United States immigration law and who satisfies one or more of the
following definitions:
(A) "African American" means a person having origins in any of
the original peoples of Africa and who is regarded as such by the
community of which this person claims to be a part.
(B) "Asian American" means a person having origins in any of
the original peoples of the Far East, Southeast Asia, the Indian
subcontinent or the Pacific Islands, including, but not limited to, Japan, China, Vietnam, Samoa, Laos, Cambodia, Taiwan, Northern
Mariana, the Philippines, a U.S. territory of the Pacific, India,
Pakistan, Bangladesh, or Sri Lanka and who is regarded as such by
the community of which this person claims to be a part.
(C) "Hispanic American" means a person having origins in any
of the Spanish-speaking peoples of Mexico, South or Central America,
or the Caribbean Islands or other Spanish or Portuguese cultures and
who is regarded as such by the community of which this person claims
to be a part.
(D) "Native American" means a person having origins in any of
the original peoples of North America and who is regarded as such
by the community of which this person claims to be a part or who is
recognized by a tribal organization.
(2) "Minority-owned business" means a business concern that is
at least fifty-one percent owned by one or more minority individuals
or in the case of a corporation, partnership, or limited liability
company or other entity, at least fifty-one percent of the equity
ownership interest in the corporation, partnership, or limited
liability company or other entity is owned by one or more minority
individuals and both the management and daily business operations
are controlled by one or more minority individuals.
(3) "Small business" means a business, independently owned or
operated by one or more persons who are citizens of the United States or noncitizens who are in full compliance with United States
immigration law, which, together with affiliates, has two hundred
fifty or fewer employees, or average annual gross receipts of $10
million or less averaged over the previous three years.
(4) "State agency" means any authority, board, department,
instrumentality, institution, agency, or other unit of state
government. "State agency" does not include any county, city or
town.
(5) "Women-owned business" means a business concern that is at
least fifty-one percent owned by one or more women who are citizens
of the United States or noncitizens who are in full compliance with
United States immigration law, or in the case of a corporation,
partnership or limited liability company or other entity, at least
fifty-one percent of the equity ownership interest is owned by one
or more women who are citizens of the United States or noncitizens
who are in full compliance with United States immigration law, and
both the management and daily business operations are controlled by
one or more women who are citizens of the United States or
noncitizens who are in full compliance with United States
immigration law.
(b) Any director or any state department shall establish
programs consistent with this chapter to facilitate the
participation of small businesses and businesses owned by women and minorities in procurement transactions. The programs established
shall be in writing and shall include specific plans to achieve any
goals established therein. State agencies shall submit annual
progress reports on small, women and minority-owned business
procurement to the Department of Administration in a form specified
by the Department of Administration.
(c) The Department of Administration shall propose rules, for
legislative approval pursuant to article three, chapter twenty-nine-
a, to implement certification programs for small, women and
minority-owned businesses. These certification programs shall deny
certification to vendors from states that deny like certifications
to West Virginia-based small, women or minority-owned businesses or
that provide a preference for small, women or minority-owned
businesses based in that state that is not available to West
Virginia-based businesses. The rules shall:
(1) Establish minimum requirements for certification of small,
women and minority-owned businesses;
(2) Provide a process for evaluating existing local, state,
private sector and federal certification programs that meet the
minimum requirements; and
(3) Mandate certification, without any additional paperwork or
fee, of any prospective state vendor that has obtained certification
under any certification program that is determined to meet the minimum requirements established in the regulations.
On motion of Senator Guills, the following amendment to the
Finance committee amendment to the bill (Eng. H. B. No. 4582) was
reported by the Clerk and adopted:
On page twenty, section fifty-nine, lines fourteen through
nineteen, subsection (b), by striking out the following: Any
director or any state department shall establish programs consistent
with this chapter to facilitate the participation of small
businesses and businesses owned by women and minorities in
procurement transactions. The programs established shall be in
writing and shall include specific plans to achieve any goals
established therein.
The question now being on the adoption of the Finance committee
amendment to the bill, as amended, the same was put and prevailed.
The bill (Eng. H. B. No. 4582), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes,
Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire,
K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 4582) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (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. H.
B. No. 4582) passed.
The following amendment to the title of the bill, from the
Committee on Finance, was reported by the Clerk and adopted:
Eng. House Bill No. 4582--A Bill to repeal §5A-3-14, §5A-3-21,
§5A-3-22, §5A-3-23, §5A-3-24, §5A-3-25, §5A-3-26, §5A-3-37a, §5A-3-
38, §5A-3-39, §5A-3-40, §5A-3-41, §5A-3-42, §5A-3-54, §5A-3-55 and
§5A-3-55a of the Code of West Virginia, 1931, as amended; and to amend and reenact §5A-3-1, §5A-3-2, §5A-3-3, §5A-3-4, §5A-3-12, §5A-
3-18, §5A-3-36 and §5A-3-37 of said code; and to amend said code by
adding thereto a new section, designated §5A-3-59, relating to the
functions of the purchasing director; procurement process; exempting
certain entities from the Division of Purchasing; clarifying that
the judicial branch is exempt from the Division of Purchasing;
documentation of inventory; transportation of surplus property;
providing resident vendor preference to certified small, women and
minority-owned businesses; providing definitions; and providing
rule-making authority.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(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. H.
B. No. 4582) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the appointment of a committee of
conference of three from each house on the disagreeing votes of the
two houses, as to
Eng. Com. Sub. for House Bill No. 4207, Making it unlawful to
send obscene, anonymous, harassing and threatening communications
by computer, mobile phone, personal digital assistant or other
mobile device.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Moore, Barker and Ellem.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate
in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 218, Providing for early
parole eligibility for certain inmates.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 12. PROBATION AND PAROLE.
§62-12-13. Powers and duties of board; eligibility for parole;
procedure for granting parole.
(a) The board of parole, whenever it is of the opinion that the
best interests of the state and of the inmate will be served, and
subject to the limitations hereinafter provided, shall release any
inmate on parole for terms and upon conditions as are provided by
this article.
(b) Any inmate of a state correctional center is eligible for
parole if he or she:
(A) (1) Has served the minimum term of his or her indeterminate
sentence or has served one fourth of his or her definite term
sentence, as the case may be,
except that in no case is or,
(2) Has applied for and been accepted by the Commissioner of
Corrections into an accelerated parole program.
(c) An inmate who applies for an accelerated parole program is
eligible for application and acceptance by the commissioner only
under the following circumstances:
(1) The inmate has not been previously convicted of a felony
crime of violence against the person, a felony offense involving the use of a firearm, a felony offense where the victim was a minor
child;
(2) Has no record of institutional disciplinary rule violations
for a period of one hundred twenty days prior to parole
consideration, unless this requirement is waived by the commissioner
or his or her designee;
(3) Is not serving a sentence for a crime of violence against
the person, is not serving more than one felony drug offense under
article four, chapter sixty-a of this code for which the inmate has
served or is serving a consecutive sentence; or serving a sentence
for a felony offense involving the use of a firearm or a felony
offense where the victim was a minor child; and
(4) Has successfully completed a rehabilitation treatment
program created with the assistance of a standardized risk and needs
assessment.
Notwithstanding any provision of this code to the contrary, any
person who committed, or attempted to commit a felony with the use,
presentment or brandishing of a firearm,
is not eligible for parole
prior to serving a minimum of three years of his or her sentence or
the maximum sentence imposed by the court, whichever is less:
Provided, That any person who committed, or attempted to commit, any
violation of section twelve, article two, chapter sixty-one of this
code, with the use, presentment or brandishing of a firearm, is not eligible for parole prior to serving a minimum of five years of his
or her sentence or one third of his or her definite term sentence,
whichever is greater. Nothing in this section applies to an
accessory before the fact or a principal in the second degree who
has been convicted as if he or she were a principal in the first
degree if, in the commission of or in the attempted commission of
the felony, only the principal in the first degree used, presented
or brandished a firearm.
No A person is
not ineligible for parole
under the provisions of this subdivision because of the commission
or attempted commission of a felony with the use, presentment or
brandishing of a firearm unless
such that fact is clearly stated and
included in the indictment or presentment by which the person was
charged and was either: (i) Found by the court at the time of trial
upon a plea of guilty or nolo contendere; or (ii) found by the jury,
upon submitting to the jury a special interrogatory for such purpose
if the matter was tried before a jury; or (iii) found by the court,
if the matter was tried by the court without a jury.
For the purpose of this section the term "firearm" means any
instrument which will, or is designed to, or may readily be
converted to, expel a projectile by the action of an explosive,
gunpowder or any other similar means.
(B) The amendments to this subsection adopted in the year 1981:
(i) Apply to all applicable offenses occurring on or after August 1 of that year;
(ii) Apply with respect to the contents of any indictment or
presentment returned on or after August 1 of that year irrespective
of when the offense occurred;
(iii) Apply with respect to the submission of a special
interrogatory to the jury and the finding to be made thereon in any
case submitted to the jury on or after August 1 of that year or to
the requisite findings of the court upon a plea of guilty or in any
case tried without a jury:
Provided, That the state gives notice
in writing of its intent to seek such finding by the jury or court,
as the case may be, which notice shall state with particularity the
grounds upon which the finding will be sought as fully as such
grounds are otherwise required to be stated in an indictment, unless
the grounds therefor are alleged in the indictment or presentment
upon which the matter is being tried; and
(iv) Does not apply with respect to cases not affected by the
amendments and in such cases the prior provisions of this section
apply and are construed without reference to the amendments.
Insofar as the amendments relate to mandatory sentences
restricting the eligibility for parole, all matters requiring a
mandatory sentence shall be proved beyond a reasonable doubt in all
cases tried by the jury or the court.
(2) (5) Is not in punitive segregation or administrative segregation as a result of disciplinary action;
(3) (6) Has maintained a record of good conduct in prison for
a period of at least three months immediately preceding the date of
his or her release on parole;
(4) Has submitted to the board a written parole release plan
setting forth proposed plans for his or her place of residence,
employment and, if appropriate, his or her plans regarding education
and post-release counseling and treatment, the parole release plan
having been approved by the Commissioner of Corrections or his or
her authorized representative; and (7) Has prepared and submitted
to the board a written parole release plan setting forth proposed
plans for his or her place of residence, employment and, if
appropriate, his or her plans regarding education and post-release
counseling and treatment. The Commissioner of Corrections or his
or her designee shall review the plan to be reviewed and
investigated and provide recommendations to the board as to the
suitability of the plan: Provided, That in cases in which there is
a mandatory thirty day notification period required prior to the
release of the inmate, pursuant to section twenty-three of this
article, the board may conduct an initial interview and deny parole
without requiring the development of a plan. In the event the board
does not believe parole should be denied, it may defer a final
decision pending completion of an investigation and receipt of recommendations. Upon receipt of the plan together with the
investigation and recommendation, the board, through a panel, shall
make a final decision regarding the granting or denial of parole;
and
(5) (8) Has satisfied the board that if released on parole he
or she will not constitute a danger to the community.
(c) (d) Except in the case of a person serving a life sentence,
no person who has been previously twice convicted of a felony may
be released on parole until he or she has served the minimum term
provided by law for the crime for which he or she was convicted.
No A person sentenced for life may
not be paroled until he or she
has served ten years, and
no a person sentenced for life who has
been previously twice convicted of a felony may
not be paroled until
he or she has served fifteen years:
Provided, That
no a person
convicted of first degree murder for an offense committed on or
after June 10, 1994, is
not eligible for parole until he or she has
served fifteen years.
(e) For the purpose of this section:
(A) "Firearm" means any instrument which will, or is designed
to, or may readily be converted to, expel a projectile by the action
of an explosive, gunpowder or any other similar means;
(B) "Felony crime of violence against the person" means all
felony offenses set forth in articles two, three-e, eight-b or eight-d of chapter sixty-one of this code.
(C) "Felony offense where the victim was a minor child" means
any "felony crime of violence against the person" and any felony
violation set forth in article eight, eight-a, eight-c, or eight-d
of chapter sixty-one of this code..
(d) (f) In the case of a person sentenced to any state
correctional center, it is the duty of the board, as soon as a
person becomes eligible, to consider the advisability of his or her
release on parole.
(e) (g) If, upon consideration, parole is denied, the board
shall promptly notify the inmate of the denial. The board shall,
at the time of denial, notify the person of the month and year he
or she may apply for reconsideration and review. The board shall
at least once a year reconsider and review the case of every inmate
who was denied parole and is still eligible
; Provided, That the
board may reconsider and review parole eligibility any time within
three years following the denial of parole of a person serving a
life sentence.
(f) (h) Any person serving a sentence on a felony conviction
who becomes eligible for parole consideration prior to being
transferred to a state correctional center may make written
application for parole. The terms and conditions for parole
consideration established by this article apply to such inmates.
(g) (i) The board shall, with the approval of the Governor,
adopt rules governing the procedure in the granting of parole. No
provision of this article and none of the rules adopted hereunder
are intended or may be construed to contravene, limit or otherwise
interfere with or affect the authority of the Governor to grant
pardons and reprieves, commute sentences, remit fines or otherwise
exercise his or her constitutional powers of executive clemency.
(j) The Division of Corrections shall promulgate policies and
procedures for developing a rehabilitation treatment plan created
with the assistance of a standardized risk and needs assessment.
The policies and procedures shall include, but not be limited to,
policy and procedures for screening and selecting inmates for
rehabilitation treatment and development and use of standardized
risk and needs assessment tools. An inmate shall not be paroled
solely due to having successfully completed a rehabilitation
treatment plan but completion of all the requirements of a
rehabilitation parole plan along with compliance with the
requirements of subsection (c) and (d) of this section shall create
a rebuttable presumption that parole is appropriate. The
presumption created by this subsection may be rebutted by a parole
board finding that at the time parole release is sought the inmate
still constitutes a reasonable risk to the safety or property of
other persons if released. Nothing in this subsection may be construed to create a right to parole.
(i) (k) Notwithstanding the provisions of subdivision (b) or
(c) of this section, the parole board may in its discretion grant
or deny parole to an inmate against whom a detainer is lodged by a
jurisdiction other than West Virginia for service of a sentence of
incarceration, upon a written request for parole from the inmate.
A denial of parole under this subsection shall preclude
consideration for a period of one year or until the provisions of
subdivisions (b) or (c) of this section are applicable.
(j) (l) Where an inmate is otherwise eligible for parole
pursuant to subsection (c) and (d) of this section but the parole
board determines that the inmate should participate in an additional
program or complete an assigned task or tasks prior to actual
release on parole, the board may grant parole contingently,
effective upon successful completion of the program or assigned task
or tasks, without the need for a further hearing. The Commissioner
of Corrections shall provide notice to the parole board of the
imminent release of a contingently paroled inmate to effectuate
appropriate supervision.
(h) (m) The Division of Corrections is charged with the duty
of supervising all probationers and parolees whose supervision may
have been undertaken by this state by reason of any interstate
compact entered into pursuant to the uniform act for out-of-state parolee supervision.
(i) (1) (n) (1) When considering an inmate of a state
correctional center for release on parole, the parole board panel
considering the parole is to have before it an authentic copy of or
report on the inmate's current criminal record as provided through
the West Virginia State Police, the United States Department of
Justice or other reliable criminal information sources and written
reports of the warden or superintendent of the state correctional
center to which
such the inmate is sentenced:
(i) (A) On the inmate's conduct record while in custody,
including a detailed statement showing any and all infractions of
disciplinary rules by the inmate and the nature and extent of
discipline administered therefor;
(ii) (B) On improvement or other changes noted in the inmate's
mental and moral condition while in custody, including a statement
expressive of the inmate's current attitude toward society in
general, toward the judge who sentenced him or her, toward the
prosecuting attorney who prosecuted him or her, toward the policeman
or other officer who arrested the inmate and toward the crime for
which he or she is under sentence and his or her previous criminal
record;
(iii) (C) On the inmate's industrial record while in custody
which shall include: The nature of his or her work, occupation or education, the average number of hours per day he or she has been
employed or in class while in custody and a recommendation as to the
nature and kinds of employment which he or she is best fitted to
perform and in which the inmate is most likely to succeed when he
or she leaves prison;
(iv) (D) On physical, mental and psychiatric examinations of
the inmate conducted, insofar as practicable, within the two months
next preceding parole consideration by the board.
(2) The board panel considering the parole may waive the
requirement of any report when not available or not applicable as
to any inmate considered for parole but, in every such case, shall
enter in the record thereof its reason for the waiver:
Provided,
That in the case of an inmate who is incarcerated because the inmate
has been found guilty of, or has pleaded guilty to a felony under
the provisions of section twelve, article eight, chapter sixty-one
of this code or under the provisions of article eight-b or eight-c
of said chapter, the board panel may not waive the report required
by this subsection and the report is to include a study and
diagnosis including an on-going treatment plan requiring active
participation in sexual abuse counseling at an approved mental
health facility or through some other approved program:
Provided,
however, That nothing disclosed by the person during the study or
diagnosis may be made available to any law-enforcement agency, or other party without that person's consent, or admissible in any
court of this state, unless the information disclosed indicates the
intention or plans of the parolee to do harm to any person, animal,
institution or to property. Progress reports of outpatient
treatment are to be made at least every six months to the parole
officer supervising the person. In addition, in such cases, the
parole board shall inform the prosecuting attorney of the county in
which the person was convicted of the parole hearing and shall
request that the prosecuting attorney inform the parole board of the
circumstances surrounding a conviction or plea of guilty, plea
bargaining and other background information that might be useful in
its deliberations.
(j) (o) Before releasing any inmate on parole, the board of
parole shall arrange for the inmate to appear in person before a
parole board panel and the panel may examine and interrogate him or
her on any matters pertaining to his or her parole, including
reports before the board made pursuant to the provisions hereof:
Provided, That an inmate may appear by video teleconference if the
members of the panel conducting the examination are able to
contemporaneously see the inmate and hear all of his or her remarks
and if the inmate is able to contemporaneously see each of the
members of the panel conducting the examination and hear all of the
members' remarks. The panel shall reach its own written conclusions as to the desirability of releasing the inmate on parole and the
majority of the panel considering the release shall concur in the
decision. The warden or superintendent shall furnish all necessary
assistance and cooperate to the fullest extent with the parole
board. All information, records and reports received by the board
are to be kept on permanent file.
(k) (p) The board and its designated agents are at all times
to have access to inmates imprisoned in any state correctional
center or in any
city, county or regional jail in this state and
shall have the power to may obtain any information or aid necessary
to the performance of its duties from other departments and agencies
of the state or from any political subdivision thereof.
(l) (q) The board shall, if so requested by the Governor,
investigate and consider all applications for pardon, reprieve or
commutation and shall make recommendation thereon to the Governor.
(m) (r) Prior to making a recommendation for pardon, reprieve
or commutation and prior to releasing any inmate on parole, the
board shall notify the sentencing judge and prosecuting attorney at
least ten days before the recommendation or parole.
(n) (s) Any person released on parole shall participate as a
condition of parole in the litter control program of the county to
the extent directed by the board, unless the board specifically
finds that this alternative service would be inappropriate.
(t) Except for the provisions contained in subdivision (4),
subsection (c) of this section, the provisions of this bill enacted
during the 2010 regular session of the Legislature shall become
effective on January 1, 2011.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 218--A Bill to amend and
reenact §62-12-13 of the Code of West Virginia, 1931, as amended,
relating to powers and duties of the board of parole; eligibility
for parole; changing when an inmate's written parole release plan
may be prepared and considered; procedures for granting parole;
accelerated parole eligibility for certain inmates who complete a
rehabilitation treatment plan created with the assistance of a
standardized risk and needs assessment; authorizing the Division of
Corrections to promulgate policies and procedures related to
accelerated parole eligibility; creating a rebuttable presumption
for parole in certain circumstances; authorizing board of parole to
contingently grant parole allowing board of parole to consider
inmates for parole who have certain detainers pending against them;
reducing the period for parole reconsideration; making technical
corrections; and creating an internal effective date for certain
amendments to the section.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendments to the bill (Eng. Com. Sub. for S.
B. No. 218) and requested the House of Delegates to recede
therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 422, Limiting liability for
nonhealth care provider defibrillator users.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate
in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 494, Providing fiduciary
commissioner oversight.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §44-3-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §44-3A-35 of said code be amended and
reenacted, and that said code be amended by adding thereto a new
section, designated §51-10A-6, all to read as follows:
CHAPTER 44. ADMINISTRATION OF ESTATES & TRUSTS
§44-3-1. Fiduciary commissioners.
The office previously known as commissioner of accounts is
hereby abolished. The office of fiduciary commissioner is hereby
created and any reference in this code to a commissioner of accounts
shall, after the effective date of this section, mean fiduciary
commissioner. Fiduciary commissioners shall be attorneys admitted
to the practice of law in this state, or shall meet the
qualifications of fiduciary supervisors as set forth in article
three-a of this chapter:
Provided, That persons who are serving as
commissioners of accounts upon the effective date of this article
shall be continued in office as fiduciary commissioners for not more
than one year from the effective date of this article for the
purpose of settling estates not settled on the effective date of
this article.
The county commission of each county shall appoint not more
than four fiduciary commissioners. In counties in which there
exists a separate tribunal for police and fiscal purposes, that
tribunal shall appoint the fiduciary commissioners. In either case,
not more than two of the fiduciary commissioners may be from the same political party.
The fiduciary commissioner shall report to and settle accounts
with the county clerk. On or before the last day of March, June,
September and December, the fiduciary commissioner shall file with
the county clerk a report on the status and disposition of every
active case referred to the fiduciary commissioner. In the next
succeeding term of the county commission, the county clerk shall
provide a copy of the report to the county commission, and shall
inform the county commission of any cases referred to a fiduciary
commissioner in which the fiduciary commissioner has not fulfil1ed
duties relating to the case in accordance with deadlines established
by law. The county commission shal1 take appropriate action to
ensure that all deadlines established by law will be observed,
including, if necessary, the removal of fiduciary commissioners who
consistently fail to meet such deadlines.
ARTICLE 3A. OPTIONAL PROCEDURE FOR PROOF AND ALLOWANCE OF CLAIMS
AGAINST ESTATES OF DECEDENTS; COUNTY OPTION.
§44-3A-35. Fiduciary commissioners.
The county commission of each county shall appoint not more than
four fiduciary commissioners, except that in counties in which there
exists a separate tribunal for police and fiscal purposes, such
tribunal shall appoint such commissioners:
Provided, That the
county commission or such separate tribunal shall avoid reference of estates to such commissioners, unless such reference is
necessary.
The fiduciary commissioner shall report to and settle accounts with
the county clerk. On or before the last day of March, June,
September and December, the fiduciary commissioner shall file with
the county clerk a report on the status and disposition of every
active case referred to the fiduciary commissioner. In the next
succeeding term of the county commission, the county clerk shall
provide a copy of the report to the county commission, and shall
inform the county commission of any cases referred to a fiduciary
commissioner in which the fiduciary commissioner has not fulfil1ed
duties relating to the case in accordance with deadlines established
by law. The county commission shal1 take appropriate action to
ensure that all deadlines established by law will be observed,
including, if necessary, the removal of fiduciary commissioners who
consistently fail to meet such deadlines.
CHAPTER 51. COURTS & THEIR OFFICERS
ARTICLE 10A. BAIL BOND ENFORCERS.
§51-10A-6. Prohibition against providing fiduciary bonds in
estates; exception.
A bail bonding company or a bail bond enforcer may not provide
fiduciary bonds for an estate unless the bail bonding company or
bail bond enforcer is licensed with the Insurance Commissioner to act as an agent for an insurance company that provides surety or
fiduciary bonds.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 494--A Bill to amend and
reenact §44-3-1 of the Code of West Virginia, 1931, as amended; to
amend and reenact §44-3A-35 of said code; and to amend said code by
adding thereto a new section, designated §51-10A-6; all relating to
fiduciary matters; updating references from the commissioner of
accounts to the fiduciary commissioner; requiring fiduciary
commissioner to file status reports and settle accounts of certain
cases with county clerks; requiring county clerks to file the status
report with county commissions; and prohibiting bail bonding
companies or bail bond enforcers from providing fiduciary bonds
unless licenced by the Insurance Commissioner.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendments to the bill (Eng. Com. Sub. for S.
B. No. 494) and requested the House of Delegates to recede
therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 567, Creating Nonprofit
Adventure and Recreational Responsibility Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 16. NONPROFIT ADVENTURE AND RECREATIONAL ACTIVITY
RESPONSIBILITY ACT.
§20-16-1. Short title.
This article may be cited as the Nonprofit Adventure and
Recreational Activity Responsibility Act.
§20-16-2. Legislative purpose.
The Legislature finds that West Virginia is blessed by
geography and natural features that make it ideal for a host of
adventure and recreational activities attractive to nonprofit youth
organizations interested in training and inspiring thousands of
young people from other parts of the United States and throughout
the world. The location by these organizations of facilities within the state will contribute significantly to the economy of West
Virginia, and enhance the state's reputation as a place to visit and
transact business. Because it is recognized that there are inherent
risks in various adventure and recreational activities which should
be understood by participants therein and which are essentially
impossible for the organizations and their providers to eliminate,
it is the purpose of this article to define those areas of
responsibility and those affirmative acts for which these nonprofit
organizations and their providers of adventure and recreational
activities shall be liable for loss, damage or injury suffered by
participants, and to further define those risks which the
participants expressly assume and for which there can be no
recovery.
§20-16-3. Definitions.
In this article, unless a different meaning plainly is
required:
(1) "Adventure or recreational activity" means any program or
activity sponsored by a nonprofit youth organization and conducted
by the organization or its provider that involves inherent risks,
including, but not limited to:
(A) All-terrain vehicle activities and similar activities,
including all activities within the ATV Responsibility Act in
article fifteen of this chapter;
(B) Biking, mountain-biking and similar activities;
(C) Canopy activities, zip-lines and similar activities;
(D) Climbing and repelling and similar activities in improved
and natural areas, including climbing walls,;
(E) Equestrian activities and similar activities, including all
activities within the Equestrian Activities Responsibility Act in
article four of this chapter;
(F) Firearms training and similar activities;
(G) Hiking, backpacking, camping and similar activities;
(H) Paintball and similar activities;
(I) Rope initiatives, cope and confidence courses, challenge
courses, slacklines, challenge courses and similar activities;
(J) Skating, including ice skating, rollerblading, and similar
activities;
(K) Snow activities, including snowshoeing, snow skiing,
sledding, snowmobiling, and similar activities, including all
activities within the Skiing Responsibility Act in article three-A
of this chapter;
(L) Spelunking, caving, and similar activities;
(M) Water sports, including swimming, diving, canoeing,
kayaking, boating, sailing, scuba diving, water skiing, and similar
activities, including all activities within the Whitewater
Responsibility Act in article three-B of this chapter;
(N) Windsurfing and similar activities.
(2) "Employee" means an officer, agent, employee, servant, or
volunteer, whether compensated or not, whether full time or not, who
is authorized to act and is acting within the scope of his or her
employment or duties with the nonprofit youth organization or
provider.
(3) "Nonprofit youth organization" means any nonprofit
organization, including any subsidiary, affiliate or other related
entity within its corporate or other business structure, that has
been chartered by the United States Congress to train young people
to do things for themselves and others, and that has established an
area of at least six thousand contiguous acres within West Virginia
in which to provide adventure or recreational activities for these
young people and others.
(4) "Participant" means any person engaging in an adventure or
recreational activity.
(5) "Provider" means any individual, sole proprietorship,
partnership, association, public or private corporation, the United
States or any federal agency, this state or any political
subdivision of this state, and any other legal entity which engages,
with or without compensation, in organizing, promoting, presenting
or providing or assisting in providing an adventure or recreational
activity sponsored by a nonprofit youth organization, including one that allows the nonprofit youth organization the use of its land for
the adventure or recreational activity.
§20-16-4. Duties of a nonprofit youth organization or provider.
Every nonprofit youth organization or provider shall:
(1) Make reasonable and prudent efforts to determine the
ability of a participant to safely engage in the adventure or
recreational activity;
(2) Make known to any participant any dangerous traits or
characteristics or any physical impairments or conditions related
to a particular adventure or recreational activity, of which the
nonprofit youth organization or provider knows or through the
exercise of due diligence could know;
(3) Make known to any participant any dangerous condition as
to land or facilities under the lawful possession and control of the
nonprofit youth organization or provider, of which the nonprofit
youth organization or provider knows or through the exercise of due
diligence could know, by advising the participant in writing or by
conspicuously posting warning signs upon the premises;
(4) Assure that each participant has or is provided all
equipment reasonably necessary for all activities covered by this
article and, in providing equipment to a participant, make
reasonable and prudent efforts to inspect such equipment to assure
that it is in proper working condition and safe for use in the adventure or recreational activity;
(5) Prepare and present to each participant or prospective
participant, for his or her inspection and signature, a statement
which clearly and concisely explains the liability limitations,
restrictions and responsibilities set forth in this article;
(6) Any minor under the age of sixteen will remain under the
supervision of and within sight of an agent or employee of the
nonprofit youth organization at all times.
§20-16-5. Duties of participants.
It is recognized that the adventure and recreational activities
described in this article are hazardous to participants, regardless
of all feasible safety measures which can be taken.
Each participant in an adventure or recreational activity
expressly assumes the risk of and legal responsibility for any
injury, loss or damage to person or property which results from
participation in an activity. Each participant shall have the sole
individual responsibility for knowing the range of his or her own
ability to participate in a particular adventure or recreational
activity, and it shall be the duty of each participant to act within
the limits of the participant's own ability, to heed all posted
warnings, to act in accordance with the instructions of any employee
of the non-profit youth organization or provider, to perform an
adventure or recreational activity only in an area or facility designated by the nonprofit youth organization or provider and to
refrain from acting in a manner which may cause or contribute to the
injury of anyone. Any participant under the age of fourteen is
presumed incapable of comparative negligence or assumption of the
risk. Any participant over the age of fourteen will be subject to
the common law presumptions as to their acts and or omissions.
A participant involved in an accident shall not depart from the
area or facility where the adventure or recreational activity took
place without leaving personal identification, including name and
address, or without notifying the proper authorities, or without
obtaining assistance when that person knows or reasonably should
know that any other person involved in the accident is in need of
medical or other assistance.
§20-16-6. Liability of nonprofit youth organization or provider.
(a) A nonprofit youth organization or provider shall be liable
for injury, loss or damage caused by failure to follow the duties
set forth in section four of this article where the violation of
duty is causally related to the injury, loss or damage suffered. A
nonprofit youth organization or provider shall not be liable for any
injury, loss or damage caused by the negligence of any person who
is not an agent or employee of the nonprofit youth organization or
provider.
(b) A nonprofit youth organization or provider shall be liable for acts or omissions which constitute gross negligence or willful
and wanton conduct which is the proximate cause of injury to a
participant.
(c) A nonprofit youth organization or provider shall be liable
for an intentional injury which he or she inflicts upon a
participant.
(d) Every nonprofit youth organization and any provider for
such non-profit youth organization shall carry public liability
insurance in limits of no less than $500,000 per person, $1,000,000
per occurrence and $50,000 for property damage with coverage
extending to any employee of the non-profit youth organization or
provider in the course of their duties as an employee or volunteer.
The failure to have in effect the insurance required by this section
shall prevent the non-profit youth organization or provider from
relying on the provisions of this article in any civil action
brought by a participant.
§20-16-7. Liability of participants.
Any participant shall be liable for injury, loss or damage
resulting from violations of the duties set forth in section five
of this article:
Provided, That none of the provisions in this
article shall modify or eliminate any other statutory or common law
provisions which specifically relate to or concern liability of
minors or the capacity of minors to legally enter into contracts.
§20-16-8. Applicability of article.
The provisions of this article are in addition to provisions
of articles three-A, three-B, four and fifteen of this chapter, and
are to be construed in pari materia.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendment to the bill (Eng. Com. Sub. for S. B.
No. 567) and requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 573, Allowing audits published
electronically with notice to proper authorities.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 2773, Increasing the monetary
penalties for selling tobacco products to minors.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 3152, Athletic Trainers
Registration Act.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4134, Removing non-utilized
code sections.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4140, Relating to the board
of physical therapy.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4142, Relating to the board
of sanitarians.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4145, Providing services and
facilities to assist student veterans at state institutions of
higher education.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4155, Permitting revenues
allocated to volunteer and part time fire departments to be used for
Workers' Compensation premiums and length of service awards.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, to take effect
July 1, 2010, of
Eng. Com. Sub. for House Bill No. 4194, Codifying the Division
of Criminal Justice Services being incorporated into the Department
of Military Affairs and Public Safety.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4223, Increasing the safety
of school children that use school buses.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 4248, Relating to the
solicitation of charitable funds.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the changed effective date to take effect from passage, of
Eng. House Bill No. 4416, Declaring certain claims against the
state and its agencies to be moral obligations of the state and
directing payments thereof.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amended title, passage
as amended, of
Eng. Com. Sub. for House Bill No. 4504, Adopting the Uniform
State Military Code of Justice into West Virginia law.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, to take effect
July 1, 2010, of
Eng. Com. Sub. for House Bill No. 4512, Relating to school bus
operators.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, to take effect
from passage, of
Eng. Com. Sub. for House Bill No. 4577, Relating to elevator
inspections and classifications of licensure.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, to take effect
July 1, 2010, of
Eng. Com. Sub. for House Bill No. 4652, Establishing a school
calendar committee for each county.
The Senate proceeded to the twelfth order of business.
Remarks were made by Senator Stollings.
Pending announcement of a meeting of a standing committee of
the Senate,
On motion of Senator Chafin, the Senate recessed until 5 p.m.
today.
Upon expiration of the recess, the Senate reconvened.
On motion of Senator Chafin, the Senate recessed for five
minutes to permit His Excellency, the Governor, Joe Manchin III, to
present the Honorable Donald T. Caruth, a senator from the tenth
district, with the Distinguished West Virginian award.
Upon expiration of the recess, the Senate reconvened and, at
the request of Senator Chafin, and by unanimous consent, returned
to the second order of business and the introduction of guests.
The Senate again proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 51, Relating to child
custody plans for National Guard or military reserve parents.
A message from The Clerk of the House of Delegates announced
that that body had refused to recede from its amendments, and
requested the appointment of a committee of conference of three from
each house on the disagreeing votes of the two houses, as to
Eng. Com. Sub. for Senate Bill No. 218, Providing for early
parole eligibility for certain inmates.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Frazier, Wooton and Ellem.
On motion of Senator Chafin, the Senate agreed to the
appointment of a conference committee on the bill.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Palumbo, Williams and Hall.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 442, Clarifying PEIA Finance Board may
offset certain annual retiree premium increases.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 462, Limiting State Police
applicants' age.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 510, Extending DNR license and stamp fees
sunset provision.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 511, Relating to tagging and checking
beaver pelts.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 512, Increasing game trap markings.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 574, Declaring December 7 special memorial
day.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 596, Exempting Adjutant
General and National Guard from certain leasing and accounting
requirements.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 624, Relating to Secretary
of State annual reports' filing deadlines.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 627, Increasing civil and criminal
penalties for littering.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 633, Depositing public funds into certain
federally insured accounts.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 696, Relating to limited
liability partnerships.
A message from The Clerk of the House of Delegates announced
that that body had refused to concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 4513, Establishing
requirements for Marcellus gas well operations use of water
resources.
On motion of Senator Chafin, the Senate refused to recede from
its amendments to the bill and requested the appointment of a committee of conference of five from each house on the disagreeing
votes of the two houses.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Green, Stollings, D. Facemire, Williams and Deem.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate again proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee reports
had been filed at 5:42 p.m. today:
Eng. Com. Sub. for Senate Bill No. 273,
Authorizing DEP
promulgate legislative rules.
And,
Eng. House Bill No. 4177, Dedicating five percent of coal
severance tax to the county of origin.
At the request of Senator Chafin, and by unanimous consent, the
Senate returned to the fourth order of business.
Senator Palumbo, from the Joint Committee on Enrolled Bills,
submitted the following report, which was received:
Your Joint Committee on Enrolled Bills has examined, found
truly enrolled, and on the 13th day of March, 2010, presented to His
Excellency, the Governor, for his action, the following bills, signed by the President of the Senate and the Speaker of the House
of Delegates:
(Com. Sub. for H. B. No. 3301), Amending the Division of Labor
rule verifying employees legal employment status.
(Com. Sub. for H. B. No. 4133), Clarifying the requirements to
practice marriage and family therapy.
(H. B. No. 4171), Relating to criminogenic risk and needs
assessments.
(Com. Sub. for H. B. No. 4291), Eliminating duplicitous
criminal background investigations with both the West Virginia State
Police and the Federal Bureau of Investigation.
(H. B. No. 4361), Removing provisions prohibiting sharing
domestic violence information with other governments.
(Com. Sub. for H. B. No. 4374), Caregivers Consent Act.
And,
(Com. Sub. for H. B. No. 4407), Updating the law regarding the
rabies vaccinations of dogs and cats.
Respectfully submitted,
Corey Palumbo,
Chair, Senate Committee.
Danny Wells,
Chair, House Committee.
Senator Unger, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had
under consideration
House Concurrent Resolution No. 16, The "Arsenio Albert Alvarez
Memorial Bridge".
House Concurrent Resolution No. 20, The "PFC Ezra Craft
Memorial Bridge".
House Concurrent Resolution No. 23, The "SFC Terrance N. Gentry
Memorial Bridge".
House Concurrent Resolution No. 24, The "PFC Franklin L. Conn
Memorial Bridge".
House Concurrent Resolution No. 25, The "PFC Clarence Ellis
Memorial Bridge".
House Concurrent Resolution No. 29, The "Sgt. Chester A.
Mollett Memorial Highway".
House Concurrent Resolution No. 32, The "LCPL Dale A. Griffin
Memorial Bridge".
House Concurrent Resolution No. 36, "The Marion County Veterans
Memorial Bridge".
House Concurrent Resolution No. 38, The "Ralph L. Dawson
Memorial Bridge".
House Concurrent Resolution No. 46, The "Staff Sergeant Robert
Lee Chambers Memorial Bridge".
House Concurrent Resolution No. 64, The "Delmar L. Parrish
Bridge".
House Concurrent Resolution No. 65, The "Sloan Brother's
Highway".
House Concurrent Resolution No. 82, The "P.F.C. Daniel F.
Tallman Memorial Bridge".
And,
House Concurrent Resolution No. 83, The "Carmel M. Johnson
Memorial Bridge".
And reports the same back with the recommendation that they
each be adopted.
Respectfully submitted,
John R. Unger II,
Chair.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 16 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being granted, House Concurrent Resolution No. 20 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 23 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 24 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 25 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 29 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 32 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 36 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 38 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 46 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 64 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 65 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 82 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Unger, unanimous consent being
granted, House Concurrent Resolution No. 83 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Unger, from the Committee on Transportation and
Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had
under consideration
House Concurrent Resolution No. 72, The "Glenn Holton Memorial
Bridge".
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
John R. Unger II,
Chair.
At the request of Senator Unger, unanimous consent being granted, the resolution (H. C. R. No. 72) contained in the preceding
report from the Committee on Transportation and Infrastructure was
taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Unger, from the Committee on Transportation and
Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had
under consideration
Senate Concurrent Resolution No. 56, Requesting DOH name bridge
in Mercer County "Phoebe Goodwill Memorial Bridge".
Senate Concurrent Resolution No. 57, Requesting DOH name bridge
in Mercer County "Yon-Peraldo Memorial Bridge".
Senate Concurrent Resolution No. 58, Requesting DOH name bridge
in Mercer County "Andrew Scott Memorial Bridge".
Senate Concurrent Resolution No. 59, Requesting DOH name bridge
in Mercer County "Maria Cooper Memorial Bridge".
And,
Senate Concurrent Resolution No. 70, Requesting DOH name
section of Wyoming County Route 1 "Gary 'Beatle' Sutherland Road".
And reports the same back with the recommendation that they each be adopted.
Respectfully submitted,
John R. Unger II,
Chair.
At the request of Senator Unger, unanimous consent being
granted, Senate Concurrent Resolution No. 56 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Unger, unanimous consent being
granted, Senate Concurrent Resolution No. 57 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Unger, unanimous consent being
granted, Senate Concurrent Resolution No. 58 contained in the
preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Unger, unanimous consent being
granted, Senate Concurrent Resolution No. 59 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Unger, unanimous consent being
granted, Senate Concurrent Resolution No. 70 contained in the
preceding report from the Committee on Transportation and
Infrastructure was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Kessler, from the Committee on the Judiciary, submitted
the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Concurrent Resolution No. 8, Requesting Joint Committee
on Government and Finance study gubernatorial succession.
And reports the same back with the recommendation that it be
adopted; but under the original double committee reference first be
referred to the Committee on Rules.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
The resolution, under the original double committee reference,
was then referred to the Committee on Rules.
Senator Tomblin (Mr. President), from the Committee on Rules,
submitted the following report, which was received:
Your Committee on Rules has had under consideration
Senate Concurrent Resolution No. 12, Requesting Joint Committee
on Government and Finance study motor carrier industry regulation.
Senate Concurrent Resolution No. 40, Requesting Joint Committee
on Government and Finance study inclement weather effects on roads
and highways.
Senate Concurrent Resolution No. 54, Requesting Joint Committee
on Government and Finance study establishing health care profession
scope of practice commission.
Senate Concurrent Resolution No. 68, Requesting Joint Committee on Government and Finance study alternative "green" road and highway
paving processes and construction.
Senate Concurrent Resolution No. 69, Requesting Joint Committee
on Government and Finance study alternative funding sources for
roads ineligible for federal matching dollars.
And,
House Concurrent Resolution No. 50, Requesting the Joint
Committee on Government and Finance study the burden of taxes and
fees imposed by the State of West Virginia upon the coal industry.
And reports the same back with the recommendation that they
each be adopted.
Respectfully submitted,
Earl Ray Tomblin,
Chairman ex officio.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 12 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being granted, Senate Concurrent Resolution No. 40 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 54 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 68 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 69 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, House Concurrent Resolution No. 50 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Tomblin (Mr. President), from the Committee on Rules,
submitted the following report, which was received:
Your Committee on Rules has had under consideration
Senate Concurrent Resolution No. 17, Requesting Joint Committee
on Government and Finance study capital improvements' funding
sources for Chesapeake Bay nutrient removal requirements.
Senate Concurrent Resolution No. 47, Requesting Joint Committee on Judiciary study expanding law-enforcement training subcommittee's
responsibilities.
And,
Senate Concurrent Resolution No. 74, Requesting Joint Committee
on Education study providing athletic department funding to
secondary schools.
And reports the same back with the recommendation that they
each be adopted.
Respectfully submitted,
Earl Ray Tomblin,
Chairman ex officio.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 17 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 47 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 74 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Prezioso, 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 Concurrent Resolution No. 19, Requesting Joint Committee
on Government and Finance study forensic services.
Senate Concurrent Resolution No. 32, Requesting Joint Committee
on Government and Finance study nonnarcotic pain treatment.
And,
House Concurrent Resolution No. 74, Requesting a study of the
use of independent third party peer review in the informal dispute resolution process for nursing homes.
And reports the same back with the recommendation they each be
adopted; but under the original double committee references first
be referred to the Committee on Rules.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
The resolutions, under the original double committee
references, were then referred to the Committee on Rules.
Senator Prezioso, 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 Concurrent Resolution No. 28, Expressing will of
Legislature opposing Medicare Sustainable Growth Rate.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
At the request of Senator Prezioso, unanimous consent being
granted, the resolution (S. C. R. No. 28) contained in the preceding
report from the Committee on Health and Human Resources was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Plymale, from the Committee on Education, submitted the
following report, which was received:
Your Committee on Education has had under consideration
Senate Concurrent Resolution No. 77 (originating in the
Committee on Education)--Requesting the Joint Committee on
Government and Finance study the issue of Vocational Education from
Middle School through Adulthood.
Whereas, A highly-skilled and educated workforce is critical
to the economic development efforts of West Virginia; and
Whereas, A skilled and educated workforce is necessary to fill
the highly-skilled technical jobs of the future; and
Whereas, Career and technical education instruction assists
students in developing 21st Century skills necessary for success in
the workforce and post secondary education; and
Whereas, Public school students, as well as adults, need the
proper academic and technical preparation necessary for high-skills,
high-wage occupations; and
Whereas, The majority of careers in the global workplace are "middle skill occupations," requiring students to have both academic
and technical skills for success; and
Whereas, Students need to be more engaged in career and
technical education offerings at the middle school level that spark
an interest in remaining in school and pursuing a career goal; and,
Whereas, Ninety-percent of the best paying jobs in the future
requires education beyond high school; and
Whereas, Clear, seamless career and technical education
pathways for secondary students transitioning from middle school to
high school, high school to community and technical colleges are in
place; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study vocational education from middle school through
adulthood in and for the state; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2011, on
its findings, conclusions and recommendation, together with drafts
of any legislation necessary to effectuate its recommendations; and
be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on Government and Finance.
And,
Senate Concurrent Resolution No. 78 (originating in the
Committee on Education)--Requesting the Joint Committee on
Government and Finance study the issue of improving student
achievement in public education.
Whereas, The more recent history of federal education policy
has consistently been one of noble intentions and lack of follow
through; and
Whereas, Research has shown that federally mandated standards
have been inconsistent, meaningless, and driven to the lowest common
denominator by a punishment-oriented system; and
Whereas, According to current federal law and the process
requirements of the No Child Left Behind Act, public schools are
expected to produce positive results while the effects of other
social policies on the lives of poor children are reduced or
ignored; and
Whereas, The No Child Left Behind Act remains the dominant
federal education policy and a new administration is again
emphasizing process over results, ignoring the current problems
inherent in federal policy, and neglecting to account for the
diversity of student starting points and the level of resources
available among the states; and
Whereas, Studies show that unique combinations of reform
elements can positively address the achievement needs of poor,
minority, and disadvantaged children; and
Whereas, Successful comprehensive state reform efforts have
used a mix of reform elements that best fit the individual state's
needs; and
Whereas, Federal lawmakers should not decide which reform
elements should be applied to individual states; therefore be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study actions to improve student achievement in public
education in and for the state; and be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2011, on
its findings, conclusions and recommendation, together with drafts
of any legislation necessary to effectuate its recommendations; and
be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that they
each be adopted; but with the further recommendation that they first be referred to the Committee on Rules.
Respectfully submitted,
Robert H. Plymale,
Chair.
On motion of Senator Plymale, the resolutions (S. C. R. Nos.
77 and 78) contained in the foregoing report from the Committee on
Education were then referred to the Committee on Rules.
Senator Kessler, from the Committee on the Judiciary, submitted
the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Concurrent Resolution No. 79 (originating in the
Committee on the Judiciary)--Requesting the Joint Committee on the
Judiciary to study the need for establishing additional civil and
criminal forfeiture statutes and the process for and purpose of any
forfeiture proceedings as may be necessary.
Whereas, Concern has arisen as to whether the State of West
Virginia has sufficient authority to institute forfeiture procedures
in certain criminal and civil cases; and
Whereas, There are questions as to whether certain persons
involved in criminal activity are able to continue that activity
after any punishment was received because the person was not
required to forfeit the tools or fruits of their criminal activity;
and
Whereas, Forfeiture statutes must be carefully tailored to
ensure that no constitutional rights are violated, nor innocent
person injured; and
Whereas, The State of West Virginia has an interest in
protecting unrepresented individuals from having their property
improperly seized or forfeited; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on the Judiciary is hereby requested
to study the need for increasing and enhancing the state's power to
seek forfeiture in certain civil and criminal cases; and, be it
Further Resolved, That the study address all constitutional
questions involved with forfeiture statutes; and, be it
Further Resolved, That the Joint Committee on the Judiciary
report to the regular session of the Legislature in 2011 on its
findings, conclusions and recommendations, together with drafts of
any legislation necessary to effectuate its recommendations; and,
be it
Further Resolved, That expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on the
Judiciary.
And reports the same back with the recommendation that it be
adopted; but with the further recommendation that it first be referred to the Committee on Rules.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
On motion of Senator Kessler, the resolution (S. C. R. No. 79)
contained in the foregoing report from the Committee on the
Judiciary was then referred to the Committee on Rules.
Senator Unger, from the Committee on Transportation and
Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had
under consideration
Senate Concurrent Resolution No. 80 (originating in the
Committee on Transportation and Infrastructure)--Requesting the
Joint Committee on Government and Finance to study
the feasibility,
effectiveness and the necessary measures required for the State Road
Commission
to maintain school bus turnaround areas in all the
counties of this state, including, but not limited to, the use of
snow plows or other snow removal vehicles to provide snow removal
service and any other measures necessary for the turnarounds to be
safely and efficiently used for their intended purpose
.
Whereas, West Virginia has a significant number of students
living in rural areas that require them to be transported to and
from school via buses; and
Whereas, Many of the roads these buses travel are small county
roads that the counties do not have the equipment, and sometimes the
personnel, to be timely and adequately maintained; and
Whereas, School buses that travel those small county roads
must, at some point, turn the bus around in order to either
transport the students to school or home; and
Whereas, For school buses to safely and efficiently perform
their necessary portion of the educational process, the turnaround
areas must be cleared of snow and otherwise effectively maintained
so that the students can attend school and safely return home; and
Whereas, West Virginia currently lacks a state wide strategy
to assure the timely and proper maintenance of school bus
turnarounds; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the feasibility, effectiveness and the necessary
measures required for the State Road Commission to maintain school
bus turnaround areas in all the counties of this state, including,
but not limited to, the use of snow plows or other snow removal
vehicles to provide snow removal service and any other measures
necessary for the turnarounds to be safely and efficiently used for
their intended purpose; and, be it
Further Resolved, That the Department of Education together with county school boards, in conjunction with the State Road
Commission, shall review the respective responsibilities of each to
provide and maintain school bus turnarounds as part of the study;
and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2011, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations; and,
be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that it be
adopted; but with the further recommendation that it first be
referred to the Committee on Rules.
Respectfully submitted,
John R. Unger II,
Chair.
On motion of Senator Unger, the resolution (S. C. R. No. 80)
contained in the foregoing report from the Committee on
Transportation and Infrastructure was then referred to the Committee
on Rules.
Senator McCabe, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 4670, Making a supplementary appropriation
to the Department of Agriculture, to the Department of Health and
Human Resources, to the Department of Revenue - Racing Commission,
to the Bureau of Senior Services and to the Higher Education Policy
Commission.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Brooks F. McCabe, Jr.,
Vice Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 4670) contained in the preceding
report from the Committee on Finance was taken up for immediate
consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule,
the yeas were: Barnes,
Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire,
K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
The bill was read a second time and ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 4670) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
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. H.
B. No. 4670) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(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. H.
B. No. 4670) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
House Concurrent Resolution No. 61, Requesting a study of West
Virginia's cemetery industry to determine whether oversight and
regulation are needed to protect the public.
And reports the same back with the recommendation that it be
adopted; but under the original double committee reference first be
referred to the Committee on Rules.
Respectfully submitted,
Edwin J. Bowman,
Chair.
The resolution, under the original double committee reference,
was then referred to the Committee on Rules.
Senator Browning, from the Committee on Economic Development,
submitted the following report, which was received:
Your Committee on Economic Development has had under
consideration
House Concurrent Resolution No. 102, Requesting a study of the
issues relating to creating a matching grant pilot project.
And reports the same back with the recommendation that it be
adopted; but under the original double committee reference first be
referred to the Committee on Rules.
Respectfully submitted,
Richard Browning,
Chair.
The resolution, under the original double committee reference,
was then referred to the Committee on Rules.
Senator Green, 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
House Concurrent Resolution No. 111, Urging the United States
Environmental Protection Agency to interpret the West Virginia Water
Pollution Act.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Mike Green,
Chair.
At the request of Senator Green, unanimous consent being
granted, the resolution (H. C. R. No. 111) contained in the
preceding report from the Committee on Energy, Industry and Mining
was taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Senate Concurrent Resolution No. 81 (originating in the
Committee on Government Organization)--
Requesting that the Joint
Committee on Government and Finance authorize the study of emergency
dispatch centers to determine if training emergency dispatch center
employees would be beneficial to the citizens of West Virginia.
Whereas, Enhanced emergency dispatch centers play a vital role in serving and protecting the public; and
Whereas, Further review is needed to determine if a more
efficient telecommunication system would be beneficial to aid in
emergency situations; and
Whereas, There is a need for emergency dispatch centers to
require training courses to maintain current local and federal
standards; and
Whereas, Emergency dispatch centers are charged with the
responsibility of the planning and implementation of emergency
response; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to authorize the study of
emergency dispatch centers to
determine if training emergency dispatch center employees would be
beneficial to the citizens of West Virginia.
; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the Regular Session of the Legislature, 2011, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations; and,
be it
Further Resolved, That the Legislative expenses necessary to
conduct this study, to prepare a report and to draft necessary
legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Edwin J. Bowman,
Chair.
On motion of Senator Bowman, the resolution (S. C. R. No. 81)
contained in the foregoing report from the Committee on Government
Organization was then referred to the Committee on Rules.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Senate Concurrent Resolution No. 82 (originating in the
Committee on Government Organization)--
Requesting that the Joint
Committee on Government and Finance authorize the study of removing
the Public Service Commission's exemption from Legislative Rule
Making and authorizing certain Legislative Rule Making for the
Public Service Commission.
Whereas, There is a need to study the current Legislative Rule
Making procedures for the Public Service Commission to determine
whether there is an issue with the way the PSC currently operates;
and
Whereas, There is a need for the Public Service Commission to
promote a utility regulatory and transportation safety environment
and has continually been nationally recognized as a leader in the
field; and
Whereas, A review of the Public Service Commission's Rule
Making process could further promote the mission of the Public
Service Commission to improve the lives of West Virginians; and
Whereas, The Public Service Commission is charged with goals
of increasing business investment, job creation and retention, and
the state's overall economic competitiveness; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to authorize a study
regarding the removal of the Public
Service Commission's exemption from rule-making and authorizing
certain rule-making for the Public Service Commission; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the Regular Session of the Legislature, 2011, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations; and,
be it
Further Resolved, That the Legislative expenses necessary to
conduct this study, to prepare a report and to draft necessary
legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Edwin J. Bowman,
Chair.
On motion of Senator Bowman, the resolution (S. C. R. No. 82)
contained in the foregoing report from the Committee on Government
Organization was then referred to the Committee on Rules.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Senate Concurrent Resolution No. 83 (originating in the
Committee on Government Organization)--
Requesting that the Joint
Committee on Government and Finance authorize a study on the
revision of the powers and duties of the West Virginia Health Care
Authority.
Whereas, The rate review process was enacted by the West
Virginia Legislature in 1983 and became a part of the Health Care
Authority at that time; and
Whereas, The rate review process is intended to be a regulatory
element designed to assist the Health Care Authority to control health care costs, improve the quality and efficiency of the state's
health care system, and promote access to care; and
Whereas, Unless specifically exempted, all acute care hospitals
in West Virginia must obtain approval from the Health Care Authority
to amend their rates; and
Whereas, Rate review does not exist in many states; and
Whereas, Restructuring the rate review process may be needed;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the rate review process within the Health Care
Authority; and, be it
Further Resolved, That the Joint Committee on Government and
Finance consult with the Health Care Authority, experts in health
care financing, payers, the West Virginia Hospital Association, and
other interested parties who may offer insight into the rate review
process; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2011 on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations; and,
be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Edwin J. Bowman,
Chair.
On motion of Senator Bowman, the resolution (S. C. R. No. 83)
contained in the foregoing report from the Committee on Government
Organization was then referred to the Committee on Rules.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Senate Concurrent Resolution No. 84 (originating in the
Committee on Government Organization)--
Requesting that the Joint
Committee on Government and Finance authorize the study of creating
a uniform set of statutory provisions for Chapter Thirty Boards.
Whereas, Chapter Thirty Boards play a vital role in serving and
protecting the public; and
Whereas, There is a need to make the statutory provisions
relating to Chapter Thirty Boards uniform; and
Whereas, Uniform language within Chapter Thirty would be
beneficial to the Boards and the public; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to authorize a study
regarding a uniform set of statutory
provisions relating to Chapter Thirty Boards; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the Regular Session of the Legislature, 2011, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations; and,
be it
Further Resolved, That the Legislative expenses necessary to
conduct this study, to prepare a report and to draft necessary
legislation be paid from legislative appropriations to the Joint
Committee on Government and Finance.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Edwin J. Bowman,
Chair.
On motion of Senator Bowman, the resolution (S. C. R. No. 84)
contained in the foregoing report from the Committee on Government
Organization was then referred to the Committee on Rules.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Senate Concurrent Resolution No. 85 (originating in the
Committee on Government Organization)--
Requesting that the Joint
Committee on Government and Finance authorize the study on updating
provisions for Article One regarding all Chapter Thirty Boards.
Whereas, Article One and Chapter Thirty Boards play a vital
role in serving and protecting the public
Whereas, Article One needs to be broadened include updates that
affect Chapter Thirty Boards; and
Whereas, It would be beneficial for language that is used in
every Chapter Thirty Board to be included in Article One; therefore,
be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to authorize a study on updating provisions for Article
One regarding all Chapter Thirty Boards; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the Regular Session of the Legislature, 2011, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the Legislative expenses necessary to
conduct this study, to prepare a report and to draft necessary
legislation be paid from legislative appropriations to the Joint
Committee on Government and Finance.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Edwin J. Bowman,
Chair.
On motion of Senator Bowman, the resolution (S. C. R. No. 85)
contained in the foregoing report from the Committee on Government
Organization was then referred to the Committee on Rules.
Senator Fanning, from the Committee on Natural Resources,
submitted the following report, which was received:
Your Committee on Natural Resources has had under consideration
Senate Concurrent Resolution No. 86 (originating in the
Committee on Natural Resources)--Requesting the Joint Committee on
Government and Finance study the recommendations included within the
Legislative Performance Review of the West Virginia Division of
Natural Resources Parks and Recreation Section concerning deferred
maintenance, profitability, and recommended facility closures.
Whereas, The Performance Evaluation and Research Division of the West Virginia Legislative Auditor recently completed a
performance review of the Parks and Recreation Section within the
West Virginia Division of Natural Resources; and
Whereas, A substantial portion of this report relates to issues
concerning deferred maintenance within the state park system, the
profitability of certain parks and their amenities, and a number of
options that should be considered in addressing these and other
concerns; and
Whereas, Included within this report were a number of specific
recommendations intended to improve the profitability of facilities
operated by the Parks and Recreation Section within the Division of
Natural Resources, including the possible elimination through
cancellation of the lease for the operation of Hawks Nest Golf
Course, among other profitability concerns; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the report recommendations included within the
Legislative Performance Review of the Parks and Recreation Section
of the West Virginia Division of Natural Resources conducted by the
Performance Evaluation and Research Division of the Office of the
Office of the West Virginia Auditor; and, be it
Further Resolved, That the special attention also be given to
any recommended closures of any facilities currently maintained and operated by the Division of Natural Resources for the benefit of the
citizens of West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2011, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations; and,
be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that it be
adopted; but with the further recommendation that it first be
referred to the Committee on Rules.
Respectfully submitted,
John Pat Fanning,
Chair.
On motion of Senator Fanning, the resolution (S. C. R. No. 86)
contained in the foregoing report from the Committee on Natural
Resources was then referred to the Committee on Rules.
The Senate again proceeded to the sixth order of business,
which agenda includes the making of main motions.
On motion of Senator Chafin, the Senate requested the return from the House of Delegates of
Eng. House Bill No. 4582,
Creating reciprocity for West
Virginia small, women and minority-owned businesses who receive such
preferences in other states.
Passed by the Senate in earlier proceedings today,
The bill still being in the possession of the Senate,
On motion of Senator Chafin, the Senate reconsidered the vote
as to the effective date, title amendment and passage of the bill.
The vote thereon having been reconsidered,
On motion of Senator Helmick, the Senate reconsidered its
action by which in earlier proceedings today it adopted the Finance
committee amendment, as amended, to the bill (shown in the Senate
Journal of today, pages 268 to 289, inclusive).
The vote thereon having been reconsidered,
The question again being on the adoption of the Finance
committee amendment to the bill, as amended.
Thereafter, on motion of Senator Helmick, the following
amendment to the Finance committee amendment to the bill, as
amended, was reported by the Clerk and adopted:
On page four, section three, lines sixteen through twenty-four,
by striking out all of subdivision (10) and inserting in lieu
thereof a new subdivision (10), to read as follows:
(10) Assure that the specifications and commodity descriptions in all "requests for quotations" are prepared so as to permit all
potential suppliers-vendors who can meet the requirements of the
state an opportunity to bid and to assure that the specifications
and descriptions do not favor a particular brand or vendor. If the
director determines that any such specifications or descriptions as
written favor a particular brand or vendor or if it is decided,
either before or after the bids are opened, that a commodity having
different specifications or quality or in different quantity can be
bought, the director may rewrite the "requests for quotations" and
the matter shall be rebid.
The question now being on the adoption of the Finance committee
amendment to the bill, as amended, the same was put and prevailed.
The bill, as just amended, was again ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 4582) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (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. H.
B. No. 4582) passed.
The following amendment to the title of the bill, from the
Committee on Finance, was reported by the Clerk and adopted:
Eng. House Bill No. 4582--A Bill to repeal §5A-3-14, §5A-3-21,
§5A-3-22, §5A-3-23, §5A-3-24, §5A-3-25, §5A-3-26, §5A-3-37a, §5A-3-
38, §5A-3-39, §5A-3-40, §5A-3-41, §5A-3-42, §5A-3-54, §5A-3-55 and
§5A-3-55a of the Code of West Virginia, 1931, as amended; and to
amend and reenact §5A-3-1, §5A-3-2, §5A-3-3, §5A-3-4, §5A-3-12, §5A-
3-18, §5A-3-36 and §5A-3-37 of said code; and to amend said code by
adding thereto a new section, designated §5A-3-59, relating to the
functions of the purchasing director; procurement process; exempting
certain entities from the Division of Purchasing; clarifying that
the judicial branch is exempt from the Division of Purchasing;
documentation of inventory; transportation of surplus property;
providing resident vendor preference to certified small, women and
minority-owned businesses; providing definitions; and providing
rule-making authority.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(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. H.
B. No. 4582) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, and by unanimous consent, the
Senate returned to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 6:27 p.m. today:
Eng. Com. Sub. for Senate Bill No. 218, Providing for early
parole eligibility for certain inmates.
The Senate again proceeded to the sixth order of business,
which agenda includes the making of main motions.
On motion of Senator Chafin, the Senate requested the return
from the House of Delegates of
Eng. Com. Sub. for Senate Bill No. 494, Providing fiduciary
commissioner oversight.
Having been received as a House message in earlier proceedings
today,
The bill still being in the possession of the Senate,
On motion of Senator Chafin, the Senate reconsidered the vote
by which in earlier proceedings today it adopted Senator Chafin's
motion that the Senate refuse to concur in the House of Delegates
amendments to the bill (shown in the Senate Journal of today, pages
307 to 311, inclusive).
The vote thereon having been reconsidered,
The question again being on the adoption of Senator Chafin's
motion that the Senate refuse to concur in the House of Delegates
amendments to the bill.
At the request of Senator Chafin, and by unanimous consent, his
foregoing motion was withdrawn.
Thereafter, on motion of Senator Chafin, the Senate concurred
in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 494, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
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 S. B. No. 494) passed with its House of Delegates amended
title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Boley, and by unanimous consent, the
Senate returned to the second order of business and the introduction
of guests.
Pending announcement of a meeting of a standing committee of
the Senate,
On motion of Senator Chafin, the Senate recessed until 8:15
p.m. tonight.
Upon expiration of the recess, the Senate reconvened and again
proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 8:27 p.m. tonight:
Eng. Com. Sub. for Senate Bill No. 480, Relating to public
higher education personnel.
The Clerk announced the following conference committee report
had been filed at 8:28 p.m. tonight:
Eng. House Bill No. 4593, Relating to high school graduation
improvement.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the appointment of a committee of
conference of five from each house on the disagreeing votes of the
two houses, as to
Eng. House Bill No. 4513, Establishing requirements for
Marcellus gas well operations use of water resources.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Manchin, Caputo, Hutchins, Wells and Schadler.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate
in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 183, Creating Diesel-Powered
Motor Vehicle Idling Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page eight, section three, lines sixty-six and sixty-seven,
by striking out the words "students with special needs who are
transported by a school bus" and inserting in lieu thereof the words
"bus passengers";
On page ten, section three, after line one hundred nine, by
adding a new subdivision, designated subdivision (17), to read as
follows:
(17) When a diesel-powered motor vehicle is powered by clean
diesel technology or bio-diesel fuels.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 183--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
article, designated §17C-13A-1, §17C-13A-2, §17C-13A-3, §17C-13A-4,
§17C-13A-5, §17C-13A-6, §17C-13A-7, §17C-13A-8 and §17C-13A-9, all
relating to prohibiting diesel-powered motor vehicles from excessive
idling; defining terms; placing restrictions on idling; providing
exceptions to idling restrictions; allowing for weight adjustments
for idle reduction technology; establishing a misdemeanor offense
of excessive idling on the owners and operators of the vehicles in violation of the idling restrictions; establishing a misdemeanor
offense for the allowance of excessive idling in violation of the
idling restrictions by owners and operators of a location where such
vehicles load, unload or park; providing criminal penalties;
requiring the owner or operation of certain locations to post notice
of the idling restrictions; providing for notice of offense to the
vehicle owner of driver convictions for offenses; providing for
enforcement by any member of the division of public safety, any
sheriff or deputy sheriff, any member of a municipal police
department and any designated officers of the Public Service
Commission; preempting local ordinances; and allowing for additional
regulation of motor vehicle emissions by the Division of
Environmental Protection.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 183, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Deem--1.
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 S. B. No. 183) passed with its House of Delegates amended
title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
that that body had refused to recede from its amendment, and
requested the appointment of a committee of conference of three from
each house on the disagreeing votes of the two houses, as to
Eng. Com. Sub. for Senate Bill No. 567, Creating Nonprofit
Adventure and Recreational Responsibility Act.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates Shook, Frazier and Ellem.
On motion of Senator Chafin, the Senate agreed to the
appointment of a conference committee on the bill.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Laird, Palumbo and Barnes.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body to the title of the bill, passage as
amended, to take effect from passage, and requested the concurrence
of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 229,
Authorizing School Building Authority issue certain outstanding
bonds.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the title of the
bill was reported by the Clerk:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 229--A Bill
to amend and reenact §18-9D-4b, §18-9D-6 and §18-9D-8 of the Code
of West Virginia, 1931, as amended, all relating to authorizing the
School Building Authority to issue bonds in the maximum aggregate
amount of $500 million outstanding at any time; authorizing the
School Building Authority to receive and expend federal subsidies
received with respect to bonds issued by the School Building
Authority; authorizing the expenditure of surpluses in certain debt
service funds; requiring that copies of resolutions authorizing
revenue bonds be provided to the Governor, the President of the
Senate and the Speaker of the House of Delegates; changing the persons required to sign the bonds; and removing obsolete
provisions.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the title of the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 229, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
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 Com. Sub. for S. B. No. 229) passed with its House of
Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(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 Com. Sub. for S. B. No. 229) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 286, Authorizing DHHR
promulgate legislative rules.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page four, section two, lines eleven and twelve, by striking
out the words "one, article eleven" and inserting in lieu thereof
the words "eleven, article one";
And,
On page six, section two, after line fifty-three, by adding the
following:
On page five, subsection 3.27, line six, by striking the words
"was regulated care and";
On page nineteen, paragraph 7.9.a.3, by striking the paragraph
in its entirety and renumbering the remaining paragraphs;
On page nineteen, paragraph 7.9.b.3, by striking the paragraph
in its entirety and renumbering the remaining paragraphs; and
On page nineteen, paragraph 7.9.c.3, by striking the paragraph
in its entirety and renumbering the remaining paragraphs.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 286, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
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 S. B. No. 286) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(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. No. 286) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 291, Authorizing Department
of Transportation promulgate legislative rules.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page three, section one, line nine, after the word
"authorized" by changing the period to a comma and inserting the
following: with the following amendments:
On page four, paragraph 3.3.c.1, line one, by striking the
words "does not present a danger to the public safety or welfare"
and inserting in lieu thereof the words "is competent to operate a
motor vehicle";
On page four paragraph 3.3.c.2., line one, by striking the
words "does not present a danger to the public safety or welfare"
and inserting in lieu thereof the words "is competent to operate a
motor vehicle";
On page four paragraph 3.3.c.3., line one, by striking the word
"licensee" and inserting in lieu thereof the word "licensee's";
On page four paragraph 3.3.c.3., line one, by striking the
words "present a danger to the public safety or welfare and his or
her";
On page eight, subdivision 3.6.a, line four, after the number
"3.2" by inserting a comma and striking the word "or";
On page eight, subdivision 3.6.a, line four, after the number "3.3" by inserting the following, "and 3.6";
On page twenty-two, subdivision 9.2.e., line one, after the
word "court or", by striking the word "an" and inserting in lieu
thereof the words "a designated"; and
On page twenty-two, subdivision 9.2.e., line three, by striking
the words "presents a danger to public safety or welfare" and
inserting in lieu thereof the words "is competent to operate a motor
vehicle".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 291, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
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 S. B. No. 291) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(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. No. 291) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect July 1, 2010, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 427, Renaming
and reorganizing Parkways, Economic Development and Tourism
Authority.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page seventeen, section six, line sixteen, after the word
"Authority" by inserting the words "subject to the provisions of
section thirty of this article";
On page twenty-one, section six, after line one hundred eleven,
by inserting a new subdivision, designated subdivision (16), to read
as follows:
(16) To investigate and, if feasible, develop and implement a
"single fee" program which would produce on an annual basis a sum
of money equal to the total toll revenue received from all West
Virginia drivers on West Virginia toll roads during the Authority's
preceding fiscal year, divided into at least three classes based
upon usage, size and number of axles. Said sum, plus an amount
necessary to cover the expected costs of such program, shall be
produced by adding to either the annual cost of vehicle registration
or of vehicle inspection a single fee equal to the proportionate
share of that vehicle owner of the total toll revenue needed to be
produced from all vehicles within that class. A vehicle for which
such fee has been paid shall be entitled to traverse all toll roads
within the state without stopping to pay individual tolls during the
effective period of said registration or said inspection:
Provided, however, That if the single fee proposed to be charged under said
program exceeds the standard round trip toll for that vehicle over
the entire length of the West Virginia Turnpike, the Authority shall
not implement such program without the prior approval of both Houses
of the Legislature:
Provided, further, That any such program shall
also include comparable provisions which would allow vehicles
registered in other states to traverse West Virginia toll roads in
like fashion to West Virginia vehicles as set forth in this section
upon the payment of a single fee for each and every vehicle
registered in such state, in accordance with the same classification
system adopted for West Virginia vehicles.;
And renumbering the remaining subdivision;
On pages thirty-two and thirty-three, section thirteen-a, lines
ten through twenty-one, after the word "project" by changing the
colon to a semicolon and striking out the following: "
Provided,
That prior to fixing any initial rates, tolls or charges along any
portion of a parkway project, the Parkways Authority shall obtain
the approval of the county commission or county commissions where
such parkway project is located:
Provided further, That once a
parkway project is identified by the Authority a local committee
shall be established by the Governor with the advice and consent of
the Senate. The local committee shall consist of two positions for
each county within the project area. The local committee shall provide recommendations and suggestions to the Authority on all
matters regarding the local identified project;";
On pages thirty-nine and forty, section twenty-nine, lines
fifteen through twenty-four, by striking out all of subsection (c)
and inserting in lieu thereof a new subsection (c), to read as
follows:
(c) Annually, the Parkways Authority shall hold at least one
public informational session in each of the following counties:
Kanawha, Fayette, Raleigh and Mercer counties. The Authority is to
distribute educational materials and other information concerning
the discount program for purchasers of West Virginia EZ Pass
transponders described in this section.;
On page forty, section twenty-nine, after line twenty-four, by
inserting a new subsection, designated subsection (d), to read as
follows:
(d) Upon the effective date of the amendments to this section
enacted during the regular session of the Legislature in the year
2010, the Authority shall make available West Virginia EZ Pass
transponders to the public without the payment of any monetary
security deposit. The Authority shall credit any individual that
has paid a security deposit for a West Virginia EZ Pass transponder
prior to July 1, 2010, on the individual's next billing statement.;
And relettering the remaining subsection;
On page forty, after section twenty-nine, by inserting a new
section, designated section thirty, to read as follows:
§17-16A-30. Coordination with county commission in counties where
a parkway project may be located.
Once a parkway project is identified by the Authority, the
Governor shall appoint, with the advice and consent of the Senate,
two persons from each county where the parkway project is located
to serve on a local committee to provide recommendations and
suggestions to the Authority on all matters regarding the local
identified project. The local committee shall also report any of
its findings to the county commission or county commissions of the
counties in which the parkway project is located. Prior to any
final approval of a parkway project, the county commissions of the
counties in which a parkway project is located shall by resolution
approve the parkway project.;
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That §17-16A-3, §17-16A-5, §17-16A-6, §17-16A-10, §17-16A-11,
§17-16A-13a, §17-16A-19, §17-16A-26 and §17-16A-29 of the Code of
West Virginia, 1931, as amended, be amended and reenacted; that said
code be amended by adding thereto a new section, designated §17-16A-
30, all to read as follows:;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 427--A Bill
to amend and reenact §17-16A-3, §17-16A-5, §17-16A-6, §17-16A-10,
§17-16A-11, §17-16A-13a, §17-16A-19, §17-16A-26 and §17-16A-29 of
the Code of West Virginia, 1931, as amended; and to amend said code
by adding thereto a new section, designated §17-16A-30, all relating
to the West Virginia Parkways, Economic Development and Tourism
Authority; renaming the West Virginia Parkways, Economic Development
and Tourism Authority; reorganizing the membership of the authority;
redefining terms; authorizing issuance of revenue bonds for parkway
projects; prohibiting the authority from constructing new tourism
projects or new economic development projects; clarifying and adding
certain powers of the authority relating to parkway projects,
tourism projects and economic development projects; clarifying
certain powers of the Department of Transportation with respect to
parkway projects; clarifying the power of the authority to reimburse
the Department of Transportation for costs associated with parkway
projects; clarifying certain powers of the authority with respect
to real and personal property; clarifying the powers of the
authority to fix and revise tolls for transit over certain parkway
projects; requiring notice and public hearings prior to fixing
initial rates or tolls on parkway projects; requiring an annual legislative audit of the Parkways Authority; requiring the Parkways
Authority to provide certain information; requiring a discount
program for purchasers of EZ Pass transponders prior to fixing
initial rates or tolls on parkway projects; requiring the Parkways
Authority to hold informational sessions concerning the discount
program for purchasers of EZ Pass transponders; requiring EZ Pass
transponders to be available without the payment of a security
deposit; requiring refunds of paid security deposits through credits
on statements; requiring county commission where a parkway project
is located approve a parkways project by resolution; requiring
Governor to establish a local committee; and providing duties of the
local committee.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 427, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Stollings, Sypolt, Wells, White, Williams, Yost and
Tomblin (Mr. President)--32.
The nays were: Snyder and Unger--2.
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 Com. Sub. for S. B. No. 427) passed with its House of
Delegates amended title.
Senator Chafin moved that the bill take effect July 1, 2010.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso,
Stollings, Sypolt, Wells, White, Williams, Yost and Tomblin (Mr.
President)--32.
The nays were: Snyder and Unger--2.
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 Com. Sub. for S. B. No. 427) takes effect July 1, 2010.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect July 1, 2010, and requested the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 328, Relating to
professional licensing boards posting fee increase proposals.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §30-1-15 of the Code of West Virginia, 1931, as amended,
be repealed; that §30-1-2a, §30-1-5, §30-1-6, §30-1-8, §30-1-11 and
§30-1-14 of said code be amended and reenacted; that said code be
amended by adding thereto two new sections, designated §30-1-19 and
§30-1-20; that §30-27-6 and §30-27-9 of said code be amended; all
to read as follows:
ARTICLE 1. GENERAL PROVISIONS APPLICABLE TO ALL STATE BOARDS OF
EXAMINATION OR REGISTRATION REFERRED TO IN CHAPTER.
§30-1-2a. Required orientation session.
(a)
After Between April 1 and
not later than the first day of
December
31 of each year, the Auditor shall provide at least one
orientation session on relevant state law and rules governing state
boards.
and commissions All state agencies shall cooperate with and assist in providing the orientation session if the Auditor requests.
(b)
After the effective date of this section, All chairs or
chief financial officers of
state boards
and commissions newly
created by the Legislature shall attend an orientation session
designed to inform the
state boards
and commissions of the duties
and requirements imposed
on state boards and commissions by state
law and rules
The chair or chief financial officer of the newly
created board or commission shall attend an orientation session at
the earliest possible date following the creation of the board.
or
commission
(c) The orientation session shall include a minimum of thirty
minutes of instructional time dedicated to the statutory duty of
boards to investigate and resolve complaints, including procedures
for investigations, administrative hearings and remedies, due
process protections, and the duty to provide public access to
records of the disposition of complaints, as set forth in section
five of this article.
(d) (c) Topics for the orientation session may include, but are
not limited to,
the statutory duty of boards to investigate and
resolve complaints, including procedures for investigations,
administrative hearings and remedies, and the duty to provide public
access to records of the disposition of complaints; the official
conduct of members, state budgeting and financial procedures, purchasing requirements, open meetings requirements, ethics,
rule-making procedures, records management, annual reports and any
other topics the Auditor determines
to be essential in the
fulfillment of the duties of the members of state boards and
commissions are necessary.
(e) (d) The orientation session
shall be is open to any member
of new or existing boards
and commissions and each board
or
commission may approve expense reimbursement for the attendance of
one or more of its members.
The chair or chief financial officer
of each existing board or commission shall attend an orientation
session within two years following the effective date of this
section.
(f) (e) No later than December 31 of each year, the Auditor
shall provide to the chairs of the Joint Standing Committee on
Government
Operations Organization a list of the names of board
or
commission members attending,
together with the names of the boards
and commissions represented,
and the orientation session or sessions
offered by the Auditor during the previous year.
(g) (f) The Auditor may charge a registration fee for the
orientation session to cover the cost of providing the orientation
session. The fee may be paid from funds available to a board.
or
commission
(h) (g) Notwithstanding the member's normal rate of compensation for serving on a board, a member attending the
orientation session may be reimbursed for necessary and actual
expenses, as long as the member attends the complete orientation
session.
(i) (h) Ex officio members who are elected or appointed state
officers or employees, and members of boards
or commissions that
have purely advisory functions with respect to a department or
agency of the state, are exempt from the requirements of this
section.
§30-1-5. Meetings; quorum; investigatory powers; duties.
(a)
Every Each board
referred to in this chapter shall hold at
least one meeting each year, at such time and place as it may
prescribe by rule,
for the examination of applicants who desire to
practice their respective professions or occupations in this state
and to transact any
other business which may legally come before it.
The board may hold additional meetings as may be necessary, which
shall be called by the
chair secretary at the direction of the
president or upon the written request of
any three a majority of the
board members. A
simple majority of
the members of the constituent
membership serving on the board
at a given time constitutes a quorum
for the transaction of
its business.
(b)
The Each board
is authorized to may compel the attendance
of witnesses,
to issue subpoenas
to and subpoenas duces tecum, conduct investigations,
and hire an investigator and
to take
testimony and other evidence concerning any matter within its
jurisdiction. The
president chair and secretary of the board
are
authorized to may administer oaths for these purposes.
(c)
Every Each board
referred to in this chapter has a duty to
shall investigate and resolve complaints which it receives and
shall, within six months of the complaint being filed, send a status
report to the party filing the complaint by certified mail with a
signed return receipt and within one year of the status report's
return receipt date issue a final ruling, unless the party filing
the complaint and the board agree in writing to extend the time for
the final ruling.
(d)
Every Each board shall
maintain a business office open to
the public and shall provide public access to
the record of its
public records, including the disposition of the complaints which
it receives in accordance with the provisions of chapter
twenty-nine-b of this code.
(e) Every Each board has a duty to report violations of
individual practice acts contained in this chapter to the board by
which the individual may be licensed and shall do so in a timely
manner upon receiving notice of such violations.
Every Each person
licensed or registered by a board has a duty to report to the board
which licenses or registers him or her a known or observed violation of the practice act or the board's rules by any other person
licensed or registered by the same board and shall do so in a timely
manner.
Law-enforcement agencies or their personnel and courts
shall report in a timely manner within ten days to the appropriate
board any violations of individual practice acts by any individual.
Any person who reports or provides information in good faith is not
subject to civil damages.
(e) (f) Whenever a board referred to in this chapter obtains
information that a person subject to its authority has engaged in,
is engaging in or is about to engage in any act which constitutes
or will constitute a violation of the provisions of this chapter
which are administered and enforced by that board, it may apply to
the circuit court for an order enjoining the act. Upon a showing
that the person has engaged, is engaging or is about to engage in
any such act, the court
shall may order an injunction, restraining
order or other order as the court
may deem considers appropriate.
§30-1-6. Application for an authorization to practice; fees;
prohibiting discrimination.
(a)
Every Each applicant for
license or registration an
authorization to practice under the provisions of this chapter,
shall apply
for the license or registration in writing to the proper
board and shall transmit with his or her application
an examination
fee which the board is authorized to charge for an examination or investigation into the applicant's qualifications to practice the
authorized fees.
(b) Each board
referred to in this chapter is authorized to
establish by
legislative rule a deadline for application for
examination which shall be no less than ten nor more than ninety
days prior to the date of the examination.
(c)
Boards Notwithstanding the specific fees set forth in the
articles which govern the licensing boards in this chapter, each
board may set
fees by
legislative rule
fees relating to the
licensing or registering of individuals, which shall be sufficient
to enable the
boards board to
effectively carry out
effectively
their its duties and responsibilities of
licensure or registration
authorizing practices and
discipline of disciplining individuals
subject to
their its authority.
Provided, That when any board
proposes to promulgate a
(d) At least thirty days prior to a proposed rule regarding
fees
for licensing or registration, that is filed with the Secretary
of State, a board shall notify its membership of the proposed rule
by:
(1) Mailing a copy of the proposed rule to
the membership at
the time that the proposed rule is filed with the Secretary of
State; for publication in the state register in accordance with
section five, article three, chapter twenty-nine-a of this code its membership; or
(2) Posting the proposed rule on its website and notifying its
membership by:
(A) Mailing a postcard;
(B) Emailing a notice; or
(C) Placing a notice in its newsletter.
(d) In addition to any other information required, the
applicant's social security number shall be recorded on the
application:
Provided, That a board shall redact social security
numbers on copies provided to the public.
(e) No board may discriminate against any applicant because of
political or religious opinion or affiliation, marital status, race,
color, gender, creed, age, national origin, disability or other
protected group status.
(f)
Any A board may deny the application for
license or
registration an authorization to practice of an applicant whose
license or registration authorization to practice in any other
state, territory, jurisdiction or foreign nation has been revoked
by the licensing authority
thereof. The application may be denied
by a board without a hearing unless the applicant requests a hearing
within thirty days of the denial.
Any A hearing must be conducted
pursuant to the provisions of section eight of this article or
the
provisions contained in the rules of the board.
§30-1-8. Denial, suspension or revocation of a license or
registration; probation; proceedings; effect of suspension or
revocation;
authority to hire hearing examiner; transcript;
report; judicial review.
(a)
Every Each board
referred to in this chapter may suspend
or revoke the
license authorization to practice of any person who
has been convicted of a felony or who has been found to have engaged
in conduct, practices or acts constituting professional negligence
or a willful departure from accepted standards of professional
conduct. Where any person has been convicted of a felony or has
been found to have engaged in such conduct, practices or acts,
every
the board
referred to in this chapter may enter into consent
decrees,
to reprimand,
to enter into probation orders,
to levy fines
not to exceed one thousand dollars per day per violation or any of
these, singly or in combination. Each board may also assess
administrative costs. Any costs which are assessed shall be placed
in the special account of the board and any fine which is levied
shall be deposited in the State Treasury's General Revenue Fund.
(b) For purposes of this section, the word "felony" means a
felony or crime punishable as a felony under the laws of this state,
any other state or the United States.
(c)
Every Each board
referred to in this chapter may promulgate
rules in accordance with the provisions of chapter twenty-nine-a of this code to delineate conduct, practices or acts which, in the
judgment of the board, constitute professional negligence, a willful
departure from accepted standards of professional conduct or which
may render an individual unqualified or unfit for
licensure,
registration or other an authorization to practice.
(d)
Every Each board
referred to in this chapter may revoke
the
license or registration an authorization to practice of an
individual
licensed or otherwise lawfully practicing within this
state whose
license or registration authorization to practice in any
other state, territory, jurisdiction or foreign nation has been
revoked by the licensing authority.
thereof
(e) Notwithstanding any other provision of law to the contrary,
no
certificate, license, registration or authority authorization to
practice issued under the provisions of this chapter may be
suspended or revoked without a prior hearing before the board or
court which issued the certificate, license, registration or
authority, except:
(1) A board
is authorized to may suspend or revoke
a
certificate, license, registration or authority an authorization to
practice prior to a hearing if the person's continuation in practice
constitutes an immediate danger to the public; or
(2)
After due diligence, If a board,
after reviewing all
reasonably available relevant information, cannot locate a person
licensed authorized to practice under the provisions of this chapter
within sixty days of a complaint being filed against the
licensee
person,
then the board may suspend the
license, certificate,
registration or authority authorization to practice of the person
without holding a hearing.
After due diligence, If a board,
still
after reviewing all reasonably available relevant information,
cannot locate the person
licensed authorized to practice under the
provisions of this chapter thirty days after the suspension of the
person's
license, certificate, registration or authority, then
authorization to practice, the board may revoke the
license,
certificate, registration or authority authorization to practice of
the person without holding a hearing.
(f) In all proceedings before a board or court for the
suspension or revocation of any
certificate, license, registration
or authority authorization to practice issued under the provisions
of this chapter, a statement of the charges against the holder of
the
certificate, license, registration or authority authorization
to practice and a notice of the time and place of hearing shall be
served upon the person as a notice is served under section one,
article two, chapter fifty-six of this code at least thirty days
prior to the hearing.
and He or she may appear with witnesses and
be heard in person, by counsel, or both. The board may take oral
or written proof, for or against the
accused holder of the authorization to practice, as it may consider advisable. If upon
hearing the board finds that the charges are true, it may suspend
or revoke the
certificate, license, registration or authority and
suspension or revocation shall take from the person all rights and
privileges acquired thereby authorization to practice.
(g)
The board may conduct the hearing or elect to have a
hearing examiner or an administrative law judge conduct the hearing.
If the hearing is conducted by a hearing examiner or an
administrative law judge:
(1) The hearing examiner or administrative law judge shall be
licensed to practice law in this state, and shall conform to the
Code of Conduct for Administrative Law Judges as set forth by the
Ethics Commission in legislative rule;
(2) At the conclusion of a hearing, the hearing examiner or
administrative law judge shall prepare a proposed written order
containing recommended findings of fact and conclusions of law, and
may contain recommended disciplinary sanctions if the board so
directs;
(3) The board may accept, reject, modify or amend the
recommendations of the hearing examiner or administrative law judge;
and
(4) If the board rejects, modifies or amends the
recommendations, the board shall state in the order a reasoned, articulate justification based on the record for the rejection,
modification or amendment.
(h) Pursuant to the provisions of section one, article five,
chapter twenty-nine-a of this code, informal disposition may
also
be made by the board of any contested case by stipulation, agreed
settlement, consent order or default.
Further, The board may
suspend its decision and place a licensee found by the board to be
in violation of the applicable practice
act or rules of the board
on probation.
(h) (i) Any person denied
a license, certificate, registration
or authority an authorization to practice who believes the denial
was in violation of this article or the article under which the
license, certificate, registration or authority licensee is
authorized shall be entitled to a hearing on the action.
denying
the license, certificate, registration or authority Hearings under
this subsection are in accordance with the provisions for hearings
which are set forth in this section.
(i) (j) A stenographic report of each proceeding on the denial,
suspension or revocation
of a certificate, license, registration or
authority shall be made at the expense of the board and a transcript
of the hearing retained in its files. The board shall make a
written report of its findings, which shall constitute part of the
record.
(j) (k) All
hearings and administrative proceedings under the
provisions of this section
will be held in accordance with the
provisions of article five, chapter twenty-nine-a of this code, and
are subject to review by the Supreme Court of Appeals.
(k) (l) On or before the first day of July, two thousand one,
every Each board
referred to in this chapter shall adopt
procedural
rules in accordance with the provisions of article three, chapter
twenty-nine-a of this code, which shall specify a procedure for the
investigation and resolution of all complaints against persons
licensed under this chapter.
The proposed legislative rules
relating only to complaint procedures or contested case hearing
procedures required by the prior enactment of this subsection shall
be redesignated as procedural rules in accordance with the
provisions of article three, chapter twenty-nine-a of this code.
Each board shall file the procedural rules required by this
subsection by the thirty-first day of January, two thousand one.
The public hearing or public comment period conducted for the
proposed legislative rules shall serve as the public hearing or
public comment period required by section five, article three,
chapter twenty-nine-a of this code.
§30-1-11. Compensation of members; expenses;
adherence to ethical
standards.
(a) Each member of every board in this chapter is entitled to receive compensation for attending official meetings or engaging in
official duties
not to exceed the amount in the same amount as is
paid to members of the Legislature for their interim duties as
recommended by the Citizens Legislative Compensation Commission and
authorized by law. A board member may not receive compensation for
travel days that are not on the same day as the official meeting or
engaging in official duties.
(b) The limitations contained in this section do not apply if
they conflict with provisions of this chapter relating to a
particular board and enacted after January 1, 1995.
(c) A board may reimburse actual and necessary expenses
incurred for each day or portion of a day engaged in the discharge
of official duties in a manner consistent with guidelines of the
Travel Management Office of the Department of Administration.
(d) No member of any board in this chapter may receive
compensation as an employee of the board.
(e) Each member of every board in this chapter shall adhere to
the ethical standards for appointed officials as set forth in
section five, article two, chapter six-b of this code.
§30-1-14. Modifying or waiving continuing education requirements
or renewal fees for persons in active duty military service.
Each board in this chapter may establish and implement
processes for modifying or waiving continuing education requirements or renewal fees for the renewal of an authorization to practice for
the period of time during which a person regulated by the board is
engaged in active duty military service.
§30-1-19. Regulatory board review.
Each board is subject to a regulatory board review pursuant to
the provisions of article ten, chapter four of this code.
§30-1-20. Independent status of boards; legislative declaration;
inapplicability of certain laws, rules and policies to boards.
(a) The Legislature declares and reaffirms that, due to the
statutory requirements of financial autonomy set forth in section
six of this article, the exclusion of the boards from the statutory
structure of the executive branch, and the absence of any
requirement for the boards to report to an agency head, a cabinet
secretary or the Governor, the boards have independent status.
(b) Boards referred to in this chapter are not bound by the
laws, rules or policies applicable to the executive branch,
including but not limited to, the purchasing requirements of the
Purchasing Division, the rules of the Division of Personnel, the
laws governing the authority of the Real Estate Division, Executive
Order or instructions issued by the Governor or his or her staff.
ARTICLE 27. BOARD OF BARBERS AND COSMETOLOGISTS.
§30-27-6. Rulemaking.
(a) The board shall propose rules for legislative approval, in accordance with the provisions of article three, chapter
twenty-nine-a of this code, to implement the provisions of this
article, including:
(1) Standards and requirements for licenses, permits,
certificates and registrations;
(2) Procedures for examinations and reexaminations;
(3) Requirements for third parties to prepare and/or administer
examinations and reexaminations;
(4) Educational and experience requirements;
(5) The passing grade on the examinations;
(6) Standards for approval of courses and curriculum;
(7) Procedures for the issuance and renewal of licenses,
permits, certificates and registrations;
(8) A fee schedule;
(9) Continuing education requirements for professional
licensees and certificate holders;
(10) The procedures for denying, suspending, revoking,
reinstating or limiting the practice of licensees, permitees,
certificate holders and registrants;
(11) Designating the regions for investigators/inspectors;
(12) Criteria for the training of investigators/inspectors;
(13) Requirements for investigations and inspections;
(14) Requirements for inactive or revoked licenses, permits, certificates and registrations;
(15) Establishing the training program and requirements for
instructors for schools licensed under this article;
(16) Establishing operating procedures for salons;
and
(17)
Establishing a barber's and cosmetologist's apprentice
program; and
(17) (18) Any other rules necessary to effectuate the
provisions of this article.
(b) All of the board's rules in effect on July 1, 2009, shall
remain in effect until they are amended or repealed, and references
to provisions of former enactments of this article are interpreted
to mean provisions of this article.
(c) The board
is authorized to shall file an emergency rule
for
the implementation of creating its
fee schedule in 2009 barber's and
cosmetologist's apprenticeship program.
§30-27-9. Professional license from another state; license to
practice in this state.
(a) The board may issue a professional license to practice to
an applicant of good moral character who holds a valid license or
other authorization to practice in that particular field from
another state, if the applicant demonstrates that he or she:
(1)
(A) Holds a license or other authorization to practice in
another state which was granted after completion of educational requirements substantially equivalent to those required in this
state; or
(B) Completed an apprentice program;
(2) Passed an examination that is substantially equivalent to
the examination required in this state;
(2) (3) Does not have charges pending against his or her
license or other authorization to practice, and has never had a
license or other authorization to practice revoked;
(3) (4) Has not previously failed an examination for
professional licensure in this state;
(4) (5) Has paid the applicable fee;
(5) (6) Is a citizen of the United States or is eligible for
employment in the United States;
(6) (7) Has presented a certificate of health issued by a
licensed physician; and
(7) (8) Has fulfilled any other requirement specified by the
board.
(b) In its discretion, the board may examine a person by a
written, oral or skills test for licensing under this section, and
may enter into agreements for reciprocal licensing with other
jurisdictions having substantially similar requirements for
licensure.
(c) The provisions of this section do not apply to nail technicians or manicurists from another state or jurisdiction. A
nail technician or manicurist from another state or jurisdiction is
required to show that he or she has completed the required
curriculum and has successfully passed the board's practical skills
examination to apply for licensure under the provisions of this
article.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 328--A Bill to repeal
§30-1-15 of the Code of West Virginia, 1931, as amended; to amend
and reenact §30-1-2a, §30-1-5, §30-1-6, §30-1-8, §30-1-11 and
§30-1-14 of said code; to amend said code by adding thereto two new
sections, designated §30-1-19 and §30-1-20; to amend and reenact
§30-27-6 and §30-27-9 of said code, all relating to professional
licensing boards; removing nonutilized code sections; requiring
certified persons to report violations; providing immunity from
civil liability for reporting violations; clarifying procedures for
hearings, rights of appeal and judicial review; removing automatic
stay on appeal; increasing criminal penalties; clarifying
limitations on immunity in the absence of required insurance policy;
repealing antiquated ineffective provisions; revising requirements
for specific subject matter at orientation sessions; clarifying who may call a board meeting; establishing quorums; reporting
violations; clarifying the issuance of notices to cease and desist;
requiring boards to maintain a business office open to the public;
authorizing boards to propose fees notwithstanding specific fees
established in code; notifying licensees of proposal of fees in
legislative rules; authorizing boards to levy fines; hiring
administrative law judges; clarifying law governing hearings and
administrative hearings; requiring board members to adhere to
ethical standards for appointed officials; permitting boards to
establish a process for modifying or waiving continuing education
requirements or renewal fees for licensees in active duty military
service; requiring regulatory board reviews; regulating to the
practice of beauty care; requiring the board to establish an
apprentice program; and permitting the board to license an applicant
from another jurisdiction who has completed an apprenticeship
program.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendments to the bill (Eng. Com. Sub. for S.
B. No. 328) and requested the House of Delegates to recede
therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate
in the House of Delegates amendments, as to
Eng. Senate Bill No. 372, Updating language in WV Medical
Practice Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §30-1-15 of the Code of West Virginia, 1931, as amended,
be repealed; that §30-1-2a, §30-1-5, §30-1-6, §30-1-8, §30-1-11 and
§30-1-14 of said code be amended and reenacted; that said code be
amended by adding thereto two new sections, designated §30-1-19 and
§30-1-20; and that §30-3-2, §30-3-4, §30-3-5, §30-3-6 and §30-3-8
of said code be amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS APPLICABLE TO ALL STATE BOARDS OF
EXAMINATION OR REGISTRATION REFERRED TO IN CHAPTER.
§30-1-2a. Required orientation session.
(a)
After Between April 1 and
not later than the first day of
December
31 of each year, the Auditor shall provide at least one
orientation session on relevant state law and rules governing state boards.
and commissions All state agencies shall cooperate with and
assist in providing the orientation session if the Auditor requests.
(b)
After the effective date of this section, All chairs or
chief financial officers of
state boards
and commissions newly
created by the Legislature shall attend an orientation session
designed to inform the
state boards
and commissions of the duties
and requirements imposed
on state boards and commissions by state
law and rules
The chair or chief financial officer of the newly
created board or commission shall attend an orientation session at
the earliest possible date following the creation of the board.
or
commission
(c) The orientation session shall include a minimum of thirty
minutes of instructional time dedicated to the statutory duty of
boards to investigate and resolve complaints, including procedures
for investigations, administrative hearings and remedies, due
process protections, and the duty to provide public access to
records of the disposition of complaints, as set forth in section
five of this article.
(d) (c) Topics for the orientation session may include, but are
not limited to,
the statutory duty of boards to investigate and
resolve complaints, including procedures for investigations,
administrative hearings and remedies, and the duty to provide public
access to records of the disposition of complaints; the official conduct of members, state budgeting and financial procedures,
purchasing requirements, open meetings requirements, ethics,
rule-making procedures, records management, annual reports and any
other topics the Auditor determines
to be essential in the
fulfillment of the duties of the members of state boards and
commissions are necessary.
(e) (d) The orientation session
shall be is open to any member
of new or existing boards
and commissions and each board
or
commission may approve expense reimbursement for the attendance of
one or more of its members.
The chair or chief financial officer
of each existing board or commission shall attend an orientation
session within two years following the effective date of this
section.
(f) (e) No later than December 31 of each year, the Auditor
shall provide to the chairs of the Joint Standing Committee on
Government
Operations Organization a list of the names of board
or
commission members attending,
together with the names of the boards
and commissions represented,
and the orientation session or sessions
offered by the Auditor during the previous year.
(g) (f) The Auditor may charge a registration fee for the
orientation session to cover the cost of providing the orientation
session. The fee may be paid from funds available to a board.
or
commission
(h) (g) Notwithstanding the member's normal rate of
compensation for serving on a board, a member attending the
orientation session may be reimbursed for necessary and actual
expenses, as long as the member attends the complete orientation
session.
(i) (h) Ex officio members who are elected or appointed state
officers or employees, and members of boards
or commissions that
have purely advisory functions with respect to a department or
agency of the state, are exempt from the requirements of this
section.
§30-1-5. Meetings; quorum; investigatory powers; duties.
(a)
Every Each board
referred to in this chapter shall hold at
least one meeting each year, at such time and place as it may
prescribe by rule,
for the examination of applicants who desire to
practice their respective professions or occupations in this state
and to transact any
other business which may legally come before it.
The board may hold additional meetings as may be necessary, which
shall be called by the
chair secretary at the direction of the
president or upon the written request of
any three a majority of the
board members. A
simple majority of
the members of the constituent
membership serving on the board
at a given time constitutes a quorum
for the transaction of
its business.
(b)
The Each board
is authorized to may compel the attendance of witnesses,
to issue subpoenas
and subpoenas duces tecum, to
conduct investigations,
and hire an investigator and
to take
testimony and other evidence concerning any matter within its
jurisdiction. The
president chair and secretary of the board
are
authorized to may administer oaths for these purposes.
(c)
Every Each board
referred to in this chapter has a duty to
shall investigate and resolve complaints which it receives and
shall, within six months of the complaint being filed, send a status
report to the party filing the complaint by certified mail with a
signed return receipt and within one year of the status report's
return receipt date issue a final ruling, unless the party filing
the complaint and the board agree in writing to extend the time for
the final ruling.
(d)
Every Each board shall
maintain a business office open to
the public and shall provide public access to
the record of its
public records, including the disposition of the complaints which
it receives in accordance with the provisions of chapter
twenty-nine-b of this code.
(e) Every Each board has a duty to report violations of
individual practice acts contained in this chapter to the board by
which the individual may be licensed and shall do so in a timely
manner upon receiving notice of such violations.
Every Each person
licensed or registered by a board has a duty to report to the board which licenses or registers him or her a known or observed violation
of the practice act or the board's rules by any other person
licensed or registered by the same board and shall do so in a timely
manner.
Law-enforcement agencies or their personnel and courts
shall report in a timely manner within ten days to the appropriate
board any violations of individual practice acts by any individual.
Any person who reports or provides information in good faith is not
subject to civil damages.
(e) (f) Whenever a board referred to in this chapter obtains
information that a person subject to its authority has engaged in,
is engaging in or is about to engage in any act which constitutes
or will constitute a violation of the provisions of this chapter
which are administered and enforced by that board, it may apply to
the circuit court for an order enjoining the act. Upon a showing
that the person has engaged, is engaging or is about to engage in
any such act, the court
shall may order an injunction, restraining
order or other order as the court
may deem considers appropriate.
§30-1-6. Application for license or registration; examination fee;
prohibiting discrimination.
(a)
Every Each applicant for
license or registration an
authorization to practice under the provisions of this chapter shall
apply
for the license or registration in writing to the proper board
and shall transmit with his or her application
an examination fee which the board is authorized to charge for an examination or
investigation into the applicant's qualifications to practice the
authorized fees.
(b) Each board
referred to in this chapter is authorized to may
establish by rule a deadline for application for examination.
which
shall be no less than ten nor more than ninety days prior to the
date of the examination
(c)
Boards Notwithstanding specific fees established in the
articles which govern the licensing boards in this chapter, each
board may set
fees by
legislative rule
fees relating to the
licensing or registering of individuals, which shall be sufficient
to enable the boards to
effectively carry out
effectively their
responsibilities
of licensure or registration of the authorization
to practice and discipline
of the individuals subject to their
authority.
Provided, That when any When a board proposes to
promulgate a rule regarding fees,
for licensing or registration,
that the board shall notify its membership of the proposed rule by:
(1) Mailing a copy of the proposed rule to
the membership its
licensees at the time that the proposed rule is filed with the
Secretary of State;
for publication in the state register in
accordance with section five, article three, chapter twenty-nine-a
of this code. or
(2) Posting the proposed rule on its website and notifying its licensees of the website posting, at least thirty days before the
proposed rule is filed with the Secretary of State, by:
(A) Mailing a postcard to its licensees;
(B) Emailing a notice to its licensees who have an email
address on file with the board; or
(C) Placing a notice in its newsletter.
(d) In addition to any other information required, the
applicant's social security number shall be recorded on the
application:
Provided, That the board will redact the social
security numbers on any copies provided to the public.
(e) No board may discriminate against any applicant because of
political or religious opinion or affiliation, marital status, race,
color, gender, creed, age, national origin, disability or other
protected group status.
(f)
Any A board may deny the application for
licensure or
registration an authorization to practice of an applicant whose
license or registration authorization to practice in any other
state, territory, jurisdiction or foreign nation has been revoked
by the licensing authority.
thereof The application may be denied
by a board without a hearing unless the applicant requests a hearing
within thirty days of the denial. Any hearing must be conducted
pursuant to the provisions of section eight of this article or
provisions contained in the rules of the board.
§30-1-8. Denial, suspension or revocation of a license or
registration; probation; proceedings; effect of suspension or
revocation; authority to hire hearing examiner; transcript;
report; judicial review.
(a)
Every Each board
referred to in this chapter may suspend
or revoke the
license authorization to practice of any person who
has been convicted of a felony or who has been found to have engaged
in conduct, practices or acts constituting professional negligence
or a willful departure from accepted standards of professional
conduct. Where any person has been convicted of a felony or has
been found to have engaged in such conduct, practices or acts,
every
the board
referred to in this chapter may enter into consent
decrees,
to reprimand,
to enter into probation orders,
to levy fines
not to exceed one thousand dollars per day per violation or any of
these, singly or in combination. Each board may also assess
administrative costs. Any costs which are assessed shall be placed
in the special account of the board and any fine which is levied
shall be deposited in the State Treasury's General Revenue Fund.
(b) For purposes of this section, the word "felony" means a
felony or crime punishable as a felony under the laws of this state,
any other state or the United States.
(c)
Every Each board
referred to in this chapter may promulgate
rules in accordance with the provisions of chapter twenty-nine-a of this code to delineate conduct, practices or acts which, in the
judgment of the board, constitute professional negligence, a willful
departure from accepted standards of professional conduct or which
may render an individual unqualified or unfit for
licensure,
registration or other an authorization to practice.
(d)
Every Each board
referred to in this chapter may revoke
the
license or registration an authorization to practice of an
individual
licensed or otherwise lawfully practicing within this
state whose
license or registration authorization to practice in any
other state, territory, jurisdiction or foreign nation has been
revoked by the licensing authority.
thereof
(e) Notwithstanding any other provision of law to the contrary,
no
certificate, license, registration or authority authorization to
practice issued under the provisions of this chapter may be
suspended or revoked without a prior hearing before the board or
court which issued the certificate, license, registration or
authority, except:
(1) A board
is authorized to may suspend or revoke
a
certificate, license, registration or authority an authorization to
practice prior to a hearing if the person's continuation in practice
constitutes an immediate danger to the public; or
(2)
After due diligence, If a board,
after reviewing all
reasonably available relevant information, cannot locate a person
licensed authorized to practice under the provisions of this chapter
within sixty days of a complaint being filed against the
licensee
person,
then the board may suspend the
license, certificate,
registration or authority authorization to practice of the person
without holding a hearing.
After due diligence, If a board,
still
after reviewing all reasonably available relevant information,
cannot locate the person
licensed authorized to practice under the
provisions of this chapter thirty days after the suspension of the
person's
license, certificate, registration or authority, then
authorization to practice, the board may revoke the
license,
certificate, registration or authority authorization to practice of
the person without holding a hearing.
(f) In all proceedings before a board or court for the
suspension or revocation of any
certificate, license, registration
or authority authorization to practice issued under the provisions
of this chapter, a statement of the charges against the holder of
the
certificate, license, registration or authority authorization
to practice and a notice of the time and place of hearing shall be
served upon the person as a notice is served under section one,
article two, chapter fifty-six of this code at least thirty days
prior to the hearing.
and He or she may appear with witnesses and
be heard in person, by counsel, or both. The board may take oral
or written proof, for or against the
accused holder of the authorization to practice, as it may consider advisable. If upon
hearing the board finds that the charges are true, it may suspend
or revoke the
certificate, license, registration or authority and
suspension or revocation shall take from the person all rights and
privileges acquired thereby authorization to practice.
(g)
The board may conduct the hearing or elect to have a
hearing examiner or an administrative law judge conduct the hearing.
If the hearing is conducted by a hearing examiner or an
administrative law judge:
(1) The hearing examiner or administrative law judge shall be
licensed to practice law in this state, and shall conform to the
Code of Conduct for Administrative Law Judges as set forth by the
Ethics Commission in legislative rule;
(2) At the conclusion of a hearing, the hearing examiner or
administrative law judge shall prepare a proposed written order
containing recommended findings of fact and conclusions of law, and
may contain recommended disciplinary sanctions if the board so
directs;
(3) The board may accept, reject, modify or amend the
recommendations of the hearing examiner or administrative law judge;
and
(4) If the board rejects, modifies or amends the
recommendations, the board shall state in the order a reasoned, articulate justification based on the record for the rejection,
modification or amendment.
(h) Pursuant to the provisions of section one, article five,
chapter twenty-nine-a of this code, informal disposition may
also
be made by the board of any contested case by stipulation, agreed
settlement, consent order or default.
Further, The board may
suspend its decision and place a licensee found by the board to be
in violation of the applicable practice
act or rules of the board
on probation.
(h) (i) Any person denied
a license, certificate, registration
or authority an authorization to practice who believes the denial
was in violation of this article or the article under which the
license, certificate, registration or authority licensee is
authorized shall be entitled to a hearing on the action.
denying
the license, certificate, registration or authority Hearings under
this subsection are in accordance with the provisions for hearings
which are set forth in this section.
(i) (j) A stenographic report of each proceeding on the denial,
suspension or revocation
of a certificate, license, registration or
authority shall be made at the expense of the board and a transcript
of the hearing retained in its files. The board shall make a
written report of its findings, which shall constitute part of the
record.
(j) (k) All
hearings and administrative proceedings under the
provisions of this section
will be held in accordance with the
provisions of article five, chapter twenty-nine-a of this code, and
are subject to review by the Supreme Court of Appeals.
(k) (l) On or before the first day of July, two thousand one,
every Each board
referred to in this chapter shall adopt
procedural
rules in accordance with the provisions of article three, chapter
twenty-nine-a of this code, which shall specify a procedure for the
investigation and resolution of all complaints against persons
licensed under this chapter.
The proposed legislative rules
relating only to complaint procedures or contested case hearing
procedures required by the prior enactment of this subsection shall
be redesignated as procedural rules in accordance with the
provisions of article three, chapter twenty-nine-a of this code.
Each board shall file the procedural rules required by this
subsection by the thirty-first day of January, two thousand one.
The public hearing or public comment period conducted for the
proposed legislative rules shall serve as the public hearing or
public comment period required by section five, article three,
chapter twenty-nine-a of this code.
§30-1-11. Compensation of members; expenses; adherence to ethical
standards.
(a) Each member of every board in this chapter is entitled to receive compensation for attending official meetings or engaging in
official duties
not to exceed the amount in the same amount as is
paid to members of the Legislature for their interim duties as
recommended by the Citizens Legislative Compensation Commission and
authorized by law. A board member may not receive compensation for
travel days that are not on the same day as the official meeting or
engaging in official duties.
(b) The limitations contained in this section do not apply if
they conflict with provisions of this chapter relating to a
particular board and enacted after January 1, 1995.
(c) A board may reimburse actual and necessary expenses
incurred for each day or portion of a day engaged in the discharge
of official duties in a manner consistent with guidelines of the
Travel Management Office of the Department of Administration.
(d) No member of any board in this chapter may receive
compensation as an employee of the board.
(e) Each member of every board in this chapter shall adhere to
the ethical standards for appointed officials as set forth in
section five, article two, chapter six-b of this code.
§30-1-14. Modifying or waiving continuing education requirements or
renewal fees for persons in active duty military service.
Each board in this chapter may establish and implement
processes for modifying or waiving continuing education requirements or renewal fees for the renewal of an authorization to practice for
the period of time during which a person regulated by the board is
engaged in active duty military service.
§30-1-19. Regulatory board review.
Each board is subject to a regulatory board review pursuant to
the provisions of article ten, chapter four of this code.
§30-1-20. Independent status of boards; legislative declaration;
inapplicability of certain laws, rules and policies to boards.
(a) The Legislature declares and reaffirms that, due to the
statutory requirements of financial autonomy set forth in section
six of this article, the exclusion of the boards from the statutory
structure of the executive branch, and the absence of any
requirement for the boards to report to an agency head or cabinet
secretary, the boards have independent status.
(b) Boards referred to in this chapter are not bound by the
laws, rules or policies applicable to the executive branch,
including but not limited to, the purchasing requirements of the
Purchasing Division, the rules of the Division of Personnel, the
laws governing the authority of the Real Estate Division, Executive
Order or instructions issued by the Governor or his or her staff.
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-2. Purpose.
The purpose of this article is to provide for the licensure and professional discipline of physicians and podiatrists and for the
certification licensure and
professional discipline of physician
assistants and to provide a professional environment that encourages
the delivery of quality medical services within this state.
§30-3-4. Definitions.
As used in this article:
(1) "Board" means the West Virginia Board of Medicine
established in section five of this article.
Whenever any other
provision of this code refers to the "medical licensing board of
West Virginia", the reference shall be construed to mean and refer
to the "West Virginia Board of Medicine" as created and established
in this article.
(2) "Medical peer review committee" means a committee of, or
appointed by, a state or local professional medical society, or a
committee of, or appointed by, a medical staff of a licensed
hospital, long-term care facility or other health care facility, or
any health care peer review organization as defined in section one,
article three-c of this chapter, or any other organization of
professionals in this state formed pursuant to state or federal law
and authorized to evaluate medical and health care services.
(3) "Practice of medicine and surgery" means the diagnosis or
treatment of, or operation or prescription for, any human disease,
pain, injury, deformity or other physical or mental condition.
"Surgery" includes the use on humans of lasers, ionizing radiation,
pulsed light and radiofrequency devices. The provisions of this
subsection do not apply to any person who is a duly licensed health
care provider under other pertinent provisions of this code and who
is acting within the scope of his or her license as determined by
the regulatory board for that profession.
(4) "Practice of podiatry" means the examination, diagnosis,
treatment, prevention and care of conditions and functions of the
human foot and ankle by medical, surgical and other scientific
knowledge and methods; with surgical treatment of the ankle
authorized only when a podiatrist has been granted privileges to
perform ankle surgery by a hospital's medical staff credentialing
committee based on the training and experience of the podiatrist;
and medical and surgical treatment of warts and other dermatological
lesions of the hand which similarly occur in the foot. When a
podiatrist uses other than local anesthesia, in surgical treatment
of the foot
or hand, the anesthesia must be administered by, or
under the direction of, an anesthesiologist or certified registered
nurse anesthetist authorized under the State of West Virginia to
administer anesthesia. A medical evaluation shall be made by a
physician of every patient prior to the administration of other than
local anesthesia.
(5) "State
director of health
officer" means the
state director of health commissioner for the Bureau for Public Health or his or
her designee, which
officer or designee
shall be a physician and
shall act as secretary of the board and shall carry out any and all
responsibilities assigned in this article to the secretary of the
board.
§30-3-5. West Virginia Board of Medicine powers and duties
continued; appointment and terms of members; vacancies;
removal.
There is hereby created a medical licensing board to be known
as the "West Virginia Board of Medicine." The West Virginia Board
of Medicine
shall assume, carry has assumed, carried on and
succeed
succeeded to all the duties, rights, powers, obligations and
liabilities heretofore belonging to or exercised by the Medical
Licensing Board of West Virginia. All the rules,
and regulations,
orders, rulings, licenses, certificates, permits and other acts and
undertakings of the medical licensing board of West Virginia as
heretofore constituted
shall continue have continued as those of the
West Virginia Board of Medicine until they
expire expired or
are
were amended, altered or revoked. The board
shall be remains the
sole authority for the issuance of licenses to practice medicine and
surgery and to practice podiatry and
certificates for to practice
as physician assistants in this state
under the supervision of
physicians licensed under this article. and The board shall
continue to be a regulatory and disciplinary body for the practice
of medicine and surgery and the practice of podiatry and for
physician assistants in this state.
The board shall consist of fifteen members. One member shall
be the state
director of health
officer ex officio, with the right
to vote as a member of the board. The other fourteen members shall
be appointed by the Governor, with the advice and consent of the
Senate. Eight of the members shall be appointed from among
individuals holding the degree of doctor of medicine and two shall
hold the degree of doctor of podiatric medicine. One member shall
be an individual
certified licensed by the board as a
Type A
physician assistant. Each of these members must be duly licensed
or certified to practice his or her profession in this state on the
date of appointment and must have been licensed
or certified and
actively practicing that profession for at least five years
immediately preceding the date of appointment. Three lay members
shall be appointed to represent health care consumers. Neither the
lay members nor any person of the lay members' immediate families
shall be a provider of or be employed by a provider of health care
services. The state
director of health's health officer's term
shall continue for the period that he or she holds office as state
director of health
officer. Each other member of the board shall
be appointed to serve a term of five years:
Provided, That the members of the
medical licensing board or Board of Medicine holding
appointments on the effective date of this section shall continue
to serve as members of the Board of Medicine until the expiration
of their term unless sooner removed. Each term shall begin on
October 1 of the applicable year, and a member may not be appointed
to more than two consecutive full terms on the board.
Not more than four physicians, one podiatrist and two lay
members appointed by the Governor as members of the board shall
belong to the same political party. The Type A physician assistant
member may not belong to the same political party to which a
majority of the lay members belong. A person is not eligible for
membership on the board who is a member of any political party
executive committee or, with the exception of the state
director of
health
officer, who holds any public office or public employment
under the federal government or under the government of this state
or any political subdivision thereof.
or who is an appointee or
employee of the state board of health.
In making appointments to the board, the Governor shall, so far
as practicable, select the members from different geographical
sections of the state. When a vacancy on the board occurs and less
than one year remains in the unexpired term, the appointee shall be
eligible to serve the remainder of the unexpired term and two
consecutive full terms on the board.
No member may be removed from office
by the Governor except for
official misconduct, incompetence, neglect of duty or gross
immorality:
Provided, That the expiration,
surrender or revocation
of the professional license
or certification by the board of a
member of the board shall
be cause
for removal the membership to
immediately and automatically terminate.
§30-3-6. Conduct of business of West Virginia Board of Medicine;
meetings; officers; compensation; expenses; quorum.
Every two years the board shall elect from among its members
a president and vice president. Regular meetings shall be held as
scheduled by the rules
and regulations of the board. Special
meetings of the board may be called by the joint action of the
president and vice president or by any three members of the board
on seven days' prior written notice by mail
postage prepaid or
electronic means or, in case of emergency, on two days' notice by
telephone
and electronic means. With the exception of the state
director of health
officer, members of the board shall receive
one
hundred dollars for each day actually spent in attending the
sessions of the board or its committees. A board member shall be
reimbursed for all reasonable and necessary expenses actually
incurred when a meeting is held in a location that is removed from
the member's place of residence compensation and expense
reimbursement in accordance with section eleven, article one of this chapter.
A majority of the membership of the board constitutes a quorum
for the transaction of business, and business is transacted by a
majority vote of a quorum, except for disciplinary actions which
shall require the affirmative vote of not less than five members or
a majority vote of those present, whichever is greater.
Meetings of the board shall be held in public session.
except
that the board may hold closed sessions to prepare, approve, grade
or administer examinations Disciplinary proceedings, prior to a
finding of probable cause as provided in subsection
(o) (p), section
fourteen of this article, shall be held in closed sessions, unless
the party subject to discipline requests that the
hearing
proceedings be held in public session.
§30-3-8. State
director of health officer to act as secretary of
the board.
The state
director of health
officer, in addition to being a
member of the board, shall act as its secretary.
and shall be in
charge of its offices and responsible to the board for the
maintenance of the offices and the preparation of application forms,
licenses, reports and all other papers or documents that may be
required by the board in the performance of its duties He
or she
shall, together with the president of the board, sign all licenses,
reports,
orders and other documents
that may be required by the board in the performance of its duties.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 372--A Bill to repeal §30-1-15 of the Code
of West Virginia, 1931, as amended; to amend and reenact §30-1-2a,
§30-1-5, §30-1-6, §30-1-8, §30-1-11 and §30-1-14 of said code; to
amend said code by adding thereto two new sections, designated
§30-1-19 and §30-1-20; and to amend and reenact §30-3-2, §30-3-4,
§30-3-5, §30-3-6 and §30-3-8 of said code, all relating to
professional licensing boards; revising requirements for specific
subject matter at board training sessions; clarifying who may call
a board meeting; clarifying the establishment of quorums; clarifying
that boards must maintain offices open to the public; clarifying the
requirement to report violations; providing civil immunity for
reporting violations in good faith; authorizing boards to propose
fees notwithstanding specific fees established in code; requiring
boards to redact social security numbers from copies of documents
provided to the public; expanding the methods by which boards may
notify licensees of proposed fees in legislative rules; authorizing
boards to levy fines; removing the limitation on the amount of fines
which may be levied; authorizing boards to hire administrative law
judges; clarifying procedures governing hearings; clarifying that board members must adhere to ethical standards for appointed
officials; authorizing boards to establish a process for modifying
or waiving continuing education requirements or renewal fees for
licensees in active duty military service; requiring regulatory
board reviews; clarifying independent status of boards; providing
definitions; updating current terminology; removing outdated
language; and making technical corrections.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendments to the bill (Eng. S. B. No. 372) and
requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate
in the House of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 496, Allowing
Environmental Protection Council certain rule-making authority.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 1. DIVISION OF ENVIRONMENTAL PROTECTION.
§22-1-9. Environmental Protection Advisory Council.
(a) There is created within the Department of
Commerce, Labor
and Environmental
Resources Protection the Environmental Protection
Advisory Council. The Environmental Protection Advisory Council
consists of
seven eight members. The
director secretary serves as
an ex officio member of the council and as its chair. The remaining
six seven members are appointed by the Governor. Each member serves
for a term of four years and may be reappointed.
Of the members of
the council first appointed, two shall be appointed for terms ending
on June 30, 1996, and two each for terms ending one and two years
thereafter. Vacancies on the council shall be filled within sixty
days after the vacancy occurs.
(b) Two members of the council shall represent industries
regulated by the
division department or their trade associations.
Two members shall represent organizations advocating environmental
protection. One member shall represent organizations representing
local governments. One member shall represent public service
districts.
One member shall represent the largest coal miner's labor
organization in the state. In making subsequent appointments this
balance of membership shall be maintained.
(c) Appointed members shall be paid the same compensation and expense reimbursement as is paid to members of the Legislature for
their interim duties as recommended by the Citizens Legislative
Compensation Commission and authorized by law for each day or
portion thereof engaged in the discharge of official duties.
(d) The council shall meet at least once every quarter
, and at
the call of the chair
or upon the unanimous request of its members.
(e) The council shall:
(1) Consult with and advise the director on program and policy
development, problem solving and other appropriate subjects;
(2) Identify and define problems associated with the
implementation of the policy set forth in section one of this
article;
(3) Provide and disseminate to industry and the public early
identification of major federal program and regulatory changes;
(4) Provide a forum for the resolution of conflicts between
constituency groups;
(5) To the extent possible, strive for consensus on the
development of overall environmental policy; and
(6) Provide an annual report to the Joint Committee on
Government and Finance on or before January 1 of each year relating
to its findings with regard to the
division's department's
performance during the previous year. The report will specifically
address the
division's department's performance in accomplishing the nine purposes set forth in subsection (b), section one of this
article.
(f) Notwithstanding any other provision of this code to the
contrary, upon approval by majority vote of the Environmental
Protection Advisory Council's members, the council may submit
recommendations for rulemaking to the Secretary of the Department
of Environmental Protection. The Secretary shall consider the
council's recommendations for rulemaking when developing agency
rules to be submitted for legislative approval.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 496--A Bill
to amend and reenact §22-1-9 of the Code of West Virginia, 1931, as
amended, relating to the Environmental Protection Advisory Council;
authorizing the council to review and make recommendations on
rulemaking to the secretary; adding a member to the council; and
requiring Department of Environmental Protection consider the
council's recommendations.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 496, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
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 Com. Sub. for S. B. No. 496) passed with its House of
Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 507, Creating WV Innovative
Mine Safety Technology Tax Credit Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §11-13AA-1, §11-13AA-2,
§11-13AA-3, §11-13AA-4, §11-13AA-5, §11-13AA-6, §11-13AA-7,
§11-13AA-8, §11-13AA-9, §11-13AA-10, §11-13AA-11, §11-13AA-12,
§11-13AA-13 and §11-13AA-14; that §22A-1-4 of said code be amended
and reenacted; and that §22A-11-3 of said code be amended and
reenacted, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 13AA. WEST VIRGINIA INNOVATIVE MINE SAFETY TECHNOLOGY TAX
CREDIT ACT.
§11-13AA-1. Short title.
This article may be cited as the "West Virginia Innovative Mine
Safety Technology Tax Credit Act."
§11-13AA-2. Legislative findings and purpose.
The Legislature finds that the encouragement of new investment
in innovative coal mine safety technology in this state is in the
public interest and promotes the general welfare of the people of
this state.
§11-13AA-3. Definitions.
(a) Any term used in this article has the meaning ascribed by
this section, unless a different meaning is clearly required by the
context of its use or by definition in this article.
(b) For purposes of this article, the term:
(1) "Certified eligible safety property" means eligible safety
property in which an eligible taxpayer has made qualified investment
for which credit has been certified under this article.
(2) "Coal mining company" means:
(A) Any person subject to tax imposed on the severance of coal
by section three, article thirteen-a of this chapter, or
(B) Any person working as a contract miner of coal, which mines
coal in this state, under contract with a person subject to tax
imposed on the severance of coal by section three, article thirteen-
a of this chapter.
(3) "Director" means the Director of the Office of Miners'
Health, Safety and Training or West Virginia Office of Miners'
Health, Safety and Training established under article one, chapter
twenty two-a of this code.
(4) "Eligible safety property" means safety technology
equipment, that at the time of acquisition, is on the list of
approved innovative mine safety technology.
(5) "Eligible taxpayer" means a coal mining company which
purchases eligible safety property.
(6) "List of approved innovative mine safety technology" means
the list required to be compiled and maintained by the Mine Safety
Technology Task Force and approved and published by the director
under this article.
(7) "Office of Miners' Health, Safety and Training" or "West
Virginia Office of Miners' Health, Safety and Training" means the
Office of Miners' Health, Safety and Training established under
article one, chapter twenty two-a of this code.
(8) "Person" includes any corporation, limited liability
company, or partnership.
(9) "Qualified investment" means the eligible taxpayer's
investment in eligible safety property pursuant to a qualified
purchase as qualified and limited by section six of this article.
(10) "Qualified purchase" means and includes only acquisitions
of eligible safety property for use in this state.
(A) A lease of eligible safety property may constitute a
qualified purchase if the lease was entered into and became
effective at a time when the equipment is on the list of approved
innovative mine safety technology, and if the primary term of the
lease for the eligible safety property is five years or more. Leases
having a primary term of less than five years do not qualify.
(B) "Qualified purchase" does not include:
(i) Purchases or leases of realty or any cost for, or related to, the construction of any building, facility or structure attached
to realty;
(ii) Purchases or leases of any property not exclusively used
in West Virginia;
(iii) Repair costs including materials used in the repair,
unless for federal income tax purposes, the cost of the repair must
be capitalized and not expensed;
(iv) Motor vehicles licensed by the Department of Motor
Vehicles;
(v) Clothing;
(vi) Airplanes;
(vii) Off-premises transportation equipment;
(viii) Leases of tangible personal property having a primary
term of less than five years shall not qualify;
(ix) Property that is used outside this state; and
(x) Property that is acquired incident to the purchase of the
stock or assets of an industrial taxpayer, which property was or had
been used by the seller in his or her industrial business in this
state, or in which investment was previously the basis of a credit
against tax taken under any other article of this chapter.
(C) Acquisitions, including leases, of eligible safety property
may constitute qualified purchases for purposes of this article only
if:
(i) The property is not acquired from a person whose
relationship to the person acquiring it would result in the
disallowance of deductions under section 267 or 707(b) of the United
States Internal Revenue Code of 1986, as amended;
(ii) The property is not acquired from a related person or by
one component member of a controlled group from another component
member of the same controlled group. The Tax Commissioner may waive
this requirement if the property was acquired from a related party
for its then fair market value; and
(iii) The basis of the property for federal income tax
purposes, in the hands of the person acquiring it, is not
determined, in whole or in part, by reference to the federal
adjusted basis of the property in the hands of the person from whom
it was acquired; or under Section 1014(e) of the United States
Internal Revenue Code of 1986, as amended.
(11) "Safety technology" means depreciable tangible personal
property and equipment, other than clothing, principally designed
to directly minimize workplace injuries and fatalities in coal
mines.
(12) "Taxpayer" means any person subject to any of the taxes
imposed by article thirteen-a, twenty-three or twenty-four of this
chapter.
§11-13AA-4. List of approved innovative mine safety technology.
(a)
List of approved innovative mine safety technology. -- The
Mine Safety Technology Task Force, established in section two,
article eleven, chapter twenty-two-a of this code, shall annually
compile a proposed list of approved innovative mine safety
technologies as required by subsection (f), section three, article
eleven, chapter twenty-two-a of this code. The list shall be
transmitted to the director for approval. The director has thirty
days to approve or amend the list. At the expiration of thirty
days, the director shall publish the list of approved innovative
mine safety technologies. The list shall describe and specifically
identify safety equipment for use in West Virginia coal mines which,
in the fiscal year when the equipment is added to the list, is not
required by the Mine Safety and Health Administration of the United
States Department of Labor or the West Virginia Office Of Miners'
Health, Safety And Training or any other state or federal agency,
to be used in a coal mine or on a mine site or on any other
industrial site. Safety equipment shall remain on the list from
year to year until the director removes it from the list. The
Office of Miners' Health, Safety and Training may establish by
legislative rule or interpretive rule a shorter time period for
issuance of and updating of the list of approved innovative mine
safety technologies.
(b) It is the intent of the Legislature that the list of approved innovative mine safety technologies include only safety
equipment that is depreciable tangible personal property for federal
income tax purposes, which is so new to the industry and so
innovative in concept, design, operation or performance that, in the
fiscal year when it is added to the list of approved innovative mine
safety technologies, the equipment has not yet been adopted by the
Federal Mine Safety and Health Administration or the West Virginia
Office of Miners Health, Safety and Training or any other state or
federal agency as required equipment to be used in a coal mine or
on a mine site or on any other industrial site.
(c)
Delisting. -- (1) If any item of equipment or any line of
equipment or class of equipment is listed on the list of approved
innovative mine safety technologies in any fiscal year, but then is
subsequently adopted by the Federal Mine Safety and Health
Administration or the West Virginia Office of Mine Safety or any
other state or federal agency as required equipment to be used in
a coal mine or on a mine site or on any other industrial site, the
equipment shall be removed from the list of approved innovative mine
safety technologies compiled and issued for the next succeeding
periodic issuance thereafter of the list of approved innovative mine
safety technologies.
(2) If it is determined by the director that any item of
equipment or any line of equipment or class of equipment that is listed on the list of approved innovative mine safety technology has
ceased to be innovative in concept, design, operation or
performance, or is ineffective, or has failed to meet the
expectations of the Mine Safety Technology Task Force, or has failed
to prove its value in directly minimizing workplace injuries and
fatalities in coal mines, the equipment shall be removed from the
list of approved innovative mine safety technologies that is
compiled and issued for the next succeeding periodic issuance of the
list of approved innovative mine safety technologies after the
determination has been reached.
(3) However, any eligible taxpayer who invested in the
equipment as certified eligible safety property during the time the
equipment was lawfully listed on the list of approved innovative
mine safety technologies, shall not forfeit the credit authorized
by this article as a result of the delisting of the equipment under
either subdivision (1) or subdivision (2) of this subsection, so
long as the requirements of this article are otherwise fulfilled by
the taxpayer for entitlement to the credit.
§11-13AA-5. Amount of credit allowed.
(a)
Credit allowed. -- For tax years beginning after December
31, 2010, there is allowed to eligible taxpayers a credit against
the taxes imposed by articles twenty-three and twenty-four of this
chapter. The amount of credit shall be determined as provided in this section.
(b)
Amount of credit allowable. -- The amount of allowable
credit under this article is equal to fifty percent of the qualified
investment as determined in section six of this article, and shall
reduce the business franchise tax imposed under article twenty-three
of this chapter and the corporation net income tax imposed under
article twenty-four of this chapter, in that order, subject to the
following conditions and limitations:
(1) The amount of credit allowable is applied over a five-year
period, at the rate of one-fifth thereof per taxable year, beginning
with the taxable year in which the eligible safety property is first
placed in service or use in this state.
(2)
Business franchise tax. -- The credit is applied to reduce
the business franchise tax imposed under article twenty-three of
this chapter determined after application of the credits against tax
provided in section seventeen, article twenty-three of this chapter,
but before application of any other allowable credits against tax.
The amount of annual credit allowed will not reduce the business
franchise tax, imposed under article twenty-three of this chapter,
below fifty percent of the amount which would be imposed for the
taxable year in the absence of this credit against tax.
(3)
Corporation net income tax. -- After application of
subdivision (2) of this subsection, any unused credit is next applied to reduce the corporation net income tax imposed under
article twenty-four of this chapter determined before application
of any other allowable credits against tax. The amount of annual
credit allowed will not reduce corporation net income tax, imposed
under article twenty-four of this chapter, below fifty percent of
the amount which would be imposed for the taxable year in the
absence of this credit against tax.
(4)
Pass-through entities. -- (A) If the eligible taxpayer is
a limited liability company, small business corporation or a
partnership, then any unused credit after application of
subdivisions (2) and (3) of this subsection is allowed as a credit
against the taxes imposed by article twenty-four of this chapter on
owners of the eligible taxpayer on the conduit income directly
derived from the eligible taxpayer by its owners. Only those
portions of the tax imposed by article twenty-four of this chapter
that are imposed on income directly derived by the owner from the
eligible taxpayer are subject to offset by this credit.
(B) The amount of annual credit allowed will not reduce
corporation net income tax, imposed under article twenty-four of
this chapter, below fifty percent of the amount which would be
imposed on the conduit income directly derived from the eligible
taxpayer by each owner for such taxable year in the absence of this
credit against the taxes.
(5) Small business corporations, limited liability companies,
partnerships and other unincorporated organizations shall allocate
any unused credit after application of subdivisions (2) and (3) of
this subsection) among their members in the same manner as profits
and losses are allocated for the taxable year; and
(6) No credit is allowed under this article against any tax
imposed by article twenty-one of this chapter.
(c) No carryover to a subsequent taxable year or carryback to
a prior taxable year is allowed for the amount of any unused portion
of any annual credit allowance. Any unused credit is forfeited.
(d) No tax credit is allowed or may be applied under this
article until the taxpayer seeking to claim the tax credit has:
(1) Filed, with the Office of Miners' Health, Safety and
Training, a written application for certification of the proposed
tax credit; and
(2) Received, from the Office of Miners' Health, Safety and
Training, certification of the amount of tax credit to be allocated
to the eligible taxpayer.
(e) No more than $2 million of the tax credits allowed under
this article shall be allocated by the Office of Miners' Health,
Safety and Training during any fiscal year. The Office of Miners'
Health, Safety and Training shall allocate the tax credits in the
order the applications therefor are received.
(f) The total amount of tax credit that may be used in any
taxable year by any eligible taxpayer in combination with the owners
of the eligible taxpayer under this article may not exceed $100,000.
(g) Applications for certification of the proposed tax credit
shall contain such information and be in such detail and in such
form as required by the Office of Miners' Health, Safety and
Training.
(h) The Tax Commissioner may prescribe the forms and schedules
as necessary or appropriate for effective, efficient and lawful
administration of this article.
(i) Notwithstanding the provisions of section five-d, article
ten of this chapter, and notwithstanding any other provision of this
code, the Tax Commissioner and Office of Miners' Health, Safety and
Training may exchange tax information and other information as
determined by the Tax Commissioner to be useful and necessary for
the effective oversight and administration of the credit authorized
pursuant to this article.
§11-13AA-6. Qualified investment.
(a)
General. -- The qualified investment is one hundred percent
of the cost for eligible safety property pursuant to a qualified
purchase, which is placed in service or use in this state by the
eligible taxpayer during the tax year.
(b)
Placed in service or use. -- For purposes of the credit allowed by this article, property is considered placed in service
or use in the earlier of the following taxable years:
(1) The taxable year in which, under the taxpayer's
depreciation practice, the period for federal income tax
depreciation with respect to the property begins; or
(2) The taxable year in which the property is placed in a
condition or state of readiness and availability for a specifically
assigned function.
(c)
Cost. -- For purposes of this article, the cost for
eligible safety property pursuant to a qualified purchase is
determined under the following rules:
(1)
Trade-ins. -- Cost for eligible safety property will not
include the value of property given in trade or exchange for
eligible safety property pursuant to a qualified purchase;
(2)
Damaged, destroyed or stolen property. -- If eligible
safety property is damaged or destroyed by fire, flood, storm or
other casualty, or is stolen, then the cost for replacement of the
eligible safety property, will not include any insurance proceeds
received in compensation for the loss;
(3)
Rental property. -- The cost for eligible safety property
acquired by lease for a term of at least five years or longer is one
hundred percent of the rent reserved for the primary term of the
lease, not to exceed ten years; and
(4)
Property purchased for multiple use. -- Any cost of
acquisition of property that is not principally and directly used
to minimize workplace injuries and fatalities in a coal mine does
not qualify as qualified investment for purposes of this article.
§11-13AA-7. Forfeiture of unused tax credits.
Disposition of property or cessation of use. -- If during any
taxable year, property with respect to which a tax credit has been
allowed under this article:
(1) Is disposed of prior to the end of the fourth tax year
subsequent to the end of the tax year in which the property was
placed in service or use; or
(2) Ceases to be used in a coal mine of the eligible taxpayer
in this state prior to the end of the fourth tax year subsequent to
the end of the tax year in which the property was placed in service
or use, then the unused portion of the credit allowed for such
property is forfeited for the tax year in which the disposition or
cessation of use occurred and all ensuing years.
§11-13AA-8. Transfer of certified eligible safety property to
successors.
(a)
Mere change in form of business. -- Certified eligible
safety property may not be treated as disposed of under section
seven of this article, by reason of a mere change in the form of
conducting the business as long as the certified eligible safety property is retained in a business in this state for use in a coal
mine in West Virginia, and the taxpayer retains a controlling
interest in the successor business. In this event, the successor
business is allowed to claim the amount of credit still available
with respect to the certified eligible safety property transferred,
and the taxpayer (transferor) may not be required to forfeit the
credit for the years remaining at the time of transfer in the
original five year credit period.
(b)
Transfer or sale to successor. -- Certified eligible safety
property will not be treated as disposed of under section seven of
this article by reason of any transfer or sale to a successor
business which continues to use the certified eligible safety
property in a coal mine in West Virginia. Upon transfer or sale,
the successor shall acquire the amount of credit that remains
available under this article in the original five year credit period
for each subsequent taxable year, and the transferor shall not be
required to forfeit the credit for subsequent years. Upon transfer
or sale, the successor shall acquire the amount of credit that
remains available under this article for each taxable year
subsequent to the taxable year of the transferor during which the
transfer occurred and, for the year of transfer, an amount of annual
credit for the year in the same proportion as the number of days
remaining in the transferor's taxable year bears to the total number of days in the taxable year and the transferor shall not be required
to redetermine the amount of credit allowed in earlier years.
§11-13AA-9. Identification of investment credit property.
Every taxpayer who claims credit under this article shall
maintain sufficient records to establish the following facts for
each item of certified eligible safety property:
(1) Its identity;
(2) Its actual or reasonably determined cost;
(3) Its straight-line depreciation life;
(4) The month and taxable year in which it was placed in
service;
(5) The amount of credit taken; and
(6) The date it was disposed of or otherwise ceased to be
actively and directly used in a coal mine in this state.
§11-13AA-10. Failure to keep records of certified eligible safety
property.
A taxpayer who does not keep the records required for certified
eligible safety property and the credit authorized under this
article, is subject to the following rules:
(1) A taxpayer is treated as having disposed of, during the
taxable year, any certified eligible safety property which the
taxpayer cannot establish was still on hand and used in a coal mine
in this state at the end of that year; and
(2) If a taxpayer cannot establish when certified eligible
safety property reported for purposes of claiming this credit
returned during the taxable year was placed in service, the taxpayer
is treated as having placed it in service in the most recent prior
year in which similar property was placed in service, unless the
taxpayer can establish that the property placed in service in the
most recent year is still on hand and used in a coal mine in this
state at the end of that year. In that event, the taxpayer will be
treated as having placed the returned property in service in the
next most recent year.
§11-13AA-11. Tax credit review and accountability.
(a) Beginning on August 1, 2011, and August 1 of every year
thereafter, the Tax Commissioner shall submit to the Governor, the
President of the Senate and the Speaker of the House of Delegates
a tax credit review and accountability report evaluating the cost
of the credit allowed under this article during the most recent
period for which information is available. The criteria to be
evaluated includes, but is not limited to, for each year:
(1) The numbers of taxpayers claiming the credit; and
(2) The cost of the credit.
(b) Taxpayers claiming the credit shall provide whatever
information the Tax Commissioner requires to prepare the report:
Provided, That the information is subject to the confidentiality and disclosure provisions of sections five-d and five-s, article ten of
this chapter. If, in any reporting period under this section, fewer
than ten eligible taxpayers have taken or applied for the credit
authorized under this article, then no report shall be filed for
that reporting period under this section.
§11-13AA-12. Disclosure of tax credits.
Notwithstanding section five-d, article ten of this chapter or
any other provision in this code to the contrary, the Tax
Commissioner shall annually publish in the State Register the name
and address of every eligible taxpayer and the amount of any tax
credit asserted under this article.
§11-13AA-13. Rules.
The Tax Commissioner and the Office of Miners' Health, Safety
and Training may each promulgate rules in accordance with article
three, chapter twenty-nine-a of this code to carry out the policy
and purposes of this article, to provide any necessary clarification
of the provisions of this article and to efficiently provide for the
general administration of this article.
§11-13AA-14. Termination.
The tax credit authorized in this article shall terminate
December 31, 2013.
CHAPTER 22A. MINERS' HEALTH, SAFETY AND TRAINING.
ARTICLE 1. OFFICE OF MINERS' HEALTH, SAFETY AND TRAINING; ADMINISTRATION; ENFORCEMENT.
§22A-1-4. Powers and duties of the Director of the Office of
Miners' Health, Safety and Training.
(a) The Director of the Office of Miners' Health, Safety and
Training is hereby empowered and it is his or her duty to administer
and enforce such provisions of this chapter relating to health and
safety inspections and enforcement and training in surface and
underground coal mines, underground clay mines, open pit mines,
cement manufacturing plants and underground limestone and sandstone
mines.
(b) The Director of the Office of Miners' Health, Safety and
Training has full charge of the division. The director has the
power and duty to:
(1) Supervise and direct the execution and enforcement of the
provisions of this article.
(2) Employ such assistants, clerks, stenographers and other
employees as may be necessary to fully and effectively carry out his
or her responsibilities and fix their compensation, except as
otherwise provided in this article.
(3) Assign mine inspectors to divisions or districts in
accordance with the provisions of section eight of this article as
may be necessary to fully and effectively carry out the provisions
of this law, including the training of inspectors for the specialized requirements of surface mining, shaft and slope sinking
and surface installations and to supervise and direct such mine
inspectors in the performance of their duties.
(4) Suspend, for good cause, any such mine inspector without
compensation for a period not exceeding thirty days in any calendar
year.
(5) Prepare report forms to be used by mine inspectors in
making their findings, orders and notices, upon inspections made in
accordance with this article.
(6) Hear and determine applications made by mine operators for
the annulment or revision of orders made by mine inspectors, and to
make inspections of mines, in accordance with the provisions of this
article.
(7) Cause a properly indexed permanent and public record to be
kept of all inspections made by himself
or herself or by mine
inspectors.
(8) Make annually a full and complete written report of the
administration of the office to the Governor and the Legislature of
the state for the year ending June 30. The report shall include the
number of visits and inspections of mines in the state by mine
inspectors, the quantity of coal, coke and other minerals (excluding
oil and gas) produced in the state, the number of individuals
employed, number of mines in operation, statistics with regard to health and safety of persons working in the mines including the
causes of injuries and deaths, improvements made, prosecutions, the
total funds of the office from all sources identifying each source
of such funds, the expenditures of the office, the surplus or
deficit of the office at the beginning and end of the year, the
amount of fines collected, the amount of fines imposed, the value
of fines pending, the number and type of violations found, the
amount of fines imposed, levied and turned over for collection, the
total amount of fines levied but not paid during the prior year, the
titles and salaries of all inspectors and other officials of the
office, the number of inspections made by each inspector, the number
and type of violations found by each inspector.
Provided, That
However, no inspector
is may be identified by name in this report.
Such The reports shall be filed with the Governor and the
Legislature on or before December 31 of the same year for which it
was made, and shall upon proper authority be printed and distributed
to interested persons.
(9) Call or subpoena witnesses, for the purpose of conducting
hearings into mine fires, mine explosions or any mine accident; to
administer oaths and to require production of any books, papers,
records or other documents relevant or material to any hearing,
investigation or examination of any mine permitted by this chapter.
Any witness so called or subpoenaed shall receive $40 per diem and shall receive mileage at the rate of $0.15 for each mile actually
traveled, which shall be paid out of the State Treasury upon a
requisition upon the State Auditor, properly certified by such
witness.
(10) Institute civil actions for relief, including permanent
or temporary injunctions, restraining orders, or any other
appropriate action in the appropriate federal or state court
whenever any operator or the operator's agent violates or fails or
refuses to comply with any lawful order, notice or decision issued
by the director or his or her representative.
(11) Perform all other duties which are expressly imposed upon
him or her by the provisions of this chapter.
(12) Impose reasonable fees upon applicants taking tests
administered pursuant to the requirements of this chapter.
(13) Impose reasonable fees for the issuance of certifications
required under this chapter.
(14) Prepare study guides and other forms of publications
relating to mine safety and charge a reasonable fee for the sale of
the publications.
(15) Make all records of the office open for inspection of
interested persons and the public.
(c) The Director of the Office of Miners' Health, Safety and
Training, or his or her designee, upon receipt of the list of approved innovative mine safety technologies from the Mine Safety
Technology Task force, has thirty days to approve or amend the list
as provided in section four, article thirteen-aa, chapter eleven of
this code. At the expiration of the time period, the director shall
publish the list of approved innovative mine safety technologies as
provided in section four, article thirteen-aa, chapter eleven of
this code.
ARTICLE 11. MINE SAFETY TECHNOLOGY.
§22A-11-3. Task force powers and duties.
(a) The task force shall provide technical and other assistance
to the office related to the implementation of the new technological
requirements set forth in the provisions of section fifty-five,
article two, of this chapter,
as amended and reenacted during the
regular session of the Legislature in 2006 and requirements for
other mine safety technologies.
(b) The task force, working in conjunction with the director,
shall continue to study issues regarding the commercial
availability, the functional and operational capability and the
implementation, compliance and enforcement of the following
protective equipment:
(1) Self-contained self-rescue devices, as provided in
subsection (f), section fifty-five, article two of this chapter;
(2) Wireless emergency communication devices, as provided in subsection (g), section fifty-five, article two of this chapter;
(3) Wireless emergency tracking devices, as provided in
subsection (h), section fifty-five, article two of this chapter; and
(4) Any other protective equipment required by this chapter or
rules promulgated in accordance with the law that the director
determines would benefit from the expertise of the task force.
(c) The task force shall on a continuous basis study, monitor
and evaluate:
(1) The potential for enhancing coal mine health and safety
through the application of existing technologies and techniques;
(2) Opportunities for improving the integration of technologies
and procedures to increase the performance and survivability of coal
mine health and safety systems;
(3) Emerging technological advances in coal mine health and
safety; and
(4) Market forces impacting the development of new
technologies, including issues regarding the costs of research and
development, regulatory certification and incentives designed to
stimulate the marketplace.
(d) On or before July 1 of each year, the task force shall
submit a report to the Governor and the Board of Coal Mine Health
and Safety that shall include, but not be limited to:
(1) A comprehensive overview of issues regarding the implementation of the new technological requirements set forth in
the provisions of section fifty-five, article two, of this chapter,
or rules promulgated in accordance with the law;
(2) A summary of any emerging technological advances that would
improve coal mine health and safety;
(3) Recommendations, if any, for the enactment, repeal or
amendment of any statute which would enhance technological
advancement in coal mine health and safety; and
(4) Any other information the task force considers appropriate.
(e) In performing its duties, the task force shall, where
possible, consult with, among others, mine engineering and mine
safety experts, radiocommunication and telemetry experts and
relevant state and federal regulatory personnel.
(f) The task force shall annually compile a proposed list of
approved innovative mine safety technologies and transmit the list
to the Director of the Office of Miners' Health, Safety and Training
as provided in section four, article thirteen-aa, chapter eleven of
this code. The list shall be approved by a unanimous vote of the
task force.
(g) Appropriations to the task force to effectuate the purposes
of this article shall be made to one or more budget accounts
established for that purpose.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 507, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
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 S. B. No. 507) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate
in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 515, Relating to firearms'
purchases and licensing.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §61-7-10 of the Code of West Virginia, 1931, as amended,
be amended and reenacted, to read as follows:
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-10. Display of deadly weapons for sale or hire; sale to
prohibited persons; penalties.
(a)(1)
It shall be is unlawful for any A person
to may not
publicly display and offer for rent or sale, or, where the person
is other than a natural person, to knowingly permit an employee
thereof to publicly display and offer for rent or sale, to any
passers by on any street, road or alley, any deadly weapon. machine
gun, submachine gun or other fully automatic weapon, any rifle,
shotgun or ammunition for same.
(2) Any person violating the provisions of subsection (1) of
this section shall be guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not more than
five thousand dollars $5,000
or shall be confined in the county jail for not more than one year,
or both fined and confined, except that where the person violating
the provisions of this subsection is other than a natural person, such person shall be fined not more than
ten thousand dollars
$10,000.
(b) (2) (3) It shall be unlawful for any A person
to may not
knowingly sell, rent, give or lend, or, where the person is other
than a natural person, to knowingly permit an employee thereof to
knowingly sell, rent, give or lend, any
deadly weapon firearm or
ammunition to a person prohibited from possessing
same firearm or
ammunition by any provision of this article
or by 18 U. S. C.
§922(g) or (n) or other applicable federal law.
(2) (4) Any person
violating the provisions of who violates any
of the provisions of subsection (3) of this
subsection shall be
section is guilty of a felony and, upon conviction thereof, shall
be fined not more than
twenty-five thousand dollars $100,000, or
shall be imprisoned
in the penitentiary of this state in a state
correctional facility for a definite term of years of not less than
three years nor more than ten years, or both fined and imprisoned,
except that where the person
violating the provisions of committing
an offense punishable under this subsection is other than a natural
person, such person shall be fined not more than
fifty thousand
dollars $250,000.
(5) Any person who knowingly solicits, persuades, encourages
or entices a licensed dealer or private seller of firearms or
ammunition to transfer a firearm or ammunition under circumstances which the person knows would violate the laws of this state or the
United States is guilty of a felony. Any person who willfully
procures another to engage in conduct prohibited by this subsection
shall be punished as a principal. This subsection does not apply
to a law-enforcement officer acting in his or her official capacity.
Any person who violates the provisions of section five of subsection
(5) of this section is guilty of a felony, and upon conviction
thereof, shall be fined not more than $5,000, imprisoned in a state
correctional facility for a definite term of not less than one year
nor more than five years, or both fined and imprisoned.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 515--A Bill to amend and
reenact §61-7-10 of the Code of West Virginia, 1931, as amended,
relating to the unlawful purchase or sale firearms prohibiting the
purchase or attempt to purchase a firearm from a firearm dealer by
certain persons; increasing fines and penalties for certain
offenses; creating a felony offense for a person who knowingly
solicits, persuades, encourages or entices a firearm or ammunition
dealer or private seller to sell or transfer a firearm or ammunition
under circumstances which would violate the laws of this State;
making it a felony offense to procure another to knowingly solicit, persuade, encourage or entice a firearm or ammunition under
circumstances which would violate the laws of this State; providing
an exception for a law-enforcement officer acting in his or her
official capacity; and establishing criminal penalties.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 515, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
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 S. B. No. 515) passed with its House of Delegates amended
title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Senate Bill No. 612, Authorizing Governor certify certain
capital improvement projects' lists.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On pages fifteen through thirty-six, by striking out all of
section eighteen-a in its entirety and inserting in lieu thereof a
new section, designated section eighteen-c, to read as follows:
§29-22-18c. Increase in allocation to Higher education Improvement
Fund from State Excess Lottery Revenue Fund.
Notwithstanding any provision of subsection (d), section
eighteen-a of this article to the contrary, the deposit of $10
million into the Higher Education Improvement Fund for Higher
Education set forth above is for the fiscal year beginning July 1,
2009, only. For the fiscal year beginning July 1, 2010, and
subsequent fiscal years, the commission shall deposit $15 million
into the Higher Education Improvement Fund for Higher Education.;
By striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
That §29-22-18 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that said code be amended by adding
thereto a new section, designated §29-22-18c; and that §31-15-16a
of said code be amended and reenacted, all to read as follows:;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 612--A Bill to amend and reenact §29-22-18
of the Code of West Virginia, 1931, as amended; to amend said code
by adding thereto a new section, designated §29-22-18c; and to amend
and reenact §31-15-16a of said code, all relating to funding of
higher education capital projects; authorizing the Governor to
certify certain revised lists of capital improvement projects;
authorizing the Economic Development Authority to issue bonds in
certain amounts and for certain purposes; specifying that the
Economic Development Authority may grant second-in-priority and
third-in-priority liens on proceeds of the State Lottery Fund up to
a certain amount in favor of the bonds; increasing the amount paid
annually to the Higher Education Improvement Fund from $10 million
to $15 million; and making other technical corrections.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 612, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
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. S.
B. No. 612) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(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. S.
B. No. 612) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Com. Sub. for Senate Bill No. 614, Relating to PSC
approval of high voltage transmission line construction.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page four, section eleven-a, line forty-six, after the word
"line" by changing the colon to a period, striking out the words
"
Provided, That notice" and inserting in lieu thereof the word
"Notice";
On page five, section eleven-a, line sixty-three, after the
word "region" by changing the colon to a semicolon and striking out
the following: "
Provided, That the commission includes written
finding articulating how its decision is made in the best interest
of West Virginia customers and its citizens; and";
On page five, section eleven-a, after line sixty-five, by
inserting the following:
"(2) Will be in the best interest of West Virginia customers
and its citizens; and";
And,
On page five, section eleven-a, line sixty-six, by striking out
"(2)" and inserting in lieu thereof "(3)".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 614, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
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 S. B. No. 614) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate
in the House of Delegates amendments, as to
Eng. Senate Bill No. 648, Repealing outdated and obsolete
sections of education code.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page three, by striking out all of chapter eighteen-b;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 648--A Bill to repeal §18-2F-1, §18-2F-2,
§18-2F-3, §18-2F-4, §18-2F-5, §18-2F-6, §18-2F-7, §18-2F-8 and §18-
2F-9 of the Code of West Virginia, 1931, as amended; and to repeal
§18-7A-5, §18-7A-6, §18-7A-7, §18-7A-8, §18-7A-9 and §18-7A-10 of
said code, all relating to repealing outdated and obsolete sections
regarding education.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 648, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
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. S.
B. No. 648) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
that that body had refused to concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 4182, Relating to the
emergency medical services retirement system act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
On further motion of Senator Chafin, the Senate acceded to the request of the House of Delegates and receded from its amendments
to the bill.
Engrossed Committee Substitute for House Bill No. 4182, as
amended by deletion, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (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. Com.
Sub. for H. B. No. 4182) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 8:52 p.m. tonight:
Eng. Com. Sub. for Senate Bill No. 230, Relating to Board of
Optometry.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate
in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 186, Creating DOT
administrative law judge office.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §17C-5-2 and §17C-5-7 of the Code of West Virginia, 1931,
as amended be amended and reenacted; that said code be amended by
adding thereto a new section, designated §17C-5-2b; that §17C-5A-1a,
§17C-5A-2, §17C-5A-3 and §17C-5A-3a of said code be amended and
reenacted; that said code be amended by adding thereto a new
article, designated §17C-5C-1, §17C-5C-2, §17C-5C-3, §17C-5C-4 and
§17C-5C-5; and that §61-11-22 and §61-11-25 of said code be amended
and reenacted, all to read as follows:
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-2. Driving under influence of alcohol, controlled substances
or drugs; penalties.
(a) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) While driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle, which
act or failure proximately causes the death of any person within one
year next following the act or failure; and
(3) Commits the act or failure in reckless disregard of the
safety of others and when the influence of alcohol, controlled
substances or drugs is shown to be a contributing cause to the
death, is guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility for not less than two
years nor more than ten years and shall be fined not less than one
thousand dollars nor more than three thousand dollars.
(b) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug;
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) While driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle, which
act or failure proximately causes the death of any person within one
year next following the act or failure, is guilty of a misdemeanor
and, upon conviction thereof, shall be confined in jail for not less
than ninety days nor more than one year and shall be fined not less
than five hundred dollars nor more than one thousand dollars.
(c) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) While driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle, which
act or failure proximately causes bodily injury to any person other
than himself or herself, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in jail for not less than one
day nor more than one year, which jail term is to include actual
confinement of not less than twenty-four hours, and shall be fined
not less than two hundred dollars nor more than one thousand
dollars.
(d) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight, but less than fifteen
hundredths of one percent, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
except as provided in section two-b of this article, shall be confined in jail for up to six months and shall be fined not less
than one hundred dollars nor more than five hundred dollars. A
person sentenced pursuant to this subdivision shall receive credit
for any period of actual confinement he or she served upon arrest
for the subject offense.
(e) Any person who drives a vehicle in this state while he or
she has an alcohol concentration in his or her blood of fifteen
hundredths of one percent or more, by weight, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for not less than two days nor more than six months, which jail term
is to include actual confinement of not less than twenty-four hours,
and shall be fined not less than two hundred dollars nor more than
one thousand dollars. A person sentenced pursuant to this
subdivision shall receive credit for any period of actual
confinement he or she served upon arrest for the subject offense.
(f) Any person who, being an habitual user of narcotic drugs
or amphetamine or any derivative thereof, drives a vehicle in this
state is guilty of a misdemeanor and, upon conviction thereof, shall
be confined in jail for not less than one day nor more than six
months, which jail term is to include actual confinement of not less
than twenty-four hours, and shall be fined not less than one hundred
dollars nor more than five hundred dollars. A person sentenced
pursuant to this subdivision shall receive credit for any period of actual confinement he or she served upon arrest for the subject
offense.
(g) Any person who:
(1) Knowingly permits his or her vehicle to be driven in this
state by any other person who:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug;
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail for not more than six months and shall be
fined not less than one hundred dollars nor more than five hundred
dollars.
(h) Any person who knowingly permits his or her vehicle to be
driven in this state by any other person who is an habitual user of
narcotic drugs or amphetamine or any derivative thereof is guilty
of a misdemeanor and, upon conviction thereof, shall be confined in
jail for not more than six months and shall be fined not less than
one hundred dollars nor more than five hundred dollars.
(i) Any person under the age of twenty-one years who drives a vehicle in this state while he or she has an alcohol concentration
in his or her blood of two hundredths of one percent or more, by
weight, but less than eight hundredths of one percent, by weight,
for a first offense under this subsection is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not less than
twenty-five dollars nor more than one hundred dollars. For a second
or subsequent offense under this subsection, the person is guilty
of a misdemeanor and, upon conviction thereof, shall be confined in
jail for twenty-four hours and shall be fined not less than one
hundred dollars nor more than five hundred dollars. A person who is
charged with a first offense under the provisions of this subsection
may move for a continuance of the proceedings, from time to time,
to allow the person to participate in the Motor Vehicle Alcohol Test
and Lock Program as provided in section three-a, article five-a of
this chapter. Upon successful completion of the program, the court
shall dismiss the charge against the person and expunge the person's
record as it relates to the alleged offense. In the event the person
fails to successfully complete the program, the court shall proceed
to an adjudication of the alleged offense. A motion for a
continuance under this subsection may not be construed as an
admission or be used as evidence.
A person arrested and charged with an offense under the provisions
of this subsection or subsection (a), (b), (c), (d), (e), (f), (g) or (h) of this section may not also be charged with an offense under
this subsection arising out of the same transaction or occurrence.
(j) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) The person while driving has on or within the motor vehicle
one or more other persons who are unemancipated minors who have not
reached their sixteenth birthday is guilty of a misdemeanor and,
upon conviction thereof, shall be confined in jail for not less than
two days nor more than twelve months, which jail term is to include
actual confinement of not less than forty-eight hours and shall be
fined not less than two hundred dollars nor more than one thousand
dollars.
(k) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (i) of this section, for the second offense
under this section, is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in jail for not less than six months nor more than one year and the court may, in its discretion, impose a
fine of not less than one thousand dollars nor more than three
thousand dollars.
(l) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (i) of this section, for the third or any
subsequent offense under this section, is guilty of a felony and,
upon conviction thereof, shall be imprisoned in a state correctional
facility for not less than one nor more than three years and the
court may, in its discretion, impose a fine of not less than three
thousand dollars nor more than five thousand dollars.
(m) For purposes of subsections (k) and (l) of this section
relating to second, third and subsequent offenses, the following
types of convictions events shall be regarded as
convictions
offenses under this section:
(1) Any conviction under the provisions of subsection (a), (b),
(c), (d), (e), (f) or (g) of this section or under a prior enactment
of this section for an offense which occurred within the ten-year
period immediately preceding the date of arrest in the current
proceeding;
(2) Any conviction under a municipal ordinance of this state
or any other state or a statute of the United States or of any other
state of an offense which has the same elements as an offense
described in subsection (a), (b), (c), (d), (e), (f), (g) or (h) of this section, which offense occurred within the ten-year period
immediately preceding the date of arrest in the current proceeding
.;
and,
(3) Any period of conditional probation imposed pursuant
section two-b of this article for violation of subsection (d) of
this article, which violation occurred within the ten-year period
immediately preceding the date of arrest in the current proceeding.
(n) A person may be charged in a warrant or indictment or
information for a second or subsequent offense under this section
if the person has been previously arrested for or charged with a
violation of this section which is alleged to have occurred within
the applicable time period for prior offenses, notwithstanding the
fact that there has not been a final adjudication of the charges for
the alleged previous offense. In that case, the warrant or
indictment or information must set forth the date, location and
particulars of the previous offense or offenses. No person may be
convicted of a second or subsequent offense under this section
unless the conviction for the previous offense has become final
, or
the person has previously had a period of conditional probation
imposed pursuant to section two-b of this article.
(o) The fact that any person charged with a violation of
subsection (a), (b), (c), (d), (e) or (f) of this section, or any
person permitted to drive as described under subsection (g) or (h) of this section, is or has been legally entitled to use alcohol, a
controlled substance or a drug does not constitute a defense against
any charge of violating subsection (a), (b), (c), (d), (e), (f), (g)
or (h) of this section.
(p) For purposes of this section, the term "controlled
substance" has the meaning ascribed to it in chapter sixty-a of this
code.
(q) The sentences provided in this section upon conviction for
a violation of this article are mandatory and are not subject to
suspension or probation: Provided, That the court may apply the
provisions of article eleven-a, chapter sixty-two of this code to
a person sentenced or committed to a term of one year or less for
a first offense under this section
.: Provided further, That the
court may impose a term of conditional probation pursuant to section
two-b of this article to persons adjudicated thereunder. An order
for home detention by the court pursuant to the provisions of
article eleven-b of said chapter may be used as an alternative
sentence to any period of incarceration required by this section for
a first or subsequent offense: Provided, however, That for any
period of home incarceration ordered for a person convicted of
second offense under this section, electronic monitoring shall be
required for no fewer than five days of the total period of home
confinement ordered and the offender may not leave home for those five days notwithstanding the provisions of section five, article
eleven-b, chapter sixty-two of this code: Provided further, That for
any period of home incarceration ordered for a person convicted of
a third or subsequent violation of this section, electronic
monitoring shall be included for no fewer than ten days of the total
period of home confinement ordered and the offender may not leave
home for those ten days notwithstanding section five, article
eleven-b, chapter sixty-two of this code.
§17C-5-2b. Deferral of further proceedings for certain first
offenses upon condition of participation in motor vehicle
alcohol test and lock program; procedure on charge of
violation of conditions.
(a) Except as provided in subsections (g) of this section,
whenever any person who has not previously been convicted of any
offense under this article or under any statute of the United States
or of any state relating to driving under the influence alcohol, any
controlled substance or any other drug, pleads guilty to or is found
guilty of driving under the influence of alcohol under subsection
(d), section two of this article, the court, without entering a
judgment of guilt and with the consent of the accused, shall defer
further proceedings and, notwithstanding any provisions of this code
to the contrary, place him or her on probation, which conditions
shall include, that he or she successfully completes the Motor Vehicle Alcohol Test and Lock Program as provided in section three-
a, article five-a of this chapter. Participation therein shall be
for a period of at least one hundred and sixty five days after he
or she has served the fifteen days of license suspension imposed
pursuant to section two, article five-a of this chapter.
(b) A defendant's election to participate in deferral under
this section shall constitute a waiver of his or her right to an
administrative hearing as provided in section two, article five-a,
of this chapter.
(c) (1) If the prosecuting attorney files a motion alleging
that the defendant during the period of the Motor Vehicle Alcohol
Test and Lock program has been removed therefrom by the Division of
Motor Vehicles, or has failed to successfully complete the program
before making a motion for dismissal pursuant to subsection (d) of
this section, the court may issue such process as is necessary to
bring the defendant before the court.
(2) A motion alleging such violation filed pursuant to
subdivision (1) must be filed during the period of the Motor Vehicle
Alcohol Test and Lock Program or, if filed thereafter, must be filed
within a reasonable time after the alleged violation was committed.
(3) When the defendant is brought before the court, the court
shall afford the defendant an opportunity to be heard. If the court
finds that the defendant has been rightfully removed from the Motor Vehicle Alcohol Test and Lock Program by the Division of Motor
Vehicles, the court may order, when appropriate, that the deferral
be terminated, and thereupon enter an adjudication of guilt and
proceed as otherwise provided.
(4) Should the defendant fail to complete or be removed from
the Motor Vehicle Alcohol Test and Lock Program, the defendant
waives the appropriate statute of limitations and the defendant's
right to a speedy trial under any applicable Federal or State
constitutional provisions, statutes or rules of court during the
period of enrollment in the program.
(d) When the defendant shall have completed satisfactorily the
Motor Vehicle Alcohol Test and Lock Program and complied with its
conditions, the defendant may move the court for an order dismissing
the charges. This motion shall be supported by affidavit of the
defendant and by certification of the Division of Motor Vehicles
that the defendant has successfully completed the Motor Vehicle
Alcohol Test and Lock Program. A copy of the motion shall be served
on the prosecuting attorney who shall within 30 days after service
advise the judge of any objections to the motion, serving a copy of
such objections on the defendant or the defendant's attorney. If
there are no objections filed within the 30-day period, the court
shall thereafter dismiss the charges against the defendant. If there
are objections filed with regard to the dismissal of charges, the court shall proceed as set forth in subsection (c) of this section.
(e) Except as provided herein, unless a defendant adjudicated
pursuant to this subsection be convicted of a subsequent violation
of this article, discharge and dismissal under this section shall
be without adjudication of guilt and is not a conviction for
purposes of disqualifications or disabilities imposed by law upon
conviction of a crime except for those provided in article five-a
of this chapter. Except as provided in subsection (k) (l) and (m),
section two of this article regarding subsequent offenses, the
effect of the dismissal and discharge shall be to restore the person
in contemplation of law to the status he or she occupied prior to
arrest and trial. No person as to whom a dismissal and discharge
have been effected shall be thereafter held to be guilty of perjury,
false swearing, or otherwise giving a false statement by reason of
his or her failure to disclose or acknowledge his or her arrest or
trial in response to any inquiry made of him or her for any purpose
other than any inquiry made in connection with any subsequent
offense as that term is defined in subsection (m), section two of
this article.
(f) There may be only one discharge and dismissal under this
section with respect to any person.
(g) No person shall be eligible for dismissal and discharge
under this section: (1) in any prosecution in which any violation of any other provision of this article has been charged;(2)if the
person holds a commercial driver's license or operates commercial
motor vehicle(s), or (3)the person has previously had his or her
driver's license revoked under section two-a of this article or
under any statute of the United States or of any state relating to
driving under the influence alcohol, any controlled substance or any
other drug.
(h) (1) After a period of not less than one year which shall
begin to run immediately upon the expiration of a term of probation
imposed upon any person under this section, the person may apply to
the court for an order to expunge from all official records all
recordations of his or her arrest, trial, and conviction, pursuant
to this section except for those maintained by the Division of Motor
Vehicles:
Provided, That any person who has previously been
convicted of a felony may not make a motion for expungement pursuant
to this section.
(2) If the prosecuting attorney objects to the expungement, the
objections shall be filed with the court within 30 days after
service of a motion for expungement and copies of the objections
shall be served on the defendant or the defendant's attorney.
(3) If the objections are filed, the court shall hold a hearing
on the objections, affording all parties an opportunity to be heard.
If the court determines after a hearing that the person during the period of his or her probation and during the period of time prior
to his or her application to the court under this subsection has not
been guilty of any serious or repeated violation of the conditions
of his or her probation, it shall order the expungement.
(i) Notwithstanding any provision of this code to the contrary,
any person prosecuted for a violation of subsection(d), section two,
article five of this chapter whose case is disposed of pursuant to
the provisions of this section shall be liable for any court costs
assessable against a person convicted of a violation of subsection
(j), section two, article five of this chapter. Payment of such
costs may be made a condition of probation. The costs assessed
pursuant to this subsection, whether as a term of probation or not,
shall be distributed as other court costs in accordance with section
two, article three, chapter fifty, section four, article two-a,
chapter fourteen, section four, article twenty-nine, chapter thirty
and sections two, seven and ten, article five, chapter sixty-two of
this code.
§17C-5-7. Refusal to submit to tests; revocation of license or
privilege; consent not withdrawn if person arrested
is incapable of refusal; hearing.
(a) If any person under arrest as specified in section four of
this article refuses to submit to any secondary chemical test, the
tests shall not be given:
Provided, That prior to the refusal, the person is given an oral warning and a written statement advising him
or her that his or her refusal to submit to the secondary test
finally designated will result in the revocation of his or her
license to operate a motor vehicle in this state for a period of at
least forty-five days and up to life; and that after fifteen minutes
following the warnings the refusal is considered final. The
arresting officer after that period of time expires has no further
duty to provide the person with an opportunity to take the secondary
test. The officer shall, within forty-eight hours of the refusal,
sign and submit to the Commissioner of Motor Vehicles a written
statement of the officer that: (1) He or she had reasonable grounds
to believe the person had been driving a motor vehicle in this state
while under the influence of alcohol, controlled substances or
drugs; (2) the person was lawfully placed under arrest for an
offense relating to driving a motor vehicle in this state while
under the influence of alcohol, controlled substances or drugs; (3)
the person refused to submit to the secondary chemical test finally
designated in the manner provided in section four of this article;
and (4) the person was given a written statement advising him or her
that his or her license to operate a motor vehicle in this state
would be revoked for a period of at least forty-five days and up to
life if he or she refused to submit to the secondary test finally
designated in the manner provided in section four of this article. The signing of the statement required to be signed by this section
constitutes an oath or affirmation by the person signing the
statement that the statements contained in the statement are true
and that any copy filed is a true copy. The statement shall contain
upon its face a warning to the officer signing that to willfully
sign a statement containing false information concerning any matter
or thing, material or not material, is false swearing and is a
misdemeanor. Upon receiving the statement the commissioner shall
make and enter an order revoking the person's license to operate a
motor vehicle in this state for the period prescribed by this
section.
For the first refusal to submit to the designated secondary
chemical test, the commissioner shall make and enter an order
revoking the person's license to operate a motor vehicle in this
state for a period of one year or forty-five days, with an
additional one year of participation in the Motor Vehicle Alcohol
Test and Lock Program in accordance with the provisions of section
three-a, article five-a of this chapter:
Provided, That a person
revoked for driving while under the influence of drugs is not
eligible to participate in the Motor Vehicle Test and Lock Program.
The application for participation in the Motor Vehicle Alcohol Test
and Lock Program shall be considered to be a waiver of the hearing
provided in section two of said article. If the
commissioner person's license has previously
been revoked
the person's license
under the provisions of this section, the commissioner shall, for
the refusal to submit to the designated secondary chemical test,
make and enter an order revoking the person's license to operate a
motor vehicle in this state for a period of ten years:
Provided,
however, That the license may be reissued in five years in
accordance with the provisions of section three, article five-a of
this chapter. If the
commissioner person's license has previously
been revoked
the person's license more than once under the
provisions of this section, the commissioner shall, for the refusal
to submit to the designated secondary chemical test, make and enter
an order revoking the person's license to operate a motor vehicle
in this state for a period of life. A copy of each order shall be
forwarded to the person by registered or certified mail, return
receipt requested, and shall contain the reasons for the revocation
and shall specify the revocation period imposed pursuant to this
section. A revocation shall not become effective until ten days
after receipt of the copy of the order. Any person who is
unconscious or who is otherwise in a condition rendering him or her
incapable of refusal shall be considered not to have withdrawn his
or her consent for a test of his or her blood, breath or urine as
provided in section four of this article and the test may be
administered although the person is not informed that his or her failure to submit to the test will result in the revocation of his
or her license to operate a motor vehicle in this state for the
period provided for in this section. A revocation under this
section shall run concurrently with the period of any suspension or
revocation imposed in accordance with other provisions of this code
and growing out of the same incident which gave rise to the arrest
for driving a motor vehicle while under the influence of alcohol,
controlled substances or drugs and the subsequent refusal to undergo
the test finally designated in accordance with the provisions of
section four of this article.
(b) For the purposes of this section, where reference is made
to previous suspensions or revocations under this section, the
following types of suspensions or revocations shall also be regarded
as suspensions or revocations under this section:
(1) Any suspension or revocation on the basis of a conviction
under a municipal ordinance of another state or a statute of the
United States or of any other state of an offense which has the same
elements as an offense described in section two of this article for
conduct which occurred on or after June 10, 1983; and
(2) Any revocation under the provisions of section one or two,
article five-a of this chapter for conduct which occurred on or
after June 10, 1983.
(c) A person whose license to operate a motor vehicle in this state has been revoked shall be afforded an opportunity to be heard,
in accordance with the provisions of section two, article five-a of
this chapter.
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND
REVOCATION OF LICENSES FOR DRIVING UNDER THE INFLUENCE OF
ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.
§17C-5A-1a. Revocation upon conviction for driving under the
influence of alcohol, controlled substances or drugs.
(a) If a person
has a term of conditional probation imposed
pursuant to section two-b, article five of this chapter, or is
convicted for an offense defined in section two, article five of
this chapter or for an offense described in a municipal ordinance
which has the same elements as an offense described in said section
because the person did drive a motor vehicle while under the
influence of alcohol, controlled substances or drugs, or the
combined influence of alcohol or controlled substances or drugs, or
did drive a motor vehicle while having an alcohol concentration in
his or her blood of eight hundredths of one percent or more, by
weight, or did drive a motor vehicle while under the age of
twenty-one years with an alcohol concentration in his or her blood
of two hundredths of one percent or more, by weight, but less than
eight hundredths of one percent, by weight, and if the person does
not act to appeal the conviction within the time periods described in subsection (b) of this section, the person's license to operate
a motor vehicle in this state shall be revoked or suspended in
accordance with the provisions of this section.
(b) The clerk of the court in which a person
has had a term of
conditional probation imposed pursuant to section two-b, article
five of this chapter, or is convicted for an offense described in
section two, article five of this chapter or for an offense
described in a municipal ordinance which has the same elements as
an offense described in said section shall forward to the
commissioner a transcript of the judgment of conviction. If the
conviction is the judgment of a magistrate court, the magistrate
court clerk shall forward the transcript when the person convicted
has not requested an appeal within twenty days of the sentencing for
such conviction.
If the term of conditional probation is the act of
a magistrate court, the magistrate court clerk shall forward the
transcript when the order imposing the term of conditional probation
is entered. If the conviction is the judgment of a mayor or police
court judge or municipal court judge, the clerk or recorder shall
forward the transcript when the person convicted has not perfected
an appeal within ten days from and after the date upon which the
sentence is imposed. If the conviction is the judgment of a circuit
court, the circuit clerk shall forward the transcript when the
person convicted has not filed a notice of intent to file a petition for appeal or writ of error within thirty days after the judgment
was entered.
(c) If, upon examination of the transcript of the judgment of
conviction,
or imposition of a term of conditional probation
pursuant to section two-b, article five of this chapter, the
commissioner
shall determine determines that the person was
convicted for an offense described in section two, article five of
this chapter
or had a period of conditional probation imposed
pursuant to section two-b, article five of this chapter, or for an
offense described in a municipal ordinance which has the same
elements as an offense described in said section because the person
did drive a motor vehicle while under the influence of alcohol,
controlled substances or drugs, or the combined influence of alcohol
or controlled substances or drugs, or did drive a motor vehicle
while having an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight, the commissioner shall
make and enter an order revoking the person's license to operate a
motor vehicle in this state. If the commissioner determines that the
person was convicted of driving a motor vehicle while under the age
of twenty-one years with an alcohol concentration in his or her
blood of two hundredths of one percent or more, by weight, but less
than eight hundredths of one percent, by weight, the commissioner
shall make and enter an order suspending the person's license to operate a motor vehicle in this state. The order shall contain the
reasons for the revocation or suspension and the revocation or
suspension periods provided for in section two of this article.
Further, the order shall give the procedures for requesting a
hearing which is to be held in accordance with the provisions of
said section. The person shall be advised in the order that because
of the receipt of a transcript of the judgment of conviction by the
commissioner a presumption exists that the person named in the
transcript of the judgment of conviction is the person named in the
commissioner's order and such constitutes sufficient evidence to
support revocation or suspension and that the sole purpose for the
hearing held under this section is for the person requesting the
hearing to present evidence that he or she is not the person named
in the transcript of the judgment of conviction. A copy of the order
shall be forwarded to the person by registered or certified mail,
return receipt requested. No revocation or suspension shall become
effective until ten days after receipt of a copy of the order.
(d) The provisions of this section shall not apply if an order
reinstating the operator's license of the person has been entered
by the commissioner prior to the receipt of the transcript of the
judgment of conviction.
(e) For the purposes of this section, a person is convicted
when the person enters a plea of guilty or is found guilty by a court or jury.
A plea of no contest does not constitute a conviction
for purposes of this section except where the person holds a
commercial drivers' license or operates a commercial vehicle.
§17C-5A-2. Hearing; revocation; review.
(a)
Upon the written request of a person whose license to
operate a motor vehicle in this state has been revoked or suspended
Written objections to an order of revocation or suspension under the
provisions of section one of this article or section seven, article
five of this chapter
shall be filed with the Office of
Administrative Hearings. Upon the receipt of an objection, the
Office of Administrative Hearings shall notify the Commissioner of
the Division of Motor Vehicles,
who shall stay the imposition of the
period of revocation or suspension and afford the person an
opportunity to be heard
by the Office of Administrative Hearings.
The written
request objection must be filed with
the commissioner
Office of Administrative Hearings in person or by registered or
certified mail, return receipt requested, within thirty calendar
days after receipt of a copy of the order of revocation or
suspension or no hearing will be granted. The hearing shall be
before
the commissioner or a hearing examiner
retained by the
commissioner employed by the Office of Administrative Hearings who
shall rule on evidentiary issues.
and submit proposed findings of
fact and conclusions of law for the consideration of the commissioner and all of the pertinent provisions of article five,
chapter twenty-nine-a of this code shall apply. The commissioner
may reject or modify the hearing examiner's proposed findings of
fact and conclusions of law, in writing, and only if:
(1) There is an error of law;
(2) They are clearly wrong in view of the reliable, probative
and substantial evidence on the whole record; or
(3) They are arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of discretion. Upon
consideration of the designated record, the hearing examiner shall,
based on the determination of the facts of the case and applicable
law, render a decision affirming, reversing or modifying the action
protested. The decision shall contain findings of fact and
conclusions of law and shall be provided to all parties by
registered or certified mail, return receipt requested.
(b) The hearing shall be held at an office of the Division
of
Motor Vehicles located in or near the county in which the arrest was
made in this state or at some other suitable place in the county in
which the arrest was made if an office of the division is not
available.
The Office of Administrative Hearings shall send a notice
of hearing to the person whose license is at issue, the appropriate
law-enforcement officers, and the prosecuting attorney.
(c)
(1) Any hearing shall be held within one hundred eighty days after the date upon which the
commissioner Office of
Administrative Hearings received the timely written
request
objection unless there is a postponement or continuance.
(2) The
commissioner Office of Administrative Hearings may
postpone or continue any hearing on
the commissioner's its own
motion or upon application
for each person by the party whose
license is at issue in that hearing or by the commissioner for good
cause shown.
The commissioner shall adopt and implement by a
procedural rule written policies governing the postponement or
continuance of any hearing on the commissioner's its own motion or
for the benefit of any law-enforcement officer or any person
requesting the hearing and the policies shall be enforced and
applied to all parties equally. For the purpose of conducting the
hearing, the commissioner may issue subpoenas and subpoenas duces
tecum in accordance with the provisions of section one, article
five, chapter twenty-nine-a of this code: Provided, That the
(3) A notice of hearing to the appropriate law-enforcement
officers by registered or certified mail, return receipt requested,
constitutes a subpoena to appear at the hearing without the
necessity of payment of fees by the Division of Motor Vehicles.
(d)
Any investigating officer who submits a statement pursuant
to section one of this article that results in a hearing pursuant
to this section shall not attend the hearing on the subject of that affidavit unless requested to do so by the party whose license is
at issue in that hearing or by the commissioner. The hearing
request form shall clearly and concisely inform a person seeking a
hearing of the fact that the investigating officer will only attend
the hearing if requested to do so and provide for a box to be
checked requesting the investigating officer's attendance. The
language shall appear prominently on the hearing request. The
Division of Motor Vehicles is solely responsible for causing the
attendance of the investigating officers. Law-enforcement officers
shall be compensated for the time expended in their travel and
appearance before the
commissioner Office of Administrative Hearings
by the law-enforcement agency by whom they are employed at their
regular rate if they are scheduled to be on duty during said time
or at their regular overtime rate if they are scheduled to be off
duty during said time.
If the party whose license is at issue does not request the
investigating officer to attend the hearing, the commissioner shall
consider the written statement, test results and any other
information submitted by the investigating officer pursuant to
section one of this article in that officer's absence.
(e) The principal question at the hearing shall be whether the
person did drive a motor vehicle while under the influence of
alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood
of eight hundredths of one percent or more, by weight, or did refuse
to submit to the designated secondary chemical test, or did drive
a motor vehicle while under the age of twenty-one years with an
alcohol concentration in his or her blood of two hundredths of one
percent or more, by weight, but less than eight hundredths of one
percent, by weight.
The commissioner may propose a legislative rule in compliance
with the provisions of article three, chapter twenty-nine-a of this
code which may provide that if a person accused of driving a motor
vehicle while under the influence of alcohol, controlled substances
or drugs, or accused of driving a motor vehicle while having an
alcohol concentration in the person's blood of eight hundredths of
one percent or more, by weight, or accused of driving a motor
vehicle while under the age of twenty-one years with an alcohol
concentration in his or her blood of two hundredths of one percent
or more, by weight, but less than eight hundredths of one percent,
by weight, intends to challenge the results of any secondary
chemical test of blood, breath or urine under section seven, article
five of this chapter or intends to cross-examine the individual or
individuals who administered the test or performed the chemical
analysis, the person shall, within an appropriate period of time
prior to the hearing, notify the Commissioner in writing of his or her intention. The rule may provide that when there is a Failure
to comply with the notice requirement, the results of the secondary
test, if any, shall be admissible as though the person and the
commissioner had stipulated the admissibility of the evidence: Any
rule shall provide Provided, That the rule shall not be invoked in
the case of a person who is not represented by counsel unless the
communication from the commissioner to the person establishing a
time and place for the hearing also informed the person of the
consequences of the person's failure to timely notify the
Commissioner and of the person's intention to challenge the results
of the secondary chemical test or cross-examine the individual or
individuals who administered the test or performed the chemical
analysis.
(f) In the case of a hearing in which a person is accused of
driving a motor vehicle while under the influence of alcohol,
controlled substances or drugs, or accused of driving a motor
vehicle while having an alcohol concentration in the person's blood
of eight hundredths of one percent or more, by weight, or accused
of driving a motor vehicle while under the age of twenty-one years
with an alcohol concentration in his or her blood of two hundredths
of one percent or more, by weight, but less than eight hundredths
of one percent, by weight, the
commissioner Office of Administrative
Hearings shall make specific findings as to: (1) Whether the investigating law-enforcement officer had reasonable grounds to
believe the person to have been driving while under the influence
of alcohol, controlled substances or drugs, or while having an
alcohol concentration in the person's blood of eight hundredths of
one percent or more, by weight, or to have been driving a motor
vehicle while under the age of twenty-one years with an alcohol
concentration in his or her blood of two hundredths of one percent
or more, by weight, but less than eight hundredths of one percent,
by weight;
(2) whether the person was lawfully placed under arrest
for an offense involving driving under the influence of alcohol,
controlled substances or drugs, or was lawfully taken into custody
for the purpose of administering a secondary test: Provided, That
this element shall be waived in cases where no arrest occurred due
to driver incapacitation;
(2) (3) whether the person committed an
offense involving driving under the influence of alcohol, controlled
substances or drugs, or was lawfully taken into custody for the
purpose of administering a secondary test; and
(3) (4) whether the
tests, if any, were administered in accordance with the provisions
of this article and article five of this chapter.
(g) If, in addition to a finding that the person did drive a
motor vehicle while under the influence of alcohol, controlled
substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, or did drive a motor vehicle while
under the age of twenty-one years with an alcohol concentration in
his or her blood of two hundredths of one percent or more, by
weight, but less than eight hundredths of one percent, by weight,
the
commissioner Office of Administrative Hearings also finds by a
preponderance of the evidence that the person when driving did an
act forbidden by law or failed to perform a duty imposed by law,
which act or failure proximately caused the death of a person and
was committed in reckless disregard of the safety of others and if
the
commissioner Office of Administrative Hearings further finds
that the influence of alcohol, controlled substances or drugs or the
alcohol concentration in the blood was a contributing cause to the
death, the commissioner shall revoke the person's license for a
period of ten years:
Provided, That if the
commissioner person's
license has previously
been suspended or revoked
the person's
license under the provisions of this section or section one of this
article within the ten years immediately preceding the date of
arrest, the period of revocation shall be for the life of the
person.
(h) If, in addition to a finding that the person did drive a
motor vehicle while under the influence of alcohol, controlled
substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, the
commissioner Office of
Administrative Hearings also finds by a preponderance of the
evidence that the person when driving did an act forbidden by law
or failed to perform a duty imposed by law, which act or failure
proximately caused the death of a person, the commissioner shall
revoke the person's license for a period of five years:
Provided,
That if the
commissioner person's license has previously
been
suspended or revoked
the person's license under the provisions of
this section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be for the life of the person.
(i) If, in addition to a finding that the person did drive a
motor vehicle while under the influence of alcohol, controlled
substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of eight hundredths of
one percent or more, by weight, the
commissioner Office of
Administrative Hearings also finds by a preponderance of the
evidence that the person when driving did an act forbidden by law
or failed to perform a duty imposed by law, which act or failure
proximately caused bodily injury to a person other than himself or
herself, the commissioner shall revoke the person's license for a
period of two years:
Provided, That if the
commissioner license has
previously
been suspended or revoked
the person's license under the provisions of this section or section one of this article within the
ten years immediately preceding the date of arrest, the period of
revocation shall be ten years:
Provided, however, That if the
commissioner person's license has previously
been suspended or
revoked
the person's license more than once under the provisions of
this section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be for the life of the person.
(j) If the
commissioner Office of Administrative Hearings finds
by a preponderance of the evidence that the person did drive a motor
vehicle while under the influence of alcohol, controlled substances
or drugs, or did drive a motor vehicle while having an alcohol
concentration in the person's blood of eight hundredths of one
percent or more, by weight, but less than fifteen hundredths of one
percent or more, by weight, or finds that the person knowingly
permitted the person's vehicle to be driven by another person who
was under the influence of alcohol, controlled substances or drugs,
or knowingly permitted the person's vehicle to be driven by another
person who had an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight the commissioner shall
revoke the person's license for a period of six months or a period
of fifteen days with an additional one hundred and twenty days of
participation in the Motor Vehicle Alcohol Test and Lock Program in accordance with the provisions of section three-a of this article:
Provided, That any period of participation in the Motor Vehicle
Alcohol Test and Lock Program that has been imposed by a court
pursuant to section two-b, article five of this chapter shall be
credited against any period of participation imposed by the
commissioner: Provided further, That a person whose license is
revoked for driving while under the influence of drugs is not
eligible to participate in the Motor Vehicle Alcohol Test and Lock
Program:
Provided, however, That if the
commissioner person's
license has previously
been suspended or revoked
the person's
license under the provisions of this section or section one of this
article within the ten years immediately preceding the date of
arrest, the period of revocation shall be ten years:
Provided
further, That if the
commissioner person's license has previously
been suspended or revoked
the person's license more than once under
the provisions of this section or section one of this article within
the ten years immediately preceding the date of arrest, the period
of revocation shall be for the life of the person.
(k) (1) If in addition to finding by a preponderance of the
evidence that the person did drive a motor vehicle while under the
influence of alcohol, controlled substance or drugs, the
commissioner Office of Administrative Hearings also finds by a
preponderance of the evidence that the person did drive a motor vehicle while having an alcohol concentration in the person's blood
of fifteen hundredths of one percent or more, by weight, the
commissioner shall revoke the person's license for a period of
forty-five days with an additional two hundred and seventy days of
participation in the Motor Vehicle Alcohol Test and Lock Program in
accordance with the provisions of article three-a, article five-a,
chapter seventeen-c of this code:
Provided, That if the
commissioner person's license has previously
been suspended or
revoked
the person's license under the provisions of this section
or section one of this article within the ten years immediately
preceding the date of arrest, the period of revocation shall be ten
years:
Provided, however, That if the
commissioner person's license
has previously
been suspended or revoked the person's license more
than once under the provisions of this section or section one of
this article within the ten years immediately preceding the date of
arrest, the period of revocation shall be for the life of the
person.
(2) If a person whose license is revoked pursuant to
subdivision (1) of this subsection proves by clear and convincing
evidence that they do not own a motor vehicle upon which the alcohol
test and lock device may be installed or is otherwise incapable of
participating in the Motor Vehicle Alcohol Test and Lock Program,
the period of revocation shall be one hundred eighty days:
Provided, That if the
commissioner person's license has previously
been suspended or revoked
the person's license under the provisions
of this section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be ten years:
Provided, however, That if the
commissioner
person's license has previously
been suspended or revoked
the
person's license more than once under the provisions of this section
or section one of this article within the ten years immediately
preceding the date of arrest, the period of revocation shall be for
the life of the person.
(l) If, in addition to a finding that the person did drive a
motor vehicle while under the age of twenty-one years with an
alcohol concentration in his or her blood of two hundredths of one
percent or more, by weight, but less than eight hundredths of one
percent, by weight, the
commissioner Office of Administrative
Hearings also finds by a preponderance of the evidence that the
person when driving did an act forbidden by law or failed to perform
a duty imposed by law, which act or failure proximately caused the
death of a person, and if the
commissioner Office of Administrative
Hearings further finds that the alcohol concentration in the blood
was a contributing cause to the death, the commissioner shall revoke
the person's license for a period of five years:
Provided, That if
the
commissioner person's license has previously
been suspended or revoked
the person's license under the provisions of this section
or section one of this article within the ten years immediately
preceding the date of arrest, the period of revocation shall be for
the life of the person.
(m) If, in addition to a finding that the person did drive a
motor vehicle while under the age of twenty-one years with an
alcohol concentration in his or her blood of two hundredths of one
percent or more, by weight, but less than eight hundredths of one
percent, by weight, the
commissioner Office of Administrative
Hearings also finds by a preponderance of the evidence that the
person when driving did an act forbidden by law or failed to perform
a duty imposed by law, which act or failure proximately caused
bodily injury to a person other than himself or herself, and if the
commissioner Office of Administrative Hearings further finds that
the alcohol concentration in the blood was a contributing cause to
the bodily injury, the commissioner shall revoke the person's
license for a period of two years:
Provided, That if the
commissioner person's license has previously
been suspended or
revoked
the person's license under the provisions of this section
or section one of this article within the ten years immediately
preceding the date of arrest, the period of revocation shall be ten
years:
Provided, however, That if the
commissioner person's license
has previously
been suspended or revoked
the person's license more than once under the provisions of this section or section one of
this article within the ten years immediately preceding the date of
arrest, the period of revocation shall be for the life of the
person.
(n) If the
commissioner Office of Administrative Hearings finds
by a preponderance of the evidence that the person did drive a motor
vehicle while under the age of twenty-one years with an alcohol
concentration in his or her blood of two hundredths of one percent
or more, by weight, but less than eight hundredths of one percent,
by weight, the commissioner shall suspend the person's license for
a period of sixty days:
Provided, That if the
commissioner person's
license has previously
been suspended or revoked
the person's
license under the provisions of this section or section one of this
article, the period of revocation shall be for one year, or until
the person's twenty-first birthday, whichever period is longer.
(o) If, in addition to a finding that the person did drive a
motor vehicle while under the influence of alcohol, controlled
substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of eight hundredths of
one percent or more, by weight, the
commissioner Office of
Administrative Hearings also finds by a preponderance of the
evidence that the person when driving did have on or within the
motor vehicle another person who has not reached his or her sixteenth birthday, the commissioner shall revoke the person's
license for a period of one year:
Provided, That if the
commissioner person's license has previously
been suspended or
revoked
the person's license under the provisions of this section
or section one of this article within the ten years immediately
preceding the date of arrest, the period of revocation shall be ten
years:
Provided, however, That if the
commissioner person's license
has previously
been suspended or revoked
the person's license more
than once under the provisions of this section or section one of
this article within the ten years immediately preceding the date of
arrest, the period of revocation shall be for the life of the
person.
(p) For purposes of this section, where reference is made to
previous suspensions or revocations under this section, the
following types of criminal convictions or administrative
suspensions or revocations shall also be regarded as suspensions or
revocations under this section or section one of this article:
(1) Any administrative revocation under the provisions of the
prior enactment of this section for conduct which occurred within
the ten years immediately preceding the date of arrest;
(2) Any suspension or revocation on the basis of a conviction
under a municipal ordinance of another state or a statute of the
United States or of any other state of an offense which has the same elements as an offense described in section two, article five of
this chapter for conduct which occurred within the ten years
immediately preceding the date of arrest; or
(3) Any revocation under the provisions of section seven,
article five of this chapter for conduct which occurred within the
ten years immediately preceding the date of arrest.
(q) In the case of a hearing in which a person is accused of
refusing to submit to a designated secondary test, the
commissioner
Office of Administrative Hearings shall make specific findings as
to: (1) Whether the arresting law-enforcement officer had
reasonable grounds to believe the person had been driving a motor
vehicle in this state while under the influence of alcohol,
controlled substances or drugs;
(2) whether the person was lawfully
placed under arrest for an offense involving driving under the
influence of alcohol, controlled substances or drugs, or was
lawfully taken into custody for the purpose of administering a
secondary test: Provided, That this element shall be waived in cases
where no arrest occurred due to driver incapacitation;
(2) (3)
whether the person committed an offense relating to driving a motor
vehicle in this state while under the influence of alcohol,
controlled substances or drugs;
(3) (4) whether the person refused
to submit to the secondary test finally designated in the manner
provided in section four, article five of this chapter; and
(4) (5) whether the person had been given a written statement advising the
person that the person's license to operate a motor vehicle in this
state would be revoked for at least forty-five days and up to life
if the person refused to submit to the test finally designated in
the manner provided in said section.
(r) If the
commissioner Office of Administrative Hearings finds
by a preponderance of the evidence that: (1) The investigating
officer had reasonable grounds to believe the person had been
driving a motor vehicle in this state while under the influence of
alcohol, controlled substances or drugs; (2)
whether the person was
lawfully placed under arrest for an offense involving driving under
the influence of alcohol, controlled substances or drugs, or was
lawfully taken into custody for the purpose of administering a
secondary test: Provided, That this element shall be waived in
cases where no arrest occurred due to driver incapacitation; (3) the
person committed an offense relating to driving a motor vehicle in
this state while under the influence of alcohol, controlled
substances or drugs;
(3) (4) the person refused to submit to the
secondary test finally designated in the manner provided in section
four, article five of this chapter; and
(4) (5) the person had been
given a written statement advising the person that the person's
license to operate a motor vehicle in this state would be revoked
for at least forty-five days and up to life if the person refused to submit to the test finally designated, the commissioner shall
revoke the person's license to operate a motor vehicle in this state
for the periods specified in section seven, article five of this
chapter. The revocation period prescribed in this subsection shall
run concurrently with any other revocation period ordered under this
section or section one of this article arising out of the same
occurrence. The revocation period prescribed in this subsection
shall run concurrently with any other revocation period ordered
under this section or section one of this article arising out of the
same occurrence.
(s) If the
commissioner Office of Administrative Hearings finds
to the contrary with respect to the above issues the commissioner
shall rescind his or her earlier order of revocation or shall reduce
the order of revocation to the appropriate period of revocation
under this section or section seven, article five of this chapter.
A copy of the
commissioner's order Office of Administrative
Hearings' findings of fact and conclusions of law made and entered
following the hearing shall be served upon the person
whose license
is at issue and the commissioner by registered or certified mail,
return receipt requested. During the pendency of any hearing, the
revocation of the person's license to operate a motor vehicle in
this state shall be stayed.
If the commissioner shall after hearing make and enter an order affirming the commissioner's earlier order of revocation, the A
person
whose license is at issue and the commissioner shall be
entitled to judicial review as set forth in chapter twenty-nine-a
of this code.
The Neither the Commissioner
nor the Office of
Administrative Hearings may
not stay enforcement of the order. The
court may grant a stay or supersede as of the order only upon motion
and hearing, and a finding by the court upon the evidence presented,
that there is a substantial probability that the appellant shall
prevail upon the merits and the appellant will suffer irreparable
harm if the order is not stayed:
Provided, That in no event shall
the stay or supersede as of the order exceed one hundred fifty days.
Notwithstanding the provisions of section four, article five of said
chapter, the
commissioner Office of Administrative Hearings may not
be compelled to transmit a certified copy of the file or the
transcript of the hearing to the circuit court in less than sixty
days.
(t) In any revocation or suspension pursuant to this section,
if the driver whose license is revoked or suspended had not reached
the driver's eighteenth birthday at the time of the conduct for
which the license is revoked or suspended, the driver's license
shall be revoked or suspended until the driver's eighteenth birthday
or the applicable statutory period of revocation or suspension
prescribed by this section, whichever is longer.
(u) Funds for this section's hearing and appeal process may be
provided from the Drunk Driving Prevention Fund, as created by
section forty-one, article two, chapter fifteen of this code, upon
application for the funds to the Commission on Drunk Driving
Prevention.
§17C-5A-3. Safety and treatment program; reissuance of license.
(a) The Department of Health and Human Resources, Division of
Alcoholism and Drug Abuse shall
propose a legislative rule or rules
for promulgation in accordance with the provisions of chapter
twenty-nine-a of this code establishing a administer a comprehensive
safety and treatment program for persons whose licenses have been
revoked under the provisions of this article or section seven,
article five of this chapter or subsection (6), section five,
article three, chapter seventeen-b of this code and shall also
establish the minimum qualifications for mental health facilities
,
day report centers, community correction centers or other public
agencies or private entities conducting the safety and treatment
program:
Provided, That the Department of Health and Human
Resources, Division of Alcoholism and Drug Abuse may establish
standards whereby the division will accept or approve participation
by violators in another treatment program which provides the same
or substantially similar benefits as the safety and treatment
program established pursuant to this section.
(b) The program shall include, but not be limited to, treatment
of alcoholism, alcohol and drug abuse, psychological counseling,
educational courses on the dangers of alcohol and drugs as they
relate to driving, defensive driving or other safety driving
instruction and other programs designed to properly educate, train
and rehabilitate the offender.
(c)
(1) The Department of Health and Human Resources, Division
of Alcoholism and Drug Abuse shall provide for the preparation of
an educational and treatment the program for each person whose
license has been revoked under the provisions of this article or
section seven, article five of this chapter or subsection (6),
section five, article three, chapter seventeen-b of this code which
shall contain the following: (1) A listing and evaluation of the
offender's prior traffic record; (2) the characteristics and history
of alcohol or drug use, if any; (3) his or her amenability to
rehabilitation through the alcohol safety program; and (4) a
recommendation as to treatment or rehabilitation and the terms and
conditions of the treatment or rehabilitation. The program shall
be prepared by persons knowledgeable in the diagnosis of alcohol or
drug abuse and treatment.
(2) The Department of Health and Human Resources shall
establish a fee by legislative rule, proposed pursuant to article
three, chapter twenty-nine-a of this code, to be collected from each offender enrolled in the safety and treatment program;
(d) There is hereby created a special revenue account within
the State Treasury known as the Department of Health and Human
Resources Safety and Treatment Fund. The account shall be
administered by the Secretary of the Department of Health and Human
Resources for the purpose of administering the comprehensive safety
and treatment program established by subsection (a) of this section.
The account may be invested, and all earnings and interest accruing
shall be retained in the account. The Auditor shall conduct an audit
of the fund at least every three fiscal years.
Effective July 1, 2010, the State Treasurer shall make a one-
time transfer of $250,000 from the Motor Vehicle Fees Fund into the
Department of Health and Human Resources Safety and Treatment Fund.
(e) (1) The program provider shall collect the established fee
from each participant upon enrollment unless the department has
determined that the participant is an indigent based upon criteria
established pursuant to
subdivision (3) of this subsection
legislative rule authorized in this section.
(2) If the department determined that a participant is an
indigent based upon criteria established pursuant to the legislative
rule authorized by this section, the department shall provide the
applicant with proof of its determination regarding indigency, which
proof the applicant shall present to the interlock provider as part of the application process provided in section three-a of this
article and/or the rules promulgated pursuant thereto.
(3) Program providers shall remit to the Department of Health
and Human Resources a portion of the fee collected, which shall be
deposited by the Secretary of the Department of Health and Human
Resources into the Department of Health and Human Resources Safety
and Treatment Fund. The Department of Health and Human Resources
shall reimburse enrollment fees to program providers for each
eligible indigent offender.
(3) The Department of Health and Human Resources shall
establish by legislative rule, proposed pursuant to article three,
chapter twenty-nine-a of this code, criteria to determine the
eligibility for the payment of safety and treatment services for
indigent offenders. The rule shall include, but is not limited to,
the development of a criteria for determining eligibility;
promulgation of application forms; establishment of procedures for
the review of applications; and the establishment of a mechanism for
the payment for safety and training services for eligible offenders.
(4) (f) On or before January 15 of each year, the Secretary of
the Department of Health and Human Resources shall report to the
Legislature on:
(A) (1) The total number of offenders participating in the
safety and treatment program during the prior year;
(B) (2) The total number of indigent offenders participating
in the safety and treatment program during the prior year;
(C) (3) The total number of program providers during the prior
year; and
(D) (4) The total amount of reimbursements paid to program
provider during the prior year.
(5) (g) The
commissioner Commissioner of the Division of Motor
Vehicles, after giving due consideration to the program developed
for the offender, shall prescribe the necessary terms and conditions
for the reissuance of the license to operate a motor vehicle in this
state revoked under this article or section seven, article five of
this chapter or subsection (6), section five, article three, chapter
seventeen-b of this code which shall include successful completion
of the educational, treatment or rehabilitation program, subject to
the following:
(A) (1) When the period of revocation is six months, the
license to operate a motor vehicle in this State
shall may not be
reissued until:
(i) (A) At least ninety days have elapsed from the
date of the initial revocation, during which time the revocation was
actually in effect;
(ii) (B) the offender has successfully completed
the program;
(iii) (C) all costs of the program and administration
have been paid; and
(iv) (D) all costs assessed as a result of a
revocation hearing have been paid.
(B) (2) When the period of revocation is for a period of one
year or for more than a year, the license to operate a motor vehicle
in this state
shall may not be reissued until:
(i) (A) At least one-
half of the time period has elapsed from the date of the initial
revocation, during which time the revocation was actually in effect;
(ii) (B) the offender has successfully completed the program;
(iii)
(C) all costs of the program and administration have been paid; and
(iv) (D) all costs assessed as a result of a revocation hearing have
been paid. Notwithstanding any provision in this code, a person
whose license is revoked for refusing to take a chemical test as
required by section seven, article five of this chapter for a first
offense is not eligible to reduce the revocation period by
completing the safety and treatment program.
(C) (3) When the period of revocation is for life, the license
to operate a motor vehicle in this State
shall may not be reissued
until:
(i) (A) At least ten years have elapsed from the date of the
initial revocation, during which time the revocation was actually
in effect;
(ii) (B) the offender has successfully completed the
program;
(iii) (C) all costs of the program and administration have
been paid; and
(iv) (D) all costs assessed as a result of a
revocation hearing have been paid.
(D) (4) Notwithstanding any provision of this code or any rule,
any mental health facilities or other public agencies or private entities conducting the safety and treatment program when certifying
that a person has successfully completed a safety and treatment
program shall only have to certify that the person has successfully
completed the program.
(d) (h) (1) The Department of Health and Human Resources,
Division of Alcoholism and Drug Abuse shall provide for the
preparation of an educational program for each person whose license
has been suspended for sixty days pursuant to the provisions of
subsection (n), section two, article five-a of this chapter. The
educational program shall consist of not less than twelve nor more
than eighteen hours of actual classroom time.
(2) When a sixty-day period of suspension has been ordered, the
license to operate a motor vehicle
shall may not be reinstated
until: (A) At least sixty days have elapsed from the date of the
initial suspension, during which time the suspension was actually
in effect; (B) the offender has successfully completed the
educational program; (C) all costs of the program and administration
have been paid; and (D) all costs assessed as a result of a
suspension hearing have been paid.
(e) (i) A required component of the
rehabilitation treatment
program provided in subsection (b) of this section and the education
program provided for in subsection (c) of this section shall be
participation by the violator with a victim impact panel program providing a forum for victims of alcohol and drug-related offenses
and offenders to share first-hand experiences on the impact of
alcohol and drug-related offenses in their lives. The Department
of Health and Human Resources, Division of Alcoholism and Drug Abuse
shall propose and implement a plan for victim impact panels where
appropriate numbers of victims are available and willing to
participate and shall establish guidelines for other innovative
programs which may be substituted where the victims are not
available to assist persons whose licenses have been suspended or
revoked for alcohol and drug-related offenses to gain a full
understanding of the severity of their offenses in terms of the
impact of the offenses on victims and offenders. The plan shall
require, at a minimum, discussion and consideration of the
following:
(A) Economic losses suffered by victims or offenders;
(B) Death or physical injuries suffered by victims or
offenders;
(C) Psychological injuries suffered by victims or offenders;
(D) Changes in the personal welfare or familial relationships
of victims or offenders; and
(E) Other information relating to the impact of alcohol and
drug-related offenses upon victims or offenders.
The Department of Health and Human Resources, Division of Alcoholism and Drug Abuse shall ensure that any meetings between
victims and offenders shall be nonconfrontational and ensure the
physical safety of the persons involved.
(j) (1) The Secretary of the Department of Health and Human
Resources shall promulgate a rule for legislative approval in
accordance with article three, chapter twenty-nine-a of this code
to administer the provisions of this section and establish a fee to
be collected from each offender enrolled in the safety and treatment
program. The rule shall include: (A) A reimbursement mechanism to
program providers of required fees for the safety and treatment
program for indigent offenders, criteria for determining eligibility
of indigent offenders, and any necessary application forms; and (B)
program standards that encompass provider criteria including minimum
professional training requirements for providers, curriculum
approval, minimum course length requirements and other items that
may be necessary to properly implement the provisions of this
section.
(2) The Legislature finds that an emergency exists and,
therefore, the Secretary shall file by July 1, 2010, an emergency
rule to implement this section pursuant to the provisions of section
fifteen, article three, chapter twenty-nine-a of this code.
(k) Nothing in this section may be construed to prohibit day
report or community correction programs, authorized pursuant to article eleven-c, chapter sixty-two of this code, from administering
a comprehensive safety and treatment program pursuant to this
section.
§17C-5A-3a. Establishment of and participation in the Motor Vehicle
Alcohol Test and Lock Program.
(a) (1) The Division of Motor Vehicles shall control and
regulate a Motor Vehicle Alcohol Test and Lock Program for persons
whose licenses have been revoked pursuant to this article or the
provisions of article five of this chapter or have been convicted
under section two, article five of this chapter
, or who are serving
a term of a conditional probation pursuant to section two-b, article
five of this chapter.
(2) The program shall include the establishment of a users fee
for persons participating in the program which shall be paid in
advance and deposited into the Driver's Rehabilitation Fund:
Provided, That on and after the first day of July, two thousand
seven, any unexpended balance remaining in the Driver's
Rehabilitation Fund shall be transferred to the Motor Vehicle Fees
Fund created under the provisions of section twenty-one, article
two, chapter seventeen-a of this code and all further fees collected
shall be deposited in that fund.
(3)
(A) Except where specified otherwise, the use of the term
"program" in this section refers to the Motor Vehicle Alcohol Test and Lock Program.
(B) The Commissioner of the Division of Motor Vehicles shall
propose legislative rules for promulgation in accordance with the
provisions of chapter twenty-nine-a of this code for the purpose of
implementing the provisions of this section. The rules shall also
prescribe those requirements which, in addition to the requirements
specified by this section for eligibility to participate in the
program, the commissioner determines must be met to obtain the
commissioner's approval to operate a motor vehicle equipped with a
motor vehicle alcohol test and lock system.
(C) Nothing in this section may be construed to prohibit day
report or community correction programs authorized pursuant to
article eleven-c, chapter sixty-two of this code, or a home
incarceration program authorized pursuant to article eleven-B,
chapter sixty-two of this code, from being a provider of motor
vehicle alcohol test and lock systems for eligible participants as
authorized by this section.
(4) For purposes of this section, a "motor vehicle alcohol test
and lock system" means a mechanical or computerized system which,
in the opinion of the commissioner, prevents the operation of a
motor vehicle when, through the system's assessment of the blood
alcohol content of the person operating or attempting to operate the
vehicle, the person is determined to be under the influence of alcohol.
(5)
The fee for installation and removal of ignition interlock
devices shall be waived for persons determined to be indigent by the
Department of Health and Human Resources pursuant to section three,
article five-a, chapter seventeen-c of this code. The commissioner
shall establish by legislative rule, proposed pursuant to article
three, chapter twenty-nine-a of this code,
criteria to determine the
eligibility for the payment of the installation of ignition
interlock devices in the vehicles of indigent offenders procedures
to be followed with regard to persons determined by the Department
of Health and Human Resources to be indigent. The rule shall
include, but is not limited to,
the development of a criteria for
determining eligibility; promulgation of application forms;
establishment of procedures for the review of applications; and the
establishment of a mechanism for the payment of installations for
eligible offenders.
(6) On or before the fifteenth day of January, of each year,
the commissioner of the division of motor vehicles shall report to
the Legislature on:
(A) The total number of offenders participating in the program
during the prior year;
(B) The total number of indigent offenders participating in the
program during the prior year;
(C) The terms of any contracts with the providers of ignition
interlock devices; and
(D) The total cost of the program to the state during the prior
year.
(b) (1) Any person whose license is revoked for the first time
pursuant to this article or the provisions of article five of this
chapter is eligible to participate in the program when the person's
minimum revocation period as specified by subsection (c) of this
section has expired and the person is enrolled in or has
successfully completed the safety and treatment program or presents
proof to the commissioner within sixty days of receiving approval
to participate by the commissioner that he or she is enrolled in a
safety and treatment program: Provided, That anyone whose license
is revoked for the first time pursuant to subsection (k), section
two of this article must participate in the program when the
person's minimum revocation period as specified by subsection (c)
of this section has expired and the person is enrolled in or has
successfully completed the safety and treatment program or presents
proof to the commissioner within sixty days of receiving approval
to participate by the commissioner that he or she is enrolled in a
safety and treatment program.
(2) Any person whose license has been suspended pursuant to the
provisions of subsection (n), section two of this article for driving a motor vehicle while under the age of twenty-one years with
an alcohol concentration in his or her blood of two hundredths of
one percent or more, by weight, but less than eight hundredths of
one percent, by weight, is eligible to participate in the program
after thirty days have elapsed from the date of the initial
suspension, during which time the suspension was actually in effect:
Provided, That in the case of a person under the age of eighteen,
the person is eligible to participate in the program after thirty
days have elapsed from the date of the initial suspension, during
which time the suspension was actually in effect or after the
person's eighteenth birthday, whichever is later. Before the
commissioner approves a person to operate a motor vehicle equipped
with a motor vehicle alcohol test and lock system, the person must
agree to comply with the following conditions:
(A) If not already enrolled, the person shall enroll in and
complete the educational program provided in subsection (d), section
three of this article at the earliest time that placement in the
educational program is available, unless good cause is demonstrated
to the commissioner as to why placement should be postponed;
(B) The person shall pay all costs of the educational program,
any administrative costs and all costs assessed for any suspension
hearing.
(3) Notwithstanding the provisions of this section to the contrary, a person eligible to participate in the program under this
subsection may not operate a motor vehicle unless approved to do so
by the commissioner.
(c) A person who participates in the program under subdivision
(1), subsection (b) of this section is subject to a minimum
revocation period and minimum period for the use of the ignition
interlock device as follows:
(1) For a person whose license has been revoked for a first
offense for six months pursuant to the provisions of section one-a
of this article for conviction of an offense defined in subsection
(d) or (g), section two, article five of this chapter or pursuant
to subsection (j), section two of this article, the minimum period
of revocation for participation in the test and lock program is
fifteen days and the minimum period for the use of the ignition
interlock device is one hundred and twenty-five days;
(2) For a person whose license has been revoked for a first
offense pursuant to section seven, article five of this chapter, the
minimum period of revocation for participation in the test and lock
program is forty-five days and the minimum period for the use of the
ignition interlock device is one year;
(3) For a person whose license has been revoked for a first
offense pursuant to section one-a of this article for conviction of
an offense defined in subsection (e), section two, article five of this chapter or pursuant to subsection (j), section two of this
article, the minimum period of revocation for participation in the
test and lock program is forty-five days and the minimum period for
the use of the ignition interlock device is two hundred seventy
days;
(4) For a person whose license has been revoked for a first
offense pursuant to the provisions of section one-a of this article
for conviction of an offense defined in subsection (a), section two,
article five of this chapter or pursuant to subsection (f), section
two of this article, the minimum period of revocation before the
person is eligible for participation in the test and lock program
is twelve months and the minimum period for the use of the ignition
interlock device is two years;
(5) For a person whose license has been revoked for a first
offense pursuant to the provisions of section one-a of this article
for conviction of an offense defined in subsection (b), section two,
article five of this chapter or pursuant to subsection (g), section
two of this article, the minimum period of revocation is six months
and the minimum period for the use of the ignition interlock device
is two years;
(6) For a person whose license has been revoked for a first
offense pursuant to the provisions of section one-a of this article
for conviction of an offense defined in subsection (c), section two, article five of this chapter or pursuant to subsection (h), section
two of this article, the minimum period of revocation for
participation in the program is two months and the minimum period
for the use of the ignition interlock device is one year;
(7) For a person whose license has been revoked for a first
offense pursuant to the provisions of section one-a of this article
for conviction of an offense defined in subsection (j), section two,
article five of this chapter or pursuant to subsection (m), section
two of this article, the minimum period of revocation for
participation in the program is two months and the minimum period
for the use of the ignition interlock device is ten months;
(d) Notwithstanding any provision of the code to the contrary,
a person shall participate in the program if the person is convicted
under section two, article five of this chapter or the person's
license is revoked under section two of this article or section
seven, article five of this chapter and the person was previously
either convicted or his or her license was revoked under any
provision cited in this subsection within the past ten years. The
minimum revocation period for a person required to participate in
the program under this subsection is one year and the minimum period
for the use of the ignition interlock device is two years, except
that the minimum revocation period for a person required to
participate because of a violation of subsection (n), section two of this article or subsection (i), section two, article five of this
chapter is two months and the minimum period of participation is one
year. The division shall add an additional two months to the minimum
period for the use of the ignition interlock device if the offense
was committed while a minor was in the vehicle. The division shall
add an additional six months to the minimum period for the use of
the ignition interlock device if a person other than the driver
received injuries. The division shall add an additional two years
to the minimum period for the use of the ignition interlock device
if a person other than the driver is injured and the injuries result
in that person's death. The division shall add one year to the
minimum period for the use of the ignition interlock device for each
additional previous conviction or revocation within the past ten
years. Any person required to participate under this subsection must
have an ignition interlock device installed on every vehicle he or
she owns or operates.
(e) Notwithstanding any other provision in this code, a person
whose license is revoked for driving under the influence of drugs
is not eligible to participate in the Motor Vehicle Alcohol Test and
Lock Program.
(f) An applicant for the test and lock program may not have
been convicted of any violation of section three, article four,
chapter seventeen-b of this code for driving while the applicant's driver's license was suspended or revoked within the six-month
period preceding the date of application for admission to the test
and lock program unless such is necessary for employment purposes.
(g) Upon permitting an eligible person to participate in the
program, the commissioner shall issue to the person, and the person
is required to exhibit on demand, a driver's license which shall
reflect that the person is restricted to the operation of a motor
vehicle which is equipped with an approved motor vehicle alcohol
test and lock system.
(h) The commissioner may extend the minimum period of
revocation and the minimum period of participation in the program
for a person who violates the terms and conditions of participation
in the program as found in this section, or legislative rule, or any
agreement or contract between the participant and the division or
program service provider.
If the commissioner finds that any person
participating in the program pursuant to section two-b, article five
of this chapter must be removed therefrom for violation(s) of the
terms and conditions thereof, he shall notify the person, the court
that imposed the term of participation in the program, and the
prosecuting attorney in the county wherein the order imposing
participation in the program was entered.
(i) A person whose license has been suspended pursuant to the
provisions of subsection (n), section two of this article who has completed the educational program and who has not violated the terms
required by the commissioner of the person's participation in the
program is entitled to the reinstatement of his or her driver's
license six months from the date the person is permitted to operate
a motor vehicle by the commissioner. When a license has been
reinstated pursuant to this subsection, the records ordering the
suspension, records of any administrative hearing, records of any
blood alcohol test results and all other records pertaining to the
suspension shall be expunged by operation of law: Provided, That a
person is entitled to expungement under the provisions of this
subsection only once. The expungement shall be accomplished by
physically marking the records to show that the records have been
expunged and by securely sealing and filing the records. Expungement
has the legal effect as if the suspension never occurred. The
records may not be disclosed or made available for inspection and
in response to a request for record information, the commissioner
shall reply that no information is available. Information from the
file may be used by the commissioner for research and statistical
purposes so long as the use of the information does not divulge the
identity of the person.
(j) In addition to any other penalty imposed by this code, any
person who operates a motor vehicle not equipped with an approved
motor vehicle alcohol test and lock system during that person's participation in the Motor Vehicle Alcohol Test and Lock Program is
guilty of a misdemeanor and, upon conviction thereof, shall be
confined in jail for a period not less than one month nor more than
six months and fined not less than one hundred dollars nor more than
five hundred dollars. Any person who attempts to bypass the alcohol
test and lock system is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in jail not more than six months and
fined not less than one hundred dollars nor more than one thousand
dollars: Provided, That notwithstanding any provision of this code
to the contrary, a person enrolled and participating in the test and
lock program may operate a motor vehicle solely at his or her job
site if the operation is a condition of his or her employment. For
the purpose of this section, job site does not include any street
or highway open to the use of the public for purposes of vehicular
traffic.
ARTICLE 5C. OFFICE OF ADMINISTRATIVE HEARINGS.
§17C-5C-1. Office created; appointment of Chief Hearing Examiner.
(a) The Office of Administrative Hearings is created as a
separate operating agency within the Department of Transportation.
(b) The Governor, with the advice and consent of the senate,
shall appoint a director of the office who shall serve as the
administrative head of the office and as chief hearing examiner.
(c) Prior to appointment, the Chief Hearing Examiner shall be a citizen of the United States and a resident of this state who is
admitted to the practice of law in this state.
(d) The salary of the Chief Hearing Examiner shall be set by
the Secretary of the Department of Transportation. The salary shall
be within the salary range for comparable administrators as
determined by the State Personnel Board created by section six,
article six, chapter twenty-nine of this code.
(e) The Chief Hearing Examiner during his or her term shall:
(1) Devote his or her full time to the duties of the position;
(2) Not otherwise engage in the active practice of law or be
associated with any group or entity which is itself engaged in the
active practice of law: Provided, That nothing in this paragraph
may be construed to prohibit the Chief Hearing Examiner from being
a member of a national, state or local bar association or committee,
or of any other similar group or organization, or to prohibit the
Chief Hearing Examiner from engaging in the practice of law by
representing himself, herself or his or her immediate family in
their personal affairs in matters not subject to this article.
(3) Not engage directly or indirectly in any activity,
occupation or business interfering or inconsistent with his or her
duties as Chief Hearing Examiner;
(4) Not hold any other appointed public office or any elected
public office or any other position of public trust; and
(5) Not be a candidate for any elected public office, or serve
on or under any committee of any political party.
(f) The Governor may remove the Chief Hearing Examiner only for
incompetence, neglect of duty, official misconduct or violation of
subsection (e) of this section, and removal shall be in the same
manner as that specified for removal of elected state officials in
section six, article six, chapter six of this code.
(g) The term of the Chief Hearing Examiner shall be six years.
A person holding the position of Chief Hearing Examiner may be
reappointed to that position subject to the provisions of subsection
(b).
§17C-5C-2. Organization of Office.
(a) The Chief Hearing Examiner is the chief administrator of
the Office of Administrative Hearings and he or she may employ
hearing examiners and other clerical personnel necessary for the
proper administration of this article.
(1) The Chief Hearing Examiner may delegate administrative
duties to other employees, but the Chief Hearing Examiner shall be
responsible for all official delegated acts.
(2) All employees of the Office of Administrative Hearings,
except the Chief Hearing Examiner, shall be in the classified
service and shall be governed by the provisions of the statutes,
rules and policies of the classified service in accordance with the provisions of article six, chapter twenty-nine of this code.
(3) Notwithstanding any provision of this code to the contrary,
those persons serving as hearing examiners within the Division of
Motor Vehicles on the effective date of this article as enacted
during the Regular Session of the 2010 Legislature, shall be
eligible and given first preference in hiring as hearing examiners
pursuant to this article.
(b) The Chief Hearing Examiner shall:
(1) Direct and supervise the work of the office staff;
(2) Make hearing assignments;
(3) Maintain the records of the office;
(4) Review and approve decisions of hearing examiners as to
legal accuracy, clarity and other requirements;
(5) Submit to the Legislature, on or before the fifteenth day
of February, an annual report summarizing the office's activities
since the end of the last report period, including a statement of
the number and type of matters handled by the office during the
preceding fiscal year and the number of matters pending at the end
of the year; and
(6) Perform the other duties necessary and proper to carry out
the purposes of this article.
(c) The administrative expenses of the office shall be included
within the annual budget of the Department of Transportation.
§17C-5C-3. Jurisdiction of Office of Administrative Hearings.
The Office of Administrative Hearings jurisdiction to hear and
determine all:
(1) Appeals from an order of the Commissioner of the Division
of Motor Vehicles suspending a license pursuant to section eight,
article two-B, chapter seventeen-B of this code;
(2) Appeals from decisions or orders of the Commissioner of the
Division of Motor Vehicles suspending or revoking a license pursuant
to sections three-c, six and twelve, article three, chapter
seventeen-B of this code;
(3) Appeals from orders of the Commissioner of the Division of
Motor Vehicles pursuant to section two, article five-A, of this
chapter, revoking or suspending a license under the provisions of
section one of this article or section seven, article five of
chapter;
(4) Appeals from decisions or orders of the Commissioner of the
Division of Motor Vehicles denying, suspending, revoking, refusing
to renew any license or imposing any civil money penalty for
violating the provisions of any licensing law contained in chapters
seventeen-B and seventeen-c that are administered by the
Commissioner of the Division of Motor Vehicles; and
(5) Other matters which may be conferred on the office by
statute or legislatively approved rules.
§17C-5C-4. Hearing Procedures.
(a) A hearing before the office shall be heard de novo and
conducted pursuant to the provisions of the contested case procedure
set forth in article five, chapter twenty-nine-a of this code to the
extent not inconsistent with the provisions of chapters seventeen-B
and seventeen-c of this code. In case of conflict, the provisions
of chapters seventeen-B and seventeen-c of this code shall govern.
(b) Notwithstanding any provision of this code to the contrary,
the Commissioner of the Division of Motor Vehicles may be
represented at hearings conducted by the Office and evidence
submitted by the Commissioner may be considered in such hearings
with or without such representation.
(c) The West Virginia Rules of Evidence governing proceedings
in the courts of this state shall be given like effect in hearings
held before a hearing examiner. All testimony shall be given under
oath.
(d) Except as otherwise provided by this code or legislative
rules, the Commissioner of Motor Vehicles has the burden of proof.
(e) The hearing examiner may request proposed findings of fact
and conclusions of law from the parties prior to the issuance by the
office of the decision in the matter.
(f) Hearings shall be exempt from the requirements of article
one, chapter twenty-nine-b of this code.
§17C-5C-5. Transition from Division of Motor Vehicles to the Office
of Administrative Hearings.
(a) In order to implement an orderly and efficient transition
of the administrative hearing process from the Division of Motor
Vehicles to the Office of Administrative Hearings, the Secretary of
the Department of Transportation may establish interim policies and
procedures for the transfer of administrative hearings for appeals
from decisions or orders of the Commissioner of the Division of
Motor Vehicles denying, suspending, revoking, refusing to renew any
license or imposing any civil money penalty for violating the
provisions of any licensing law contained in chapters, seventeen-A,
seventeen-B, seventeen-C, seventeen-D and seventeen-E of this code,
currently administered by the Commissioner of the Division of Motor
Vehicles, no later than October 1, 2010.
(b) On the effective date of this article, all equipment and
records necessary to effectuate the purposes of this article shall
be transferred from the Division of Motor Vehicle to the Office of
Administrative Hearings:
Provided, That in order to provide for a
smooth transition, the Secretary of Transportation may establish
interim policies and procedures, determine the how equipment and
records are to be transferred and provide that the transfers
provided for in this subsection take effect no later than October
1, 2010.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-22. Pretrial diversion agreements; conditions; drug court
programs.
(a) A prosecuting attorney of any county of this state or a
person acting as a special prosecutor may enter into a pretrial
diversion agreement with a person under investigation or charged
with an offense against the state of West Virginia, when he or she
considers it to be in the interests of justice. The agreement is to
be in writing and is to be executed in the presence of the person's
attorney, unless the person has executed a waiver of counsel.
(b) Any agreement entered into pursuant to the provisions of
subsection (a) of this section may not exceed twenty-four months in
duration. The duration of the agreement must be specified in the
agreement. The terms of any agreement entered into pursuant to the
provisions of this section may include conditions similar to those
set forth in section nine, article twelve, chapter sixty-two of this
code relating to conditions of probation. The agreement may require
supervision by a probation officer of the circuit court, with the
consent of the court. An agreement entered into pursuant to this
section must include a provision that the applicable statute of
limitations be tolled for the period of the agreement.
(c) A person who has entered into an agreement for pretrial diversion with a prosecuting attorney and who has successfully
complied with the terms of the agreement is not subject to
prosecution for the offense or offenses described in the agreement
or for the underlying conduct or transaction constituting the
offense or offenses described in the agreement, unless the agreement
includes a provision that upon compliance the person agrees to plead
guilty or nolo contendere to a specific related offense, with or
without a specific sentencing recommendation by the prosecuting
attorney.
(d) No person charged with a violation of the provisions of
section two, article five, chapter seventeen-c of this code may
participate in a pretrial diversion program
.: Provided, That a
court may defer proceedings in accordance with section two-b,
article five, chapter seventeen-c of this code. No person charged
with a violation of the provisions of section twenty-eight, article
two of this chapter may participate in a pretrial diversion program
unless the program is part of a community corrections program
approved pursuant to the provisions of article eleven-c, chapter
sixty-two of this code. No person indicted for a felony crime of
violence against the person where the alleged victim is a family or
household member as defined in section two hundred three, article
twenty-seven, chapter forty-eight of this code or indicted for a
violation of the provisions of sections three, four or seven, article eight-b of this chapter is eligible to participate in a
pretrial diversion program. No defendant charged with a violation
of the provisions of section twenty-eight, article two of this
chapter or subsections (b) or (c), section nine, article two of this
chapter where the alleged victim is a family or household member is
eligible for pretrial diversion programs if he or she has a prior
conviction for the offense charged or if he or she has previously
been granted a period of pretrial diversion pursuant to this section
for the offense charged. Notwithstanding any provision of this code
to the contrary, defendants charged with violations of the
provisions of section twenty-eight, article two, chapter sixty-one
of this code or the provisions of subsection (b) or (c), section
nine, article two of said chapter where the alleged victim is a
family or household member as defined by the provisions of section
two hundred three, article twenty-seven, chapter forty-eight of this
code are ineligible for participation in a pretrial diversion
program before the July 1, 2002, and before the community
corrections subcommittee of the Governor's Committee on Crime,
Delinquency and Correction established pursuant to the provisions
of section two, article eleven-c, chapter sixty-two of this code,
in consultation with the working group of the subcommittee, has
approved guidelines for a safe and effective program for diverting
defendants charged with domestic violence.
(e) The provisions of section twenty-five of this article are
inapplicable to defendants participating in pretrial diversion
programs who are charged with a violation of the provisions of
section twenty-eight, article two, chapter sixty-one of this code.
The community corrections subcommittee of the Governor's Committee
on Crime, Delinquency and Correction established pursuant to the
provisions of section two, article eleven-c, chapter sixty-two of
this code shall, upon approving any program of pretrial diversion
for persons charged with violations of the provisions of section
twenty-eight, article two, chapter sixty-one of this code, establish
and maintain a central registry of the participants in the programs
which may be accessed by judicial officers and court personnel.
§61-11-25. Expungement of criminal records for those found not
guilty of crimes or against whom charges have been dismissed.
(a) Any person who has been charged with a criminal offense
under the laws of this state and who has been found not guilty of
the offense, or against whom charges have been dismissed, and not
in exchange for a guilty plea to another offense, may make a motion
in the circuit court in which the charges were filed to expunge all
records relating to the arrest, charge or other matters arising out
of the arrest or charge:
Provided, That no record in the Division
of Motor Vehicles may be expunged by virtue of any order of
expungement entered pursuant to section two-b, article five, chapter seventeen-C of this code: Provided
further, That any person who has
previously been convicted of a felony may not make a motion for
expungement pursuant to this section. The term records as used in
this section includes, but is not limited to, arrest records,
fingerprints, photographs, index references or other data whether
in documentary or electronic form, relating to the arrest, charge
or other matters arising out of the arrest or charge. Criminal
investigation reports and all records relating to offenses subject
to the provisions of article twelve, chapter fifteen of this code
because the person was found not guilty by reason of mental illness,
mental retardation or addiction are exempt from the provisions of
this section.
(b) The expungement motion shall be filed not sooner than sixty
days following the order of acquittal or dismissal by the court. Any
court entering an order of acquittal or dismissal shall inform the
person who has been found not guilty or against whom charges have
been dismissed of his or her rights to make a motion for expungement
pursuant to this section.
(c) Following the filing of the motion, the court may set a
date for a hearing. If the court does so, it shall notify the
prosecuting attorney and the arresting agency of the motion and
provide an opportunity for a response to the expungement motion.
(d) If the court finds that there are no current charges or proceedings pending relating to the matter for which the expungement
is sought, the court may grant the motion and order the sealing of
all records in the custody of the court and expungement of any
records in the custody of any other agency or official including
law-enforcement records. Every agency with records relating to the
arrest, charge or other matters arising out of the arrest or charge,
that is ordered to expunge records, shall certify to the court
within sixty days of the entry of the expungement order, that the
required expungement has been completed. All orders enforcing the
expungement procedure shall also be sealed.
(e) Upon expungement, the proceedings in the matter shall be
deemed never to have occurred. The court and other agencies shall
reply to any inquiry that no record exists on the matter. The person
whose record is expunged shall not have to disclose the fact of the
record or any matter relating thereto on an application for
employment, credit or other type of application.
(f) Inspection of the sealed records in the court's possession
may thereafter be permitted by the court only upon a motion by the
person who is the subject of the records or upon a petition filed
by a prosecuting attorney that inspection and possible use of the
records in question are necessary to the investigation or
prosecution of a crime in this state or another jurisdiction. If the
court finds that the interests of justice will be served by granting the petition, it may be granted.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 186--A Bill to amend and
reenact §17C-5-2 and §17C-5-7 of the Code of West Virginia, 1931,
as amended; to amend said code by adding thereto a new section,
designated §17C-5-2b; to amend and reenact §17C-5A-1a, §17C-5A-2,
§17C-5A-3 and §17C-5A-3a of said code; to amend said code by adding
thereto a new article, designated §17C-5C-1, §17C-5C-2, §17C-5C-3,
§17C-5C-4 and §17C-5C-5; and to amend and reenact §61-11-22 and §61-
11-25 of said code, all relating to the motor vehicle and traffic
laws of the state; procedures for conditional probation, deferral
and dismissal of criminal charges and expungement of arrest record
for certain persons charged for the first time with a non-aggravated
offense of driving under the influence of alcohol conditioned upon
successful completion of the motor vehicle alcohol test and lock
program; exempting from eligibility for said conditional probation
persons originally charged with any aggravated offense of driving
under the influence of alcohol, any controlled substance, or any
other drug, persons holding commercial drivers' licenses or
operating a commercial vehicle, and persons who have had their
drivers' licenses previously revoked for driving under the influence of alcohol, any controlled substance or any other drug in any
jurisdiction; providing procedures for termination of conditional
probation upon violation of the terms thereof; exempting records
maintained by the division of motor vehicles from expungement;
preserving criminal and administrative consequences for any
subsequent charge of driving under the influence of alcohol;
amending the hearing procedures; clarifying the effect of a no
contest plea on the administrative license suspension process;
requiring the state establish lawful arrest in administrative
license suspension proceedings where applicable; providing that any
determination of indigence made by the Department of Health and
Human Resources for purposes of subsidized participation in the
safety and treatment program applies to subsidization of
participation in the motor vehicle alcohol test and lock program;
creation of a special revenue account, known as the Department of
Health and Human Resources Safety and Treatment Fund; making a one-
time transfer of monies into the fund; providing rule-making
authority; control and use of the fund by the agency; creating the
Office of Administrative Hearings within the Department of
Transportation; appointment of Chief Hearing Examiner; providing for
the organization and jurisdiction of the office; setting out hearing
procedures; and providing for the transition of the hearing process
from the Division of Motor Vehicles to the Office of Administrative Hearings.
On motion of Senator Kessler, the following amendment to the
House of Delegates amendments to the bill was reported by the Clerk
and adopted:
On page eleven, section two-b, by striking out subsection (a)
in its entirety and inserting in lieu thereof a new subsection (a),
to read as follows:
(a) Except as provided in subsections (g) of this section,
whenever any person who has not previously been convicted of any
offense under this article or under any statute of the United States
or of any state relating to driving under the influence alcohol, any
controlled substance or any other drug:
(1) Notifies the court within thirty days of his or her arrest
of his or her intention to participate in a deferral pursuant to
this section; and
(2) Pleads guilty to or is found guilty of driving under the
influence of alcohol under subsection (d), section two of this
article, the court, without entering a judgment of guilt and with
the consent of the accused, shall defer further proceedings and,
notwithstanding any provisions of this code to the contrary, place
him or her on probation, which conditions shall include, that he or
she successfully completes the Motor Vehicle Alcohol Test and Lock
Program as provided in section three-a, article five-a of this chapter. Participation therein shall be for a period of at least one
hundred and sixty five days after he or she has served the fifteen
days of license suspension imposed pursuant to section two, article
five-a of this chapter.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as amended.
Engrossed Committee Substitute for Senate Bill No. 186, as
amended, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--34.
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 S. B. No. 186) passed with its House of Delegates amended
title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the
passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 4108, Authorizing
miscellaneous agencies and boards to promulgate legislative rules.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4130, Creating the West
Virginia Supreme Court of Appeals Public Campaign Financing Pilot
Program.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, to take effect
from passage, of
Eng. Com. Sub. for House Bill No. 4143, Relating to emergency
medical services.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. House Bill No. 4144, Relating to the board of veterinary
medicine.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4186, Relating to the
practice of nursing home administration.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 4201, Creating the Livestock
Care Standards Board.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amended title, passage
as amended, of
Eng. Com. Sub. for House Bill No. 4260, Relating to insurance
adjusters.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4273, Relating to
professional employer organizations.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4281, Replacing references
to "mental retardation" with "intellectual disability".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4486, Relating to tax tickets
and other required notifications concerning property taxes.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amended title, passage
as amended, of
Eng. House Bill No. 4521, Creating a sales tax holiday for
purchases of guns and ammunition.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 4525, Changing the
composition, powers and responsibilities of the board of Coal Mine
Health and Safety.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to, and the
passage as amended, of
Eng. Com. Sub. for House Bill No. 4531, Mandating that
shackling of pregnant women who are incarcerated is not allowed
except in extraordinary circumstances.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, to take effect
from passage, of
Eng. Com. Sub. for House Bill No. 4582, Creating reciprocity
for West Virginia small, women and minority-owned businesses who
receive such preferences in other states.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4647, Relating to the
regulation and control of elections.
The Senate again proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 8:54 p.m. tonight:
Eng. Com. Sub. for Senate Bill No. 567, Creating Nonprofit
Adventure and Recreational Responsibility Act.
Pending announcement of a meeting of the Committee on Rules,
On motion of Senator Chafin, the Senate recessed until 10 p.m.
tonight.
Upon expiration of the recess, the Senate reconvened and
resumed business under the fifth order.
Senator Minard, from the committee of conference on matters of disagreement between the two houses, as to
Eng. Com. Sub. for Senate Bill No. 273, Authorizing DEP
promulgate legislative rules.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendments of the House to Engrossed Committee
Substitute for Senate Bill No. 273 having met, after full and free
conference, have agreed to recommend and do recommend to their
respective houses, as follows:
That both houses recede from their respective positions as to
the amendment of the House of Delegates on page thirteen, section
one, after line two hundred thirty-eight, by inserting a new
subsection, designated subsection (q), and that the Senate and House
agree to an amendment as follows:
On page thirteen, section one, after line two hundred thirty-
eight, by inserting a new subsection, designated subsection (q), to
read as follows:
(q) The legislative rule filed in the state register on the
twenty-first day of April, two thousand nine, authorized under the
authority of section two, article six, chapter twenty-two, of this
code, modified by the Department of Environmental Protection to meet
the objections of the legislative rule-making review committee and
refiled in the state register on the fifteenth day of January, two thousand ten, relating to the Department of Environmental Protection
(oil and gas wells and other wells, 35 CSR 4), is authorized with
the following amendment:
On page twenty-five, subdivision 16.4.d., by striking out the
words "authorized by the Office, based on soil analysis from the
operator, to be suitable to prevent seepage or leakage" and
inserting in lieu thereof the words "deemed to be suitable to
prevent seepage or leakage based on soil analysis from the operator
and standards developed and certified by a registered professional
engineer and approved by the Office. Before deeming pits suitable
to prevent seepage or leakage without a synthetic liner, the chief
shall notify the surface owner that the surface owner is entitled
to receive notice of the application for the well work permit and
that the operator has requested that the pit be deemed suitable to
prevent seepage or leakage without a synthetic liner. If the
surface owner objects, the chief shall hold a hearing pursuant to
article five, chapter twenty-nine-A of the Code of West Virginia
before determining that the pit is suitable to prevent seepage or
leakage.;
And,
That the Senate agree to the amendment of the House of
Delegates to the title of the bill.
Respectfully submitted,
Joseph M. Minard, Chair, Bob Williams, Clark S. Barnes,
Conferees on the part of the Senate.
Bonnie Brown, Chair, Barbara Evans Fleischauer, Kelli Sobonya,
Conferees on the part of the House of Delegates.
On motions of Senator Minard, severally made, the report of the
committee of conference was taken up for immediate consideration and
adopted.
Engrossed Committee Substitute for Senate Bill No. 273, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended,
the yeas were: Barnes,
Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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. No. 273) passed with its House of Delegates amended
title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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. No. 273) takes effect from passage.
Ordered, That The Clerk communicate to the House of the
Delegates the action of the Senate and request concurrence therein.
Senator Palumbo, from the committee of conference on matters
of disagreement between the two houses, as to
Eng. Com. Sub. for Senate Bill No. 218, Providing for early
parole eligibility for certain inmates.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendment of the House to Engrossed Committee
Substitute for Senate Bill No. 218 having met, after full and free
conference, have agreed to recommend and do recommend to their
respective houses, as follows:
That both houses recede from their respective positions as to the amendment of the House of Delegates, striking out everything
after the enacting clause, and that the Senate and House agree to
the same as follows:
ARTICLE 12. PROBATION AND PAROLE.
§62-12-13. Powers and duties of board; eligibility for parole;
procedure for granting parole.
(a) The board of parole, whenever it is of the opinion that the
best interests of the state and of the inmate will be served, and
subject to the limitations hereinafter provided, shall release any
inmate on parole for terms and upon conditions as are provided by
this article.
(b) Any inmate of a state correctional center is eligible for
parole if he or she:
(1) (A) Has served the minimum term of his or her indeterminate
sentence or has served one fourth of his or her definite term
sentence, as the case may be, except that in no case is or
(B) He or she:
(i) Has applied for and been accepted by the Commissioner of
Corrections into an accelerated parole program;
(ii) Does not have a prior criminal conviction for a felony
crime of violence against the person, a felony offense involving the
use of a firearm, or a felony offense where the victim was a minor
child;
(iii) Has no record of institutional disciplinary rule
violations for a period of 120 days prior to parole consideration
unless the requirement is waived by the commissioner;
(iv) Is not serving a sentence for a crime of violence against
the person, or more than one felony for a controlled substance
offense for which the inmate is serving a consecutive sentence, a
felony offense involving the use of a firearm, or a felony offence
where the victim was a minor child; and,
(v) Has successfully completed a rehabilitation treatment
program created with the assistance of a standardized risk and needs
assessment;
(I) As used in this paragraph "felony crime of violence against
the person" means felony offenses set forth in articles two, three-
e, eight-b or eight-d of chapter sixty-one of this code;
and
(II) As used in this paragraph "felony offense where the victim
was a minor child" means any felony crime of violence against the
person and any felony violation set forth in article eight, eight-a,
eight-c or eight-d of chapter sixty-one of this code.
(C) Notwithstanding any provision of this code to the contrary,
any person who committed, or attempted to commit a felony with the
use, presentment or brandishing of a firearm, is not eligible for
parole prior to serving a minimum of three years of his or her sentence or the maximum sentence imposed by the court, whichever is
less: Provided, That any person who committed, or attempted to
commit, any violation of section twelve, article two, chapter sixty-
one of this code, with the use, presentment or brandishing of a
firearm, is not eligible for parole prior to serving a minimum of
five years of his or her sentence or one third of his or her
definite term sentence, whichever is greater. Nothing in this
section applies to an accessory before the fact or a principal in
the second degree who has been convicted as if he or she were a
principal in the first degree if, in the commission of or in the
attempted commission of the felony, only the principal in the first
degree used, presented or brandished a firearm. No A person is not
ineligible for parole under the provisions of this subdivision
because of the commission or attempted commission of a felony with
the use, presentment or brandishing of a firearm unless such that
fact is clearly stated and included in the indictment or presentment
by which the person was charged and was either: (i) Found by the
court at the time of trial upon a plea of guilty or nolo contendere;
or (ii) found by the jury, upon submitting to the jury a special
interrogatory for such purpose if the matter was tried before a
jury; or (iii) found by the court, if the matter was tried by the
court without a jury.
For the purpose of this section, the term "firearm" means any instrument which will, or is designed to, or may readily be
converted to, expel a projectile by the action of an explosive,
gunpowder or any other similar means.
(B) (D) The amendments to this subsection adopted in the year
1981:
(i) Apply to all applicable offenses occurring on or after
August 1 of that year;
(ii) Apply with respect to the contents of any indictment or
presentment returned on or after August 1 of that year irrespective
of when the offense occurred;
(iii) Apply with respect to the submission of a special
interrogatory to the jury and the finding to be made thereon in any
case submitted to the jury on or after August 1 of that year or to
the requisite findings of the court upon a plea of guilty or in any
case tried without a jury: Provided, That the state gives notice
in writing of its intent to seek such finding by the jury or court,
as the case may be, which notice shall state with particularity the
grounds upon which the finding will be sought as fully as such
grounds are otherwise required to be stated in an indictment, unless
the grounds therefor are alleged in the indictment or presentment
upon which the matter is being tried; and
(iv) Does not apply with respect to cases not affected by the
amendments and in such cases the prior provisions of this section apply and are construed without reference to the amendments.
Insofar as the amendments relate to mandatory sentences
restricting the eligibility for parole, all matters requiring a
mandatory sentence shall be proved beyond a reasonable doubt in all
cases tried by the jury or the court.
(2) Is not in punitive segregation or administrative
segregation as a result of disciplinary action;
(3) Has maintained a record of good conduct in prison for a
period of at least three months immediately preceding the date of
his or her release on parole;
(4) Has submitted to the board a written parole release plan
setting forth proposed plans for his or her place of residence,
employment and, if appropriate, his or her plans regarding education
and post-release counseling and treatment, the parole release plan
having been approved by the Commissioner of Corrections or his or
her authorized representative; and Has prepared and submitted to the
board a written parole release plan setting forth proposed plans for
his or her place of residence, employment and, if appropriate, his
or her plans regarding education and post-release counseling and
treatment. The Commissioner of Corrections or his or her designee
shall review the plan to be reviewed and investigated and provide
recommendations to the board as to the suitability of the plan:
Provided, That in cases in which there is a mandatory thirty day notification period required prior to the release of the inmate,
pursuant to section twenty-three of this article, the board may
conduct an initial interview and deny parole without requiring the
development of a plan. In the event the board does not believe
parole should be denied, it may defer a final decision pending
completion of an investigation and receipt of recommendations. Upon
receipt of the plan together with the investigation and
recommendation, the board, through a panel, shall make a final
decision regarding the granting or denial of parole; and
(5) Has satisfied the board that if released on parole he or
she will not constitute a danger to the community.
(c) Except in the case of a person serving a life sentence, no
person who has been previously twice convicted of a felony may be
released on parole until he or she has served the minimum term
provided by law for the crime for which he or she was convicted.
No A person sentenced for life may not be paroled until he or she
has served ten years, and no a person sentenced for life who has
been previously twice convicted of a felony may not be paroled until
he or she has served fifteen years: Provided, That no a person
convicted of first degree murder for an offense committed on or
after June 10, 1994, is not eligible for parole until he or she has
served fifteen years.
(d) In the case of a person sentenced to any state correctional center, it is the duty of the board, as soon as a person becomes
eligible, to consider the advisability of his or her release on
parole.
(e) If, upon consideration, parole is denied, the board shall
promptly notify the inmate of the denial. The board shall, at the
time of denial, notify the person of the month and year he or she
may apply for reconsideration and review. The board shall at least
once a year reconsider and review the case of every inmate who was
denied parole and is still eligible; Provided, That the board may
reconsider and review parole eligibility any time within three years
following the denial of parole of a person serving a life sentence.
(f) Any person serving a sentence on a felony conviction who
becomes eligible for parole consideration prior to being transferred
to a state correctional center may make written application for
parole. The terms and conditions for parole consideration
established by this article apply to such inmates.
(g) The board shall, with the approval of the Governor, adopt
rules governing the procedure in the granting of parole. No
provision of this article and none of the rules adopted hereunder
are intended or may be construed to contravene, limit or otherwise
interfere with or affect the authority of the Governor to grant
pardons and reprieves, commute sentences, remit fines or otherwise
exercise his or her constitutional powers of executive clemency.
(h) The Division of Corrections shall promulgate policies and
procedures for developing a rehabilitation treatment plan created
with the assistance of a standardized risk and needs assessment.
The policies and procedures shall include, but not be limited to,
policy and procedures for screening and selecting inmates for
rehabilitation treatment and development and use of standardized
risk and needs assessment tools. An inmate shall not be paroled
solely due to having successfully completed a rehabilitation
treatment plan but completion of all the requirements of a
rehabilitation parole plan along with compliance with the
requirements of subsection (b) of this section shall create a
rebuttable presumption that parole is appropriate. The presumption
created by this subsection may be rebutted by a parole board finding
that at the time parole release is sought the inmate still
constitutes a reasonable risk to the safety or property of other
persons if released. Nothing in subsection (b) of this section or
in this subsection may be construed to create a right to parole.
(i) Notwithstanding the provisions of subsection (b) of this
section, the parole board may, in its discretion, grant or deny
parole to an inmate against whom a detainer is lodged by a
jurisdiction other than West Virginia for service of a sentence of
incarceration, upon a written request for parole from the inmate.
A denial of parole under this subsection shall preclude consideration for a period of one year or until the provisions of
subsection (b) of this section are applicable.
(j) Where an inmate is otherwise eligible for parole pursuant
to subsection (b) of this section but the parole board determines
that the inmate should participate in an additional program or
complete an assigned task or tasks prior to actual release on
parole, the board may grant parole contingently, effective upon
successful completion of the program or assigned task or tasks,
without the need for a further hearing. The Commissioner of
Corrections shall provide notice to the parole board of the imminent
release of a contingently paroled inmate to effectuate appropriate
supervision.
(h) (k) The Division of Corrections is charged with the duty
of supervising all probationers and parolees whose supervision may
have been undertaken by this state by reason of any interstate
compact entered into pursuant to the uniform act for out-of-state
parolee supervision.
(i) (l) (1) When considering an inmate of a state correctional
center for release on parole, the parole board panel considering the
parole is to have before it an authentic copy of or report on the
inmate's current criminal record as provided through the West
Virginia State Police, the United States Department of Justice or
other reliable criminal information sources and written reports of the warden or superintendent of the state correctional center to
which such the inmate is sentenced:
(i) (A) On the inmate's conduct record while in custody,
including a detailed statement showing any and all infractions of
disciplinary rules by the inmate and the nature and extent of
discipline administered therefor;
(ii) (B) On improvement or other changes noted in the inmate's
mental and moral condition while in custody, including a statement
expressive of the inmate's current attitude toward society in
general, toward the judge who sentenced him or her, toward the
prosecuting attorney who prosecuted him or her, toward the policeman
or other officer who arrested the inmate and toward the crime for
which he or she is under sentence and his or her previous criminal
record;
(iii) (C) On the inmate's industrial record while in custody
which shall include: The nature of his or her work, occupation or
education, the average number of hours per day he or she has been
employed or in class while in custody and a recommendation as to the
nature and kinds of employment which he or she is best fitted to
perform and in which the inmate is most likely to succeed when he
or she leaves prison;
(iv) (D) On physical, mental and psychiatric examinations of
the inmate conducted, insofar as practicable, within the two months next preceding parole consideration by the board.
(2) The board panel considering the parole may waive the
requirement of any report when not available or not applicable as
to any inmate considered for parole but, in every such case, shall
enter in the record thereof its reason for the waiver: Provided,
That in the case of an inmate who is incarcerated because the inmate
has been found guilty of, or has pleaded guilty to a felony under
the provisions of section twelve, article eight, chapter sixty-one
of this code or under the provisions of article eight-b or eight-c
of said chapter, the board panel may not waive the report required
by this subsection and the report is to include a study and
diagnosis including an on-going treatment plan requiring active
participation in sexual abuse counseling at an approved mental
health facility or through some other approved program: Provided,
however, That nothing disclosed by the person during the study or
diagnosis may be made available to any law-enforcement agency, or
other party without that person's consent, or admissible in any
court of this state, unless the information disclosed indicates the
intention or plans of the parolee to do harm to any person, animal,
institution or to property. Progress reports of outpatient
treatment are to be made at least every six months to the parole
officer supervising the person. In addition, in such cases, the
parole board shall inform the prosecuting attorney of the county in which the person was convicted of the parole hearing and shall
request that the prosecuting attorney inform the parole board of the
circumstances surrounding a conviction or plea of guilty, plea
bargaining and other background information that might be useful in
its deliberations.
(j) (m) Before releasing any inmate on parole, the board of
parole shall arrange for the inmate to appear in person before a
parole board panel and the panel may examine and interrogate him or
her on any matters pertaining to his or her parole, including
reports before the board made pursuant to the provisions hereof:
Provided, That an inmate may appear by video teleconference if the
members of the panel conducting the examination are able to
contemporaneously see the inmate and hear all of his or her remarks
and if the inmate is able to contemporaneously see each of the
members of the panel conducting the examination and hear all of the
members' remarks. The panel shall reach its own written conclusions
as to the desirability of releasing the inmate on parole and the
majority of the panel considering the release shall concur in the
decision. The warden or superintendent shall furnish all necessary
assistance and cooperate to the fullest extent with the parole
board. All information, records and reports received by the board
are to be kept on permanent file.
(k) (n) The board and its designated agents are at all times to have access to inmates imprisoned in any state correctional
center or in any city, county or regional jail in this state and
shall have the power to may obtain any information or aid necessary
to the performance of its duties from other departments and agencies
of the state or from any political subdivision thereof.
(l) (o) The board shall, if so requested by the Governor,
investigate and consider all applications for pardon, reprieve or
commutation and shall make recommendation thereon to the Governor.
(m) (p) Prior to making a recommendation for pardon, reprieve
or commutation and prior to releasing any inmate on parole, the
board shall notify the sentencing judge and prosecuting attorney at
least ten days before the recommendation or parole.
(n) (q) Any person released on parole shall participate as a
condition of parole in the litter control program of the county to
the extent directed by the board, unless the board specifically
finds that this alternative service would be inappropriate.
(r) Except for the amendments to this section contained in
subdivision (4), subsection (b) and subsection (i) of this section
the amendments to this section enacted during the 2010 regular
session of the legislature shall become effective on January 1,
2011.
;
And,
That the Senate agree to the amendment of the House of Delegates to the title of the bill.
Respectfully submitted,
Corey Palumbo, Chair, Bob Williams, Mike Hall, Conferees on the
part of the Senate.
John R. Frazier, Chair, William R. Wooton, John N. Ellem,
Conferees on the part of the House of Delegates.
On motions of Senator Palumbo, severally made, the report of
the committee of conference was taken up for immediate consideration
and adopted.
Engrossed Committee Substitute for Senate Bill No. 218, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended,
the yeas were: Barnes,
Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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. No. 218) passed with its House of Delegates amended
title.
Ordered, That The Clerk communicate to the House of the
Delegates the action of the Senate and request concurrence therein.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
that that body had receded from its amendments to, and the passage
as amended by deletion, of
Eng. Senate Bill No. 372, Updating language in WV Medical
Practice Act.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the changed effective date to take
effect from passage, of
Eng. Com. Sub. for Senate Bill No. 577, Clarifying definition
of "raffle".
A message from The Clerk of the House of Delegates announced
the adoption by that body of the committee of conference report,
passage as amended by the conference report with its conference
amended title, and requested the concurrence of the Senate in the
adoption thereof, as to
Eng. Com. Sub. for House Bill No. 4166, Expanding the age for
firefighters over thirty-five years of age for persons already
employed by another paid fire department.
Whereupon, Senator Jenkins, from the committee of conference on matters of disagreement between the two houses, as to
Eng. Com. Sub. for House Bill No. 4166, Expanding the age for
firefighters over thirty-five years of age for persons already
employed by another paid fire department.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendment of the Senate to Engrossed Committee
Substitute for House Bill No. 4166 having met, after full and free
conference, have agreed to recommend and do recommend to their
respective houses, as follows:
That both houses recede from their respective positions as to
the amendment of the Senate, striking out everything after the
enacting section, and agree to the same as follows:
ARTICLE 15. FIRE FIGHTING; FIRE COMPANIES AND DEPARTMENTS; CIVIL
SERVICE FOR PAID FIRE DEPARTMENTS.
§8-15-17. Form of application; age and residency requirements;
exceptions.
(a) The Firemen's Civil Service Commission in each municipality
shall require individuals applying for admission to any competitive
examination provided for under the civil service provisions of this
article or under the rules of the commission to file in its office,
within a reasonable time prior to the proposed examination, a formal
application in which the applicant shall state under oath or affirmation:
(1) His or her full name, residence and post-office address;
(2) His or her United States citizenship, age and the place and
date of his or her birth;
(3) His or her state of health, and his or her physical
capacity for the public service;
(4) His or her business and employments and residences for at
least three previous years; and
(5) Any other information as may reasonably be required,
touching upon the applicant's qualifications and fitness for the
public service.
(b) Blank forms for the applications shall be furnished by the
commission, without charge, to all individuals requesting the same.
(c) The commission may require, in connection with the
application, certificates of citizens, physicians and others, having
pertinent knowledge concerning the applicant, as the good of the
service may require.
(d) Except as provided in subsections (e) and (f) of this
section, no application for original appointment shall be received
if the individual applying is less than eighteen years of age or
more than thirty-five years of age at the date of his or her
application: Provided, That,
(e) In the event any applicant formerly served upon the paid fire department of the municipality to which he or she makes
application, for a period of more than one year, and resigned from
the department at a time when there were no charges of misconduct
or other misfeasance pending against the applicant, within a period
of two years next preceding the date of his or her application, and
at the time of his or her application resides within the corporate
limits of the municipality in which the paid fire department to
which he or she seeks appointment by reinstatement is located, then
the individual shall be eligible for appointment by reinstatement
in the discretion of the Firemen's Civil Service Commission, even
though the applicant shall be over the age of thirty-five years, and
the applicant, providing his or her former term of service so
justifies, may be appointed by reinstatement to the paid fire
department without a competitive examination, but the applicant
shall undergo a medical examination; and if the individual shall be
so appointed by reinstatement to the paid fire department, he or she
shall be the lowest in rank in the department next above the
probationers of the department and may not be entitled to seniority
considerations.
(f) If an individual is presently employed by one paid fire
department and is over the age of thirty-five, he or she may make
an application to another paid fire department if:
(1) The paid fire department to which he or she is applying is serving a municipality that has elected to participate in the West
Virginia Municipal Police Officers and Firefighters Retirement
System created in article twenty-two-a, chapter eight of this code:
Provided, That any individual applying pursuant to this subdivision
is to be classified as a new employee for retirement purposes and
no prior employment service can be transferred to the West Virginia
Municipal Police Officers and Firefighters Retirement System; or
(2) The paid fire department to which he or she is applying is
serving a municipality that has elected to participate in the West
Virginia Public Employees Retirement System created in article ten,
chapter five of this code: Provided, That any individual applying
pursuant to this subdivision is to be classified as a new employee
for retirement purposes and no prior employment service can be
transferred to the West Virginia Public Employees Retirement System,
except for individuals and their prior employment service already
credited to them in the West Virginia Public Employees Retirement
System pursuant to article ten, chapter five of this code.
(g) Individuals who are authorized to apply to a paid fire
department pursuant to subsection (f) of this section shall be in
the lowest rank of the department and may not be entitled to
seniority considerations.
(h) Any applicant for original appointment must have been a
resident for one year, during some period of time prior to the date of his or her application, of the municipality in which he or she
seeks to become a member of the paid fire department: Provided,
That if the commission determines it necessary it may consider for
original appointment applicants who are not residents of the
municipality but who have been residents of the county in which the
municipality or any portion of the territory thereof is located for
a period of at least one year.;
And,
That both houses recede from their positions as to the title
of the bill and agree to the same as follows:
Eng. Com. Sub. for House Bill No. 4166--A Bill to
amend and
reenact §8-15-17 of the Code of West Virginia, 1931, as amended,
relating to paid firefighters who seek subsequent employment with
other paid fire departments; authorizing applicants over the age of
thirty-five who seek subsequent employment with a paid fire
department to apply under certain circumstances; and limiting
subsequent hiring or reinstatement effects on seniority
considerations.
Respectfully submitted,
Harold K. Michael, Chair, Bill Hamilton, Doug Skaff, Jr.,
Conferees on the part of the House of Delegates.
Evan H. Jenkins, Chair, Dan Foster, Mike Hall, Conferees on the
part of the Senate.
Senator Jenkins, Senate cochair of the committee of conference,
was recognized to explain the report.
Thereafter, on motion of Senator Jenkins, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for House Bill No. 4166, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were: Barnes,
Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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. No. 4166) passed with its conference amended title.
Ordered, That The Clerk communicate to the House of the
Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate
in the House of Delegates amendments, as to
Eng. Senate Bill No. 41, Relating to community enhancement
districts.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §8A-5-12 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §16-13E-2 and §16-13E-4 of said code
be amended and reenacted; and that said code be amended by adding
thereto a new section, designated §16-13E-10a, all to read as
follows:
CHAPTER 8A. LAND USE PLANNING.
ARTICLE 5. SUBDIVISION OR LAND DEVELOPMENT PLAN AND PLAT.
§8A-5-12. Vested property right.
(a) A vested property right is a right to undertake and
complete the land development. The right is established when the
land development plan and plat is approved by the planning
commission and is only applicable under the terms and conditions of
the approved land development plan and plat.
(b) Failure to abide by the terms and conditions of the
approved land development plan and plat will result in forfeiture of the right.
(c)
Subject to section ten-a, article thirteen-e, chapter
sixteen of this code, the vesting period for an approved land
development plan and plat which creates the vested property right
is five years from the approval of the land development plan and
plat by the planning commission.
(d) Without limiting the time when rights might otherwise vest,
a landowner's rights vest in a land use or development plan and
cannot be affected by a subsequent amendment to a zoning ordinance
or action by the planning commission when the landowner:
(1) Obtains or is the beneficiary of a significant affirmative
governmental act which remains in effect allowing development of a
specific project;
(2) Relies in good faith on the significant affirmative
governmental act; and
(3) Incurs extensive obligations or substantial expenses in
diligent pursuit of the specific project in reliance on the
significant affirmative governmental act.
(e) A vested right is a property right, which cannot be taken
without compensation. A court may award damages against the local
government in favor of the landowner for monetary losses incurred
by the landowner and court costs and attorneys' fees resulting from
the local government's bad faith refusal to recognize that the landowner has obtained vested rights.
(f) Any subdivision or land development plan or plat, whether
recorded or not yet recorded, valid under West Virginia law and
outstanding as of January 1, 2010, shall remain valid until July 1,
2012, or such later date provided for by the terms of the planning
commission or county commission's local ordinance or for a longer
period as agreed to by the planning commission or county commission.
Any other plan or permit associated with the subdivision or land
development plan or plat shall also be extended for the same time
period. Provided, That the land development plan or plat has
received at least preliminary approval by the planning commission
or county commission by March 1, 2010.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 13E. COMMUNITY ENHANCEMENT ACT.
§16-13E-2. Definitions.
For purposes of this article:
(a) "Assessment bonds" means special obligation bonds or notes
issued by a community enhancement district which are payable from
the proceeds of assessments.
(b) "Assessment" means the fee, including interest, paid by the
owner of real property located within a community enhancement
district to pay for the cost of a project or projects constructed
upon or benefitting or protecting such property and administrative expenses related thereto, which fee is in addition to all taxes and
other fees levied on the property.
(c) "Board" means a Community Enhancement Board created
pursuant to this article.
(d) "Code" means the Code of West Virginia, 1931, as amended.
(e) (d) "Community enhancement district" or "district" means
a community enhancement district created pursuant to this article.
(f) (e) "Cost" means the cost of:
(1) Construction, reconstruction, renovation and acquisition
of all lands, structures, real or personal property, rights, rights-
of-way, franchises, easements and interests acquired or to be
acquired by the district;
(2) All machinery and equipment, including machinery and
equipment needed to expand or enhance county or city services to the
district;
(3) Financing charges and interest prior to and during
construction and, if deemed advisable by the district or governing
body, for a limited period after completion of the construction;
(4) Interest and reserves for principal and interest, including
costs of municipal bond insurance and any other type of financial
guaranty;
(5) Costs of issuance in connection with the issuance of
assessment bonds;
(6) The design of extensions, enlargements, additions and
improvements to the facilities of any district;
(7) Architectural, engineering, financial and legal services;
(8) Plans, specifications, studies, surveys and estimates of
costs and revenues;
(9) Administrative expenses necessary or incident to
determining to proceed with any project; and
(10) Other expenses as may be necessary or incident to the
construction, acquisition and financing of a project.
(g) "County commission" means the governing body of a county
as defined in section one, article one, chapter seven of this code.
(f) "Development concept" means the following items, to the
extent set forth or specified in the subject subdivision or land
development plan and plat:
(1) The maximum aggregate number of lots or parcels into which
the subject land is to be subdivided.
(2) The size and boundaries of the individual lots or parcels
into which the subject land is to be subdivided.
(3) The density of the land development.
(4) Designation of use of the individual lots or parcels.
(5) The location of roads, streets, parking lots, sidewalks and
other paved areas.
(6) The location of ingress and egress for the land development.
(7) Setback lines and distances and buildable areas.
(8) The finished layout and grade of the land.
(g) "Development concept vesting period" means the period
commencing upon approval of the subject land development plan and
plat by the planning commission and terminating on the maturity date
of the subject assessment bonds or tax increment financing
obligation. The development concept vesting period pertains only
to the vested property right in a development concept that is
established upon approval by the planning commission of a land
development plan and plat in which a development concept is set
forth or specified.
(h) "Five-year vesting period" means the five-year vesting
period for an approved land development plan and plat provided under
subsection (c), section twelve, article five, chapter eight-a of
this code.
(h) (i) "Governing body" means, in the case of a county, the
county commission and in the case of a municipality, the mayor and
council together, the council or the board of directors as charged
with the responsibility of enacting ordinances and determining the
public policy of such municipality.
(i) (j) "Governmental agency" means the state government or any
agency, department, division or unit thereof; counties; municipalities; any watershed enhancement districts, soil
conservation districts, sanitary districts, public service
districts, drainage districts, school districts, urban renewal
authorities or regional governmental authorities established
pursuant to this code.
(j) "Municipality" means a municipality as defined in section
two, article one, chapter eight of this code.
(k) "Person" means an individual, firm, partnership,
corporation, voluntary association or any other type of entity.
(l) "Project" means the design, construction, reconstruction,
establishment, acquisition, improvement, renovation, extension,
enlargement, equipping, maintenance, repair (including replacements)
and start-up operation of water source of supply, treatment,
transmission and distribution facilities, sewage treatment,
collection and transmission facilities, stormwater systems, police
stations, fire stations, libraries, museums, schools, other public
buildings, hospitals, piers, docks, terminals, drainage systems,
culverts, streets, roads, bridges (including approaches, causeways,
viaducts, underpasses and connecting roadways), motor vehicle
parking facilities (including parking lots, buildings, ramps,
curb-line parking, meters and other facilities deemed necessary,
appropriate, useful, convenient or incidental to the regulation,
control and parking of motor vehicles), public transportation, public recreation centers, public recreation parks, swimming pools,
tennis courts, golf courses, equine facilities, motor vehicle
competition and recreational facilities, flood protection or relief
projects, or the grading, regrading, paving, repaving, surfacing,
resurfacing, curbing, recurbing, widening, lighting or otherwise
improving any street, avenue, road, highway, alley or way, or the
building or renewing of sidewalks and flood protection; and the
terms shall mean and include any project as a whole, and all
integral parts thereof, including all necessary, appropriate,
useful, convenient or incidental appurtenances and equipment in
connection with any one or more of the above.
§16-13E-4. Petition for creation or expansion of community
enhancement district; petition requirements.
(a) The owners of at least sixty-one percent of the real
property, determined by acreage, located within the boundaries of
the area described in the petition, by metes and bounds or otherwise
in a manner sufficient to describe the area, may petition a
governing body to create or expand a community enhancement district.
(b) The petition for the creation or expansion of a community
enhancement district shall include, where applicable, the following:
(1) The proposed name and proposed boundaries of such district
and a list of the names and addresses of all owners of real property
within the proposed district;
(2) A detailed project description;
(3) A map showing the proposed project, including all proposed
improvements;
(4) A list of estimated project costs and the preliminary plans
and specifications for such improvements, if available;
(5) A list of nonproject costs and how they will be financed;
(6) A consultant study outlining the projected assessments,
setting forth the methodology for determining the assessments and
the methodology for allocating portions of an initial assessment
against a parcel expected to be subdivided in the future to the
various lots into which the parcel will be subdivided and
demonstrating that such assessments will adequately cover any debt
service on bonds issued to finance the project and ongoing
administrative costs;
(7) A development schedule;
(8) A list of recommended members for the board;
(9) If the project includes water, wastewater or sewer
improvements, written evidence from the utility or utilities that
will provide service to the district, if any, that said utility or
utilities:
(A) Currently has adequate capacity to provide service without
significant upgrades or modifications to its treatment, storage or
source of supply facilities,
except facilities which the community enhancement district will provide as described in the petition;
(B) Will review and approve all plans and specifications for
the improvements to determine that the improvements conform to the
utility's reasonable requirements and, if the improvement consists
of water transmission or distribution facilities, that the
improvements provide for adequate fire protection for the district;
and
(C) If built in conformance with said plans and specifications,
will accept the improvements following their completion, unless such
projects are to be owned by the district;
(10) If the project includes improvements other than as set
forth in subdivision (9) of this subsection that will be transferred
to another governmental agency, written evidence that such agency
will accept such transfer, unless such projects are to be owned by
the district;
(11) The benefits that can be expected from the creation of the
district and the project; and
(12) A certification from each owner of real property within
the proposed district who joins in the petition that he or she is
granting an assessment against his or her property in such an amount
as to pay for the costs of the project and granting a lien for said
amount upon said property enforceable in accordance with
the
provisions of this article.
(c) After reviewing the petition presented pursuant to this
section, the governing body may by order or ordinance determine the
necessity and economic feasibility of creating a community
enhancement district and developing, constructing, acquiring,
improving or extending a project therein. If the governing body
determines that the creation of a community enhancement district and
construction of the project is necessary and economically feasible,
it shall set a date for the public meeting required under section
five of this article and shall cause the petition to be filed with
the clerk of the county commission or the clerk or recorder of the
municipality, as the case may be, and be made available for
inspection by interested persons before the meeting.
(d) Notwithstanding any other
contrary provision of this
article,
to the contrary nothing in this article shall modify:
(1) The jurisdiction of the Public Service Commission to
determine the convenience and necessity of the construction of
utility facilities, to resolve disputes between utilities relating
to which utility should provide service to a district or otherwise
to regulate the orderly development of utility infrastructure in the
state; or
(2) The authority of the Infrastructure and Jobs Development
Council as to the funding of utility facilities to the extent that
loans, loan guarantees, grants or other funding assistance from a state infrastructure agency are involved.
§16-13E-10a. Extension of vesting period for land development
plans and plats; approval of phases.
(a) The five-year vesting period is extended to the development
concept vesting period with respect to the development concept if:
(i) The land development will be wholly contained within a community
enhancement district; and (ii) either:
(A) Such community enhancement district has been created and
is in existence, and such facts have been communicated to the
planning commission, at the time the planning commission approves
the subject land development plan and plat (whether such plan and
plat is denominated final, preliminary, phased preliminary, concept
or otherwise); or
(B) Such community enhancement district is created after the
initial approval of the subject land development plan and plat and
the planning commission subsequently ratifies the approval of such
plan and plat with the knowledge of the existence of the community
enhancement district; and (iii) assessment bonds or tax increment
financing obligations payable from or secured by, in whole, or in
part, assessments against real property located within the district
are issued within the five-year vesting period.
(b) Nothing herein shall be deemed to extend or otherwise
modify the five-year vesting period with respect to items other than those included in the development concept.
(c) When a land development will be wholly contained within a
community enhancement district, a land development plan and plat
that otherwise pertains to and seeks approval of only a portion or
phase of the land development may also contain the development
concept for a greater portion, multiple phases or the entirety of
the land development if the plan and plat expressly so provides.
Approval of a land development plan and plat by the planning
commission constitutes approval of, and the establishment of a
vested property right in, the entire development concept contained
in the land development plan and plat.
(d) This section shall apply to all community enhancement
districts, regardless of whether created prior or subsequent to
enactment of this section.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 41--A Bill to amend and reenact §8A-5-12
of the Code of West Virginia, 1931, as amended; to amend and reenact
§16-13E-2 and §16-13E-4 of said code; and to amend said code by
adding thereto a new section, designated §16-13E-10a, all relating
to generally to subdivision or land development plans or plats;
extending the vesting period for certain subdivision or land development plans and plats; providing definitions relating to the
development of community enhancement districts; and excepting from
a utility's submission relating to petitions for the creation of a
district the capacity of the district to provide its own utility
services.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 41, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 41) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect July 1, 2010, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 70, Relating to
municipalities and counties issuing bonds.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §11-8-6e of the Code of West Virginia, 1931, as amended,
be amended and reenacted, to read as follows:
ARTICLE 8. LEVIES.
§11-8-6e. Effect on regular levy rate when appraisal results in
tax increase; public hearings.
(a) Notwithstanding any other provision of law, where any
annual appraisal, triennial appraisal or general valuation of
property would produce an assessment that would cause an increase
of one percent or more in the total projected property tax revenues
that would be realized were the then current regular levy rates by
the county commission and the municipalities to be imposed, the rate of levy shall be reduced proportionately as between the county
commission and the municipalities and for all classes of property
for the forthcoming tax year so as to cause such rate of levy to
produce no more than one hundred one percent of the previous year's
projected property tax revenues from extending the county commission
and municipality levy rates, unless there has been compliance with
subsection (c) of this section.
An additional appraisal or valuation due to new construction
or improvements to existing real property, including beginning
recovery of natural resources, and newly acquired personal property
shall not be an annual appraisal or general valuation within the
meaning of this section, nor shall the assessed value of such
improvements be included in calculating the new tax levy for
purposes of this section. Special levies shall not be included in
the reduced levy calculation set forth in subsection (b) of this
section.
(b) The reduced rates of levy shall be calculated in the
following manner:
(1) The total assessed value of each class of property as it
is defined by section five, article eight of this chapter for the
assessment period just concluded shall be reduced by deducting the
total assessed value of newly created properties not assessed in the
previous year's tax book for each class of property;
(2) The resulting net assessed value of Class I property shall
be multiplied by .01; the value of Class II by .02; and the values
of Class III and IV, each by .04;
(3) Total the current year's property tax revenue resulting
from regular levies for each county commission and municipality and
multiply the resulting sum by one hundred one percent: Provided,
That the one hundred one percent figure shall be increased by the
amount the county's or municipality's increased levy provided for
in subsection (b), section eight, article one-c of this chapter;
(4) Divide the total regular levy tax revenues, thus increased
in subdivision (3) of this subsection, by the total weighted net
assessed value as calculated in subdivision (2) of this subsection
and multiply the resulting product by one hundred; the resulting
number is the Class I regular levy rate, stated as cents-per-one
hundred dollars of assessed value;
(5) The Class II rate is two times the Class I rate; Classes
III and IV, four times the Class I rate as calculated in the
preceding subdivision.
(c) The governing body of a county or municipality may, after
conducting a public hearing, which may be held at the same time and
place as the annual budget hearing, increase the rate above the
reduced rate required in this section if any such increase is deemed
to be necessary by such governing body: Provided, That in no event shall the governing body of a county or municipality increase the
rate above the reduced rate required by subsection (b) of this
section for any single year in a manner which would cause total
property tax revenues accruing to the governing body of the county
or municipality, excepting additional revenue attributable to
assessed valuations of newly created properties not assessed in the
previous year's tax book for each class of property, to exceed by
more than ten percent those property tax revenues received by the
governing body of the county or municipality for the next preceding
year: Provided, however, That this provision shall not restrict the
ability of a county or municipality to enact excess levies as
authorized under existing statutory or constitutional provisions:
Provided further, That this provision does not restrict the ability
of a county or municipality to issue bonds and enact sufficient
levies to pay for such bonds pursuant to article one, chapter
thirteen of this code when such issuance has been approved by an
election administered pursuant to that article.
Notice of the public hearing and the meeting in which the levy
rate shall be on the agenda shall be given at least seven days
before the date for each public hearing by the publication of a
notice in at least one newspaper of general circulation in such
county or municipality: Provided, That a Class IV town or village
as defined in section two, article one, chapter eight of this code, in lieu of the publication notice required by this subsection, may
post no less than four notices of each public hearing, which posted
notices shall contain the information required by the publication
notice and which shall be in available, visible locations including
the town hall. The notice shall be at least the size of one-eighth
page of a standard size newspaper or one-fourth page of a tabloid-
size newspaper and the headline in the advertisement shall be in a
type no smaller than twenty-four point. The publication notice
shall be placed outside that portion, if any, of the newspaper
reserved for legal notices and classified advertisements and shall
also be published as a Class II-O legal advertisement in accordance
with the provisions of article three, chapter fifty-nine of this
code. The publication area is the county. The notice shall be in
the following form and contain the following information, in
addition to such other information as the local governing body may
elect to include:
NOTICE OF PROPOSED TAX INCREASE.
The (name of the county or municipality) proposes to increase
property tax levies.
1. Appraisal/Assessment Increase: Total assessed value of
property, excluding additional assessments due to new or improved
property, exceeds last year's total assessed value of property by
..... percent.
2. Lowered Rate Necessary to Offset Increased Assessment: The
tax rate which would levy the same amount of property tax as last
year, when multiplied by the new total assessed value of property
with the exclusions mentioned above, would be $..... per $100 of
assessed value for Class I property, $..... per $100 of assessed
value for Class II property, $..... per $100 of assessed value for
Class III and $..... per $100 of assessed value for Class IV
property. These rates will be known as the "lowered tax rates".
3. Effective Rate Increase: The (name of the county or
municipality) proposes to adopt a tax rate of $..... per $100 of
assessed value for Class I property, $..... per $100 of assessed
value for Class II property, $..... per $100 of assessed value for
Class III property and $..... per $100 of assessed value for Class
IV property. The difference between the lowered tax rates and the
proposed rates would be $..... per $100, or ..... percent for Class
I; $..... per $100, or ..... percent for Class II; $..... per $100,
or ..... percent for Class III and $..... per $100, or ..... percent
for Class IV. These differences will be known as the "effective tax
rate increases".
Individual property taxes may, however, increase at a
percentage greater than or less than the above percentage.
4. Revenue produced last year: $.....
5. Revenue projected under the effective rate increases: $.....
6. Revenue projected from new property or improvements: $.....
7. General areas in which new revenue is to be allocated: A
public hearing on the increases will be held on (date and time) at
(meeting place). A decision regarding the rate increase will be
made on (date and time) at (meeting place).
(d) All hearings are open to the public. The governing body
shall permit persons desiring to be heard an opportunity to present
oral testimony within such reasonable time limits as are determined
by the governing body.
(e) This section shall be effective as to any regular levy rate
imposed by the county commission or a municipality for taxes due and
payable on or after July 1, 1991. If any provision of this section
is held invalid,
such the invalidity
shall does not affect other
provisions or applications of this section which can be given effect
without the invalid provision or its application and to this end the
provisions of this section are declared to be severable.
;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 70--A Bill to amend and
reenact §11-8-6e of the Code of West Virginia, 1931, as amended,
relating to the clarification in the code that a municipality or county issuing bonds approved by an election pursuant to article
one, chapter thirteen of said code is not subject to the restriction
described in subsection (c), section six-e, article eight, chapter
eleven of said code.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 70, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 S. B. No. 70) passed with its House of Delegates amended
title.
Senator Chafin moved that the bill take effect July 1, 2010.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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. No. 70) takes effect July 1, 2010.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate
in the House of Delegates amendments, as to
Eng. Senate Bill No. 122, Increasing mental health treatment
refusal age of consent.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 4. VOLUNTARY HOSPITALIZATION.
§27-4-1. Authority to receive voluntary patients.
The chief medical officer of a mental health facility, subject to
the availability of suitable accommodations and to the rules and
regulations promulgated by the board of health, shall admit for
diagnosis, care and treatment any individual:
(a) Over eighteen years of age who is mentally ill, mentally
retarded intellectually disabled or addicted or who has manifested
symptoms of mental illness, mental retardation intellectually
disabled or addiction and who makes application for hospitalization;
or
(b) Under eighteen years of age who is mentally ill, mentally
retarded intellectually disabled or addicted or who has manifested
symptoms of mental illness, mental retardation intellectual
disability or addiction and there is application for hospitalization
therefor in his or her behalf: (1) By the parents of such person;
or (2) if only one parent is living, then by such parent; or (3) if
the parents are living separate and apart, by the parent who has the
custody of such person; or (4) if there is a guardian who has
custody of such person, then by such guardian. Such admission shall
be conditioned upon the consent of the prospective patient if he is
twelve years of age or over or she is an emancipated minor.
(c) No person under eighteen years of age shall be admitted under this section to any state hospital unless said person has first been
reviewed and evaluated by a local mental health facility and
recommended for admission.
(d) If the candidate for voluntary admission is a minor who is
fourteen years of age or older, the admitting health care facility
shall determine if the minor consents to or objects to his or her
admission to the facility. If the parent or guardian who requested
the minor's admission under this section revokes his or her consent
at any time, or if the minor fourteen years of age or older objects
at any time to his or her further treatment, the minor shall be
discharged within ninety-six hours to the custody of the consenting
parent or guardian, unless the chief medical officer of the mental
health facility files a petition for involuntary hospitalization,
pursuant to the provisions of section three of this article, or the
minor's continued hospitalization is authorized as an involuntary
hospitalization pursuant to the provisions of article five of this
chapter: Provided, That, if the ninety-six hour time period would
result in the minor being discharged and released on a Saturday, a
Sunday or a holiday on which the court is closed, the period of time
in which the patient shall be released by the facility shall be
extended until the next day which is not a Saturday, Sunday or legal
holiday on which the court is lawfully closed.
(e) Nothing in this section may be construed to obligate the State of West Virginia for costs of voluntary hospitalizations permitted
by the provisions of this section.
(f) Any provider must release an unemancipated minor's drug
addiction and treatment records to a parent or legal guardian
without the unemancipated minor's written consent.
§27-4-3. Right to release on application.
A voluntary patient who requests his or her release or whose release
is requested in writing by his or her parents, parent, guardian,
spouse or adult next of kin shall be released forthwith except that:
(a) If the patient was admitted on his or her own application, and
request for release is made by a person other than the patient,
release shall be conditioned upon the agreement of the patient
thereto;
(b) If the patient is under twelve eighteen years of age, his or her
release prior to becoming twelve eighteen years of age may be
conditioned upon the consent of the person or persons who applied
for his or her admission; or
(c) If, within ninety-six hours of the receipt of the request, the
chief medical officer of the mental health facility in which the
patient is hospitalized files with the clerk of the circuit court
or mental hygiene commissioner of the county where the facility is
situated an application for involuntary hospitalization as provided
in section four, article five of this chapter, release may be postponed for twenty days pending a finding in accordance with the
legal proceedings prescribed therein.
Legal proceedings for involuntary hospitalization shall not be
commenced with respect to a voluntary patient unless release of the
patient has been requested by him or her or the individual or
individuals who applied for his or her admission.;
And,
By striking out the title and substituting therefor a new title, to
read as follows:
Eng. Senate Bill No. 122--A Bill
to
amend and reenact §27-4-1 and
§27-4-3 of the Code of West Virginia, 1931, as amended, all relating
to the voluntary hospitalization at mental health facilities;
relating to the voluntary admission of minors into a mental health
facility for mental illness, intellectual disability or addiction;
removing the requirement that the minor's consent be secured before
they are voluntarily admitted to a mental health facility if the
minor is twelve years of age or older; requiring the consent or an
emancipated minor before he or she is voluntarily committed;
providing that the release of any minor from a voluntary
hospitalization may be conditioned on the approval of the person or
persons who applied for their admission; clarifying that the state
is not obligated to pay for voluntary hospitalization; and requiring
a provider to release an unemancipated minor's drug addiction and treatment records to a parent or legal guardian without the
unemancipated minor's written consent.
On motion of Senator Chafin, the Senate concurred in the House of
Delegates amendments to the bill.
Engrossed Senate Bill No. 122, as amended by the House of Delegates,
was then put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members elected to the Senate having voted
in the affirmative, the President declared the bill (Eng. S. B. No.
122) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the
action of the Senate.
A message from The Clerk of the House of Delegates announced the
amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate
in the House of Delegates amendments, as to
Eng. Senate Bill No. 169, Relating to Economic Development Authority
loans' criteria.
On motion of Senator Chafin, the message on the bill was taken up
for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page twelve, section four, lines ninety-four and ninety-five, by
striking out the following: The State Director of Tourism may
designate the project as eligible.;
On page twelve, after section four, by striking out all of section
twelve-b and inserting in lieu thereof a new section twelve-b, to
read as follows:
§31-15-12b. Tourism projects; criteria for loans.
Notwithstanding any other provision of this article to the contrary,
in developing criteria for loans to a tourism project under this
article, the authority shall consider many factors including, but
not limited to, whether any specific number of jobs are or will be
created by the project, whether any existing jobs or jobs to be
created by the project are to meet any specific compensation levels,
or whether any existing jobs or jobs to be created by the project
provide any specific employee benefits: Provided, That no tourism
project may be denied a loan for the sole reason that a specific
number of jobs will not be created by the project or that existing jobs or jobs to be created by the project will not meet specific
compensation levels or offer any specific employee benefits. Any
criteria for a loan application for a tourism project under this
article shall include a requirement that the applicant provide a
jobs impact statement with information as required by the
authority.
;
And,
By striking out the title and substituting therefor a new title, to
read as follows:
Eng. Senate Bill No. 169--A Bill to amend and reenact §31-15-2 and
§31-15-4 of the Code of West Virginia, 1931, as amended; and to
amend said code by adding thereto a new section, designated
§31-15-12b, all relating to the West Virginia Economic Development
Authority; adding legislative findings; defining terms; and
providing requirements for loan criteria for loans to tourism
projects.
On motion of Senator Chafin, the Senate concurred in the House of
Delegates amendments to the bill.
Engrossed Senate Bill No. 169, as amended by the House of Delegates,
was then put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members elected to the Senate having voted
in the affirmative, the President declared the bill (Eng. S. B. No.
169) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the
action of the Senate.
A message from The Clerk of the House of Delegates announced the
amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate
in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 232, Transferring certain
requirements for redeeming delinquent land sales from county clerks
to State Auditor.
On motion of Senator Chafin, the message on the bill was taken up
for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page three, section five-a, line five, after the word "twenty-
eight," by inserting the word "twenty-nine" and a comma;
On page three, section five-b, line six, after the word "twenty-
eight," by inserting the word "twenty-nine" and a comma;
On page five, section five-b, line thirty-four, after the word
"twenty-eight," by inserting the word "twenty-nine" and a comma;
On page twelve, section fifteen, line eight, after the word "for"
by inserting the words "an assignment of a";
On page fourteen, section nineteen, after line nine, by inserting
a new subdivision, designated subdivision (2), to read as follows:
"(2) When the real property subject to the tax lien is classified
as Class II property, provide the State Auditor with the physical
mailing address of the property that is subject to the tax lien or
liens purchased;";
And renumbering the remaining subdivisions;
On page twenty-one, section twenty-two, after line thirty-four, by
adding the following:
In addition to the other notice requirements set forth in this
section, if the real property subject to the tax lien was classified
as Class II property at the time of the assessment, at the same time
the State Auditor issues the required notices by certified mail, the
State Auditor shall forward a copy of the notice sent to the
delinquent taxpayer by first class mail, addressed to "Occupant",
to the physical mailing address for the subject property. The
physical mailing address for the subject property shall be supplied by the purchaser of the tax lien pursuant to the provisions of
section nineteen of this article.;
On page twenty-three, section twenty-three, line twenty-three, by
striking out the words "and certifies";
On page twenty-five, section twenty-three, line seventy-five, by
striking out the word "to";
On page twenty-seven, section twenty-four, lines twenty-one and
twenty-two, by striking out the words "and certified";
On page twenty-nine, section twenty-five, line thirty-six, by
striking out the words "is $300" and inserting in lieu thereof the
words "shall not exceed the amount actually incurred by the
purchaser or $300, whichever is less";
On page thirty-one, section twenty-five, line eighty-two, by
striking out the word "purchaser" and inserting in lieu thereof the
words "person redeeming";
On page thirty-three, section twenty-seven, lines two and three, by
striking out the words "but in no event prior to" and inserting in
lieu thereof the words "then from";
On page thirty-three, section twenty-seven, lines four and five,
after the word "sale" by striking out the comma and the words "but
prior to" and inserting in lieu thereof the word "until";
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 232--A Bill to amend the Code of
West Virginia, 1931, as amended, by adding thereto two new sections,
designated §11A-3-5a and §11A-3-5b; and to amend and reenact §11A-3-
6, §11A-3-8, §11A-3-9, §11A-3-11, §11A-3-14, §11A-3-15, §11A-3-16,
§11A-3-18, §11A-3-19, §11A-3-20, §11A-3-21, §11A-3-22, §11A-3-23,
§11A-3-24, §11A-3-25, §11A-3-26, §11A-3-27, §11A-3-28, §11A-3-29,
§11A-3-30, §11A-3-31 and §11A-3-32 of said code, all relating to
delinquent land sales by the sheriff generally; authorizing the
auditor to perform certain duties related to delinquent land sales
by the sheriff instead of being performed by the clerk of the county
commission; permitting county commissions to order that the county
clerk will continue to perform the duties related to delinquent land
sales by the sheriff; requiring the mailing of a notice to redeem
to the physical mailing address for the subject property;
prohibiting certain assistants from purchasing tax liens; requiring
certification of real estate by the sheriff to the auditor where the
highest bidder bids at least the amount of taxes, interest and
charges for which a tax lien is offered for sale; requiring notice
to the purchaser of the requirement to secure a deed; increasing
maximum reimbursable amount for certain legal services; requiring
that a person redeeming be given a copy of the written opinion or
report used for the preparation of the list of those to be served with notice; authorizing the county clerk to accept and write a
receipt for payment made to redeem delinquent lands on behalf of the
auditor; requiring that certain reimbursements to purchasers must
be for legal services actually performed; enlarging the time within
which a quitclaim deed must be delivered; authorizing the auditor
to appoint designees; and establishing and increasing fees for
services provided.
On motion of Senator Chafin, the Senate concurred in the House of
Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 232, as amended
by the House of Delegates, was then put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 S. B. No. 232) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the
amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 236, Creating
Aquaculture Development Act.
On motion of Senator Chafin, the message on the bill was taken up
for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page six, section five, line fourteen, by striking out the word
"and";
On page six, section five, after line fourteen, by adding a new
subdivision, designated subdivision (6), to read as follows:
"(6) A representative from the West Virginia State University
Extension Service; and";
And,
By renumbering the remaining subdivision.
On motion of Senator Chafin, the Senate refused to concur in the
foregoing House amendments to the bill (Eng. Com. Sub. for Com. Sub.
for S. B. No. 236) and requested the House of Delegates to recede
therefrom.
Ordered, That The Clerk communicate to the House of Delegates the
action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced the
amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate
in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 238, Relating to mineral rights'
benefits.
On motion of Senator Chafin, the message on the bill was taken up
for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page eight, section three, line one hundred twenty-four, by
striking out the word "The" and inserting in lieu thereof the words
"Except as otherwise provided by law, when the corporation exercises
its powers, the";
And,
By striking out the title and substituting therefor a new title, to
read as follows:
Eng. Com. Sub. for Senate Bill No. 238--A Bill
to amend and reenact
§5A-11-3 and §5A-11-6 of the Code of West Virginia, 1931, as
amended, all relating to management of state lands; authorizing the
use of mineral rights to benefit state agencies, institutions or departments; providing that the royalties and payments from land
sales and exchanges made by the Adjutant General's Department be
retained in the fund managed by the Adjutant General; and providing
an exemption for providing a performance bond when an agency is
entering into a mineral lease.
On motion of Senator Chafin, the Senate concurred in the House of
Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 238, as amended
by the House of Delegates, was then put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 S. B. No. 238) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the
action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body to the title of the bill, passage as amended,
and requested the concurrence of the Senate in the House of
Delegates amendment, as to
Eng. Senate Bill No. 350, Recategorizing recycled energy as
renewable energy resource.
On motion of Senator Chafin, the message on the bill was taken up
for immediate consideration.
The following House of Delegates amendment to the title of the bill
was reported by the Clerk:
Eng. Senate Bill No. 350--A Bill to amend and reenact §24-2F-3 of
the Code of West Virginia, 1931, as amended, relating to definitions
used in the alternative and renewable energy portfolio standard;
recategorizing recycled energy as a renewable energy resource for
the purposes of purchasing energy resource credits; and removing
restriction that ethanol be produced from sources other than corn
in order to be a renewable energy resource.
On motion of Senator Chafin, the Senate concurred in the House of
Delegates amendment to the title of the bill.
Engrossed Senate Bill No. 350, as amended by the House of Delegates,
was then put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members elected to the Senate having voted
in the affirmative, the President declared the bill (Eng. S. B. No.
350) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the
action of the Senate.
A message from The Clerk of the House of Delegates announced the
amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate
in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 352, Creating WV Community
Empowerment Transportation Act.
On motion of Senator Chafin, the message on the bill was taken up
for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page nine, section forty-seven
, line fifty, by striking out the
word "shall" and inserting in lieu thereof the word "may";
On page nine, section forty-seven
, line fifty-five, by striking out the word "minimum" and inserting in lieu thereof the word "maximum";
On page nine, section forty-seven, line fifty-five, after the word
"years" by changing the period to a colon and adding the following
proviso:
Provided, That no bond shall be required for any
residential development consisting of one hundred homes or less.
;
On page twelve, section forty-nine, by striking out all of lines
forty-eight through fifty and inserting in lieu thereof the
following: When such changes require construction, reconstruction
or repair, such work shall be done at state expense as any other
construction, reconstruction or repair.;
On page twenty-seven, section four, lines one hundred thirty-three
through one hundred thirty-six, by striking out all of subsection
(i) and inserting in lieu thereof a new subsection (i), to read as
follows:
(i) All documents maintained pursuant to this article shall be
subject to the requirements of chapter twenty-nine-b of this code.;
And,
By striking out the title and substituting therefor a new title, to
read as follows:
Eng. Com. Sub. for Senate Bill No. 352--A Bill to amend and reenact
§13-1-2 of the Code of West Virginia, 1931, as amended; to amend and
reenact §17-4-47 and §17-4-49 of said code; and to amend said code
by adding thereto a new article, designated §17-28-1, §17-28-2, §17-28-3, §17-28-4, §17-28-5, §17-28-6, §17-28-7, §17-28-8,
§17-28-9, §17-28-10, §17-28-11 and §17-28-12, all relating generally
to the creation of the West Virginia Community Empowerment
Transportation Act; authorizing county commissions to issue general
obligation bonds for acquiring, maintaining, improving public roads
and transportation facilities; giving counties authority to impose,
administer, collect and enforce payment of voter-approved user fees
to pay for or finance cost of transportation projects within their
counties; defining certain terms; giving county commissions
authority to issue special revenue bonds to finance transportation
projects and including authority to issue refunding bonds; giving
authority to take other actions to finance and complete
transportation projects; authorizing the Commissioner of Highways
to establish procedures relating to review of transportation
projects; making legislative findings; stating legislative purpose;
requiring certain governmental entities seeking state funds for
transportation projects to submit a transportation project plan to
Commissioner of Highways; setting forth transportation project plan
requirements; setting forth conditions for approval by the
Commissioner of Highways; providing notice, advertisement and
election requirements for user fees; providing for a comprehensive
agreement for a transportation facility between the sponsoring
governmental entity and the Division of Highways; establishing the requirements for qualifying a transportation facility as a public
improvement; authorizing information sharing; requiring a bond
covering the division for improvements to highway facilities
required as a result of development; providing that transportation
projects are awarded by competitive bidding and subject to
prevailing wages; authorizing municipal utilities and public service
districts to include into rates costs borne by the utility in
contributing moneys or dedicate revenue to transportation project
costs; and regulating access from properties to and from state
roads.
On motion of Senator Chafin, the Senate concurred in the House of
Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 352, as amended
by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 S. B. No. 352) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the
action of the Senate.
A message from The Clerk of the House of Delegates announced the
amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 394, Authorizing
DMV use certain program to identify uninsured vehicles.
On motion of Senator Chafin, the message on the bill was taken up
for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page twelve, section two, by striking out all of lines eight
through thirteen and inserting in lieu thereof the following:
For the purposes of this article, commercial auto coverage is
defined as any coverage provided to an insured, regardless of number
of vehicles or entity covered, under a commercial coverage form and
rated from a commercial manual approved by the Department of
Insurance. This article shall not apply to vehicles insured under
commercial auto coverage; however, insurers of such vehicles may
participate on a voluntary basis.;
On page eighteen, section six-a, line forty-seven, by striking out
"(d)" and inserting in lieu thereof "(e)";
On page twenty, section six-a, line seventy-eight, by striking out
"(e)" and inserting in lieu thereof "(f)";
On page twenty, section six-a, line eighty-seven, by striking out
the word "nine" and inserting in lieu thereof the word "eighteen";
On page twenty-one, section six-a, line one hundred seven, by
striking out "(d)" and inserting in lieu thereof "(g)";
And,
On page twenty-two, section six-a, line one hundred fifteen, by
striking out "(f)" and inserting in lieu thereof "(h)";
On motion of Senator Chafin, the Senate concurred in the House of
Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for Senate
Bill No. 394, as amended by the House of Delegates, was then put
upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 Com. Sub. for S. B. No. 394) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the
action of the Senate.
A message from The Clerk of the House of Delegates announced the
amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate
in the House of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 396, Updating
commercial driver's license requirements.
On motion of Senator Chafin, the message on the bill was taken up
for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and inserting
in lieu thereof the following:
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 2. ISSUANCE OF LICENSE, EXPIRATION AND RENEWAL.
§17B-2-1a. Surrender of license from other state or jurisdiction
prior to receipt of license from this state;
examination; fees required.
(a) The Division of Motor Vehicles
shall may not issue a
driver's license to a person who holds a valid license to operate
a motor vehicle issued by another state or jurisdiction
subject to
a reciprocal agreement governing the licensing of drivers operating
commercial motor vehicles or party to a reciprocal driver's license
exchange agreement with this state unless or until the applicant
shall surrender surrenders to the division the foreign license, or
the person has signed and submitted to the division an affidavit to
the effect that the person has surrendered all valid licenses issued
to him or her by other states or jurisdictions. Any surrendered
license issued by any other state or jurisdiction shall be destroyed
or at the discretion of the division retained by the division and
the division shall notify the original state of licensure that the
person who surrendered the license has been licensed in this state.
It
shall be is unlawful for a person to possess more than one valid
driver's license at any time.
(b) Every driver shall, within thirty days after taking up
residence in this state, apply to the division for a driver's
license as prescribed in this article. For the purposes of this
chapter the presumption that a natural person is a resident of this
state is based on the provisions of section one-a, article three,
chapter seventeen-a of this code. The division may assign the
driver's license class, type, endorsements or restrictions based on the applicant's prior licensing status, age and the type of
licensing system used by the state of prior licensing.
(c) All other applicable provisions of this article relating
to issuance, fees, expiration and renewal of licenses, and driver
examination of applicants
shall also apply to this section.
§17B-2-4. Persons prohibited from driving school buses or
transporting persons or property for compensation.
No person
who is under the age of eighteen years and no person who
has been convicted of an offense described in section two, article
five, chapter seventeen-c of this code, and which conviction has
become final shall may drive any school bus transporting school
children or any motor vehicle when in use for the transportation of
persons or property for compensation nor in either event until
such
the person has been licensed as a Class A, B, C or D driver for
either
such purpose and the license so indicates
and until he or she
is in compliance with the provisions of chapter seventeen-e of this
code and rules promulgated by the State Board of Education, if
applicable.
§17B-2-5a. Training, certification and monitoring of license
examiners.
(a) The commissioner shall train, certify and monitor those
employees of the Division of Motor Vehicles designated by the
commissioner as license examiners regarding the administration of licensing application and testing procedures for the
purpose of ensuring compliance with statutory and regulatory
requirements.
(b) In order to determine an applicant's suitability for
employment, the commissioner shall require every applicant
for a
license examiner position or employee who is or may be in a position
involved in the examination, processing or issuance of a driver's
license or identification card, or who would have access to affect
any document or record related to an applicant or holder of a
driver's license or identification to furnish a full set of
fingerprints to facilitate a criminal background check of the
applicant. The commissioner shall submit the fingerprints to the
state Criminal Identification Bureau along with the applicant's
identifying information. Prior to hiring a prospective applicant
the commissioner shall request that the State Police submit the
fingerprints and identifying information to the Federal Bureau of
Investigation for a national criminal history record check and that
the commissioner may not hire the prospective applicant until the
results of the national background check are available for
evaluation.
CHAPTER 17E. UNIFORM COMMERCIAL DRIVER'S LICENSE ACT.
ARTICLE 1. COMMERCIAL DRIVER'S LICENSE.
§17E-1-3. Definitions.
Notwithstanding any other provision of this code, the following
definitions apply to this article:
(1) "Alcohol" means:
(A) Any substance containing any form of alcohol, including,
but not limited to, ethanol, methanol, propenyl and isopropanol;
(B) Beer, ale, port or stout and other similar fermented
beverages (including sake or similar products) of any name or
description containing one half of one percent or more of alcohol
by volume, brewed or produced from malt, wholly or in part, or from
any substitute for malt;
(C) Distilled spirits or that substance known as ethyl alcohol,
ethanol or spirits of wine in any form (including all dilutions and
mixtures thereof from whatever source or by whatever process
produced); or
(D) Wine of not less than one half of one percent of alcohol
by volume.
(2) "Alcohol concentration" means:
(A) The number of grams of alcohol per one hundred milliliters
of blood;
(B) The number of grams of alcohol per two hundred ten liters
of breath; or
(C) The number of grams of alcohol per sixty-seven milliliters
of urine.
(D) The number of grams of alcohol per eighty-six milliliters
of serum.
(3) "At fault traffic accident" means for the purposes of
waiving the road test, a determination, by the official filing the
accident report, of fault as evidenced by an indication of
contributing circumstances in the accident report.
(4) "Commercial driver's license" means a license issued in
accordance with the requirements of this article to an individual
which authorizes the individual to drive a class of commercial motor
vehicle.
(5) "Commercial driver's license information system" is the
information system established pursuant to the Federal Commercial
Motor Vehicle Safety Act to serve as a clearinghouse for locating
information related to the licensing and identification of
commercial motor vehicle drivers.
(6) "Commercial driver instruction permit" means a permit
issued pursuant to subsection (d), section nine of this article.
(7) "Commercial motor vehicle" means a motor vehicle designed
or used to transport passengers or property:
(A) If the vehicle has a gross combination vehicle weight
rating of twenty-six thousand one pounds or more inclusive of a
towed unit(s) with a gross vehicle weight rating of more than ten
thousand pounds;
(B) If the vehicle has a gross vehicle weight rating of more
than twenty-six thousand one pounds or more;
(C) If the vehicle is designed to transport sixteen or more
passengers, including the driver; or
(D) If the vehicle is of any size transporting hazardous
materials as defined in this section.
(8) "Commissioner" means the Commissioner of Motor Vehicles of
this state.
(9) "Controlled substance" means any substance classified under
the provisions of chapter sixty-a of this code (Uniform Controlled
Substances Act) and includes all substances listed on Schedules I
through V, inclusive, article two of said chapter sixty-a, as they
are revised. The term "controlled substance" also has the meaning
such term has under 21 U. S. C. §802.6 and includes all substances
listed on Schedules I through V of 21 C.F.R. §1308 as they may be
amended by the United States Department of Justice.(10)
"Conviction" means an unvacated adjudication of guilt; a
determination that a person has violated or failed to comply with
the law in a court of original jurisdiction or by an authorized
administrative tribunal or proceeding; an unvacated forfeiture of
bail or collateral deposited to secure the persons appearance in
court; a plea of guilty or nolo contendere accepted by the court or
the payment of a fine or court cost, or violation of a condition of release without bail regardless of whether or not the penalty is
rebated, suspended, or probated.
(11) "Division" means the Division of Motor Vehicles.
(12) "Disqualification" means any of the following three
actions:
(A) The suspension, revocation, or cancellation of a driver's
license by the state or jurisdiction of issuance.
(B) Any withdrawal of a person's privilege to drive a
commercial motor vehicle by a state or other jurisdiction as the
result of a violation of state or local law relating to motor
vehicle traffic control other than parking or vehicle weight except
as to violations committed by a special permittee on the coal
resource transportation system or vehicle defect violations.
(C) A determination by the Federal Motor Carrier Safety
Administration that a person is not qualified to operate a
commercial motor vehicle under 49 C.F.R. Part §391 (2004).
(13) "Drive" means to drive, operate or be in physical control
of a motor vehicle in any place open to the general public for
purposes of vehicular traffic. For the purposes of sections twelve,
thirteen and fourteen of this article, "drive" includes operation
or physical control of a motor vehicle anywhere in this state.
(14) "Driver" means any person who drives, operates or is in
physical control of a commercial motor vehicle, in any place open to the general public for purposes of vehicular traffic, or who is
required to hold a commercial driver's license.
(15) "Driver's license" means a license issued by a state to
an individual which authorizes the individual to drive a motor
vehicle of a specific class.
(16) "Employee" means any operator of a commercial motor
vehicle, including full time, regularly employed drivers; casual,
intermittent or occasional drivers; leased drivers and independent,
owner-operator contractors (while in the course of operating a
commercial motor vehicle) who are either directly employed by or
under lease to drive a commercial motor vehicle for an employer.
(17) "Employer" means any person, including the United States,
a state or a political subdivision of a state, who owns or leases
a commercial motor vehicle or assigns a person to drive a commercial
motor vehicle.
(18) "Endorsement" means an authorization to a person to
operate certain types of commercial motor vehicles.
(19) "Farm vehicle" includes a motor vehicle or combination
vehicle registered to the farm owner or entity operating the farm
and used exclusively in the transportation of agricultural or
horticultural products, livestock, poultry and dairy products from
the farm or orchard on which they are raised or produced to markets,
processing plants, packing houses, canneries, railway shipping points and cold storage plants and in the transportation of
agricultural or horticultural supplies and machinery to the farms
or orchards to be used on the farms or orchards.
(20) "Farmer" includes an owner, tenant, lessee, occupant or
person in control of the premises used substantially for
agricultural or horticultural pursuits who is at least eighteen
years of age with two years' licensed driving experience.
(21) "Farmer vehicle driver" means the person employed and
designated by the "farmer" to drive a "farm vehicle" as long as
driving is not his or her sole or principal function on the farm who
is at least eighteen years of age with two years' licensed driving
experience.
(22) "Felony" means an offense under state or federal law that
is punishable by death or imprisonment for a term exceeding one
year.
(23) "Gross combination weight rating (GCWR)" means the value
specified by the manufacturer as the loaded weight of a combination
(articulated) vehicle. In the absence of a value specified by the
manufacturer, GCWR will be determined by adding the GVWR of the
power unit and the total weight of the towed unit and any load
thereon.
(24) "Gross vehicle weight rating (GVWR)" means the value
specified by the manufacturer as the loaded weight of a single vehicle. In the absence of a value specified by the manufacturer the
GVWR will be determined by the total weight of the vehicle and any
load thereon.
(25) "Hazardous materials" means any material that has been
designated as hazardous under 49 U. S. C. §5103 and is required to
be placarded under subpart F of 49 C.F.R. Part §172 or any quantity
of a material listed as a select agent or toxin in 42 C.F.R. Part
§73.
(26) "Imminent Hazard" means existence of a condition that
presents a substantial likelihood that death, serious illness,
severe personal injury or a substantial endangerment to health,
property or the environment may occur before the reasonably
foreseeable completion date of a formal proceeding begun to lessen
the risk of that death, illness, injury or endangerment.
(27) "Issuance of a license" means the completion of a
transaction signifying that the applicant has met all the
requirements incumbent in qualifying for, including, but not limited
to: the initial issuance of a driver's license, the renewal of a
driver's license, the issuance of a duplicate license as a
replacement to a lost or stolen driver's license, the transfer of
any level of driving privileges including the privilege of operating
a commercial motor vehicle from another state or jurisdiction, the
changing of driver's license class, restrictions or endorsements or the change of any other information pertaining to an applicant
either appearing on the face of a driver's license or within the
driver record of the licensee maintained by the division.
(27) (28) "Motor vehicle" means every vehicle which is self-
propelled and every vehicle which is propelled by electric power
obtained from overhead trolley wires but not operated upon rails.
(28) (29) "Noncommercial motor vehicle" means a motor vehicle
or combination of motor vehicles not defined by the term "commercial
motor vehicle".
(29) (30) "Out-of-service order" means a temporary prohibition
against driving a commercial motor vehicle as a result of a
determination by a law-enforcement officer, an authorized
enforcement officer of a federal, state, Canadian, Mexican, county
or local jurisdiction including any special agent of the Federal
Motor Carrier Safety Administration pursuant to 49 C.F.R. §§386.72,
392.5, 395.13, 396.9 or compatible laws or the North American
uniform out-of-service criteria that an imminent hazard exists.
(30) (31) "Violation of an out-of-service order" means:
(A) The operation of a commercial motor vehicle during the
period the driver was placed out-of-service; or
(B) The operation of a commercial motor vehicle by a driver
after the vehicle was placed out of service and before the required
repairs are made.
(31) (32) "School bus" means a commercial motor vehicle used
to transport preprimary, primary or secondary school students from
home-to-school, from school-to-home, or to and from school sponsored
events. School bus does not include a bus used as a common carrier.
(32) (33) "Serious traffic violation" means conviction for any
of the following offenses when operating a commercial motor vehicle:
(A) Excessive speeding involving any single offense for any
speed of fifteen miles per hour or more above the posted limits;
(B) Reckless driving as defined in section three, article five,
chapter seventeen-c of this code and careless or negligent driving,
including, but not limited to, the offenses of driving a commercial
motor vehicle in willful or wanton disregard for the safety of
persons or property;
(C) Erratic or improper traffic lane changes including, but not
limited to, passing a school bus when prohibited, improper lane
changes and other passing violations;
(D) Following the vehicle ahead too closely;
(E) Driving a commercial motor vehicle without obtaining a
commercial driver's license;
(F) Driving a commercial motor vehicle without a commercial
driver's license in the driver's possession. However, any person
who provides proof to the law-enforcement agency that issued the
citation, by the date the person must appear in court or pay any fine for such violation, that the person held a valid commercial
driver's license on the date the citation was issued, shall not be
guilty of this offense;
(G) Driving a commercial motor vehicle without the proper class
of commercial driver's license and/or endorsements for the specific
vehicle group being operated or for the passengers or type of cargo
being transported; or
(H) A violation of state or local law relating to motor vehicle
traffic control, other than a parking violation, arising in
connection with a fatal traffic accident; or
(I) Vehicle defects are excluded as serious traffic violations,
except as to violations committed by a special permittee on the coal
resource transportation road system; or
(J) (I) Any other serious violations determined by the United
States Secretary of Transportation.
(J) Vehicle defects are excluded as serious traffic violations,
except as to violations committed by a special permittee on the coal
resource transportation road system.
(33) (34) "State" means a state of the United States and the
District of Columbia or a province or territory of Canada or a state
of the United Mexican States.
(34) (35) "State of Domicile" means the state where a person
has his or her true, fixed and permanent home and principle residence and to which he or she has the intention of returning
whenever absent in accordance with chapter seventeen-a, article
three, section one-a.
(35) (36) "Suspension, revocation or cancellation" of a
driver's license, or a commercial driver's license means the
privilege to operate any type of motor vehicle on the roads and
highways of this state is withdrawn.
(36) (37) "Tank vehicle" means any commercial motor vehicle
that is designed to transport any liquid or gaseous materials within
a tank that is either permanently or temporarily attached to the
vehicle or the chassis. These vehicles include, but are not limited
to, cargo tanks and portable tanks, as defined in 49 C.F.R. Part 171
(1998). However, this definition does not include portable tanks
having a rated capacity under one thousand gallons.
(37) (38) "Transportation Security Administration" means the
United States Department of Homeland Security Transportation
Security Administration.
(38) (39) "United States" means the fifty states and the
District of Columbia.
(39) (40) "Vehicle Group" means a class or type of vehicle with
certain operating characteristics.
§17E-1-4. Limitation on number of driver's licenses.
No person who drives a commercial motor vehicle may have more than one driver's license at one time. The division shall require
the surrender of any previously issued driver's license before
issuing a renewed or duplicate driver's license with updated
information.
§17E-1-6. Employer responsibilities.
(a) Each employer must shall require the applicant to provide
the information specified in section five of this article.
(b) No employer may knowingly allow, permit, require or
authorize a driver to drive a commercial motor vehicle during any
period in which the driver:
(1) In which the driver Has a driver's license suspended,
revoked or canceled by a state; has lost the privilege to drive a
commercial motor vehicle in a state, or has been disqualified from
driving a commercial motor vehicle; or
(2) In which the driver Has more than one driver's license at
one time;
(3) During any period in which the driver Or the commercial
motor vehicle he or she is driving or the motor carrier operation
is subject to an out-of-service order;
(4) Is in violation of federal, state or local law or
regulation pertaining to railroad highway grade crossings; or
(5) During any period the driver Is in violation of any
provision of 49 C.F.R., Part §382 related to controlled substances and alcohol use and testing.
(c) The division shall impose a civil penalty, in addition to
any penalty required under the provisions of section twenty-five of
this article, on any employer who knowingly allows, permits,
requires or authorizes a driver to drive a commercial motor vehicle
in violation of subdivision three or four of subsection (b) of this
section.
(1) If the conviction is for a violation of subdivision three
of subsection (b) of this section, the penalty shall be is $2,750.
(2) If the conviction is for a violation of subdivision four
of subsection (b) of this section, the penalty shall be no more than
ten thousand dollars $25,000.
§17E-1-7. Commercial driver's license required; disqualification
for driving without valid license.
(a) On or after the first day of April, one thousand nine
hundred ninety-two, except when driving under a commercial driver's
instruction permit accompanied by the holder of a commercial
driver's license valid for the vehicle being driven, no person may
drive a commercial motor vehicle unless the person holds a
commercial driver's license and applicable endorsements valid for
the vehicle they are driving.
(b) No person may drive a commercial motor vehicle while their
driving privilege is suspended, revoked, canceled, expired, subject to a disqualification or in violation of an out-of-service order.
(c) Drivers of a commercial motor vehicle shall have a
commercial driver's license in their possession at all times while
driving.
(d) The Commissioner shall suspend for a period of sixty days
the driving privileges of any person who is convicted of operating
a commercial motor vehicle:
(1)without Without holding a valid commercial driver's license
and the applicable endorsements valid for the vehicle he or she is
driving in accordance with subsection (a) of this section, or
(2) for For any conviction for operating a commercial motor
vehicle while his or her privilege to operate a motor vehicle were
suspended, revoked, canceled or while disqualified from operating
a commercial motor vehicle in accordance with subsection (b) of this
section.
(e) Any person not holding a commercial driver's license who
is convicted of an offense that requires disqualification from
operating a commercial motor vehicle shall also be disqualified from
eligibility for a commercial driver's license for the same time
periods as prescribed in federal law or rule or section thirteen of
this article for commercial driver's license holders.
(f) The Commissioner shall suspend the driver's license or the
privilege to drive in this state
of any holder of a commercial driver's license or operator of a commercial motor vehicle upon
receiving notice from another state or jurisdiction of failure to
pay fines, costs, forfeitures or penalties imposed or failure to
appear or failure to respond for any violation of a state or local
law relating to motor vehicle traffic control in accordance with 49
C.F.R. §384.225 (2009). A suspension under this section will
continue until the person provides proof of compliance from the
court and pays the reinstatement fee provided in section nine,
article three, chapter seventeen-b of this Code.
§17E-1-12. Classifications, endorsements and restrictions.
(a) Commercial driver's licenses may be issued with the
following classifications:
(1) Class A combination vehicle. -- Any combination of vehicles
with a gross combined vehicle weight rating of twenty-six thousand
one pounds or more, provided the gross vehicle weight rating of the
vehicle being towed is in excess of ten thousand pounds.
(2) Class B heavy straight vehicle. -- Any single vehicle with
a gross vehicle weight rating of twenty-six thousand one pounds or
more and any vehicle towing a vehicle not in excess of ten thousand
pounds.
(3) Class C small vehicle. -- Any single vehicle or combination
vehicle that does not fall under either Class A or Class B but are:
(A) Vehicles designed to transport sixteen or more passengers, including the driver; and
(B) Vehicles used in the transportation of hazardous materials
which requires the vehicle to be placarded under 49 C.F.R. Part
§172, Subpart F (2004).
(4) Each applicant who desires to operate a vehicle in a
classification different from the class in which the applicant is
authorized shall be is required to retake and pass all related tests
except the following:
(A) A driver who has passed the knowledge and skills test for
a combination vehicle in Class A may operate a heavy straight
vehicle in Class B or a small vehicle in Class C provided he or she
possesses the required endorsements; and
(B) A driver who has passed the knowledge and skills test for
a vehicle in Class B may operate any small vehicle in Class C
provided he or she possesses the required endorsements.
(b) Endorsements and restrictions. -- The Commissioner upon
issuing a commercial driver's license may impose endorsements and
or restrictions determined by the Commissioner to be appropriate to
assure the safe operation of a specific class, type or category of
motor vehicle or a specifically equipped motor vehicle and to comply
with 49 U. S. C., et seq., and 49 C.F.R. §383.93 (2004) including,
but not limited to endorsements or restrictions to operate:
(1) Double/triple Double or triple trailers which shall require requires successful completion of a knowledge test;
(2) Passenger vehicles which shall require requires successful
completion of a knowledge and skills test;
(3) Tank vehicles which shall require requires successful
completion of a knowledge test;
(4) Vehicles used for the transportation of hazardous materials
as defined in section three of this article which shall require
requires the completion of a knowledge test and a background
security risk check in accordance with 49 C.F.R. §1572.5 (2004); or
(5) School buses which shall require requires successful
completion of a knowledge and skills test unless the applicant meets
the criteria for waiver of the skills test in accordance with 49
C.F.R. §383.123(b) (2004); or
(6) Vehicles equipped with air brakes which requires the
completion of a skills test.
(c) Applicant record check. -- Before issuing a commercial
driver's license, the Commissioner shall obtain driving record
information through the commercial driver's license information
system, the national driver register and from each state in which
the person has been licensed.
(d) Notification of license issuance. -- Within ten days after
issuing a commercial driver's license, the Commissioner shall notify
the commercial driver's license information system of that fact, providing all information required to ensure identification of the
person.
(e) Expiration of license. --
(1) Every commercial driver's license issued to persons who
have attained their twenty-first birthday expires on the applicant's
birthday in those years in which the applicant's age is evenly
divisible by five. Except as provided in subdivision two of this
subsection, no commercial driver's license may be issued for less
than three years nor more than seven years and the commercial
driver's license shall be renewed by the applicant's birthday and
is valid for a period of five years, expiring on the applicant's
birthday and in a year in which the applicant's age is evenly
divisible by five. No commercial driver's license with a hazardous
materials endorsement may be issued for more than five years.
(2) Every commercial driver's license issued to persons who
have not attained their twenty-first birthday expires thirty days
after the applicant's birthday in the year in which the applicant
attains the age of twenty-one years.
(3) Commercial driver's licenses held by any person in the
Armed Forces which expire while that person is on active duty
remains valid for thirty days from the date on which that person
reestablishes residence in West Virginia.
(4) Any person applying to renew a commercial driver's license which has been expired for six months or more shall follow the
procedures for an initial issuance of a commercial driver's license,
including the testing provisions.
(f) When applying for renewal of a commercial driver's license,
the applicant shall complete the application form and provide
updated information and required certifications.
(g) If the applicant wishes to obtain or retain a hazardous
materials endorsement, the applicant shall comply with a background
check in accordance with 49 U. S. C. §5103a and 49 C.F.R. Part §1572
(2004) and subject to the following:
(1) The applicant is a citizen of the United States or a lawful
permanent resident of the United States;
(2) The applicant completes the application prescribed by the
division and submits fingerprints in a form and manner prescribed
by the division and the United States Department of Homeland
Security-Transportation Security Administration at the time of
application or at any other time in accordance with 49 C.F.R.
§1572.5 (2004);
(3) The applicant pays all fees prescribed by the
Transportation Security Administration or its agent and the
division;
(4) The applicant has not been adjudicated as a mental
defective or committed to a mental institution as prescribed in 49 C.F.R. §1572.109 (2004);
(5) The applicant has not committed a disqualifying criminal
offense as described in 49 C.F.R. §1572.103 (2004);
(6) The applicant has passed the Transportation Security
Administration security threat assessment and the Division has
received a final notification of threat assessment or notification
of no security threat from the Transportation Security
Administration: Provided, That any appeal of any decision,
determination or ruling of the Federal Bureau of Investigation or
the Transportation Security Agency shall be directed to that agency;
and
(7) The applicant has successfully passed the written test for
the issuance or renewal of a hazardous material endorsement.
§17E-1-13. Disqualification.
(a) A person shall may not operate a commercial motor vehicle
if his or her privilege to operate a commercial motor vehicle is
disqualified under the provisions of the Federal Motor Carrier
Safety Improvement Act of 1999 (public law 106-159 §1748), 49 C.F.R.
Part §383, Subpart D (2004) or in accordance with the provisions of
this section.
(1) For the purposes of determining first and subsequent
violations of the offenses listed in this section, each conviction
for any offense listed in this section resulting from a separate incident shall include includes convictions for offenses committed
in a commercial motor vehicle or a noncommercial motor vehicle.
(2) Any person disqualified from operating a commercial motor
vehicle for life under the provisions of this chapter for offenses
described in subsection (b) subdivisions (1) through (8) (4) and (6)
of this section is eligible for reinstatement of privileges to
operate a commercial motor vehicle after ten years and after
completion of the safety and treatment program or other appropriate
program prescribed by the division. Any person whose lifetime
disqualification has been amended under the provisions of this
subdivision and who is subsequently convicted of a disqualifying
offense described in subsection (b), subdivisions (1) through (8)
of this section shall not be is not eligible for reinstatement.
(3) Any disqualification imposed by this section shall be is
in addition to any action to suspend, revoke or cancel the driver's
license or driving privileges if suspension, revocation or
cancellation is required under another provision of this code.
(4) The provisions of this section apply to any person
operating a commercial motor vehicle and to any person holding a
commercial driver's license.
(b) Any person is disqualified from driving a commercial motor
vehicle for the following offenses and time periods if convicted of:
(1) Driving a motor vehicle under the influence of alcohol or a controlled substance;
(A) For a first conviction or for refusal to submit to any
designated secondary chemical test while operating a commercial
motor vehicle, a driver shall be is disqualified from operating a
commercial motor vehicle for a period of one year.
(B) For a first conviction or for refusal to submit to any
designated secondary chemical test while operating a noncommercial
motor vehicle, a commercial driver's license holder shall be is
disqualified from operating a commercial motor vehicle for a period
of one year.
(C) For a first conviction or for refusal to submit to any
designated secondary chemical test while operating a commercial
motor vehicle transporting hazardous materials required to be
placarded under 49 C.F.R. Part §172, Subpart F, a driver shall be
is disqualified from operating a commercial motor vehicle for a
period of three years.
(D) For a second conviction or for refusal to submit to any
designated secondary chemical test in a separate incident of any
combination of offenses in this subsection while operating a
commercial motor vehicle, a driver shall be is disqualified from
operating a commercial motor vehicle for life.
(E) For a second conviction or refusal to submit to any
designated secondary chemical test in a separate incident of any combination of offenses in this subsection while operating a
noncommercial motor vehicle, a commercial motor vehicle license
holder shall be is disqualified from operating a commercial motor
vehicle for life.
(2) Driving a commercial motor vehicle while the person's
alcohol concentration of the person's blood, breath or urine is four
hundredths of one percent or more, by weight;
(A) For a first conviction or for refusal to submit to any
designated secondary chemical test while operating a commercial
motor vehicle, a driver shall be is disqualified from operating a
commercial motor vehicle for one year.
(B) For a first conviction or for refusal to submit to any
designated secondary chemical test while operating a commercial
motor vehicle transporting hazardous materials required to be
placarded under 49 C.F.R. Part §172, Subpart F, a driver shall be
is disqualified from operating a commercial motor vehicle for three
years.
(C) For a second conviction or refusal to submit to any
designated secondary chemical test in a separate incident of any
combination of offenses in this subsection while operating a
commercial motor vehicle, a driver shall be is disqualified from
operating a commercial motor vehicle for life.
(3) Refusing to submit to any designated secondary chemical test required by the provisions of this code or the provisions of
49 C.F.R. §383.72 (2004);
(A) For the first conviction or refusal to submit to any
designated secondary chemical test while operating a commercial
motor vehicle, a driver shall be is disqualified from operating a
commercial motor vehicle for one year.
(B) For the first conviction or refusal to submit to any
designated secondary chemical test while operating a noncommercial
motor vehicle, a commercial driver's license holder shall be
is disqualified from operating a commercial motor vehicle for one
year.
(C) For the first conviction or for refusal to submit to any
designated secondary chemical test while operating a commercial
motor vehicle transporting hazardous materials required to be
placarded under 49 C.F.R. Part §172, Subpart F (2004), a driver
shall be is disqualified from operating a commercial motor vehicle
for a period of three years.
(D) For a second conviction or refusal to submit to any
designated secondary chemical test in a separate incident of any
combination of offenses in this subsection while operating a
commercial motor vehicle, a driver shall be is disqualified from
operating a commercial motor vehicle for life.
(E) For a second conviction or refusal to submit to any designated secondary chemical test in a separate incident of any
combination of offenses in this subsection while operating a
noncommercial motor vehicle, a commercial driver's license holder
shall be is disqualified from operating a commercial motor vehicle
for life.
(4) Leaving the scene of an accident;
(A) For the first conviction while operating a commercial motor
vehicle, a driver shall be is disqualified from operating a
commercial motor vehicle for one year.
(B) For the first conviction while operating a noncommercial
motor vehicle, a commercial driver's license holder shall be is
disqualified for one year.
(C) For the first conviction while operating a commercial motor
vehicle transporting hazardous materials required to be placarded
under 49 C.F.R. Part §172, Subpart F (2004), a driver shall be is
disqualified from operating a commercial motor vehicle for a period
of three years.
(D) For a second conviction in a separate incident of any
combination of offenses in this subsection while operating a
commercial motor vehicle, a driver shall be is disqualified from
operating a commercial motor vehicle for life.
(E) For a second conviction in a separate incident of any
combination of offenses in this subsection while operating a noncommercial motor vehicle, a commercial driver's license holder
shall be is disqualified from operating a commercial motor vehicle
for life.
(5) Using a motor vehicle in the commission of any felony as
defined in section three, article one of this chapter: Provided,
That the commission of any felony involving the manufacture,
distribution or dispensing of a controlled substance, or possession
with intent to manufacture, distribute or dispense a controlled
substance falls under the provisions of subdivision eight of this
subsection;
(A) For the first conviction while operating a commercial motor
vehicle, a driver shall be is disqualified from operating a
commercial motor vehicle for one year.
(B) For the first conviction while operating a noncommercial
motor vehicle, a commercial driver's license holder shall be is
disqualified from operating a commercial motor vehicle for one year.
(C) For the first conviction while operating a commercial motor
vehicle transporting hazardous materials required to be placarded
under 49 C.F.R. Part §172, Subpart F,(2004), a driver shall be is
disqualified from operating a commercial motor vehicle for a period
of three years.
(D) For a second conviction in a separate incident of any
combination of offenses in this subsection while operating a commercial motor vehicle, a driver shall be is disqualified from
operating a commercial motor vehicle for life.
(E) For a second conviction in a separate incident of any
combination of offenses in this subsection while operating a
noncommercial motor vehicle, a commercial motor vehicle license
holder shall be is disqualified from operating a commercial motor
vehicle for life.
(6) Operating a commercial motor vehicle when, as a result of
prior violations committed operating a commercial motor vehicle, the
driver's privilege to operate a motor vehicle has been suspended,
revoked or canceled, or the driver's privilege to operate a
commercial motor vehicle has been disqualified.
(A) For the first conviction while operating a commercial motor
vehicle, a driver shall be is disqualified from operating a
commercial motor vehicle for one year.
(B) For the first conviction while operating a commercial motor
vehicle transporting hazardous materials required to be placarded
under 49 C.F.R. Part §172, Subpart F,(2004), a driver shall be is
disqualified from operating a commercial motor vehicle for a period
of three years.
(C) For a second conviction in a separate incident of any
combination of offenses in this subsection while operating a
commercial motor vehicle, a driver shall be is disqualified from operating a commercial motor vehicle for life.
(7) Causing a fatality through the negligent operation of a
commercial motor vehicle, including, but not limited to, the crimes
of motor vehicle manslaughter, homicide and negligent homicide as
defined in section five, article three, chapter seventeen-b, and
section one, article five, chapter seventeen-c of this code;
(A) For the first conviction while operating a commercial motor
vehicle, a driver shall be is disqualified from operating a
commercial motor vehicle for one year.
(B) For the first conviction while operating a commercial motor
vehicle transporting hazardous materials required to be placarded
under 49 C.F.R. Part §172, Subpart F,(2004), a driver shall be is
disqualified from operating a commercial motor vehicle for a period
of three years.
(C) For a second conviction in a separate incident of any
combination of offenses in this subsection while operating a
commercial motor vehicle, a driver shall be is disqualified from
operating a commercial motor vehicle for life.
(8) Using a motor vehicle in the commission of any felony
involving the manufacture, distribution or dispensing of a
controlled substance, or possession with intent to manufacture,
distribute or dispense a controlled substance, a driver shall be is
disqualified from operating a commercial motor vehicle for life and shall not be eligible for reinstatement.
(c) Any person is disqualified from driving a commercial motor
vehicle if convicted of;
(1) Speeding excessively involving any speed of fifteen miles
per hour or more above the posted speed limit;
(A) For a second conviction of any combination of offenses in
this subsection in a separate incident within a three-year period
while operating a commercial motor vehicle, a driver shall be
is disqualified from operating a commercial motor vehicle for a
period of sixty days.
(B) For a second conviction of any combination of offenses in
this section in a separate incident within a three-year period while
operating a noncommercial motor vehicle, if the conviction results
in the suspension, revocation or cancellation of the commercial
driver's license holder's privilege to operate any motor vehicle,
a commercial driver's license holder shall be is disqualified from
operating a commercial motor vehicle for a period of sixty days.
(C) For a third or subsequent conviction of any combination of
the offenses in this subsection in a separate incident in a three-
year period while operating a commercial motor vehicle, a driver
shall be is disqualified from operating a commercial motor vehicle
for a period of one hundred twenty days.
(D) For a third or subsequent conviction of any combination of offenses in this subsection in a separate incident within a three-
year period while operating a noncommercial motor vehicle, if the
conviction results in the suspension, revocation or cancellation of
the commercial driver's license holder's privilege to operate any
motor vehicle, a commercial driver's license holder shall be
disqualified from operating a commercial motor vehicle for a period
of one hundred twenty days.
(2) Reckless driving as defined in section three, article five,
chapter seventeen-c of this code, careless, or negligent driving
including, but not limited to, the offenses of driving a motor
vehicle in willful or wanton disregard for the safety of persons or
property;
(A) For a second conviction of any combination of offenses in
this subsection in a separate incident within a three-year period
while operating a commercial motor vehicle, a driver shall be is
disqualified from operating a commercial motor vehicle for a period
of sixty days.
(B) For a second conviction of any combination of offenses in
this section in a separate incident within a three-year period while
operating a noncommercial motor vehicle, if the conviction results
in the suspension, revocation, or cancellation of the commercial
driver's license holder's privilege to operate any motor vehicle,
a commercial driver's license holder shall be is disqualified from operating a commercial motor vehicle for a period of sixty days.
(C) For a third or subsequent conviction of any combination of
the offenses in this subsection in a separate incident in a three-
year period while operating a commercial motor vehicle, a driver
shall be is disqualified from operating a commercial motor vehicle
for a period of one hundred twenty days.
(D) For a third or subsequent conviction of any combination of
offenses in this subsection in a separate incident within a three-
year period while operating a noncommercial motor vehicle, if the
conviction results in the suspension, revocation or cancellation of
the commercial driver's license holder's privilege to operate any
motor vehicle, a commercial driver's license holder shall be
is disqualified from operating a commercial motor vehicle for a
period of one hundred twenty days.
(3) Making improper or erratic traffic lane changes;
(A) For a second conviction of any combination of offenses in
this subsection in a separate incident within a three-year period
while operating a commercial motor vehicle, a driver shall be
is disqualified from operating a commercial motor vehicle for a
period of sixty days.
(B) For a second conviction of any combination of offenses in
this section in a separate incident within a three-year period while
operating a noncommercial motor vehicle, if the conviction results in the suspension, revocation, or cancellation of the commercial
driver's license holder's privilege to operate any motor vehicle,
a commercial driver's license holder shall be is disqualified from
operating a commercial motor vehicle for a period of sixty days.
(C) For a third or subsequent conviction of any combination of
the offenses in this subsection in a separate incident in a three-
year period while operating a commercial motor vehicle, a driver
shall be is disqualified from operating a commercial motor vehicle
for a period of one hundred twenty days.
(D) For a third or subsequent conviction of any combination of
offenses in this subsection in a separate incident within a three-
year period while operating a noncommercial motor vehicle, if the
conviction results in the suspension, revocation or cancellation of
the commercial driver's license holder's privilege to operate any
motor vehicle, a commercial driver's license holder shall be
is disqualified from operating a commercial motor vehicle for a
period of one hundred twenty days.
(4) Following the vehicle ahead too closely;
(A) For a second conviction of any combination of offenses in
this subsection in a separate incident within a three-year period
while operating a commercial motor vehicle, a driver shall be
is disqualified from operating a commercial motor vehicle for a
period of sixty days.
(B) For a second conviction of any combination of offenses in
this section in a separate incident within a three-year period while
operating a noncommercial motor vehicle, if the conviction results
in the suspension, revocation, or cancellation of the commercial
driver's license holder's privilege to operate any motor vehicle,
a commercial driver's license holder shall be is disqualified from
operating a commercial motor vehicle for a period of sixty days.
(C) For a third or subsequent conviction of any combination
of the offenses in this subsection in a separate incident in a
three-year period while operating a commercial motor vehicle, a
driver shall be is disqualified from operating a commercial motor
vehicle for a period of one hundred twenty days.
(D) For a third or subsequent conviction of any combination of
offenses in this subsection in a separate incident within a three-
year period while operating a noncommercial motor vehicle, if the
conviction results in the suspension, revocation or cancellation of
the commercial driver's license holder's privilege to operate any
motor vehicle, a commercial driver's license holder shall be
is disqualified from operating a commercial motor vehicle for a
period of one hundred twenty days.
(5) Violating any law relating to traffic control arising in
connection with a fatal accident, other than a parking violation;
(A) For a second conviction of any combination of offenses in this subsection in a separate incident within a three-year period
while operating a commercial motor vehicle, a driver shall be is
disqualified from operating a commercial motor vehicle for a period
of sixty days.
(B) For a second conviction of any combination of offenses in
this section in a separate incident within a three-year period while
operating a noncommercial motor vehicle, if the conviction results
in the suspension, revocation, or cancellation of the commercial
driver's license holder's privilege to operate any motor vehicle,
a commercial driver's license holder shall be is disqualified from
operating a commercial motor vehicle for a period of sixty days.
(C) For a third or subsequent conviction of any combination of
the offenses in this subsection in a separate incident in a three-
year period while operating a commercial motor vehicle, a driver
shall be is disqualified from operating a commercial motor vehicle
for a period of one hundred twenty days.
(D) For a third or subsequent conviction of any combination of
offenses in this subsection in a separate incident within a three-
year period while operating a noncommercial motor vehicle, if the
conviction results in the suspension, revocation or cancellation of
the commercial driver's license holder's privilege to operate any
motor vehicle, a commercial motor vehicle license holder shall be
is disqualified from operating a commercial motor vehicle for a period of one hundred twenty days.
(6) Driving a commercial motor vehicle without obtaining a
commercial driver's license;
(A) For a second conviction of any combination of offenses in
this subsection in a separate incident within a three-year period
while operating a commercial motor vehicle, a driver shall be
is disqualified from operating a commercial motor vehicle for a
period of sixty days.
(B) For a third or subsequent conviction of any combination of
the offenses in this subsection in a separate incident in a three-
year period while operating a commercial motor vehicle, a driver
shall be is disqualified from operating a commercial motor vehicle
for a period of one hundred twenty days.
(7) Driving a commercial motor vehicle without a commercial
driver's license in the driver's possession, provided that any
person who provides proof of possession of a commercial driver's
license to the enforcement agency that issued the citation, by the
court appearance or fine payment deadline shall not be guilty of
this offense;
(A) For a second conviction of any combination of offenses in
this subsection in a separate incident within a three-year period
while operating a commercial motor vehicle, a commercial driver's
license holder shall be is disqualified from operating a commercial motor vehicle for a period of sixty days.
(B) For a third or subsequent conviction of any combination of
the offenses in this subsection in a separate incident in a three-
year period while operating a commercial motor vehicle, a commercial
driver's license holder shall be is disqualified from operating a
commercial motor vehicle for a period of one hundred twenty days.
(8) Driving a commercial motor vehicle without the proper class
of commercial driver's license or the proper endorsements for the
specific vehicle group being operated, or for the passengers or type
of cargo being transported;
(A) For a second conviction of any combination of offenses in
this subsection in a separate incident within a three-year period
while operating a commercial motor vehicle, a commercial driver's
license holder shall be is disqualified from operating a commercial
motor vehicle for a period of sixty days.
(B) For a third or subsequent conviction of any combination of
the offenses in this subsection in a separate incident in a three-
year period while operating a commercial motor vehicle, a commercial
driver's license holder shall be is disqualified from operating a
commercial motor vehicle for a period of one hundred twenty days.
(d) Any person convicted of operating a commercial motor
vehicle in violation of any federal, state or local law or ordinance
pertaining to any of the railroad crossing violations described in subdivisions one through six of this subsection shall be
is disqualified from operating a commercial motor vehicle for the
period of time specified;
(1) Failing to slow down and check that the tracks are clear
of an approaching train, if not required to stop in accordance with
the provisions of section three, article twelve, chapter seventeen-c
of this code;
(A) For the first conviction, a driver shall be is disqualified
from operating a commercial motor vehicle for a period of sixty
days;
(B) For a second conviction of any combination of offenses in
this subsection within a three-year period, a driver shall be
is disqualified from operating a commercial motor vehicle for one
hundred twenty days; and
(C) For a third or subsequent conviction of any combination of
offenses in this subsection within a three-year period, a driver
shall be is disqualified from operating a commercial motor vehicle
for one year.
(2) Failing to stop before reaching the crossing, if the tracks
are not clear, if not required to stop, in accordance with the
provisions of section one, article twelve, chapter seventeen-c of
this code;
(A) For the first conviction, a driver shall be is disqualified from operating a commercial motor vehicle for a period of sixty
days;
(B) For a second conviction of any combination of offenses in
this subsection within a three-year period, a driver shall be
is disqualified from operating a commercial motor vehicle for one
hundred twenty days; and
(C) For a third or subsequent conviction of any combination of
offenses in this subsection within a three-year period, a driver
shall be is disqualified from operating a commercial motor vehicle
for one year.
(3) Failing to stop before driving onto the crossing, if
required to stop in accordance with the provisions of section three,
article twelve, chapter seventeen-c of this code;
(A) For the first conviction, a driver shall be is disqualified
from operating a commercial motor vehicle for a period of sixty
days;
(B) For a second conviction of any combination of offenses in
this subsection within a three-year period , the driver shall be is
disqualified from operating a commercial motor vehicle for one
hundred twenty days; and
(C) For a third or subsequent conviction of any combination of
offenses in this subsection within a three-year period, a driver
shall be is disqualified from operating a commercial motor vehicle for one year.
(4) Failing to have sufficient space to drive completely
through the crossing without stopping in accordance with the
provisions of section three, article twelve, chapter seventeen-c of
this code;
(A) For the first conviction, a driver shall be is disqualified
from operating a commercial motor vehicle for a period of sixty
days;
(B) For a second conviction of any combination of offenses in
this subsection within a three-year period, a driver shall be is
disqualified from operating a commercial motor vehicle for one
hundred twenty days; and
(C) For a third or subsequent conviction of any combination of
offenses in this subsection within a three-year period, a driver
shall be is disqualified from operating a commercial motor vehicle
for one year.
(5) Failing to obey a traffic control device or the directions
of an enforcement official at the crossing in accordance with the
provisions of section one, article twelve, chapter seventeen-c of
this code; or
(A) For the first conviction, a driver shall be is disqualified
from operating a commercial motor vehicle for a period of sixty
days;
(B) For a second conviction of any combination of offenses in
this subsection within a three-year period, a driver shall be
is disqualified from operating a commercial motor vehicle for one
hundred twenty days; and
(C) For a third or subsequent conviction of any combination of
offenses in this subsection within a three-year period, a driver
shall be is disqualified from operating a commercial motor vehicle
for one year.
(6) Failing to negotiate a crossing because of insufficient
undercarriage clearance in accordance with the provisions of section
three, article twelve, chapter seventeen-c of this code.
(A) For the first conviction, a driver shall be is disqualified
from operating a commercial motor vehicle for a period of sixty
days;
(B) For a second conviction of any combination of offenses in
this subsection within a three-year period, a driver shall be is
disqualified from operating a commercial motor vehicle for one
hundred twenty days; and
(C) For a third or subsequent conviction of any combination of
offenses in this subsection within a three-year period, a driver
shall be is disqualified from operating a commercial motor vehicle
for one year.
(e) Any person who is convicted of violating an out-of-service order while operating a commercial motor vehicle shall be
is disqualified for the following periods of time if:
(1) Convicted of violating a driver or vehicle out-of-service
order while transporting nonhazardous materials;
(A) For the first conviction of violating an out-of-service
order while operating a commercial motor vehicle, a driver shall be
is disqualified from operating a commercial motor vehicle for ninety
one hundred eighty days.
(B) For a second conviction in a separate incident within a
ten-year period for violating an out of service order while
operating a commercial motor vehicle, a driver shall be is
disqualified from operating a commercial motor vehicle for one year
two years.
(C) For a third or subsequent conviction in a separate incident
within a ten-year period for violating an out-of-service order while
operating a commercial motor vehicle, a driver shall be is
disqualified from operating a commercial motor vehicle for three
years.
(2) Convicted of violating a driver or vehicle out-of-service
order while transporting hazardous materials required to be
placarded under 49 C.F.R. Part §172, Subpart F (2004), or while
operating a vehicle designed to transport sixteen or more passengers
including the driver;
(A) For the first conviction of violating an out of service
order while operating a commercial motor vehicle, a driver shall be
is disqualified from operating a commercial motor vehicle for one
hundred eighty days.
(B) For a second conviction in a separate incident within a
ten-year period for violating an out-of-service order while
operating a commercial motor vehicle, a driver shall be
is disqualified from operating a commercial motor vehicle for three
years.
(C) For a third or subsequent conviction in a separate incident
within a ten-year period for violating an out-of-service order while
operating a commercial motor vehicle, a driver shall be is
disqualified from operating a commercial motor vehicle for three
years.
(f) After disqualifying, suspending, revoking or canceling a
commercial driver's license, the division shall update its records
to reflect that action within ten days.
(g) In accordance with the provisions of 49 U. S. C.
§313119(a)(19)(2004), and 49 C.F.R §384.226 (2004), and
notwithstanding the provisions of section twenty-five, article
eleven, chapter sixty-one of this code, no record of conviction,
revocation, suspension or disqualification related to any type of
motor vehicle traffic control offense, other than a parking violation, of a commercial driver's license holder or a person
operating a commercial motor vehicle may be masked, expunged,
deferred, or be subject to any diversion program.
(h) Notwithstanding any provision in this code to the contrary,
the division shall may not issue any temporary driving permit, work-
only driving permit or hardship license or permit that authorizes
a person to operate a commercial motor vehicle when his or her
privilege to operate any motor vehicle has been revoked, suspended,
disqualified or otherwise canceled for any reason.
(i) In accordance with the provisions of 49 C.F.R. §391.15(b),
a driver is disqualified from operating a commercial motor vehicle
for the duration of any suspension, revocation or cancellation of
his or her driver's license or privilege to operate a motor vehicle
by this state or by any other state or jurisdiction until the driver
complies with the terms and conditions for reinstatement set by this
state or by another state or jurisdiction.
(j) In accordance with the provisions of 49 C.F.R. 353.52
(2006), the division shall immediately disqualify a driver's
privilege to operate a commercial motor vehicle upon a notice from
the Assistant Administrator of the Federal Motor Carrier Safety
Administration that the driver poses an imminent hazard. Any
disqualification period imposed under the provisions of this
subsection shall be served concurrently with any other period of disqualification if applicable.
(k) In accordance with the provisions of 49 C.F.R. 1572.11(a),
the division shall immediately disqualify a driver's privilege to
operate a commercial motor vehicle if the driver fails to surrender
his or her driver's license with a hazardous material endorsement
to the division upon proper notice by the division to the driver
that the division received notice from the Department of Homeland
Security Transportation Security Administration of an initial
determination of threat assessment and immediate revocation that the
driver does not meet the standards for security threat assessment
provided in 49 C.F.R. 1572.5. The disqualification remains in
effect until the driver either surrenders the driver's license to
the division or provides the division with an affidavit attesting
to the fact that the driver has lost or is otherwise unable to
surrender the license.
§17E-1-25. Penalties.
(a) It is a misdemeanor for any person to violate any of the
provisions of this chapter unless such the violation is by this
chapter or other law of this state, declared to be a felony.
(b) Unless another penalty is provided in this chapter or by
the laws of this state, every person convicted of a misdemeanor for
the violation of any provisions of this chapter shall be fined not
less than $100 nor more than $1,000, or imprisoned confined for not more than six months in the county jail, or both fined and
imprisoned confined, except that for the second violation of section
seven of this article and, upon conviction thereof, the offender
shall be fined not less than $500 nor more than $2,000 or imprisoned
confined for not less than six months nor more than nine months in
the county jail, or both fined and imprisoned confined. For the
third or any subsequent conviction for violation of section seven
of this article, upon conviction thereof, the offender shall be
fined not less than one $1,000 nor more than $2,500, or imprisoned
confined for not less than nine months nor more than one year in the
county jail, or both fined and imprisoned confined.
(d) (c) The division shall impose a civil penalty, in addition
to any penalty required under the provisions of this section on any
driver who is convicted of violating subsection (e), section
thirteen of this article. The penalty shall be one thousand one
hundred dollars $2,500 for the first offense and $5,000 for each
subsequent offense.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 396--A Bill
to amend and reenact §17B-2-1a, §17B-2-4 and §17B-2-5a of the Code
of West Virginia, 1931, as amended; and to amend and reenact §17E-1-3, §17E-1-4, §17E-1-6, §17E-1-7, §17E-1-12, §17E-1-13 and §17E-1-25
of said code, all relating to the issuance, suspension and
revocation of driver's licenses;
conducting background checks for
employees involved in the issuance of driver's licenses;
surrendering driver's licenses; suspending commercial driver's
licenses; adding definitions; clarifying requirements for school bus
drivers;
clarifying certain endorsements or restrictions; requiring
the completion of skills test before obtaining a commercial driver's
license to operate vehicles equipped with air brakes; updating the
criteria for issuance, renewal, disqualification, surrender,
reinstatement and maintenance of a commercial driver's license;
updating and increasing fines and penalties for certain offenses;
and criminal penalties.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 396, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 Com. Sub. for S. B. No. 396) passed with its House of
Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate
in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 397, Creating single
dwelling residential housing index and multiplier.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On
page two, section two-b, line one, by striking out the word
"Annually" and inserting in lieu thereof the words "For purposes of
this section only, annually";
On page two, section two-b, line six, after the word "county" by inserting the words "and by square footage, if available";
On page two, section two-b, line eight, by striking out the
word "The" and inserting in lieu thereof the words "For purposes of
this section only, the";
On page three, section two-b, line twenty-six, by striking out
the word "The" and inserting in lieu thereof the words "For purposes
of this section only, the";
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 397--A Bill
to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §11-1-2b, relating to creating a single dwelling
residential housing index and multiplier generally; providing
requirements for the Tax Commissioner; establishing required
contents of the index and multiplier; and requiring an annual
reporting.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 397, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 S. B. No. 397) passed with its House of Delegates amended
title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Com. Sub. for Senate Bill No. 401, Relating to ad valorem
property taxes.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On
page five, section one, line thirteen, after the word "by" by inserting the word "also";
On page ten, section two-a, line twenty-four, by striking out
the words "any one or more tax district" and inserting in lieu
thereof the words "one or more of the tax districts";
On pages seventeen and eighteen, section twelve, lines forty-
nine through fifty-three, by striking out subsection (c) in its
entirety;
On page twenty-two, section fifteen-a, line six, by striking
out the words "of partnerships";
On page forty-nine, section twenty-four-b, line sixty-one,
after the word "matter" by inserting the words "that arose";
On page fifty, section twenty-four-b, line sixty-two, by
striking out the words "are before the board for" and inserting in
lieu thereof the words "were before the board of";
On page fifty, section twenty-four-b, lines seventy-five
through seventy-seven, by striking out the following: The assessor
shall make a correction in the property books for the next
assessment year in accordance with the order.;
On page sixty, section thirty-two, line three, by striking out
the word "January" and inserting in lieu thereof the word "July";
And,
On page seventy-three, section seven, line two, by striking out
the words "tax year 2012 and thereafter" and inserting in lieu thereof the words "assessment years and the tax years beginning on
or after July 1, 2011.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 401, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 S. B. No. 401) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 407, Authorizing Department
of Revenue promulgate legislative rules.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting section
and
inserting in lieu thereof the following:
ARTICLE 7. AUTHORIZATION FOR DEPARTMENT OF TAX AND REVENUE TO
PROMULGATE LEGISLATIVE RULES.
§64-7-1. State Tax Department.
(a) The legislative rule filed in the State Register on July
30, 2009, authorized under the authority of section nine, article
thirteen-x, chapter eleven of this code, modified by the State Tax
Department to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on January 21,
2010, relating to the State Tax Department (Film Industry Investment
Tax Credit, 110 CSR 13X), is authorized.
(b) The legislative rule filed in the State Register on June
23, 2009, authorized under the authority of section five, article
ten, chapter eleven of this code, modified by the State Tax
Department to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on November 30, 2009, relating to the State Tax Department (Consumer Sales and
Service Tax and Use Tax - Drugs, Durable Medical Goods, Mobility
Enhancing Equipment and Prosthetic Devices Per Se Exemption; and
Motor Vehicles Per Se Exemption, 110 CSR 15C), is authorized.
(c) The legislative rule filed in the State Register on July
30, 2009, authorized under the authority of section three, article
thirteen-z, chapter eleven of this code, modified by the State Tax
Department to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on November 30,
2009, relating to the State Tax Department (Residential Solar Energy
Tax Credit, 110 CSR 21D), is authorized with the following
amendments:
On page two, beginning on line twenty, by striking out
subdivision 2.2.d in its entirety and redesignating the remaining
subdivisions accordingly;
On page five, subsection 4.2, line twenty-one, following the
word "incentive", by changing the comma to a period and striking out
the remainder of the sentence;
On page nine, subsection 9.1, line thirteen, following the
words "until the" by striking out the following:
"earlier of the following:
9.1.a. Four taxable years have elapsed; or
9.1.b. The full";
And,
On page nine, line twenty-two, by striking out subsection 9.4
in its entirety.
(d) The legislative rule filed in the State Register on July
31, 2009, authorized under the authority of section five, article
ten, chapter eleven of this code, modified by the State Tax
Department to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on January 21,
2010, relating to the State Tax Department (Corporation Net Income
Tax, 110 CSR 24), is authorized
with the following amendments:
On page eight, 5.1.a.3, line eighteen, following the words
"superseding state", by striking out the word "of" and inserting in
lieu thereof the word "or";
On page sixteen, 7.5.c.1, line eleven, following the words
"such the", by inserting the word "the";
On page eighteen, 7.6.c.1, line twenty-three, by striking out
the word "employees" and inserting in lieu thereof the word
"employees'";
On page twenty-nine, 7a.1.a, line thirty-one, following the
words "apportionment method" by inserting the words "are subject to
apportionment as described in the following paragraph";
On page thirty, 7a.1.a.1, line ten, following the words
"special apportionment members" by striking out the comma;
On page thirty-one, 8.4.a, line twenty-three, following the
words "which are determined" by striking out the comma;
On page thirty-two, 8.5.a.2, line ten, following the words "W.
Va. Code §11-24-8(e)" by striking out the comma;
On page forty-one, 13a.1.a, line one, following the words
"insurance company" by striking out the comma;
On page forty-one, 13a.1.a, line three, following the words
"shall not be included" by inserting the word "in";
On page forty-two, 13a.2.b.2, line twelve, following the words
"the stock of", by striking out the words "such that" and inserting
in lieu thereof the word "the";
On page forty-two, 13a.2.b.2, line fifteen, following the words
"income of", by striking out the words "such this" and inserting in
lieu thereof the word "the";
On page forty-three, 13a.3.a.6, line thirty-four, following the
words "below in", by striking out the word "paragraph" and inserting
in lieu thereof the word "subparagraph";
On page fifty-four, 13a.3.d.1, line fourteen, following the
word "member" by striking out the comma;
On page seventy, 13d.4.a.2, line thirteen, by reinserting the
word "see";
On page ninety-nine, 13e.2.a.3, beginning on line three,
following the word "privileges", by reinserting the word "must" and striking out the word "shall";
On page ninety-nine, 13e.2.a.3, line four, following the words
"and it", by reinserting the word "must" and striking out the word
"shall";
On page one hundred, 13e.4.c, line seventeen, following the
words "group return" by striking out the comma;
On page one hundred, 13e.4.e, line twenty-two, following the
words "group return" by striking out the comma;
On page one hundred two, 13e.8, line twenty-two, following the
word "corporation" and the comma, by striking out the word "then";
On page one hundred ten, 26.4, line nineteen, following the
words "transactions include", by inserting a colon;
On page one hundred ten, 26.4, line twenty, following the word
"property" and the semicolon, by striking out the words "sales or
transfers" and inserting in lieu thereof the words "the sale or
transfer";
On page one hundred ten, 26.4, line twenty-one, by striking out
the words "the owner or for consideration" and inserting in lieu
thereof the words "the owner; or consideration";
And,
On page one hundred fifteen, 27.2.c.6, line five, following the
word "annual", by striking out the word "of".
§64-7-2. Directors of the West Virginia Health Insurance Plan.
(a) The legislative rule filed in the State Register on July
17, 2009, authorized under the authority of section seven-b, article
forty-eight, chapter thirty-three of this code, modified by the
Directors of the West Virginia Health Insurance Plan to meet the
objections of the Legislative Rule-Making Review Committee and
refiled in the State Register on January 25, 2010, relating to the
Directors of the West Virginia Health Insurance Plan (Premium
Subsidy, 113 CSR 1), is authorized.
(b) The legislative rule filed in the State Register on July
17, 2009, authorized under the authority of section ten, article
two, chapter thirty-three of this code, modified by the Directors
of the West Virginia Health Insurance Plan to meet the objections
of the Legislative Rule-Making Review Committee and refiled in the
State Register on January 26, 2010, relating to the Directors of the
West Virginia Health Insurance Plan (Pre-existing Conditions
Exclusion, 113 CSR 2), is authorized.
§64-7-3. Insurance Commissioner.
(a) The legislative rule filed in the State Register on July
17, 2009, authorized under the authority of section ten, article
two, chapter thirty-three of this code, modified by the Insurance
Commissioner to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on January 26,
2010, relating to the Insurance Commissioner (Variable Life Insurance, 114 CSR 11D), is authorized.
(b) The legislative rule filed in the State Register on July
17, 2009, authorized under the authority of section ten, article
two, chapter thirty-three of this code, modified by the Insurance
Commissioner to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on January 25,
2010, relating to the Insurance Commissioner (Annuity Disclosure,
114 CSR 11E), is authorized.
(c) The legislative rule filed in the State Register on July
17, 2009, authorized under the authority of section ten, article
two, chapter thirty-three of this code, modified by the Insurance
Commissioner to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on January 26,
2010, relating to the Insurance Commissioner (Medicare Supplement
Insurance, 114 CSR 24), is authorized.
(d) The legislative rule filed in the State Register on July
17, 2009, authorized under the authority of section ten, article
two, chapter thirty-three of this code, relating to the Insurance
Commissioner (Coordination of Health Benefits, 114 CSR 28), is
authorized with the following amendments:
On page one, subsection 1.1, after the word "after" by striking
out the words "the effective date of this rule" and inserting in
lieu thereof the words "January 21, 2011,";
And,
On page one, subsection 1.1, after the word "before" by
striking out the words "the effective date of this rule" and
inserting in lieu thereof the words "January 21, 2011,".
(e) The legislative rule filed in the State Register on July
31, 2009, authorized under the authority of section ten, article
two, chapter thirty-three of this code, relating to the Insurance
Commissioner (West Virginia Life and Health Insurance Guaranty
Association Act Notice Requirements, 114 CSR 36), is authorized.
(f) The legislative rule filed in the State Register on July
17, 2009, authorized under the authority of section ten, article
two, chapter thirty-three of this code, modified by the Insurance
Commissioner to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on December 17,
2009, relating to the Insurance Commissioner (Mental Health Parity,
114 CSR 64), is authorized.
(g) The legislative rule filed in the State Register on July
24, 2009, authorized under the authority of section seventeen,
article thirteen-c, chapter thirty-three of this code, relating to
the Insurance Commissioner (Viatical Settlements, 114 CSR 80), is
authorized with the following amendments:
On page two, subsection 2.6., after the word "viators" by
striking out the words "by viatical settlement providers";
On page four, subsection 4.2., subdivision b., after the word
"domicile" by striking out the words "and a West Virginia business
license from the Secretary of State's Office";
On page five, by striking out subdivision 4.2.c. in its
entirety;
And, by renumbering the remaining subdivisions;
On page five, subsection 4.2., subdivision f., by striking out
the words "all information" and inserting in lieu thereof the word
"informational";
On page five, subsection 4.2., subdivision f., after the word
"viators" by inserting the words "describing the viatical settlement
process";
On page five, subsection 4.3., subdivision b., after the word
"five" by inserting the word "consecutive";
On page six, by striking out subsection 4.6. in its entirety;
And, by renumbering the remaining subsections;
On page six, subsection 4.8., after the word "license." by
striking out the words "All viatical settlement broker licenses, as
fixed by the Commissioner, shall expire at midnight on the thirty
first day of May next following the date of issuance." and inserting
in lieu thereof the words "The date upon which the viatical
settlement broker license shall expire for individuals and entities
shall be at the discretion of the Commissioner.";
On page six, subsection 4.10., subdivision a., after the word
"directions" by striking out the word "posited" and inserting in
lieu thereof the word "posted";
On page nine, subsection 6.2., after the word "broker" by
inserting the words "and each insurance producer whose viatical
settlement activities are incidental to their business activities";
On page twelve, section 9, after the word "A" by striking out
the word "person" and inserting in lieu thereof the words "viatical
settlement provider";
On page twelve, section 9, after the word "similar" by striking
the word "ro" and inserting in lieu thereof the word "to";
And,
On page fourteen, subsection 12.1., subdivision b., after the
words "case of" by striking the word "in" and inserting in lieu
thereof the word "an".
(h) The legislative rule filed in the State Register on July
17, 2009, authorized under the authority of section ten, article
two, chapter thirty-three of this code, modified by the Insurance
Commissioner to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on January 25,
2010, relating to the Insurance Commissioner (Preventive Care Pilot
Program, 114 CSR 87), is authorized.
(i) The legislative rule filed in the State Register on July 17, 2009, authorized under the authority of section ten, article
two, chapter thirty-three of this code, modified by the Insurance
Commissioner to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register on December 12,
2009, relating to the Insurance Commissioner (Use of Senior-Specific
Certifications and Professional Designations in the Sale of Life
Insurance and Annuities, 114 CSR 89), is authorized.
§64-7-4. Alcohol Beverage Control Commission.
The legislative rule filed in the State Register on July 16,
2009, authorized under the authority of section twenty-two-a,
article sixteen, chapter eleven of this code, modified by the
Alcohol Beverage Control Commission to meet the objections of the
Legislative Rule-Making Review Committee and refiled in the State
Register on January 21, 2010, relating to the Alcohol Beverage
Commission (Nonintoxicating Beer Licensing and Operations
Procedures, 176 CSR 1), is authorized.
§64-7-5. Athletic Commission.
The legislative rule filed in the State Register on July 31,
2009, authorized under the authority of section twenty-four, article
five-a, chapter twenty-nine of this code, modified by the Athletic
Commission to meet the objections of the Legislative Rule-Making
Review Committee and refiled in the State Register January 8, 2010,
relating to the Athletic Commission (Administrative Rules of the West Virginia State Athletic Commission, 177 CSR 1), is authorized.
§64-7-6. Lottery Commission.
The legislative rule filed in the State Register on July 27,
2009, authorized under the authority of section five, article
twenty-five, chapter twenty-nine of this code, modified by the
Lottery Commission to meet the objections of the Legislative Rule-
Making Review Committee and refiled in the State Register on January
20, 2010, relating to the Lottery Commission (Limited Gaming
Facility Rule, 179 CSR 4), is authorized with the following
amendments:
On page fifty-one, line seven, following the word "through",
by striking out the numeral "37" and inserting in lieu thereof the
numeral "38";
On page fifty-one, beginning on line eight, by striking out
section thirty-eight in its entirety;
On page eighty-one, 57.5.c, line thirty-four, following the
word "section", by striking out the word "fifty-three" and inserting
in lieu thereof the word "thirty-three";
On page eighty-four, 57.6.d, line six, following the word
"fifteen", by striking out the word "thirty-three" and inserting in
lieu thereof the word "sixteen";
On page one hundred twelve, 88.2.b, line thirteen, following
the word "paragraphs", by striking out the numerals "88.l.i.2 to 88.l.i.4" and inserting in lieu thereof the numerals "88.l.g.2 to
88.l.g.4";
On page one hundred thirty-three, beginning on line seventeen,
by striking out the following:
"115.5.c.2. 115.5.b.1. Dice;
115.5.c.3. 115.5.b.1. Tokens;
115.5.c.4. 115.5.b.1. Playing cards; and
115.5.c.5. 115.5.b.1. Positions on the roulette wheel."
and inserting in lieu thereof the following:
"115.5.c.2. 115.5.b.2. Dice;
115.5.c.3. 115.5.b.3. Tokens;
115.5.c.4. 115.5.b.4. Playing cards; and
115.5.c.5. 115.5.b.5. Positions on the roulette wheel.";
On page one hundred forty-one, line two, following the numeral
"119.3.b." by striking out the numeral "119.2.a." and inserting in
lieu thereof the numeral "119.2.b.";
On page one hundred forty-one, line three, following the
numeral "119.3.c." by striking out the numeral "119.2.a." and
inserting in lieu thereof the numeral "119.2.c.";
On page one hundred forty-three, line twenty, following the
numeral "121.3.a.3." by striking out the numeral "121.3.a.4." and
inserting in lieu thereof the numeral "121.3.a.2.";
On page one hundred forty-three, line twenty-one, following the numeral "121.3.a.4." by striking out the numeral "121.3.a.5." and
inserting in lieu thereof the numeral "121.3.a.3.";
On page one hundred fifty-eight, 145.1, line thirty-one, by
striking out the numeral "§25-25-22a" and inserting in lieu the
numeral "§29-25-22a";
And,
On page one hundred seventy, 173.1, line thirty-one, following
the word "gambling", by inserting a comma.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 407, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 S. B. No. 407) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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. No. 407) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 435, Relating to
speed-detecting device use law.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On
page two, section seven, lines six and seven, after the word
"municipalities" by inserting the words "in classes one, two and
three, as defined in chapter eight-a of this code, by police
officers of incorporated class four municipalities except upon
controlled access or partially controlled access highways,".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 435, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 S. B. No. 435) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body to the title of the bill, passage as
amended, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 449, Relating to PEIA
preexisting conditions limitations.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the title of the
bill was reported by the Clerk:
Eng. Com. Sub. for Senate Bill No. 449--A Bill to amend and
reenact §5-16-17 of the Code of West Virginia, 1931, as amended,
relating to the West Virginia Public Employees Insurance Act
generally; clarifying the definition of pre-existing condition; and
providing instances in which participants may enroll or make plan
selections.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the title of the bill.
Engrossed Committee Substitute for Senate Bill No. 449, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 S. B. No. 449) passed with its House of Delegates amended
title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 453, Providing State Register subscribers
electronic format option.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §29A-2-7 of the Code of West Virginia, 1931, as amended
be amended and reenacted to read as follows:
ARTICLE 2. STATE REGISTER.
§29A-2-7. Publication of State Register.
(a) The Legislature intends that the Secretary of State offer
to the public convenient and efficient access to copies of the State
Register or parts thereof desired by the citizens. The provisions
of this section are enacted in order to provide a means of doing so
pending any other means provided by law or legislative rule. and
Code of State Rules.
The State Register, the Code of State Rules
and other publications shall be available in electronic format. A
person may request a printed copy of such from the Secretary of
State for a fee.
(b) All materials filed in the State Register shall be indexed
daily in chronological order of filing with a brief description of
the item filed and a columnar cross index to:
(1) Agency; and
(2) Section, article and chapter of the Code citation to which
it relates and by which it is filed in the State Register; and
(3) such Other information in the description or cross index
as the Secretary of State believes will aid a citizen person in
using the chronological index.
(c) To give users of the Code of State Rules a means to know whether the rule is being superseded by a version of the rule that
has become effective, but not yet been final-filed, prepared,
proofed and distributed, or may be superseded by a rule which is
being proposed and promulgated pursuant to article three but not yet
become final, The Secretary of State shall provide with each update
of the Code of State Rules, a copy of the rule monitor and its cross
index which shows the rules that have become effective but not yet
distributed and the rules which may be superseded by a rule which
is being proposed. The copy of the rule monitor distributed with the
updates of the Code of State Rules shall state plainly that this
version of the rule monitor only shows the status of the
promulgation of rules as of the date of distribution of the update
of the Code of State Rules, and that to obtain the most recent
status of the rules, the user should consult the rule monitor in the
most recent publication of the State Register. With the first
distribution to the loose leaf version of the Code of State Rules
the Secretary of State shall also distribute a divider where the
current rule monitor shall be maintained. With the first
distribution, the Secretary of State shall also include
instructions, with a copy for insertion in or on the front of each
volume of the loose-leaf versions of the Code of State Rules, to
users on how the rule monitor can be utilized to determine whether
the version of the rule in the Code of State Rules is currently in effect and instructions to users on how to use the rule monitor
determining the version of the rule in the Code of State Rules
currently in effect. This subsection is not to be construed to
require that subscribers to the updates of the Code of State Rules
receive a subscription to the State Register.
(d) The Secretary of State shall cause to be duplicated in such
number as shall be required, on white paper with three punches
suitable for fastening in three-ring binders or electronic media
produce in an electronic format the permanent biennial State
Register, the chronological index and other materials filed in the
register, or any part by agency or section, article or chapter for
subscription at a cost including labor, paper and postage,
sufficient in his the Secretary of State's judgment to defray the
expense of such duplication publication. The Secretary of State
shall also offer, at least at monthly intervals, supplements to the
published materials listed above. Any subscription for monthly
supplements shall be offered annually and shall include the
chronological index and materials related to such an agency or
agencies, or section, article or chapter of the code citation as a
person may designate. A person may limit the request to notices
only, to notices and rules, or to notices and proposed rules, or any
combination thereof.
(e) Every two years, the Secretary of State shall offer for purchase succeeding biennial permanent state registers which shall
consist of all rules effective on the date of publication selected
by the Secretary of State, which date shall be at least two years
from the last such publication date, and materials filed in the
State Register relating thereto to the rule. The cost of the
succeeding biennial permanent State Register and for the portion
relating to any agency or any section, article or chapter of the
code citation which may be designated by a person purchasing the
same shall be fixed in the same manner specified in section eleven
of this article subsection (d) of this section.
(f) The Secretary of State may omit from any duplication made
pursuant to subsection (e) of this section any rules the duplication
publication of which would be unduly cumbersome, expensive or
otherwise inexpedient, if a copy of such rules is made available
from the original filing of such rule, at a price not exceeding the
cost of duplication publication, and if the volume from which such
rule is omitted includes a notice in that portion of the publication
in which the rule would have been located, stating:
(1) The general subject matter of the omitted rule;
(2) Each section, article and chapter of this code citation to
which the omitted rule relates; and
(3) The means by which a copy of the omitted rule may be
obtained.
(g) The Secretary of State may only propose changes to the
procedures outlined in the section above subsection by proposing a
legislative rule under the provisions of section nine, article three
of this chapter. but may promulgate no rules containing those
changes unless authorized by the Legislature pursuant to article
three of this chapter.
(h) The Secretary of State shall promulgate for legislative
approval in accordance with the provisions of article three, of this
chapter a fees schedule for publications described in this section.
(h) (i) Beginning the first day of July, two thousand one, one
half of The fees and amounts collected for the sale of the State
Register, the Code of State Rules and other copies or data provided
by the Secretary of State shall be deposited in the state General
Revenue Fund and one half of the fees in the service fees and
collections account established by in accordance with section two,
article one, chapter fifty-nine of this code for the operations of
the office of the Secretary of State. Any balance remaining on the
thirtieth day of June, two thousand one, in the existing special
revenue account entitled "State Register" as established by chapter
one hundred twenty-one, acts of the Legislature, regular session,
one thousand nine hundred eighty-two, shall be transferred to the
service fees and collections account established by section two,
article one, chapter fifty-nine of this code for the operation of the office of the Secretary of State. The Secretary of State shall
dedicate sufficient resources from that fund or other funds to
provide the services required in this article.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 453, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 453) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 465, Relating to utility
service disconnection.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §8-19-12a of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §8-20-10 of said code be amended and
reenacted; that §16-13-16 of said code be amended and reenacted;
that §16-13A-9 of said code be amended and reenacted; and that §24-
3-10 of said code be amended and reenacted, all to read as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 19. MUNICIPAL AND COUNTY WATERWORKS AND ELECTRIC POWER
SYSTEMS.
§8-19-12a. Deposit required for new customers; lien for delinquent
service rates and charges; failure to cure
delinquency; payment from deposit; reconnecting
deposit; return of deposit; liens; civil actions;
deferral of filing fees and costs in magistrate court
action; limitations with respect to foreclosure.
(a) (1) Whenever any rates and charges for water services or
facilities furnished remain unpaid for a period of twenty days after
the same become due and payable, the property and the owner thereof,
as well as the user of the services and facilities provided, shall
be delinquent and the owner, user and property shall be held liable
at law until such time as all such rates and charges are fully paid.
When a payment has become delinquent, the municipality may utilize
any funds held as a security deposit to satisfy the delinquent
payment. All new applicants for service shall indicate to the
municipality or governing body whether they are an owner or tenant
with respect to the service location.
(2) The municipality or governing body, but only one of them,
may collect from all new applicants for service a deposit of $50 or
two twelfths of the average annual usage of the applicant's specific
customer class, whichever is greater, to secure the payment of water
service rates, fees and charges in the event they become delinquent
as provided in this section. In any case where a deposit is
forfeited to pay service rates, fees and charges which were
delinquent and the user's service is disconnected or terminated, no
reconnection or reinstatement of service may be made by the
municipality or governing body until another deposit equal to $50
or a sum equal to two twelfths of the average usage for the
applicant's specific customer class, whichever is greater, is remitted to the municipality or governing body. After twelve months
of prompt payment history, the municipality or governing body shall
return the deposit to the customer or credit the customer's account
with interest at a rate as the Public Service Commission may
prescribe:
Provided, That where the customer is a tenant, the
municipality or governing body is not required to return the deposit
until the time the tenant discontinues service with the municipality
or governing body. Whenever any rates, fees, rentals or charges for
services or facilities furnished remain unpaid for a period of
twenty days after the same become due and payable, the user of the
services and facilities provided is delinquent and the user is
liable at law until all rates, fees and charges are fully paid. The
municipality or governing body may, under reasonable rules
promulgated by the Public Service Commission, shut off and
discontinue water services to a delinquent user of water facilities
ten days after the water services become delinquent regardless of
whether the municipality or governing body utilizes the security
deposit to satisfy any delinquent payments:
Provided further, That
nothing contained within the rules of the Public Service Commission
shall be deemed to require any agents or employees of the
municipality or governing body to accept payment at the customer's
premises in lieu of discontinuing service for a delinquent bill.
(b) All rates or charges for water service whenever delinquent shall be liens of equal dignity, rank and priority with the lien on
such premises of state, county, school and municipal taxes for the
amount thereof upon the real property served, and the municipality
shall have plenary power and authority from time to time to enforce
such lien in a civil action to recover the money due for such
services rendered plus court fees and costs and a reasonable
attorney's fee:
Provided, That an owner of real property may not
be held liable for the delinquent rates or charges for services or
facilities of a tenant, nor shall any lien attach to real property
for the reason of delinquent rates or charges for services or
facilities of a tenant of such real property, unless the owner has
contracted directly with the municipality to purchase such services
or facilities.
(c) Municipalities are hereby granted a deferral of filing fees
or other fees and costs incidental to the bringing and maintenance
of an action in magistrate court for the collection of the
delinquent rates and charges. If the municipality collects the
delinquent account, plus fees and costs, from its customer or other
responsible party, the municipality shall pay to the magistrate
court the filing fees or other fees and costs which were previously
deferred.
(d) No municipality may foreclose upon the premises served by
it for delinquent rates or charges for which a lien is authorized by this section except through the bringing and maintenance of a
civil action for such purpose brought in the circuit court of the
county wherein the municipality lies. In every such action, the
court shall be required to make a finding based upon the evidence
and facts presented that the municipality had exhausted all other
remedies for the collection of debts with respect to such
delinquencies prior to the bringing of such action. In no event
shall foreclosure procedures be instituted by any municipality or
on its behalf unless such delinquency had been in existence or
continued for a period of two years from the date of the first such
delinquency for which foreclosure is being sought.
ARTICLE 20. COMBINED SYSTEMS.
§8-20-10. Power and authority of municipality to enact ordinances
and make rules and fix rates, fees or charges; deposit
required for new customers; change in rates, fees or
charges; failure to cure delinquency; delinquent
rates, discontinuance of service; reconnecting
deposit; return of deposit; fees or charges as liens;
civil action for recovery thereof; deferral of filing
fees and costs in magistrate court action; limitations
with respect to foreclosure.
(a) (1) The governing body of a municipality availing itself
of the provisions of this article shall have plenary power and authority to make, enact and enforce all necessary rules for the
repair, maintenance, operation and management of the combined system
of the municipality and for the use thereof. The governing body of
a municipality also has the plenary power and authority to make,
enact and enforce all necessary rules and ordinances for the care
and protection of any such system for the health, comfort and
convenience of the public, to provide a clean water supply, to
provide properly treated sewage insofar as it is reasonably possible
to do and, if applicable, to properly collecting and controlling the
stormwater as is reasonably possible to do:
Provided, That no
municipality may make, enact or enforce any rule, regulation or
ordinance regulating any highways, road or drainage easements or
storm water facilities constructed, owned or operated by the West
Virginia Division of Highways.
(2) A municipality has the plenary power and authority to
charge the users for the use and service of a combined system and
to establish required deposits, rates, fees or charges for such
purpose. Separate deposits, rates, fees or charges may be fixed for
the water and sewer services respectively and, if applicable, the
stormwater services, or combined rates, fees or for the combined
water and sewer services, and, if applicable, the storm water
services. Such deposits, rates, fees or charges, whether separate
or combined, shall be sufficient at all times to pay the cost of repair, maintenance and operation of the combined system, provide
an adequate reserve fund, an adequate depreciation fund and pay the
principal and interest upon all revenue bonds issued under this
article. Deposits, rates, fees or charges shall be established,
revised and maintained by ordinance and become payable as the
governing body may determine by ordinance. The rates, fees or
charges shall be changed, from time to time, as necessary,
consistent with the provisions of this article.
(3) All new applicants for service shall indicate to the
municipality or governing body whether they are an owner or tenant
with respect to the service location. An entity providing
stormwater service shall provide a tenant a report of the stormwater
fee charged for the entire property and, if appropriate, that
portion of the fee to be assessed to the tenant.
(4) The municipality or governing body, but only one of them,
may collect from all new applicants for service a deposit of $100
or two twelfths of the average annual usage of the applicant's
specific customer class, whichever is greater, to secure the payment
of water and sewage service rates, fees and charges in the event
they become delinquent as provided in this section. In any case
where a deposit is forfeited to pay service rates, fees and charges
which were delinquent and the user's service is disconnected or
terminated, service may not be reconnected or reinstated by the municipality or governing body until another deposit equal to $100
or a sum equal to two twelfths of the average usage for the
applicant's specific customer class, whichever is greater, is
remitted to the municipality or governing body. After twelve months
of prompt payment history, the municipality or governing body shall
return the deposit to the customer or credit the customer's account
with interest at a rate to be set by the Public Service Commission:
Provided, That where the customer is a tenant, the municipality or
governing body is not required to return the deposit until the time
the tenant discontinues service with the municipality governing
body. Whenever any rates, fees, rentals or charges for services or
facilities furnished remain unpaid for a period of twenty days after
they become due, the user of the services and facilities provided
is delinquent and the user is liable at law until all rates, fees
and charges are fully paid. The municipality or governing body may
terminate water services to a delinquent user of either water or
sewage facilities, or both, ten days after the water or sewage
services become delinquent regardless of whether the governing body
utilizes the security deposit to satisfy any delinquent payments:
Provided further, That any termination of water service must comply
with all rules and orders of the Public Service Commission:
Provided however, That nothing contained within the rules of the
Public Service Commission shall be deemed to require any agents or employees of the municipality or governing body to accept payment
at the customer's premises in lieu of discontinuing service for a
delinquent bill.
(b) Whenever any rates, fees or charges for services or
facilities furnished remain unpaid for a period of twenty days after
they become due, the user of the services and facilities provided
shall be delinquent and the municipality or governing body may apply
any deposit against any delinquent fee. The user is liable until
such time as all rates, fees and charges are fully paid.
(c) All rates, fees or charges for water service, sewer service
and, if applicable, stormwater service, whenever delinquent, as
provided by ordinance of the municipality, shall be liens of equal
dignity, rank and priority with the lien on such premises of state,
county, school and municipal taxes for the amount thereof upon the
real property served. The municipality has the plenary power and
authority to enforce such lien in a civil action to recover the
money due for services rendered plus court fees and costs and
reasonable attorney's fees:
Provided, That an owner of real
property may not be held liable for the delinquent rates, fees or
charges for services or facilities of a tenant, nor shall any lien
attach to real property for the reason of delinquent rates, fees or
charges for services or facilities of a tenant of the real property,
unless the owner has contracted directly with the municipality to purchase such services or facilities.
(d) Municipalities are hereby granted a deferral of filing fees
or other fees and costs incidental to filing an action in magistrate
court for collection of the delinquent rates and charges. If the
municipality collects the delinquent account, plus fees and costs,
from its customer or other responsible party, the municipality shall
pay to the magistrate court the filing fees or other fees and costs
which were previously deferred.
(e) No municipality may foreclose upon the premises served by
it for delinquent rates, fees or charges for which a lien is
authorized by this section except through a civil action in the
circuit court of the county wherein the municipality lies. In every
such action, the court shall be required to make a finding based
upon the evidence and facts presented that the municipality has
exhausted all other remedies for collection of debts with respect
to such delinquencies prior to bringing the action. In no event
shall foreclosure procedures be instituted by any municipality or
on its behalf unless the delinquency has been in existence or
continued for a period of two years from the date of the first
delinquency for which foreclosure is being sought.
(f) Notwithstanding any other provision contained in this
article, a municipality which has been designated by the
Environmental Protection Agency as an entity to serve a West Virginia Separate Storm Sewer System community, as defined in 40
C.F.R. §122.26, has the authority to enact ordinances or regulations
which allow for the issuance of orders, the right to enter
properties and the right to impose reasonable fines and penalties
regarding correction of violations of municipal stormwater
ordinances or regulations within the municipal watershed served by
the municipal stormwater system, as long as such rules, regulations,
fines or acts are not contrary to any rules or orders of the Public
Service Commission.
(g) Notice of a violation of a municipal stormwater ordinance
or regulation shall be served in person to the alleged violator or
by certified mail, return receipt requested. The notice shall state
the nature of the violation, the potential penalty, the action
required to correct the violation and the time limit for making the
correction. Should a person, after receipt of proper notice, fail
to correct violation of the municipal stormwater ordinance or
regulation, the municipality may correct or have the corrections of
the violation made and bring the party into compliance with the
applicable stormwater ordinance or regulation. The municipality may
collect the costs of correcting the violation from the person by
instituting a civil action, as long as such actions are not contrary
to any rules or orders of the Public Service Commission.
(h) A municipality which has been designated by the Environmental Protection Agency as an entity to serve a West
Virginia Separate Storm Sewer System community shall prepare an
annual report detailing the collection and expenditure of rates,
fees or charges and make it available for public review at the place
of business of the governing body and the stormwater utility main
office.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 13. SEWAGE WORKS AND STORMWATER WORKS.
§16-13-16. Rates for service; deposit required for new customers;
forfeiture of deposit; reconnecting deposit; tenant's
deposit; change or readjustment; hearing; lien and
recovery; discontinuance of services.
A governing body has the power and duty, by ordinance, to
establish and maintain just and equitable rates, fees or charges for
the use of and the service rendered by:
(a) Sewerage works, to be paid by the owner of each and every
lot, parcel of real estate or building that is connected with and
uses such works by or through any part of the sewerage system of the
municipality or that in any way uses or is served by such works; and
(b) Stormwater works, to be paid by the owner of each and every
lot, parcel of real estate or building that in any way uses or is
served by such stormwater works or whose property is improved or
protected by the stormwater works or any user of such stormwater works.
(c) The governing body may change and readjust such rates, fees
or charges from time to time. However, no rates, fees or charges
for stormwater services may be assessed against highways, road and
drainage easements or stormwater facilities constructed, owned or
operated by the West Virginia Division of Highways.
(d) All new applicants for service shall indicate to the
governing body whether they are an owner or tenant with respect to
the service location. An entity providing stormwater service shall
provide a tenant a report of the stormwater fee charged for the
entire property and, if appropriate, that portion of the fee to be
assessed to the tenant.
(e) The governing body may collect from all new applicants for
service a deposit of $50 or two twelfths of the average annual usage
of the applicant's specific customer class, whichever is greater,
to secure the payment of service rates, fees and charges in the
event they become delinquent as provided in this section. In any
case where a deposit is forfeited to pay service rates, fees and
charges which were delinquent at the time of disconnection or
termination of service, service may not be reconnected or reinstated
by the governing body until another deposit equal to $50 or a sum
equal to two twelfths of the average usage for the applicant's
specific customer class, whichever is greater, is remitted to the governing body. After twelve months of prompt payment history, the
governing body shall return the deposit to the customer or credit
the customer's account with interest at a rate as the Public Service
Commission may prescribe:
Provided, That where the customer is a
tenant, the governing body is not required to return the deposit
until the time the tenant discontinues service with the governing
body. Whenever any rates, fees, rentals or charges for services or
facilities furnished remain unpaid for a period of twenty days after
they become due, the user of the services and facilities provided
is delinquent. The user is liable until all rates, fees and charges
are fully paid. The governing body may, under reasonable rules
promulgated by the Public Service Commission, shut off and
discontinue water services to a delinquent user of sewer facilities
ten days after the sewer services become delinquent regardless of
whether the governing body utilizes the security deposit to satisfy
any delinquent payments:
Provided, however, That nothing contained
within the rules of the Public Service Commission shall be deemed
to require any agents or employees of the governing body to accept
payment at the customer's premises in lieu of discontinuing service
for a delinquent bill.
(f) Such rates, fees or charges shall be sufficient in each
year for the payment of the proper and reasonable expense of
operation, repair, replacements and maintenance of the works and for the payment of the sums herein required to be paid into the sinking
fund. Revenues collected pursuant to this section shall be
considered the revenues of the works.
(g) No such rates, fees or charges shall be established until
after a public hearing, at which all the users of the works and
owners of property served or to be served thereby and others
interested shall have an opportunity to be heard concerning the
proposed rates, fees or charges.
(h) After introduction of the ordinance fixing such rates, fees
or charges, and before the same is finally enacted, notice of such
hearing, setting forth the proposed schedule of rates, fees or
charges, shall be given by publication as a Class II-0 legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code and the publication area for such
publication shall be the municipality. The first publication shall
be made at least ten days before the date fixed in the notice for
the hearing.
(i) After the hearing, which may be adjourned, from time to
time, the ordinance establishing rates, fees or charges, either as
originally introduced or as modified and amended, shall be passed
and put into effect. A copy of the schedule of the rates, fees and
charges shall be kept on file in the office of the board having
charge of the operation of such works, and also in the office of the clerk of the municipality, and shall be open to inspection by all
parties interested. The rates, fees or charges established for any
class of users or property served shall be extended to cover any
additional premises thereafter served which fall within the same
class, without the necessity of any hearing or notice.
(j) Any change or readjustment of such rates, fees or charges
may be made in the same manner as the rates, fees or charges were
originally established as hereinbefore provided:
Provided, That if
a change or readjustment be made substantially pro rata, as to all
classes of service, no hearing or notice shall be required. The
aggregate of the rates, fees or charges shall always be sufficient
for the expense of operation, repair and maintenance and for the
sinking fund payments.
(k) All rates, fees or charges, if not paid when due, shall
constitute a lien upon the premises served by such works. If any
service rate, fees or charge is not paid within twenty days after
it is due, the amount thereof, together with a penalty of ten
percent and a reasonable attorney's fee, may be recovered by the
board in a civil action in the name of the municipality. The lien
may be foreclosed against such lot, parcel of land or building in
accordance with the laws relating thereto. Where both water and
sewer services are furnished by any municipality to any premises,
the schedule of charges may be billed as a single amount or individually itemized and billed for the aggregate thereof.
(l) Whenever any rates, rentals, fees or charges for services
or facilities furnished shall remain unpaid for a period of twenty
days after they become due, the property and the owner thereof, as
well as the user of the services and facilities shall be delinquent
until such time as all rates, fees and charges are fully paid. When
any payment for rates, rentals, fees or charges becomes delinquent,
the governing body may use the security deposit to satisfy the
delinquent payment.
(m) The board collecting the rates, fees or charges shall be
obligated under reasonable rules to shut off and discontinue both
water and sewer services to all delinquent users of water, sewer or
stormwater facilities and shall not restore either water facilities
or sewer facilities to any delinquent user of any such facilities
until all delinquent rates, fees or charges for water, sewer and
stormwater facilities, including reasonable interest and penalty
charges, have been paid in full, as long as such actions are not
contrary to any rules or orders of the Public Service Commission:
Provided, That nothing contained within the rules of the Public
Service Commission shall be deemed to require any agents or
employees of the municipality or governing body to accept payment
at the customer's premises in lieu of discontinuing service for a
delinquent bill.
ARTICLE 13A. PUBLIC SERVICE DISTRICTS.
§16-13A-9. Rules; service rates and charges; discontinuance of
service; required water and sewer connections; lien
for delinquent fees.
(a) (1) The board may make, enact and enforce all needful rules
in connection with the acquisition, construction, improvement,
extension, management, maintenance, operation, care, protection and
the use of any public service properties owned or controlled by the
district. The board shall establish rates, fees and charges for the
services and facilities it furnishes, which shall be sufficient at
all times, notwithstanding the provisions of any other law or laws,
to pay the cost of maintenance, operation and depreciation of the
public service properties and principal of and interest on all bonds
issued, other obligations incurred under the provisions of this
article and all reserve or other payments provided for in the
proceedings which authorized the issuance of any bonds under this
article. The schedule of the rates, fees and charges may be based
upon:
(A) The consumption of water or gas on premises connected with
the facilities, taking into consideration domestic, commercial,
industrial and public use of water and gas;
(B) The number and kind of fixtures connected with the
facilities located on the various premises;
(C) The number of persons served by the facilities;
(D) Any combination of paragraphs (A), (B) and (C) of this
subdivision; or
(E) May be determined on any other basis or classification
which the board may determine to be fair and reasonable, taking into
consideration the location of the premises served and the nature and
extent of the services and facilities furnished. However, no rates,
fees or charges for stormwater services may be assessed against
highways, road and drainage easements or stormwater facilities
constructed, owned or operated by the West Virginia Division of
Highways.
(2) Where water, sewer, stormwater or gas services, or any
combination thereof, are all furnished to any premises, the schedule
of charges may be billed as a single amount for the aggregate of the
charges. The board shall require all users of services and
facilities furnished by the district to designate on every
application for service whether the applicant is a tenant or an
owner of the premises to be served. If the applicant is a tenant,
he or she shall state the name and address of the owner or owners
of the premises to be served by the district. Notwithstanding the
provisions of section eight, article three, chapter twenty-four of
this code to the contrary, all new applicants for service shall
deposit the greater of a sum equal to two twelfths of the average annual usage of the applicant's specific customer class or $50, with
the district to secure the payment of service rates, fees and
charges in the event they become delinquent as provided in this
section. If a district provides both water and sewer service, all
new applicants for service shall deposit the greater of a sum equal
to two twelfths of the average annual usage for water service or $50
and the greater of a sum equal to two twelfths of the average annual
usage for wastewater service of the applicant's specific customer
class or $50. In any case where a deposit is forfeited to pay
service rates, fees and charges which were delinquent at the time
of disconnection or termination of service, no reconnection or
reinstatement of service may be made by the district until another
deposit equal to the greater of a sum equal to two twelfths of the
average usage for the applicant's specific customer class or $50 has
been remitted to the district. After twelve months of prompt
payment history, the district shall return the deposit to the
customer or credit the customer's account at a rate as the Public
Service Commission may prescribe:
Provided, That where the customer
is a tenant, the district is not required to return the deposit
until the time the tenant discontinues service with the district.
Whenever any rates, fees, rentals or charges for services or
facilities furnished remain unpaid for a period of twenty days after
the same become due and payable, the user of the services and facilities provided is delinquent and the user is liable at law
until all rates, fees and charges are fully paid. The board may,
under reasonable rules promulgated by the Public Service Commission,
shut off and discontinue water or gas services to all delinquent
users of either water or gas facilities, or both, ten days after the
water or gas services become delinquent.
Provided, however, That
nothing contained within the rules of the Public Service Commission
shall be deemed to require any agents or employees of the board to
accept payment at the customer's premises in lieu of discontinuing
service for a delinquent bill.
(b) In the event that any publicly or privately owned utility,
city, incorporated town, other municipal corporation or other public
service district included within the district owns and operates
separately water facilities, sewer facilities or stormwater
facilities and the district owns and operates another kind of
facility either water or sewer, or both, as the case may be, then
the district and the publicly or privately owned utility, city,
incorporated town or other municipal corporation or other public
service district shall covenant and contract with each other to shut
off and discontinue the supplying of water service for the
nonpayment of sewer or stormwater service fees and charges:
Provided, That any contracts entered into by a public service
district pursuant to this section shall be submitted to the Public Service Commission for approval. Any public service district which
provides water and sewer service, water and stormwater service or
water, sewer and stormwater service has the right to terminate water
service for delinquency in payment of water, sewer or stormwater
bills. Where one public service district is providing sewer service
and another public service district or a municipality included
within the boundaries of the sewer or stormwater district is
providing water service and the district providing sewer or
stormwater service experiences a delinquency in payment, the
district or the municipality included within the boundaries of the
sewer or stormwater district that is providing water service, upon
the request of the district providing sewer or stormwater service
to the delinquent account, shall terminate its water service to the
customer having the delinquent sewer or stormwater account:
Provided, however, That any termination of water service must comply
with all rules and orders of the Public Service Commission.
Provided further, That nothing contained within the rules of the
Public Service Commission shall be deemed to require any agents or
employees of the Public Service Districts to accept payment at the
customer's premises in lieu of discontinuing service for a
delinquent bill.
(c) Any district furnishing sewer facilities within the
district may require, or may by petition to the circuit court of the county in which the property is located, compel or may require the
Division of Health to compel all owners, tenants or occupants of any
houses, dwellings and buildings located near any sewer facilities
where sewage will flow by gravity or be transported by other methods
approved by the Division of Health, including, but not limited to,
vacuum and pressure systems, approved under the provisions of
section nine, article one, chapter sixteen of this code, from the
houses, dwellings or buildings into the sewer facilities, to connect
with and use the sewer facilities and to cease the use of all other
means for the collection, treatment and disposal of sewage and waste
matters from the houses, dwellings and buildings where there is
gravity flow or transportation by any other methods approved by the
Division of Health, including, but not limited to, vacuum and
pressure systems, approved under the provisions of section nine,
article one, chapter sixteen of this code and the houses, dwellings
and buildings can be adequately served by the sewer facilities of
the district and it is declared that the mandatory use of the sewer
facilities provided for in this paragraph is necessary and essential
for the health and welfare of the inhabitants and residents of the
districts and of the state. If the public service district requires
the property owner to connect with the sewer facilities even when
sewage from dwellings may not flow to the main line by gravity and
the property owner incurs costs for any changes in the existing dwellings' exterior plumbing in order to connect to the main sewer
line, the Public Service District Board shall authorize the district
to pay all reasonable costs for the changes in the exterior
plumbing, including, but not limited to, installation, operation,
maintenance and purchase of a pump or any other method approved by
the Division of Health. Maintenance and operation costs for the
extra installation should be reflected in the users charge for
approval of the Public Service Commission. The circuit court shall
adjudicate the merits of the petition by summary hearing to be held
not later than thirty days after service of petition to the
appropriate owners, tenants or occupants.
(d) Whenever any district has made available sewer facilities
to any owner, tenant or occupant of any house, dwelling or building
located near the sewer facility and the engineer for the district
has certified that the sewer facilities are available to and are
adequate to serve the owner, tenant or occupant and sewage will flow
by gravity or be transported by other methods approved by the
Division of Health from the house, dwelling or building into the
sewer facilities, the district may charge, and the owner, tenant or
occupant shall pay, the rates and charges for services established
under this article only after thirty-day notice of the availability
of the facilities has been received by the owner, tenant or
occupant. Rates and charges for sewage services shall be based upon actual water consumption or the average monthly water consumption
based upon the owner's, tenant's or occupant's specific customer
class.
(e) The owner, tenant or occupant of any real property may be
determined and declared to be served by a stormwater system only
after each of the following conditions is met: (1) The district has
been designated by the Environmental Protection Agency as an entity
to serve a West Virginia Separate Storm Sewer System community, as
defined in 40 C.F.R. §122.26; (2) the district's authority has been
properly expanded to operate and maintain a stormwater system; (3)
the district has made available a stormwater system where stormwater
from the real property affects or drains into the stormwater system;
and (4) the real property is located in the Municipal Separate Storm
Sewer System's designated service area. It is further hereby found,
determined and declared that the mandatory use of the stormwater
system is necessary and essential for the health and welfare of the
inhabitants and residents of the district and of the state. The
district may charge and the owner, tenant or occupant shall pay the
rates, fees and charges for stormwater services established under
this article only after thirty-day notice of the availability of the
stormwater system has been received by the owner. An entity
providing stormwater service shall provide a tenant a report of the
stormwater fee charged for the entire property and, if appropriate, that portion of the fee to be assessed to the tenant.
(f) All delinquent fees, rates and charges of the district for
either water facilities, sewer facilities, gas facilities or
stormwater systems or stormwater management programs are liens on
the premises served of equal dignity, rank and priority with the
lien on the premises of state, county, school and municipal taxes.
Nothing contained within the rules of the Public Service Commission
shall be deemed to require any agents or employees of the Public
Service Districts to accept payment at the customer's premises in
lieu of discontinuing service for a delinquent bill. In addition
to the other remedies provided in this section, public service
districts are granted a deferral of filing fees or other fees and
costs incidental to the bringing and maintenance of an action in
magistrate court for the collection of delinquent water, sewer,
stormwater or gas bills. If the district collects the delinquent
account, plus reasonable costs, from its customer or other
responsible party, the district shall pay to the magistrate the
normal filing fee and reasonable costs which were previously
deferred. In addition, each public service district may exchange
with other public service districts a list of delinquent accounts:
Provided, That an owner of real property may not be held liable for
the delinquent rates or charges for services or facilities of a
tenant, nor may any lien attach to real property for the reason of delinquent rates or charges for services or facilities of a tenant
of the real property, unless the owner has contracted directly with
the public service district to purchase the services or facilities.
(g) Anything in this section to the contrary notwithstanding,
any establishment, as defined in section three, article eleven,
chapter twenty-two of this code, now or hereafter operating its own
sewage disposal system pursuant to a permit issued by the Department
of Environmental Protection, as prescribed by section eleven of said
article, is exempt from the provisions of this section.
(h) A public service district which has been designated by the
Environmental Protection Agency as an entity to serve a West
Virginia Separate Storm Sewer System community shall prepare an
annual report detailing the collection and expenditure of rates,
fees or charges and make it available for public review at the place
of business of the governing body and the stormwater utility main
office.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 3. DUTIES AND PRIVILEGES OF PUBLIC UTILITIES SUBJECT TO
REGULATIONS OF COMMISSION.
§24-3-10. Termination of water service for delinquent sewer bills.
(a) In the event that any publicly or privately owned utility,
city, incorporated town, municipal corporation or public service
district owns and operates either water facilities or sewer facilities, and a privately owned public utility or a public utility
that is owned and operated by a homeowners' association owns and
operates the other kind of facilities, either water or sewer, then
the privately owned public utility or the homeowners' association
may contract with the publicly or privately owned utility, city,
incorporated town, or public service district which provides the
other services to shutoff and discontinue the supplying of water
service for the nonpayment of sewer service fees and charges.
(b) Any contracts entered into by a privately owned public
utility or by a public utility that is owned and operated by a
homeowners' association pursuant to this section must be submitted
to the Public Service Commission for approval.
(c) Any privately owned public utility or any public utility
that is owned and operated by a homeowners' association which
provides water and sewer service to its customers may terminate
water service for delinquency in payment of either water or sewer
bills.
(d) Where a privately owned public utility or a public utility
that is owned and operated by a homeowners' association is providing
sewer service and another utility is providing water service, and
the privately owned public utility or the homeowners' association
providing sewer service experiences a delinquency in payment, the
utility providing water service, upon the request of the homeowners' association or the privately owned public utility providing sewer
service to the delinquent account, shall terminate its water service
to the customer having the delinquent sewer account.
(e) Any termination of water service must comply with all rules
and orders of the Public Service Commission:
Nothing contained
within the rules of the Public Service Commission shall be deemed
to require any agents or employees of the water or sewer utility to
accept payment at the customer's premises in lieu of discontinuing
water service for a delinquent water or sewer bill.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 465--A Bill to amend and
reenact §8-19-12a of the Code of West Virginia, 1931, as amended;
to amend and reenact §8-20-10 of said code; to amend and reenact
§16-13-16 of said code; to amend and reenact §16-13A-9 of said code;
and to amend and reenact §24-3-10 of said code, all relating to the
discontinuation of water and sewer utility service for a delinquent
bill; and eliminating the requirement that a water utility's
employee or agent be required to accept payment at the customer's
premises in lieu of discontinuing service for a delinquent water or
sewer bill.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 465, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 S. B. No. 465) passed with its House of Delegates amended
title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate
in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 483, Authorizing HMOs offer
point of service option.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §33-25A-2 and §33-25A-5 of the Code of West Virginia,
1931, as amended, be amended and reenacted to read as follows:
ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.
§33-25A-2. Definitions.
(1) "Basic health care services" means physician, hospital,
out-of-area, podiatric, chiropractic, laboratory, X ray, emergency,
treatment for serious mental illness as provided in section three-a,
article sixteen of this chapter, and cost-effective preventive
services including immunizations, well-child care, periodic health
evaluations for adults, voluntary family planning services,
infertility services, and children's eye and ear examinations
conducted to determine the need for vision and hearing corrections,
which services need not necessarily include all procedures or
services offered by a service provider.
(2) "Capitation" means the fixed amount paid by a health
maintenance organization to a health care provider under contract
with the health maintenance organization in exchange for the rendering of health care services.
(3) "Commissioner" means the commissioner of insurance.
(4) "Consumer" means any person who is not a provider of care
or an employee, officer, director or stockholder of any provider of
care.
(5) "Copayment" means a specific dollar amount, or percentage,
except as otherwise provided for by statute, that the subscriber
must pay upon receipt of covered health care services and which is
set at an amount or percentage consistent with allowing subscriber
access to health care services.
(6) "Employee" means a person in some official employment or
position working for a salary or wage continuously for no less than
one calendar quarter and who is in such a relation to another person
that the latter may control the work of the former and direct the
manner in which the work shall be done.
(7) "Employer" means any individual, corporation, partnership,
other private association, or state or local government that employs
the equivalent of at least two full-time employees during any four
consecutive calendar quarters.
(8) "Enrollee", "subscriber" or "member" means an individual
who has been voluntarily enrolled in a health maintenance
organization, including individuals on whose behalf a contractual
arrangement has been entered into with a health maintenance organization to receive health care services.
(9) "Evidence of coverage" means any certificate, agreement or
contract issued to an enrollee setting out the coverage and other
rights to which the enrollee is entitled.
(10) "Health care services" means any services or goods
included in the furnishing to any individual of medical, mental or
dental care, or hospitalization or incident to the furnishing of the
care or hospitalization, osteopathic services, chiropractic
services, podiatric services, home health, health education or
rehabilitation, as well as the furnishing to any person of any and
all other services or goods for the purpose of preventing,
alleviating, curing or healing human illness or injury.
(11) "Health maintenance organization" or "HMO" means a public
or private organization which provides, or otherwise makes available
to enrollees, health care services, including at a minimum basic
health care services and which:
(a) (A) Receives premiums for the provision of basic health
care services to enrollees on a prepaid per capita or prepaid
aggregate fixed sum basis, excluding copayments;
(b) (B) Provides physicians' services primarily: (i) Directly
through physicians who are either employees or partners of the
organization; or (ii) through arrangements with individual
physicians or one or more groups of physicians organized on a group practice or individual practice arrangement; or (iii) through some
combination of paragraphs (i) and (ii) of this subdivision;
(c) (C) Assures the availability, accessibility and quality,
including effective utilization, of the health care services which
it provides or makes available through clearly identifiable focal
points of legal and administrative responsibility; and
(d) (D) Offers services through an organized delivery system
in which a primary care physician or primary care provider is
designated for each subscriber upon enrollment. The primary care
physician or primary care provider is responsible for coordinating
the health care of the subscriber and is responsible for referring
the subscriber to other providers when necessary:
Provided, That
when dental care is provided by the health maintenance organization
the dentist selected by the subscriber from the list provided by the
health maintenance organization shall coordinate the covered dental
care of the subscriber, as approved by the primary care physician
or the health maintenance organization.
(12) "Impaired" means a financial situation in which, based
upon the financial information which would be required by this
chapter for the preparation of the health maintenance organization's
annual statement, the assets of the health maintenance organization
are less than the sum of all of its liabilities and required
reserves including any minimum capital and surplus required of the health maintenance organization by this chapter so as to maintain
its authority to transact the kinds of business or insurance it is
authorized to transact.
(13) "Individual practice arrangement" means any agreement or
arrangement to provide medical services on behalf of a health
maintenance organization among or between physicians or between a
health maintenance organization and individual physicians or groups
of physicians, where the physicians are not employees or partners
of the health maintenance organization and are not members of or
affiliated with a medical group.
(14) "Insolvent" or "insolvency" means a financial situation
in which, based upon the financial information that would be
required by this chapter for the preparation of the health
maintenance organization's annual statement, the assets of the
health maintenance organization are less than the sum of all of its
liabilities and required reserves.
(15) "Medical group" or "group practice" means a professional
corporation, partnership, association or other organization composed
solely of health professionals licensed to practice medicine or
osteopathy and of other licensed health professionals, including
podiatrists, dentists and optometrists, as are necessary for the
provision of health services for which the group is responsible:
(a) A majority of the members of which are licensed to practice medicine or osteopathy; (b) who as their principal professional
activity engage in the coordinated practice of their profession; (c)
who pool their income for practice as members of the group and
distribute it among themselves according to a prearranged salary,
drawing account or other plan; and (d) who share medical and other
records and substantial portions of major equipment and
professional, technical and administrative staff.
(16) "Point of service option" means a delivery system that
permits an enrollee to receive health care services from a provider
outside of the panel of providers with which the health maintenance
organization has a contractual arrangement under the terms and
conditions of the enrollee's contract with the health maintenance
organization or the insurance carrier that provides the point of
service option.
(16) (17) "Premium" means a prepaid per capita or prepaid
aggregate fixed sum unrelated to the actual or potential utilization
of services of any particular person which is charged by the health
maintenance organization for health services provided to an
enrollee.
(17) (18) "Primary care physician" means the general
practitioner, family practitioner, obstetrician/gynecologist,
pediatrician or specialist in general internal medicine who is
chosen or designated for each subscriber who will be responsible for coordinating the health care of the subscriber, including necessary
referrals to other providers.
(18) (19) "Primary care provider" means a person who may be
chosen or designated in lieu of a primary care physician for each
subscriber, who will be responsible for coordinating the health care
of the subscriber, including necessary referrals to other providers,
and includes:
(a) (A) An advanced nurse practitioner practicing in compliance
with article seven, chapter thirty of this code and other applicable
state and federal laws, who develops a mutually agreed upon
association in writing with a primary care physician on the panel
of and credentialed by the health maintenance organization; and
(b) (B) A certified nurse-midwife, but only if chosen or
designated in lieu of a subscriber's primary care physician or
primary care provider during the subscriber's pregnancy and for a
period extending through the end of the month in which the sixty-day
period following termination of pregnancy ends.
(c) (C) Nothing in this subsection may be construed to expand
the scope of practice for advanced nurse practitioners as governed
by article seven, chapter thirty of this code or any legislative
rule, or for certified nurse-midwives, as defined in article
fifteen, chapter thirty of this code.
(19) (20) "Provider" means any physician, hospital or other person or organization which is licensed or otherwise authorized in
this state to furnish health care services.
(20) (21) "Uncovered expenses" means the cost of health care
services that are covered by a health maintenance organization, for
which a subscriber would also be liable in the event of the
insolvency of the organization.
(21) (22) "Service area" means the county or counties approved
by the commissioner within which the health maintenance organization
may provide or arrange for health care services to be available to
its subscribers.
(22) (23) "Statutory surplus" means the minimum amount of
unencumbered surplus which a corporation must maintain pursuant to
the requirements of this article.
(23) (24) "Surplus" means the amount by which a corporation's
assets exceeds its liabilities and required reserves based upon the
financial information which would be required by this chapter for
the preparation of the corporation's annual statement except that
assets pledged to secure debts not reflected on the books of the
health maintenance organization shall not be included in surplus.
(24) (25) "Surplus notes" means debt which has been
subordinated to all claims of subscribers and general creditors of
the organization.
(25) (26) "Qualified independent actuary" means an actuary who is a member of the American academy of actuaries or the society of
actuaries and has experience in establishing rates for health
maintenance organizations and who has no financial or employment
interest in the health maintenance organization.
(26) (27) "Quality assurance" means an ongoing program designed
to objectively and systematically monitor and evaluate the quality
and appropriateness of the enrollee's care, pursue opportunities to
improve the enrollee's care and to resolve identified problems at
the prevailing professional standard of care.
(27) (28) "Utilization management" means a system for the
evaluation of the necessity, appropriateness and efficiency of the
use of health care services, procedure and facilities.
§33-25A-5. Powers of health maintenance organizations.
(a) Upon obtaining a certificate of authority as required under this
article, a health maintenance organization may enter into health
maintenance contracts in this state and engage in any activities,
consistent with the purposes and provisions of this article, which
are necessary to the performance of its obligations under such
contracts, subject to the limitations provided
for in this article.
A health maintenance organization may offer to its enrollees in
conjunction with the benefits provided to them through their
contractual arrangement for health services with the health
maintenance organization a point of service option to be provided either by the health maintenance organization directly or by an
insurance carrier licensed in this state with which the health
maintenance organization has a contractual arrangement. Benefits
for health care services within the health maintenance
organization's contracted provider panel shall comply with all other
provisions of this article. The commissioner may promulgate rules
and regulations limiting or regulating the powers of health
maintenance organizations which he finds to be in the public
interest.
(b) The commissioner shall propose rules for legislative approval
in accordance with the provisions of article three, chapter twenty-
nine-a of this code limiting or regulating the powers of health
maintenance organizations which the commissioner finds to be in the
public interest. The commissioner may promulgate emergency rules
pursuant to the provisions of section fifteen, article three,
chapter twenty-nine-a of this code to implement standards and
requirements for a point of service option.;
And,
By striking out the title and substituting therefor a new title, to
read as follows:
Eng. Com. Sub. for Senate Bill No. 483--A Bill to amend and reenact
§33-25A-5 and §33-25A-5 of the Code of West Virginia, 1931, as
amended, relating to health maintenance organizations; authority to provide a point of service option; and authority for the Office of
the Insurance Commissioner to develop standards for a point of
service option by legislative and emergency rule.
On motion of Senator Chafin, the Senate concurred in the House of
Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 483, as amended
by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 S. B. No. 483) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the
action of the Senate.
A message from The Clerk of the House of Delegates announced the
amendment by that body, passage as amended with its House of
Delegates amended title, to take effect July 1, 2010, and requested the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 518, Creating
Governor's Commission to Seize Future of Energy for America.
On motion of Senator Chafin, the message on the bill was taken up
for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and inserting
in lieu thereof the following:
That §5B-2F-2 of the Code of West Virginia, 1931, as amended, be
amended and reenacted, to read as follows:
ARTICLE 2F. DIVISION OF ENERGY.
.
§5B-2F-2. Purpose; office of Director for Energy Development;
director to be member of Public Energy Authority;
division to develop energy policy and development
plan; contents of energy policy and development plan;
and division to promote energy initiatives.
(a) Effective July 1, 2007, the Division of Energy is created as a
state agency under the Department of Commerce. The division may
receive federal funds. The division shall be administered by a
director, who shall be appointed by the Governor, by and with the
advice and consent of the Senate, and shall continue to serve until his or her successor is appointed and qualified as provided. The
director shall be selected with special preference and consideration
given to his or her training, experience, capacity and interest in
energy policy and development activities.
(b) Creation of the division is intended to provide leadership for
developing energy policies emphasizing the increased efficiency of
energy use, the increased development and production of new and
existing domestic energy sources, the increased awareness of energy
use on the environment and the economy, dependable, efficient and
economical statewide energy systems capable of supporting the needs
of the state, increased energy self-sufficiency where the ratio of
indigenous to imported energy use is increased, reduce the ratio
energy consumption to economic activity and maintain low-cost
energy. The energy policies and development plans shall also
provide direction for the private sector.
(c) The director shall administer the daily operations of the Public
Energy Authority provided under the provisions of chapter five-d of
this code. The director shall also have authority over the Office
of Coalfield Community Development, created by the provisions of
article two-a of this chapter, and the energy efficiency program
existing under the West Virginia Development Office which are hereby
transferred to the division. The director shall effectuate
coordination of these entities relative to the purposes provided in this article.
(d) The division shall develop an energy policy and shall report the
same back to the Governor and the Joint Committee on Government and
Finance before December 1, 2007. The energy policy shall be a five-
year plan setting forth the state's energy policies and shall
provide a direction for the private sector. Prior to the expiration
of the energy policy, the division shall begin review of the policy
and submit a revised energy policy to the Governor and the Joint
Committee on Government and Finance six months before the expiration
of the policy.
(e) The director shall be a member of the Public Energy Authority
and as such shall attend and participate in all official meetings
and public hearings conducted under the auspices of the authority.
(f) The division shall prepare and submit an annual energy
development plan to the Governor and the Joint Committee on
Government and Finance on or before December 1, of each year. The
development plan shall relate to the division's implementation of
the energy policy and the activities of the division during the
previous year. The development plan shall include any recommended
legislation. The Public Energy Authority, the Office of Coalfield
Community Development, the energy efficiency program, the Department
of Environmental Protection and the Public Service Commission, in
addition to their other duties prescribed by this code, shall assist the division and the director in the development of an energy policy
and related development plans. The energy development plan shall
set forth the plans for implementing the state's energy policy and
shall provide a direction for the private sector. The energy
development plan shall recognize the powers of the Public Energy
Authority as to development and financing of projects under its
jurisdiction and shall make such recommendations as are reasonable
and practicable for the exercise of such powers.
(g) The division shall hold public hearings and meetings with notice
to receive public input regarding proposed energy policies and
development plans. The energy policy and development plans required
by subsections (d) and (f) of this section shall address increased
efficiency of energy use, traditional and alternative energy, water
as a resource and a component of energy production, energy
distribution systems, the siting of energy facilities, the increased
development and production of new and existing domestic energy
sources, increased awareness of energy use on the environment and
the economy, energy infrastructure, the development and
implementation of renewable, clean, technically innovative and
advanced energy projects in this state. Projects may include,
without limitation, solar and wind energy, low-impact hydro power,
geothermal, biomass, landfill gas, fuel cells, renewable hydrogen
fuel technologies, waste coal, coal mine methane, coal gasification to ultraclean fuels, solid waste to fuel grade ethanol and coal
liquefaction technologies.
(h) The division may propose rules for legislative approval in
accordance with the provisions of article three, chapter twenty-
nine-a of this code designed to implement an energy policy and
development plan in accordance with the provisions of this chapter.
(i) The energy policy and development plans required by subsections
(d) and (f) of this section shall identify and report on the energy
infrastructure in this state and include without limitation energy
infrastructure related to protecting the state's essential data,
information systems and critical government services in times of
emergency, inoperativeness or disaster. In consultation with the
Director of the Division of Homeland Security and Emergency
Management, the director of the division shall encourage the
development of energy infrastructure and strategic resources that
will ensure the continuity of governmental operations in situations
of emergency, inoperativeness or disaster.
(j) In preparing or revising the energy policy and development plan,
the division may rely upon internal staff reports or the advice of
outside advisors or consultants and may procure such services with
the consent of the Secretary of Commerce. The division may also
involve national, state and local government leadership and energy
experts.
(k) The division shall prepare an energy use database, including
without limitation, end-use applications and infrastructure needs
for different classes of energy users including residential,
commercial and industrial users, data regarding the
interdependencies and sources of electricity, oil, coal, water and
gas infrastructure, data regarding energy use of schools and state-
owned facilities and collect data on the impact of the energy policy
and development plan on the decisions and strategies of energy users
of the state.
(l) The division shall promote collaboration between the state's
universities and colleges, private industry and nonprofit
organizations to encourage energy research and leverage available
federal energy research and development resources.
(m) The division shall promote initiatives to enhance the nation's
energy security through research and development directed at
transforming the state's energy resources into the resources that
fuel the nation.
(n) The Performance Evaluation and Research Division of the
Legislative Auditor's office shall perform an agency review of the
Division of Energy in 2010 as part of its review of the Department
of Commerce as set forth in article four, chapter ten of this code.
(o) The division shall work with the President of the United States
and his or her administration to develop a plan that would allow West Virginia to become the leader in transitioning the United
States to a new energy future.
(p) The division is to determine the best way for West Virginia to
utilize its resources and any federal funding to develop the
technologies that are necessary for such a transition.
(q) The division is to clearly articulate West Virginia's position
on an energy solution for the United States that encompasses clean
coal, natural gas, transtech energy technologies and renewable
energy technologies.
(r) The division shall develop and distribute an informational
program and policies that emphasize the importance of West Virginia
energy resources and their positive impact on the eastern seaboard
and the nation.
(s) The division shall monitor legal challenges to the energy
industries in the state and submit a report quarterly to the Joint
Committee on Government and Finance. The report shall contain
information relating to any litigation that challenges any statute
that could affect the production, distribution and utilization of
natural resources of the state.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 518--A Bill to amend and reenact §5B-2F-2 of the Code of West Virginia, 1931,
as amended, relating to the duties of the Division of Energy and the
Office of the Director for Energy Development.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 518, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 Com. Sub. for S. B. No. 518) passed with its House of
Delegates amended title.
Senator Chafin moved that the bill take effect July 1, 2010.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 Com. Sub. for S. B. No. 518) takes effect July 1, 2010.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate
in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 557, Clarifying legislative
vacancy procedures.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 10. FILLING VACANCIES.
§3-10-5. Vacancies in State Legislature.
(a)Any vacancy in the office of State Senator or member of
the House of Delegates shall be filled by appointment by the
Governor,
in each instance from a list of three legally qualified
persons submitted by the party executive committee
of the party with
which the person holding the office immediately preceding the
vacancy was affiliated. Such list of qualified persons to fill the
vacancy shall be submitted to the Governor within fifteen days after
the vacancy occurs and the Governor shall duly make his or her
appointment to fill the vacancy from the list of legally qualified
person within five days after the list is received. If the list is
not submitted to the Governor within the fifteen day period, the
Governor shall appoint within five days thereafter a legally
qualified person of the same political party as the person vacating
the office.
(b) of the delegate district in In the case of a member of the
House of Delegates,
the list shall be submitted by the party
executive committee of the delegate district in which the vacating
member resided at the time of his or her election or appointment.
The appointment to fill a vacancy in the House of Delegates is for
the unexpired term.
(c) and by the party executive committee of the state senatorial district in In the case of a State Senator,
of the party
with which the person holding the office immediately preceding the
vacancy was affiliated, and of the county or state senatorial
district, respectively, in which he resided at the time of his
election or appointment. If the vacating member of the House of
Delegates resided in a county only a portion of which is included
in his delegate district, all three of the qualified persons
submitted shall be residents of that portion of the county in which
the vacating delegate resided at the time of his election or
appointment to the House of Delegates. The appointment to fill a
vacancy in the House of Delegates shall be for the unexpired term.
Such list of legally qualified persons to fill the vacancy shall be
submitted to the Governor within fifteen days after such vacancy
occurs and the Governor shall duly make his appointment to fill such
vacancy from such list of legally qualified persons within five days
after same is received. If such list is not submitted to the
Governor within the fifteen day period, the Governor shall appoint
within five days thereafter a legally qualified person of the
political party of the person vacating the office. the list shall
be submitted by the party executive committee of the state
senatorial district in which the vacating senator resided at the
time of his or her election or appointment. If the unexpired term
in the office of the State Senator
will be for less than two years and two months, the appointment
shall be is for the unexpired term.
If the unexpired term
will be for a period
equal to or longer than
two years and two months, the appointment
shall be is until the next
general election and until the election and qualification of a
successor to the person appointed, at which general election the
vacancy shall be filled by election for the unexpired term. Notice
of an election to fill a vacancy in the office of State Senator
shall be given by the Governor by proclamation and shall be
published
prior to such before the election as a Class II-0 legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication area for
such
the publication shall be each county in the senatorial district.
Nominations for candidates to fill
such a vacancy shall be made in
the manner prescribed for nominating a candidate to fill a vacancy
in the office of Governor to be voted for at a general election.
The state senatorial district executive committee of the political
party shall discharge the duties incident to State Senator
nominations devolving upon the party state executive committee in
nominating a candidate for a state office.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 557--A Bill to amend and reenact §3-10-5 of the Code of West Virginia, 1931, as amended,
clarifying the procedures for the filling of vacancies in the State
Legislature.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 557, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 S. B. No. 557) passed with its House of Delegates amended
title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate
in the House of Delegates amendments, as to
Eng. Senate Bill No. 610, Extending statutory exemption to
certain out-of-school time programs.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 2B. DUTIES OF SECRETARY OF HEALTH AND HUMAN RESOURCES FOR
CHILD WELFARE.
§49-2B-3. Licensure, certification, approval and registration
requirements.
(a) Any person, corporation or child welfare agency, other than
a state agency, which operates a residential child care center shall
obtain a license from the department.
(b) Any residential child care facility, day care center or any
child-placing agency operated by the state shall obtain approval of
its operations from the secretary:
Provided, That this requirement
does not apply to any juvenile detention facility or juvenile
correctional facility operated by or under contract with the
Division of Juvenile Services, created pursuant to section two, article five-e of this chapter, for the secure housing or holding
of juveniles committed to its custody. The facilities and placing
agencies shall maintain the same standards of care applicable to
licensed facilities, centers or placing agencies of the same
category.
(c) Any family day care facility which operates in this state,
including family day care facilities approved by the department for
receipt of funding, shall obtain a statement of certification from
the department.
(d) Every family day care home which operates in this state,
including family day care homes approved by the department for
receipt of funding, shall obtain a certificate of registration from
the department.
(e) This section does not apply to:
(1) A kindergarten, preschool or school education program which
is operated by a public school or which is accredited by the state
Department of Education, or any other kindergarten, preschool or
school programs which operate with sessions not exceeding four hours
per day for any child;
(2) An individual or facility which offers occasional care of
children for brief periods while parents are shopping, engaging in
recreational activities, attending religious services or engaging
in other business or personal affairs;
(3) Summer recreation camps operated for children attending
sessions for periods not exceeding thirty days;
(4) Hospitals or other medical facilities which are primarily
used for temporary residential care of children for treatment,
convalescence or testing;
(5) Persons providing family day care solely for children
related to them;
or
(6) Any juvenile detention facility or juvenile correctional
facility operated by or under contract with the Division of Juvenile
Services, created pursuant to section two, article five-e of this
chapter, for the secure housing or holding of juveniles committed
to its custody.
(7) Any out-of-school time program that has been awarded a
grant by the West Virginia Department of Education to provide out-
of-school time programs to kindergarten through twelfth grade
students when the program is monitored by the West Virginia
Department of Education; or
(8) Any out-of-school time program serving children six years
of age or older and meets all of the following requirements, or is
an out-of-school time program that is affiliated and in good
standing with a national Congressionally chartered organization and
meets all of the following requirements:
(i) The program is located in a facility that meets all fire and health codes;
(ii) The program performs background checks on all volunteers
and staff;
(iii) The program's primary source of funding is not from fees
for service; and,
(iv) The program has a formalized monitoring system in place.
(f) The secretary is
hereby authorized to issue an emergency
rule relating to conducting a survey of existing facilities in this
state in which children reside on a temporary basis in order to
ascertain whether they should be subject to licensing under this
article or applicable licensing provisions relating to behavioral
health treatment providers.
(g) Any informal family child care home or relative family
child care home may voluntarily register and obtain a certificate
of registration from the department.
(h) All facilities or programs that provide out-of-school time
care shall register with the department upon commencement of
operations and on an annual basis thereafter. The department shall
obtain information such as the name of the facility or program, the
description of the services provided and any other information
relevant to the determination by the department as to whether the
facility or program meets the criteria for exemption under this
section.
(i) Any child care service that is licensed or receives a
certificate of registration shall have a written plan for evacuation
in the event of fire, natural disaster or other threatening
situation that may pose a health or safety hazard to the children
in the child care service.
(1) The plan shall include, but not be limited to:
(A) A designated relocation site and evacuation;
(B) Procedures for notifying parents of the relocation and
ensuring family reunification;
(C) Procedures to address the needs of individual children
including children with special needs;
(D) Instructions relating to the training of staff or the
reassignment of staff duties, as appropriate;
(E) Coordination with local emergency management officials; and
(F) A program to ensure that appropriate staff are familiar
with the components of the plan.
(2) A child care service shall update the evacuation plan by
December 31, of each year. If a child care service fails to update
the plan, no action shall be taken against the child care service's
license or registration until notice is provided and the child care
service is given thirty days after the receipt of notice to provide
an updated plan.
(3) A child care service shall retain an updated copy of the plan for evacuation and shall provide notice of the plan and
notification that a copy of the plan will be provided upon request
to any parent, custodian or guardian of each child at the time of
the child's enrollment in the child care service and when the plan
is updated.
(4) All child care centers and family child care facilities
shall provide the plan and each updated copy of the plan to the
Director of the Office of Emergency Services in the county where the
center or facility is located.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Eng. Senate Bill No. 610--A Bill to amend and reenact §49-2B-3
of the Code of West Virginia, 1931, as amended, relating to child
care services; providing requirements for out-of-school time
programs; exempting certain programs; requiring registration of
certain programs; requiring licensed or registered child care
centers to have an annually updated written plan for evacuation in
the event of an emergency; providing for plan requirements;
providing for plan distribution and availability requirements; and
making the evacuation plan a point of investigation before a new
license is received.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Senate Bill No. 610, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 610) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body to the title of the bill, passage as
amended, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 649, Establishing motor
vehicle search criteria.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the title of the
bill was reported by the Clerk:
Eng. Com. Sub. for Senate Bill No. 649--A Bill to amend of the
Code of West Virginia, 1931, as amended, by adding thereto two new
sections, designated §62-1A-10 and §62-1A-11, all relating to search
of motor vehicles by law enforcement officers with consent;
providing for the development of a standardized form of a written
consent to search a motor vehicle with the permission of the vehicle
operator; requiring written or audio recording of a vehicle
operator's permission or consent to search of motor vehicles by law-
enforcement officers when appropriate; providing exceptions;
addressing the effect of an officer's failure to document oral or
written consent; providing for the establishment of appropriate,
forms, standards and criteria by the Governor's Committee on Crime,
Delinquency and Corrections; requiring legislative and emergency
rules; and establishing effective date.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the title of the bill.
Engrossed Committee Substitute for Senate Bill No. 649, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 S. B. No. 649) passed with its House of Delegates amended
title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate
in the House of Delegates amendments, as to
Eng. Senate Bill No. 664, Relating to duties of protected
person's guardian.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 3. GUARDIANSHIP AND CONSERVATORSHIP ADMINISTRATION.
§44A-3-1. Duties of guardian of protected person.
(a) A The guardian of a protected person
shall be owes a fiduciary
duty to the protected person and is responsible for obtaining
provision for and making decisions with respect to the protected
person's support, care, health, habilitation, education, therapeutic
treatment,
social interactions with friends and family, and, if not
inconsistent with an order of commitment or custody, to determine
the protected person's residence.
(b) A guardian shall maintain sufficient contact
of not less than
once very six months with the protected person to know of the
protected person's capabilities, limitations, needs, and
opportunities.
and such contact shall not be less frequent than one
visit every six months.
(c) A guardian shall be required to seek prior court authorization
to change the protected person's residence to another state, to
terminate or consent to a termination of the protected person's
parental rights, to initiate a change in the protected person's
marital status, to deviate from a protected person's living will or
medical power of attorney, or to revoke or amend a durable power of
attorney executed by the protected person.
(d) A guardian shall exercise authority only to the extent necessitated by the protected person's limitations, and, where
feasible, shall encourage the protected person to participate in
decisions, to act on his or her own behalf, and to develop or regain
the capacity to manage personal affairs.
(e) A guardian shall, to the extent known, consider the express
desires and personal values of the protected person when making
decisions, and shall otherwise act in the protected person's best
interests and exercise reasonable care, diligence, and prudence.
(f) Upon the petition of an interested party or upon its own motion,
the court or Mental Hygiene Commissioner may order the guardian to
take appropriate action to address the needs and best interests of
the protected person as required by this section.
§44A-3-2. Reports by guardian of protected person.
(a) Any guardian appointed pursuant to the provisions of this
chapter shall file periodic reports, in accordance with section
eleven of this article
including:
(a) The guardian's report shall include:
(1) A description of the current mental, physical, and social
condition of the protected person;
(2) A description of the protected person's living arrangements
during the reported period;
(3) The medical, educational, vocational, and other professional
services provided to the protected person and the guardian's opinion as to the adequacy of the protected person's care;
(4) A summary of the guardian's visits with
and the activities on
behalf of the protected person the protected person, the guardian's
social interactions with the protected persons, the guardian's
efforts and activities on behalf of the protected person, including
the guardian's efforts facilitating on behalf of the protected
person social interactions with friends and families, and the
guardian's efforts facilitating the protected person engagement in
social activities;
(5) A statement of whether the guardian agrees with the current
treatment or habilitation plan;
(6) A recommendation as to the need for continued guardianship and
any recommended changes in the scope of the guardianship;
(7) Any other information requested by the court or useful in the
opinion of the guardian;
(8) The compensation requested and the reasonable and necessary
expenses incurred by the guardian; and
(9) A verification signed by the guardian stating that all of the
information contained in the report is true and correct to the best
of his or her knowledge.
(b) The court may order the guardian to attend a hearing on the
report by motion of the court
or Mental Hygiene Commissioner, or
upon the petition of any interested person. A report of the guardian may be incorporated into and made a part of the accounting
of the conservator.;
And,
By striking out the title and substituting therefor a new title, to
read as follows:
Eng. Senate Bill No. 664--A Bill to amend and reenact §44A-3-1 and
§44A-3-2 of the Code of West Virginia, 1931, as amended, all
relating to the duties and reports of the guardian of a protected
person; providing that the guardian owes a fiduciary duty to act in
the best interests of the protected person; requiring the guardian
to make provision for social interactions between the protected
person and the protected person's friends and family; requiring the
periodic guardian reports to include a summary of the guardian's
efforts and activities on behalf of the protected person; and
including the guardian's efforts to facilitate the protected persons
involvement in social activities and social interaction with friends
and family as a part of the guardian's periodic reports.
On motion of Senator Chafin, the Senate concurred in the House of
Delegates amendments to the bill.
Engrossed Senate Bill No. 664, as amended by the House of Delegates,
was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members elected to the Senate having voted
in the affirmative, the President declared the bill (Eng. S. B. No.
664) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the
action of the Senate.
A message from The Clerk of the House of Delegates announced the
amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 669, Allowing municipalities to
operate teen courts.
On motion of Senator Chafin, the message on the bill was taken up
for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §49-5-11 and §49-5-13d of the Code of West Virginia, 1931, as
amended, be amended and reenacted to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-11. Adjudication for alleged status offenders and
delinquents; mandatory initial disposition of
status offenders.
At the outset of an adjudicatory hearing, the court shall inquire
of the juvenile whether he or she wishes to admit or deny the
allegations in the petition. The juvenile may elect to stand mute,
in which event the court shall enter a general denial of all
allegations in the petition.
(a) If the respondent juvenile admits the allegations of the
petition, the court shall consider the admission to be proof of the
allegations if the court finds: (1) The respondent fully
understands all of his or her rights under this article; (2) the
respondent voluntarily, intelligently and knowingly admits all facts
requisite for an adjudication; and (3) the respondent in his or her
admission has not set forth facts which constitute a defense to the
allegations.
(b) If the respondent juvenile denies the allegations, the court
shall dispose of all pretrial motions and the court or jury shall
proceed to hear evidence.
(c) If the allegations in a petition alleging that the juvenile is
delinquent are admitted or are sustained by proof beyond a
reasonable doubt, the court shall schedule the matter for
disposition pursuant to section thirteen of this article.
(d) If the allegations in a petition alleging that the juvenile is
a status offender are admitted or sustained by clear and convincing
proof, the court shall refer the juvenile to the department of
health and human resources for services, pursuant to section eleven-
a of this article and order the department to report back to the
court with regard to the juvenile's progress at least every ninety
days or until the court, upon motion or sua sponte, orders further
disposition under section eleven-a of this article or dismisses the
case from its docket:
Provided, That in a judicial circuit
operating its own truancy program, a circuit judge may in lieu of
referring truant juveniles to the department, order that the
juveniles be supervised by his or her probation office.
(e) If the allegations in a petition are not sustained by proof as
provided in subsections (c) and (d) of this section, the petition
shall be dismissed and the juvenile shall be discharged if he or she
is in custody.
(f) Findings of fact and conclusions of law addressed to all
allegations in the petition shall be stated on the record or reduced
to writing and filed with the record or incorporated into the order of the court.
§49-5-13d. Teen court program.
(a) Notwithstanding any provision of this article to the contrary,
in any county
or municipality that chooses to institute a teen court
program in accordance with the provisions of this section, any
juvenile who is alleged to have committed a status offense or an act
of delinquency which would be a misdemeanor if committed by an adult
or in the case of a violation of a municipal ordinance, an offense
over which municipal courts have concurrent jurisdiction, and who
is otherwise subject to the provisions of this article may be given
the option of proceeding in the teen court program as an alternative
to the filing of a formal petition under section seven of this
article or proceeding to a disposition as provided by section
eleven-a or thirteen of this article, as the case may be. The
decision to extend the option to enter the teen court program as an
alternative procedure shall be made by the circuit
or municipal
court if the court finds that the offender is a suitable candidate
for the program. No juvenile may enter the teen court program
unless he or she and his or her parent or guardian consent. Any
juvenile who does not successfully cooperate in and complete the
teen court program and any disposition imposed therein shall be
returned to the circuit court for further disposition as provided
by section eleven-a or thirteen of this article, as the case may be
or return to a municipal court for further disposition for cases
originating in circuit court consistent with any applicable
ordinance.
(b) The following provisions apply to all teen court programs:
(1) The judge for each teen court proceeding shall be an acting or
retired circuit court judge or an active member of the West Virginia
State Bar, who serves on a voluntary basis.
(2) Any juvenile who selects the teen court program as an
alternative disposition shall agree to serve thereafter on at least
two occasions as a teen court juror.
(3) Volunteer students from grades seven through twelve of the
schools within the county shall be selected to serve as defense
attorney, prosecuting attorney, court clerk, bailiff and jurors for
each proceeding.
(4) Disposition in a teen court proceeding shall consist of
requiring the juvenile to perform sixteen to forty hours of
community service, the duration and type of which shall be
determined by the teen court jury from a standard list of available
community service programs provided by the county juvenile probation
system and a standard list of alternative consequences that are
consistent with the purposes of this article. The performance of
the juvenile shall be monitored by the county juvenile probation
system
for cases originating in the circuit court's jurisdiction, or municipal teen court coordinator or other designee for cases
originating in the municipal court's jurisdiction. The juvenile
shall also perform at least two sessions of teen court jury service
and, if considered appropriate by the circuit court judge
or teen
court judge, participate in an education program. Nothing in this
section may be construed so as to deny availability of the services
provided under section eleven-a of this article to juveniles who are
otherwise eligible
therefor for such service.
(c) The rules for administration, procedure and admission of
evidence shall be determined by the chief circuit judge
or teen
court judge, but in no case may the court require a juvenile to
admit the allegation against him or her as a prerequisite to
participation in the teen court program. A copy of these rules
shall be provided to every teen court participant.
(d) Each county
or municipality that operates, or wishes to operate,
a teen court program as provided in this section is hereby
authorized to adopt a mandatory fee of up to five dollars to be
assessed as provided in this subsection. Municipal courts may
assess a fee pursuant to the provisions of this section upon
authorization by the city council of
said the municipality.
Assessments collected by the clerk of the court pursuant to this
subsection shall be deposited into an account specifically for the
operation and administration of a teen court program. The clerk of the court of conviction shall collect the fees established in this
subsection and shall remit the fees to the teen court program.
Any mandatory fee established by a county commission or city council
in accordance with the provisions of this subsection shall be paid
by the defendant on a judgment of guilty or a plea of nolo
contendere for each violation committed in the county or
municipality of any felony, misdemeanor or any local ordinance,
including traffic violations and moving violations but excluding
municipal parking ordinances.
Municipalities operating teen courts
are authorized to use fees assessed in municipal court pursuant to
this subsection for operation of a teen court in their
municipality.;
And,
By striking out the title and substituting therefor a new title, to
read as follows:
Eng. Com. Sub. for Senate Bill No. 669--A Bill to amend and reenact
§49-5-11 and §49-5-13d of the Code of West Virginia, 1931, as
amended, all relating to juvenile proceedings; providing circuit
court judges the option to refer truant juveniles to be supervised
by his or her probation office in judicial circuits that operate a
truancy program; allowing municipalities to operate teen courts;
clarifying jurisdiction and procedures for teen courts; authorizing
the establishment additional mandatory municipal court fees to support a municipal teen court; and providing for supervision of
juveniles referred by teen courts.
On motion of Senator Chafin, the Senate concurred in the House of
Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 669, as amended
by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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 S. B. No. 669) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Browning,
Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe,
Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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. No. 669) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the
action of the Senate.
A message from The Clerk of the House of Delegates announced the
amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate
in the House of Delegates amendments, as to
Eng. Senate Bill No. 698, Relating to mini-trucks' registration and
certificate of title requirements.
On motion of Senator Chafin, the message on the bill was taken up
for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page four, section two, lines forty through forty-five, after the
word "persons" by changing the colon to a period and striking out
the following proviso: "
Provided, however, That for the purposes
of this section, mini-trucks means vehicles manufactured abroad and
designed primarily for off-road use with engines ranging in size from 550cc to 660cc and weighing approximately one thousand eight
hundred pounds" and inserting in lieu thereof the following: "For
the purposes of this section, mini-truck means a foreign-
manufactured import or domestic-manufactured vehicle designed
primarily for off-road use and powered by an engine ranging in size
from 550cc to 660cc and weighing approximately one thousand eight
hundred pounds";
On page five, section two, line seventy-seven, after the word
"property." by inserting the following: Nothing in this section or
any rule promulgated under the authority of chapter twenty-nine-a
of this code may be construed to require any applicant for a renewal
of a farm use exemption certificate to appear personally before any
assessor.;
On page seven, section two, line one hundred one, after the word
"vehicles" by inserting a comma and the words "utility terrain
vehicles";
And,
By striking out the title and substituting therefor a new title, to
read as follows:
Eng. Senate Bill No. 698--A Bill to amend and reenact §17A-3-2 of
the Code of West Virginia, 1931, as amended, relating to motor
vehicle registration requirements; adding an exemption from
registration and certificate of title requirements for mini-trucks used for agricultural or horticultural purposes; increasing the
distance for transporting fixtures attached to implements of
husbandry; providing that an applicant for a farm use exemption
certificate may not be required to appear before any assessor for
renewal; and adding utility terrain vehicles to the list of
recreational vehicles exempt from registration requirements.
On motion of Senator Chafin, the Senate concurred in the House of
Delegates amendments to the bill.
Engrossed Senate Bill No. 698, as amended by the House of Delegates,
was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members elected to the Senate having voted
in the affirmative, the President declared the bill (Eng. S. B. No.
698) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the
action of the Senate.
A message from The Clerk of the House of Delegates announced that
that body had refused to concur in the Senate amendments to, and
requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 4031, Providing flexibility in the
West Virginia public school support plan for funding regional
education service agencies.
On motion of Senator Chafin, the message on the bill was taken up
for immediate consideration.
On further motion of Senator Chafin, the Senate acceded to the
request of the House of Delegates and receded from its amendments
to the bill.
Engrossed Committee Substitute for House Bill No. 4031, as amended
by deletion, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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. No. 4031) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2010.
On this question, the yeas were: Barnes, Boley, Bowman, Browning,
Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe,
Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Caruth--1.
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. No. 4031) takes effect July 1, 2010.
Ordered, That The Clerk communicate to the House of Delegates the
action of the Senate.
The Senate again proceeded to the fifth order of business.
Senator Bowman, from the committee of conference on matters of
disagreement between the two houses, as to
Eng. Com. Sub. for Senate Bill No. 230, Relating to Board of
Optometry.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the two
houses as to the amendment of the House to Engrossed Committee Substitute for Senate Bill No. 230 having met, after full and free
conference, have agreed to recommend and do recommend to their
respective houses, as follows:
That both houses recede from their respective positions as to the
amendment of the House of Delegates, striking out everything after
the enacting section, and agree to the same as follows:
That sections §30-8-2a, §30-8-2b, §30-8-3a, §30-8-3b, and §30-8-5a
of the Code of West Virginia, 1931, as amended, be repealed; that
§30-8-1, §30-8-2, §30-8-3, §30-8-4, §30-8-5, §30-8-6, §30-8-7, §30-
8-8, §30-8-9, §30-8-10 and §30-8-11 of said code be amended and
reenacted; and that said code be amended by adding thereto eleven
new sections, designated §30-8-12, §30-8-13, §30-8-14, §30-8-15,
§30-8-16, §30-8-17, §30-8-18, §30-8-19, §30-8-20, §30-8-21 and §30-
8-22, all to read as follows:
ARTICLE 8. OPTOMETRISTS.
§30-8-1. Unlawful acts.
(a) It is unlawful for any person to practice or offer to practice
optometry in this state without a license or permit issued under the
provisions of this article, or advertise or use any title or
description tending to convey the impression that they are an
optometrist unless the person has been duly licensed or permitted
under the provisions of this article.
(b) A business entity may not render any service or engage in any activity which, if rendered or engaged in by an individual, would
constitute the practice of optometry, except through a licensee or
permittee.
(c) A licensee may not practice optometry as an employee of any
commercial or mercantile establishment.
(d) A licensee may not practice optometry on premises not separate
from premises whereon eyeglasses, lenses, eyeglass frames or any
other merchandise or products are sold by any other person. For the
purposes of this section, any room or suite of rooms in which
optometry is practiced shall be considered separate premises if it
has a separate and direct entrance from a street or public hallway
or corridor within a building, which corridor is partitioned off by
partitions from floor to ceiling.
(e) A person who is not licensed under this article as an
optometrist may not characterize himself or herself as an
"optometrist" or "doctor of optometry" nor may a person use the
designation "OD".
§30-8-2. Applicable law.
The practice of optometry and the Board of Optometry are subject to
the provisions of article one of this chapter, the provisions of
this article and the board's rules.
§30-8-3. Definitions.
As used in this article:
(a) "Appendages" means the eyelids, the eyebrows, the conjunctiva
and the lacrimal apparatus.
(b) "Applicant" means any person making application for a license,
certificate or temporary permit under the provisions of this
article.
(c) "Board" means the West Virginia Board of Optometry.
(d) "Business entity" means any firm, partnership, association,
company, corporation, limited partnership, limited liability company
or other entity owned by licensees that practices optometry.
(e) "Certificate" means a prescription certificate issued under
section fifteen of this article.
(f) "Certificate holder" means a person authorized to prescribe
certain drugs under section fifteen of this article.
(g) "Examination, diagnosis and treatment" means a method compatible
with accredited optometric education and professional competence
pursuant to this article.
(h) "License" means a license to practice optometry.
(i) "Licensee" means an optometrist licensed under the provisions
of this article.
(j) "Ophthalmologist" means a physician specializing in
ophthalmology licenced in West Virginia to practice medicine and
surgery under article thereof this chapter or osteopathy under
article fourteen of this chapter.
(k) "Permittee" means a person holding a temporary permit.
(l) "Practice of optometry" means the examining, diagnosing and
treating of any visual defect or abnormal condition of the human eye
or its appendages within the scope established in this article or
associated rules.
(m) "Temporary permit" or "permit" means a permit issued to a person
who has graduated from an approved school, has taken the examination
prescribed by the board, and is awaiting the results of the
examination.
§30-8-4. Board of Optometry.
(a) The West Virginia Board of Optometry is continued. The members
of the board in office on July 1, 2010, shall, unless sooner
removed, continue to serve until their respective terms expire and
until their successors have been appointed and qualified.
(b) The board shall consist of the following members appointed by
the Governor, by and with the advice and consent of the Senate:
(1) Five licensed optometrists; and
(2) Two citizen members, who are not licensed under the provisions
of this article and who do not perform any services related to the
practice of the profession regulated under the provisions of this
article.
(c) Each licensed member of the board, at the time of his or her
appointment, must have held a professional license in this state for a period of not less than three years immediately preceding the
appointment.
(d) Each member of the board must be a resident of this state during
the appointment term.
(e) The term shall be three years. A member may not serve more than
two consecutive full terms. A member may continue to serve until
a successor has been appointed and has qualified.
(f) A vacancy on the board shall be filled by appointment by the
Governor for the unexpired term of the member whose office is vacant
and the appointment shall be made within sixty days of the vacancy.
(g) The Governor may remove any member from the board for neglect
of duty, incompetency or official misconduct.
(h) A member of the board immediately and automatically forfeits
membership to the board if his or her license to practice is
suspended or revoked, is convicted of a felony under the laws of any
jurisdiction, or becomes a nonresident of this state.
(i) The board shall elect annually a president and a secretary-
treasurer from its members who serve at the will of the board.
(j) Each member of the board is entitled to compensation and expense
reimbursement in accordance with article one of this chapter.
(k) A majority of the members of the board constitutes a quorum.
(l) The board shall hold at least two meetings a year. Other
meetings may be held at the call of the president or upon the written request of two members at the time and place as designated
in the call or request.
(m) Prior to commencing his or her duties as a member of the board,
each member shall take and subscribe to the oath required by section
five, article four of the Constitution of this state.
§30-8-5. Powers and duties of the board.
(a) The board has all the powers and duties set forth in this
article, by rule, in article one of this chapter and elsewhere in
law.
(b) The board shall:
(1) Hold meetings, conduct hearings and administer examinations;
(2) Establish requirements for licenses, certificates and permits;
(3) Establish procedures for submitting, approving and rejecting
applications for licenses, certificates and permits;
(4) Determine the qualifications of any applicant for licenses,
certificates and permits;
(5) Prepare, conduct, administer and grade examinations for
licenses;
(6) Determine the passing grade for the examinations;
(7) Maintain records of the examinations by the board or a third
party administer, including the number of persons taking the
examinations and the pass and fail rate;
(8) Hire, discharge, establish the job requirements and fix the compensation of the executive secretary;
(9) Maintain an office and hire, discharge, establish the job
requirements and fix the compensation of employees, investigators
and contracted employees necessary to enforce the provisions of this
article;
(10) Investigate alleged violations of the provisions of this
article, legislative rules, orders and final decisions of the board;
(11) Conduct disciplinary hearings of persons regulated by the
board;
(12) Determine disciplinary action and issue orders;
(13) Institute appropriate legal action for the enforcement of the
provisions of this article;
(14) Maintain an accurate registry of names and addresses of all
licensees regulated by the board;
(15) Keep accurate and complete records of its proceedings, and
certify the same as may be necessary and appropriate;
(16) Establish the continuing education requirements for licensees;
(17) Issue, renew, combine, deny, suspend, revoke or reinstate
licenses, certificates and permits;
(18) Establish a fee schedule;
(19) Propose rules in accordance with the provisions of article
three, chapter twenty-nine-a of this code to implement the
provisions of this article; and
(20) Take all other actions necessary and proper to effectuate the
purposes of this article.
(c) The board may:
(1) Contract with third parties to administer the examinations
required under the provisions of this article;
(2) Sue and be sued in its official name as an agency of this state;
and
(3) Confer with the Attorney General or his or her assistant in
connection with legal matters and questions.
§30-8-6. Rulemaking.
(a) The board shall propose rules for legislative approval, in
accordance with the provisions of article three, chapter twenty-
nine-a of this code, to implement the provisions of this article,
including:
(1) Standards and requirements for licenses, certificates and
permits;
(2) Procedures for examinations and reexaminations;
(3) Requirements for third parties to prepare and/or administer
examinations and reexaminations;
(4) Educational and experience requirements;
(5) The passing grade on the examinations;
(6) Standards for approval of courses and curriculum;
(7) Procedures for the issuance and renewal of licenses, certificates and permits;
(8) A fee schedule;
(9) A prescription drug formulary classifying those categories of
oral drugs rational to the diagnosis and treatment of visual defects
or abnormal conditions of the human eye and its appendages, which
may be prescribed by licensees from Schedules III, IV and V of the
Uniform Controlled Substances Act. The drug formulary may also
include oral antibiotics, oral nonsteroidal anti-inflammatory drugs
and oral carbonic anhydrase inhibitors;
(10) Requirements for prescribing and dispensing contact lenses that
contain and deliver pharmaceutical agents that have been approved
by the Food and Drug Administration as a drug;
(11) Continuing education requirements for licensees;
(12) The procedures for denying, suspending, revoking, reinstating
or limiting the practice of licensees, certificate holders and
permittees;
(13) Requirements for inactive or revoked licenses, certificates or
permits;
(14) Requirements for an expanded scope of practice for those
procedures that are taught at 50% of all accredited optometry
schools; and
(15) Any other rules necessary to effectuate the provisions of this
article.
(b) All of the board's rules in effect on July 1, 2010, shall remain
in effect until they are amended or repealed, and references to
provisions of former enactments of this article are interpreted to
mean provisions of this article.
(c) The board shall promulgate procedural and interpretive rules in
accordance with section eight, article three, chapter twenty-nine-a
of this code.
§30-8-7. Fees; special revenue account; administrative fines.
(a) All fees and other moneys, except administrative fines, received
by the board shall be deposited in a separate special revenue fund
in the State Treasury designated the "West Virginia Board of
Optometry Fund", which is continued. The fund is used by the board
for the administration of this article. Except as may be provided
in article one of this chapter, the board retains the amount in the
special revenue account from year to year. No compensation or
expense incurred under this article is a charge against the General
Revenue Fund.
(b) Any amount received as fines, imposed pursuant to this article,
shall be deposited into the General Revenue Fund of the State
Treasury.
§30-8-8. License to practice optometry.
(a) To be eligible for a license to engage in the practice of
optometry, the applicant must:
(1) Be at least twenty-one years of age;
(2) Be of good moral character;
(3) Graduate from a school approved by the Accreditation Council on
Optometric Education or successor organization;
(4) Pass an examination prescribed by the board;
(5) Complete an interview with the board;
(6) Not be addicted to the use of alcohol, drugs or other controlled
substances;
(7) Not have been convicted of a felony in any jurisdiction within
ten years preceding the date of application for license, which
conviction has not been reversed; and
(8) Not have been convicted of a misdemeanor or felony in any
jurisdiction if the offense for which he or she was convicted
related to the practice of optometry, which conviction has not been
reversed.
(b) A registration to practice issued by the board prior to July 1,
2010, shall for all purposes be considered a license issued under
this article:
Provided, That a person holding a registration issued
prior to July 1, 2010, must renew pursuant to the provisions of this
article.
§30-8-9. Scope of Practice.
(a) An licensee may:
(1) Examine, diagnosis and treat diseases and conditions of the human eye and its appendage within the scope established in this
article or associated rules;
(2) Administer or prescribe any drug for topical application to the
anterior segment of the human eye for use in the examination,
diagnosis or treatment of diseases and conditions of the human eye
and its appendages:
Provided, That the licensee has first obtained
a certificate;
(3) (A) Administer or prescribe any drug from the drug formulary,
as established by the board pursuant to section six of this article,
for use in the examination, diagnosis or treatment of diseases and
conditions of the human eye and its appendages:
Provided, That the
licensee has first obtained a certificate;
(B) New drugs and new drug indications may be added to the drug
formulary by approval of the board;
(4) Administer epinephrine by injection to treat emergency cases of
anaphylaxis or anaphylactic shock;
(5) Prescribe and dispense contact lenses that contain and deliver
pharmaceutical agents and that have been approved by the Food and
Drug Administration as a drug;
(6) Prescribe, fit, apply, replace, duplicate or alter lenses,
prisms, contact lenses, orthoptics, vision training, vision
rehabilitation;
(7) Perform the following procedures:
(A) Remove a foreign body from the ocular surface and adnexa
utilizing a non-intrusive method;
(B) Remove a foreign body, external eye, conjunctival, superficial,
using topical anesthesia;
(C) Remove embedded foreign bodies or concretions from conjunctiva,
using topical anesthesia, not involving sclera;
(D) Remove corneal foreign body not through to the second layer of
the cornea using topical anesthesia;
(E) Epilation of lashes by forceps;
(F) Closure of punctum by plug; and
(G) Dilation of the lacrimal puncta with or without irrigation;
(8) Furnish or provide any prosthetic device to correct or relieve
any defects or abnormal conditions of the human eye and its
appendages;
(9) Order laboratory tests rational to the examination, diagnosis,
and treatment of a disease or condition of the human eye and its
appendages;
(10) Use a diagnostic laser; and
(11) A licensee is also permitted to perform those procedures
authorized by the board prior to January 1, 2010.
(b) A licensee may not:
(1) Perform surgery except as provided in this article or by
legislative rule;
(2) Use a therapeutic laser;
(3) Use Schedule II controlled substances;
(4) Treat systemic disease; or
(5) Present to the public that he or she is a specialist in surgery
of the eye.
§30-8-10. Exceptions from licensure.
The following persons are exempt from licensure under this article:
(1) Persons licensed to practice medicine and surgery under article
three of this chapter or osteopathy under article fourteen of this
chapter; and
(2) Persons and business entities who sell or manufacture ocular
devices in a permanently established place of business, who neither
practice nor attempt to practice optometry.
§30-8-11. Issuance of license; renewal of license; renewal fee.
(a) A licensee shall annually or biennially on or before July 1,
renew his or her license by completing a form prescribed by the
board, paying the renewal fee and submitting any other information
required by the board.
(b) The board shall charge a fee for renewal of a license, and a
late fee for any renewal not paid by the due date.
(c) The board shall require as a condition of renewal of a license
that each licensee complete continuing education.
(d) The board may deny an application for renewal for any reason which would justify the denial of an original application for a
license.
§30-8-12. Temporary permits.
(a) Upon proper application and the payment of a fee, the board may
issue, without examination, a temporary permit to engage in the
practice of optometry in this state.
(b) If the permittee receives a passing score on the examination,
a temporary permit expires thirty days after the permittee receives
the results of the examination.
(c)If the permittee receives a failing score on the examination, the
temporary permit expires immediately.
(d) An applicant under this subsection may only be issued one
temporary permit. Upon the expiration of a temporary permit, a
person may not practice as an optometrist until he or she is fully
licensed under the provisions of this article. In no event may a
permittee practice on a temporary permit beyond a period of ninety
consecutive days.
(e) A temporary permittee under this section shall work under the
supervision of a licensee, with the scope of such supervision to be
defined by the board by legislative rule.
§30-8-13. License from another jurisdiction; license to practice
in this state.
(a) The board may issue a license to practice to an applicant of good moral character who holds a valid license or other
authorization to practice optometry from another jurisdiction, if
the applicant demonstrates that he or she:
(1) Holds a license or other authorization to practice optometry in
another state which requirements are substantially equivalent to
those required in this state;
(2) Does not have charges pending against his or her license or
other authorization to practice, and has never had a license or
other authorization to practice revoked;
(3) Has not previously failed an examination for professional
licensure in this state;
(4) Has paid the applicable fee;
(5) Has passed the examination prescribed by the board; and
(6) Has fulfilled any other requirement specified by the board.
(b) In its discretion, the board may interview and examine an
applicant for licensing under this section. The board may enter
into agreements for reciprocal licensing with other jurisdictions
having substantially similar requirements for licensure.
§30-8-14. Prescriptive authority.
(a) A licensee may prescribe: (1) topical pharmaceutical agents, (2)
oral pharmaceutical agents that are included in the drug formulary
established by the board pursuant to section six of this article or
new drugs or new drug indications added by a decision of the board, and (3) contact lenses that contain and deliver pharmaceutical
agents that have been approved by the Food and Drug Administration
as a drug.
(b) An applicant must:
(1) Submit a completed application;
(2) Pay the appropriate fee;
(3) Show proof of current liability insurance coverage;
(4) Complete the board required training;
(5) Pass an examination; and
(6) Complete any other criteria the board may establish by rule.
§30-8-15. Administration of injectable pharmaceutical agents.
(a) A licensee may not administer pharmaceutical agents by
injection, other than epinephrine to treat emergency cases of
anaphylaxis or anaphylactic shock, unless the provisions of this
section, along with any legislative rule promulgated pursuant to
this section, have been met.
(b) Additional pharmaceutical agents by injection may be included
in the rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code.
These rules shall provide, at a minimum, for the following:
(1) Establishment of a course, or provide a list of approved
courses, in administration of pharmaceutical agents by injection;
(2) Definitive treatment guidelines which shall include, but not be limited to, appropriate observation for an adverse reaction of an
individual following the administration of a pharmaceutical agent
by injection;
(3) A requirement that a licensee shall have completed a board
approved injectable administration course and completed an American
Red Cross or American Heart Association basic life-support training,
and maintain certification in the same;
(4) Continuing education requirements for this area of practice;
(5) Reporting requirements for licensees administering
pharmaceutical agents by injection to report to the primary care
physician or other licensed health care provider as identified by
the person receiving the pharmaceutical agent by injection;
(6) Reporting requirements for licensees administering
pharmaceutical agents by injection to report to the appropriate
entities;
(7) That a licensee may not delegate the authority to administer
pharmaceutical agents by injection to any other person; and
(8) Any other provisions necessary to implement the provisions
of this section.
(c) In no event may a licensee be granted authority under this
section to administer a pharmaceutical agent by injection directly
into the globe of the eye.
§30-8-16. Special volunteer license; civil immunity for voluntary services rendered to indigents.
(a) There is established a special volunteer license for
optometrists who are retired or are retiring from the active
practice of optometry and wish to donate their expertise for the
care and treatment of indigent and needy patients in the clinic
setting of clinics organized, in whole or in part, for the delivery
of health care services without charge.
(b) The special volunteer license shall be issued by the board
to optometrists licensed or otherwise eligible for licensure under
this article without the payment of an application fee, license fee
or renewal fee, and shall be issued for the remainder of the
licensing period, and renewed consistent with the boards other
licensing requirements.
(c) The board shall develop application forms for the special
volunteer license provided in this section which shall contain the
optometrist's acknowledgment that:
(1) The optometrist's practice under the special volunteer
license will be exclusively devoted to providing optometrical care
to needy and indigent persons in West Virginia;
(2) The optometrist will not receive any payment or
compensation, either direct or indirect, or have the expectation of
any payment or compensation, for any optometrical services rendered
under the special volunteer license;
(3) The optometrist will supply any supporting documentation
that the board may reasonably require; and
(4) The optometrist agrees to continue to participate in
continuing education as required by the board for a special
volunteer license.
(d) Any optometrist who renders any optometrical service to
indigent and needy patients of a clinic organized, in whole or in
part, for the delivery of health care services without charge, under
a special volunteer license authorized under this section without
payment or compensation or the expectation or promise of payment or
compensation is immune from liability for any civil action arising
out of any act or omission resulting from the rendering of the
optometrical service at the clinic unless the act or omission was
the result of the optometrist's gross negligence or willful
misconduct. In order for the immunity under this subsection to
apply, before the rendering of any services by the optometrist at
the clinic, there must be a written agreement between the
optometrist and the clinic stating that the optometrist will provide
voluntary uncompensated optometrical services under the control of
the clinic to patients of the clinic before the rendering of any
services by the optometrist at the clinic:
Provided, That any
clinic entering into such written agreement is required to maintain
liability coverage of not less than $1 million per occurrence.
(e) Notwithstanding the provisions of subsection (d) of this
section, a clinic organized, in whole or in part, for the delivery
of health care services without charge is not relieved from imputed
liability for the negligent acts of an optometrist rendering
voluntary optometrical services at or for the clinic under a special
volunteer license under this section.
(f) For purposes of this section, "otherwise eligible for
licensure" means the satisfaction of all the requirements for
licensure in this article except the fee requirements.
(g) Nothing in this section may be construed as requiring the
board to issue a special volunteer license to any optometrist whose
license is or has been subject to any disciplinary action or to any
optometrist who has surrendered a license or caused such license to
lapse, expire and become invalid in lieu of having a complaint
initiated or other action taken against his or her license, or who
has elected to place a license in inactive status in lieu of having
a complaint initiated or other action taken against his or her
license, or who has been denied a license.
(h) Any policy or contract of liability insurance providing
coverage for liability sold, issued or delivered in this state to
any optometrist covered under the provisions of this article shall
be read so as to contain a provision or endorsement whereby the
company issuing such policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof,
to any claim covered by the terms of such policy within the policy
limits, the immunity from liability of the insured by reason of the
care and treatment of needy and indigent patients by an optometrist
who holds a special volunteer license.
§30-8-17. Optometric business entities.
(a) Only licensees may own a business entity that practices
optometry.
(b) A licensee may be employed by the business entity.
(c) A business entity shall cease to engage in the practice of
optometry when it is not wholly owned by licensees:
Provided, That
the personal representative of a deceased shareholder shall have a
period, not to exceed eighteen months from the date of such
shareholder's death, to dispose of such shares.
§30-8-18. Complaints; investigations; due process procedure;
grounds for disciplinary action.
(a) The board may upon its own motion based on credible
information, and shall upon the written complaint of any person
cause an investigation to be made to determine whether grounds exist
for disciplinary action under this article or the legislative rules
of the board.
(b) Upon initiation or receipt of the complaint, the board
shall provide a copy of the complaint to the licensee, certificate holder or permittee.
(c) After reviewing any information obtained through an
investigation, the board shall determine if probable cause exists
that the licensee or permittee has violated subsection (g) of this
section or rules promulgated pursuant to this article.
(d) Upon a finding that probable cause exists that the licensee
or permittee has violated subsection (g) of this section or rules
promulgated pursuant to this article, the board may enter into a
consent decree or hold a hearing for the suspension or revocation
of the license, certificate or permit or the imposition of sanctions
against the licensee, certificate holder or permittee. Any hearing
shall be held in accordance with the provisions of this article, and
the provisions of articles five and six, chapter twenty-nine-a of
this code.
(e) Any member of the board or the executive secretary of the
board may issue subpoenas and subpoenas duces tecum on behalf of the
board to obtain testimony and documents to aid in the investigation
of allegations against any person regulated by the article.
(f) Any member of the board or its executive secretary may sign
a consent decree or other legal document on behalf of the board.
(g) The board may, after notice and opportunity for hearing,
deny or refuse to renew, suspend or revoke the license, certificate
or permit of, impose probationary conditions upon or take disciplinary action against, any licensee, certificate holder or
permittee for any of the following reasons once a violation has been
proven by a preponderance of the evidence:
(1) Obtaining a license, certificate or permit by fraud,
misrepresentation or concealment of material facts;
(2) Being convicted of a felony or other crime involving moral
turpitude;
(3) Being guilty of unprofessional conduct which placed the
public at risk;
(4) Intentional violation of a lawful order;
(5) Having had an authorization to practice optometry revoked,
suspended, other disciplinary action taken, by the proper
authorities of another jurisdiction;
(6) Having had an application to practice optometry denied by
the proper authorities of another jurisdiction;
(7) Exceeded the scope of practice of optometry;
(8) Aiding or abetting unlicensed practice;
(9) Engaging in an act while acting in a professional capacity
which has endangered or is likely to endanger the health, welfare
or safety of the public; or
(10) False and deceptive advertising; this includes, but is not
limited to, the following:
(A) Advertising "free examination of eyes," or words of similar import and meaning; or
(B) Advertising frames or mountings for glasses, contact
lenses, or other optical devices which does not accurately describe
the same in all its component parts.
(h) For the purposes of subsection (g) of this section
disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative fine, not to exceed $1,000 per day per
violation;
(4) Mandatory attendance at continuing education seminars or
other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee or certificate holders to report to
the board for periodic interviews for a specified period of time;
or
(7) Other corrective action considered by the board to be
necessary to protect the public, including advising other parties
whose legitimate interests may be at risk.
§30-8-19. Procedures for hearing; right of appeal.
(a) Hearings shall be governed by the provisions of section
eight, article one of this chapter.
(b) The board may conduct the hearing or elect to have an administrative law judge conduct the hearing.
(c) If the hearing is conducted by an administrative law judge,
at the conclusion of a hearing he or she shall prepare a proposed
written order containing findings of fact and conclusions of law.
The proposed order may contain proposed disciplinary actions if the
board so directs. The board may accept, reject or modify the
decision of the administrative law judge.
(d) Any member or the executive secretary of the board has the
authority to administer oaths, examine any person under oath and
issue subpoenas and subpoenas duces tecum.
(e) If, after a hearing, the board determines the licensee,
certificate holder or permittee has violated the provisions of this
article or the board's legislative rules, a formal written decision
shall be prepared which contains findings of fact, conclusions of
law and a specific description of the disciplinary actions imposed.
§30-8-20. Judicial review.
Any licensee, certificate holder or permittee adversely
affected by a decision of the board entered after a hearing may
obtain judicial review of the decision in accordance with section
four, article five, chapter twenty-nine-a of this code, and may
appeal any ruling resulting from judicial review in accordance with
article six, chapter twenty-nine-a of this code.
§30-8-21. Criminal proceedings; penalties.
(a) When, as a result of an investigation under this article
or otherwise, the board has reason to believe that a licensee,
certificate holder or permittee has committed a criminal offense
under this article, the board may bring its information to the
attention of an appropriate law-enforcement official.
(b) A person violating section one of this article is guilty
of a misdemeanor and, upon conviction thereof, shall be fined not
less than $1,000 nor more than $5,000 or confined in jail not more
than six months, or both fined and confined.
§30-8-22. Single act evidence of practice.
In any action brought or in any proceeding initiated under this
article, evidence of the commission of a single act prohibited by
this article is sufficient to justify a penalty, injunction,
restraining order or conviction without evidence of a general course
of conduct.;
And,
That both houses agree to a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 230--A Bill to repeal §30-8-
2a, §30-8-2b, §30-8-3a, §30-8-3b and §30-8-5a of the Code of West
Virginia, 1931, as amended; to amend and reenact §30-8-1, §30-8-2,
§30-8-3, §30-8-4, §30-8-5, §30-8-6, §30-8-7, §30-8-8, §30-8-9, §30-
8-10 and §30-8-11 of said code; and to amend said code by adding
thereto eleven new sections, designated §30-8-12, §30-8-13, §30-8-14, §30-8-15, §30-8-16, §30-8-17, §30-8-18, §30-8-19, §30-8-20, §30-
8-21 and §30-8-22, all relating to the Board of Optometry;
prohibiting the practice of optometry without a license or permit;
providing other applicable sections; providing definitions;
providing the board composition; setting forth the powers and duties
of the board; clarifying the rule-making authority; clarifying the
scope of practice; establishing expanded authority for injections;
continuing a special revenue account; licensing requirements;
exemptions; providing for licensure for persons licensed in another
state; clarifying prescriptive authority; clarifying injection
authority; establishing special volunteer license; optometric
business requirements; establishing renewal requirements; providing
permit requirements; setting forth grounds for disciplinary actions;
allowing for specific disciplinary actions; providing procedures for
investigation of complaints; providing for judicial review and
appeals of decisions; setting forth hearing and notice requirements;
providing for civil causes of action; providing criminal penalties;
and providing that a single act is evidence of practice.
Respectfully submitted,
Edwin J. Bowman,
Chair, Jeffrey V. Kessler, Karen L. Facemyer,
Conferees on the part of the Senate.
Don C. Perdue,
Chair, Thomas W. Campbell, Larry W. Border (
Did
not sign),
Conferees on the part of the House of Delegates.
On motions of Senator Bowman, severally made, the report of the
committee of conference was taken up for immediate consideration.
The question being on the adoption of the report of the
committee of conference as to Engrossed Committee Substitute for
Senate Bill No. 230.
Following discussion,
Senator Plymale moved the previous question, which motion
prevailed.
The previous question having been ordered, that being on the
adoption of the report of the committee of conference as to
Engrossed Committee Substitute for Senate Bill No. 230, the same was
put and prevailed.
Engrossed Committee Substitute for Senate Bill No. 230, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were: Barnes,
Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Hall, Helmick, Kessler, Laird,
McCabe, Minard, Palumbo, Snyder, Stollings, Sypolt, Unger, Wells,
White, Williams, Yost and Tomblin (Mr. President)--28.
The nays were: Guills, Jenkins, Oliverio, Plymale and
Prezioso--5.
Absent: Caruth--1.
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. No. 230) passed with its conference amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Plymale, from the committee of conference on matters
of disagreement between the two houses, as to
Eng. Com. Sub. for Senate Bill No. 480, Relating to public
higher education personnel.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendments of the House to Engrossed Committee
Substitute for Senate Bill No. 480 having met, after full and free
conference, have agreed to recommend and do recommend to their
respective houses, as follows:
That both Houses recede from their respective positions as to
the amendment of the House of Delegates as follows:
On page one hundred ninety-seven, section four, line twenty-
five, by striking out the paragraph designation "(H)" and inserting
in lieu thereof "(I) One classified employee representing the
doctoral degree-granting institutions appointed by the advisory
council of classified employees. This individual may not represent
the same institution that is represented by the membership position
provided in paragraph (F) of this subdivision;" and relettering the remaining paragraph designations accordingly;
On page two hundred two, section five, line seventeen,
following the subdivision designation "(4)", by inserting the
following "One classified employee representing the doctoral degree-
granting institutions appointed by the advisory council of
classified employees. This individual may not represent the same
institution that is represented by the membership position provided
in subdivision (11) of this subsection; (5)";
On page two hundred forty-two, section three, line twenty-
three, after the semicolon, by striking out the word "and";
On page two hundred forty-two, section three, line twenty-five,
after the period, by inserting "(iii) The affiliated governing board
shall make all appointments to the board of directors of the
affiliated corporation by majority vote of its members and shall
include the individual votes as a part of the minute record.";
On page two hundred forty-two, section three, line twenty-
seven, following the period, by inserting the following sentence:
"Individuals who are directly involved in research at the affiliated
institution shall constitute a majority of the potential affiliated
membership.";
On page two hundred forty-three, section three, line thirty-
three, by striking out the words "corporate directors" and inserting
in lieu thereof the words "affiliated governing board"; and agrees to this amendment as follows: on line thirty-six, after the period,
by inserting the following sentence: "The affiliated governing board
shall appoint the executive director by majority vote of its members
and shall include the vote as a part of the minute record.";
And,
And the Senate agrees to all other House amendments.
Respectfully submitted,
Robert H. Plymale,
Chair, William R. Laird IV, Jesse O. Guills,
Conferees on the part of the Senate.
Mary M. Poling,
Chair, Brady Paxton, Ray Canterbury,
Conferees
on the part of the House of Delegates.
Senator Plymale, Senate cochair of the committee of conference,
was recognized to explain the report.
Thereafter, on motion of Senator Plymale, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for Senate Bill No. 480, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were: Barnes,
Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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. No. 480) passed with its title.
[CLERK'S NOTE: Engrossed Committee Substitute for Senate Bill
No. 480 (
Relating to public higher education personnel) was not
enrolled due to technical deficiency.]
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman,
Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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. No. 480) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Laird, from the committee of conference on matters of disagreement between the two houses, as to
Eng. Com. Sub. for Senate Bill No. 567, Creating Nonprofit
Adventure and Recreational Responsibility Act.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendment of the House to Engrossed Committee
Substitute for Senate Bill No. 567 having met, after full and free
conference, have agreed to recommend and do recommend to their
respective houses, as follows:
That both houses recede from their respective positions as to
the amendment of the House of Delegates, striking out everything
after the enacting section, and agree to the same was follows:
ARTICLE 16. NONPROFIT ADVENTURE AND RECREATIONAL ACTIVITY
RESPONSIBILITY ACT.
§20-16-1. Short title.
This article may be cited as the Nonprofit Adventure and
Recreational Activity Responsibility Act.
§20-16-2. Legislative purpose.
The Legislature finds that West Virginia is blessed by
geography and natural features that make it ideal for a host of
adventure and recreational activities attractive to nonprofit youth
organizations interested in training and inspiring thousands of
young people from other parts of the United States and throughout the world. The location by these organizations of facilities within
the state will contribute significantly to the economy of West
Virginia, and enhance the state's reputation as a place to visit and
transact business. Because it is recognized that there are inherent
risks in various adventure and recreational activities which should
be understood by participants therein and which are essentially
impossible for the organizations and their providers to eliminate,
it is the purpose of this article to define those areas of
responsibility and those affirmative acts for which these nonprofit
organizations and their providers of adventure and recreational
activities shall be liable for loss, damage or injury suffered by
participants, and to further define those risks which the
participants expressly assume and for which there can be no
recovery.
§20-16-3. Definitions.
In this article, unless a different meaning plainly is
required:
(1) "Adventure or recreational activity" means any program or
activity sponsored by a nonprofit youth organization and conducted
by the organization or its provider that involves inherent risks,
including, but not limited to:
(A) All-terrain vehicle activities and similar activities,
including all activities within the ATV Responsibility Act in article fifteen of this chapter;
(B) Biking, mountain-biking and similar activities;
(C) Canopy activities, zip-lines and similar activities;
(D) Climbing and repelling and similar activities in improved
and natural areas, including climbing walls,;
(E) Equestrian activities and similar activities, including all
activities within the Equestrian Activities Responsibility Act in
article four of this chapter;
(F) Firearms training and similar activities;
(G) Hiking, backpacking, camping and similar activities;
(H) Paintball and similar activities;
(I) Rope initiatives, cope and confidence courses, challenge
courses, slacklines, challenge courses and similar activities;
(J) Skating, including ice skating, rollerblading, and similar
activities;
(K) Snow activities, including snowshoeing, snow skiing,
sledding, snowmobiling, and similar activities, including all
activities within the Skiing Responsibility Act in article three-A
of this chapter;
(L) Spelunking, caving, and similar activities;
(M) Water sports, including swimming, diving, canoeing,
kayaking, boating, sailing, scuba diving, water skiing, and similar
activities, including all activities within the Whitewater Responsibility Act in article three-B of this chapter;
(N) Windsurfing and similar activities.
(2) "Employee" means an officer, agent, employee, servant, or
volunteer, whether compensated or not, whether full time or not, who
is authorized to act and is acting within the scope of his or her
employment or duties with the nonprofit youth organization or
provider.
(3) "Nonprofit youth organization" means any nonprofit
organization, including any subsidiary, affiliate or other related
entity within its corporate or other business structure, that has
been chartered by the United States Congress to train young people
to do things for themselves and others, and that has established an
area of at least six thousand contiguous acres within West Virginia
in which to provide adventure or recreational activities for these
young people and others.
(4) "Participant" means any person engaging in an adventure or
recreational activity.
(5) "Provider" means any individual, sole proprietorship,
partnership, association, public or private corporation, the United
States or any federal agency, this state or any political
subdivision of this state, and any other legal entity which engages,
with or without compensation, in organizing, promoting, presenting
or providing or assisting in providing an adventure or recreational activity sponsored by a nonprofit youth organization, including one
that allows the nonprofit youth organization the use of its land for
the adventure or recreational activity.
§20-16-4. Duties of a nonprofit youth organization or provider.
Every nonprofit youth organization or provider shall:
(1) Make reasonable and prudent efforts to determine the
ability of a participant to safely engage in the adventure or
recreational activity;
(2) Make known to any participant any dangerous traits or
characteristics or any physical impairments or conditions related
to a particular adventure or recreational activity, of which the
nonprofit youth organization or provider knows or through the
exercise of due diligence could know;
(3) Make known to any participant any dangerous condition as
to land or facilities under the lawful possession and control of the
nonprofit youth organization or provider, of which the nonprofit
youth organization or provider knows or through the exercise of due
diligence could know, by advising the participant in writing or by
conspicuously posting warning signs upon the premises;
(4) Assure that each participant has or is provided all
equipment reasonably necessary for all activities covered by this
article and, in providing equipment to a participant, make
reasonable and prudent efforts to inspect such equipment to assure that it is in proper working condition and safe for use in the
adventure or recreational activity;
(5) Prepare and present to each participant or prospective
participant, for his or her inspection and signature, a statement
which clearly and concisely explains the liability limitations,
restrictions and responsibilities set forth in this article:
Provided, That said statement shall not contain nor have the effect
of a waiver of a nonprofit youth organization or provider's duties
set forth in this section;
(6) Make reasonable efforts to provide supervision of
participants while engaged in activities under this article.
§20-16-5. Duties of participants.
It is recognized that the adventure and recreational activities
described in this article are hazardous to participants, regardless
of all feasible safety measures which can be taken.
Each participant in an adventure or recreational activity
expressly assumes the risk of and legal responsibility for any
injury, loss or damage to person or property which results from
participation in an activity. Each participant shall have the sole
individual responsibility for knowing the range of his or her own
ability to participate in a particular adventure or recreational
activity, and it shall be the duty of each participant to act within
the limits of the participant's own ability, to heed all posted warnings, to act in accordance with the instructions of any employee
of the non-profit youth organization or provider, to perform an
adventure or recreational activity only in an area or facility
designated by the nonprofit youth organization or provider and to
refrain from acting in a manner which may cause or contribute to the
injury of anyone. There is a rebuttable presumption that any
participant under the age of fourteen is incapable of comparative
negligence or assumption of the risk. There is an irrebuttable
presumption that any participant under the age of seven is incapable
of comparative negligence or assumption of the risk. Any participant
over the age of fourteen will be subject to the common law
presumptions as to their acts and or omissions.
A participant involved in an accident shall not depart from the
area or facility where the adventure or recreational activity took
place without leaving personal identification, including name and
address, or without notifying the proper authorities, or without
obtaining assistance when that person knows or reasonably should
know that any other person involved in the accident is in need of
medical or other assistance.
§20-16-6. Liability of nonprofit youth organization or provider.
(a) A nonprofit youth organization or provider shall be liable
for injury, loss or damage caused by failure to follow the duties
set forth in section four of this article where the violation of duty is causally related to the injury, loss or damage suffered. A
nonprofit youth organization or provider shall not be liable for any
injury, loss or damage caused by the negligence of any person who
is not an agent or employee of the nonprofit youth organization or
provider.
(b) A nonprofit youth organization or provider shall be liable
for acts or omissions which constitute gross negligence or willful
and wanton conduct which is the proximate cause of injury to a
participant.
(c) A nonprofit youth organization or provider shall be liable
for an intentional injury which he or she inflicts upon a
participant.
(d) Every nonprofit youth organization and any provider for
such non-profit youth organization shall carry public liability
insurance in limits of no less than $500,000 per person, $1,000,000
per occurrence and $50,000 for property damage with coverage
extending to any employee of the non-profit youth organization or
provider in the course of their duties as an employee or volunteer.
The failure to have in effect the insurance required by this section
shall prevent the non-profit youth organization or provider from
relying on the provisions of this article in any civil action
brought by a participant.
§20-16-7. Liability of participants.
Any participant shall be liable for injury, loss or damage
resulting from violations of the duties set forth in section five
of this article:
Provided, That none of the provisions in this
article shall modify or eliminate any other statutory or common law
provisions which specifically relate to or concern liability of
minors or the capacity of minors to legally enter into contracts.
§20-16-8. Applicability of article.
The provisions of this article are in addition to provisions
of articles three-A, three-B, four and fifteen of this chapter, and
are to be construed in pari materia.
Respectfully submitted,
William R. Laird IV,
Chair, Corey Palumbo, Clark S. Barnes,
Conferees on the part of the Senate.
Alex Shook,
Chair, John R. Frazier, John N. Ellem,
Conferees
on the part of the House of Delegates.
On motions of Senator Laird, severally made, the report of the
committee of conference was taken up for immediate consideration and
adopted.
Engrossed Committee Substitute for Senate Bill No. 567, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were: Barnes,
Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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. No. 567) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the adoption by that body of the committee of conference report,
passage as amended by the conference report with its conference
amended title, and requested the concurrence of the Senate in the
adoption thereof, as to
Eng. House Bill No. 4177, Dedicating five percent of coal
severance tax to the county of origin.
Whereupon, Senator Fanning, from the committee of conference
on matters of disagreement between the two houses, as to
Eng. House Bill No. 4177, Dedicating five percent of coal
severance tax to the county of origin.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendment of the Senate to Engrossed House Bill
No. 4177, having met, after full and free conference, have agreed
to recommend and do recommend to their respective houses, as
follows:
That both houses recede from their respective positions as to
the amendment of the Senate, striking out everything after the
enacting clause, and agree to the same as follows:
That §11-13A-5a of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 13A. SEVERANCE AND BUSINESS PRIVILEGE TAX ACT.
§11-13A-5a.
Dedication of five percent of severance tax for
benefit of counties of origin; phase in period;
expenditures of funds; dedication of ten percent
of oil and gas severance tax for benefit of
counties and municipalities; distribution of major
portion of such dedicated tax to oil and gas
producing counties; distribution of minor portion
of such dedicated tax to all counties and
municipalities; reports; rules; special funds in
the office of State Treasurer; methods and
formulae for distribution of such dedicated tax; expenditure of funds by counties and
municipalities for public purposes; and requiring
special county and municipal budgets and reports
thereon.
(a) (1) Effective July 1, 2010, one percent of the tax
attributable to the severance of coal imposed by section three of
this article is dedicated for the use and benefit of counties from
which those taxes were generated and shall be distributed to each
county as provided in this subsection. Effective July 1, 2011, two
percent of the tax attributable to the severance of coal imposed by
section three of this article is dedicated for the use and benefit
of counties from which those taxes were generated and shall be
distributed to each county as provided in this subsection.
Effective July 1, 2012, three percent of the tax attributable to the
severance of coal imposed by section three of this article is
dedicated for the use and benefit of counties from which those taxes
were generated and shall be distributed to each county as provided
in this subsection. Effective July 1, 2013, four percent of the tax
attributable to the severance of coal imposed by section three of
this article is dedicated for the use and benefit of counties from
which those taxes were generated and shall be distributed to each
county as provided in this subsection. Effective July 1, 2014, and
each year thereafter, five percent of the tax attributable to the severance of coal imposed by section three of this article is
dedicated for the use and benefit of counties from which those taxes
were generated and shall be distributed to each county as provided
in this subsection.
(2) For purposes of this subsection, the tax attributable to
the severance of coal imposed by section three of this article does
not include the thirty-five one hundredths of one percent additional
severance tax on coal imposed by the state for the benefit of
counties and municipalities as provided in section six of this
article.
(3) The percentage authorized in this subsection shall be
deposited into a special fund known as the "County Severance Revenue
Fund" which is hereby established in the state treasury, and from
that fund shall be distributed by the state Treasurer in the manner
specified in this subsection to the various counties of this state
in which the coal upon which the tax imposed by section three of
this article is imposed was located at the time it was removed from
the ground. The moneys shall be distributed to the county
commissions and used only for:
(A) Projects through economic development authorities and
redevelopment authorities;
(B) Infrastructure;
(C) Job creation;
(D) Road repair;
(E) Public health systems; and
(F) As pledge to the payment of bond indebtedness for projects
related to paragraphs (A) through (E) of this subdivision.
(4) (A) No distribution made to a county under this subsection
may be deposited into the county's general revenue fund. The county
commission of each county receiving a distribution under this
subsection shall establish a special account to be known as the
"(name of county) 5% Special Coal Severance Account" into which all
distributions made under this subsection shall be deposited and
thereafter expended by the county commission as provided by this
subsection.
(B) On or before October 1, 2011, and October 1 of each year
thereafter, the county commission of each county receiving a
distribution of funds under this subsection shall report to the
Legislature on the use made of those funds during the next preceding
fiscal year.
(a) (b) Effective July 1, 1996, five percent of the tax
attributable to the severance of oil and gas imposed by section
three-a of this article is
hereby dedicated for the use and benefit
of counties and municipalities within this state and shall be
distributed to the counties and municipalities as provided in this
section. Effective
the July 1, 1997, and thereafter, ten percent of the tax attributable to the severance of oil and gas imposed by
section three-a of this article is
hereby dedicated for the use and
benefit of counties and municipalities within this state and shall
be distributed to the counties and municipalities as provided in
this section.
(b) (c) Seventy-five percent of this dedicated tax shall be
distributed by the state Treasurer in the manner specified in this
section to the various counties of this state in which the oil and
gas upon which this additional tax is imposed was located at the
time it was removed from the ground. Those counties are referred
to in this section as the "oil and gas producing counties". The
remaining twenty-five percent of the net proceeds of this additional
tax on oil and gas shall be distributed among all the counties and
municipalities of this state in the manner specified in this
section.
(c) (d) The Tax Commissioner is hereby granted plenary power
and authority to promulgate reasonable rules requiring the
furnishing by oil and gas producers of
such additional information
as may be necessary to compute the allocation required under the
provisions of subsection
(f) (g) of this section. The Tax
Commissioner is also
hereby granted plenary power and authority to
promulgate
such other reasonable rules as may be necessary to
implement the provisions of this section.
(d) (e) In order to provide a procedure for the distribution
of seventy-five percent of the dedicated tax on oil and gas to the
oil and gas producing counties, the special fund known as the oil
and gas county revenue fund established in the State Treasurer's
office by chapter two hundred forty-two, Acts of the Legislature,
regular session, 1995, as amended and reenacted in the subsequent
Act of the Legislature, is
hereby continued. In order to provide
a procedure for the distribution of the remaining twenty-five
percent of the dedicated tax on oil and gas to all counties and
municipalities of the state, without regard to oil and gas having
been produced in those counties or municipalities, the special fund
known as the "All Counties and Municipalities Revenue Fund"
established in
the State Treasurer's office by chapter two hundred
forty-two, Acts of the Legislature, regular session, 1995, as
amended and reenacted in the subsequent Act of the Legislature, is
hereby redesignated as the "All Counties and Municipalities Oil and
Gas Revenue Fund" and is hereby continued.
Seventy-five percent of the dedicated tax on oil and gas shall
be deposited in the "Oil and Gas County Revenue Fund" and twenty-
five percent of the dedicated tax on oil and gas shall be deposited
in the "All Counties and Municipalities Oil and Gas Revenue Fund,"
from time to time, as the proceeds are received by the Tax
Commissioner. The moneys in the funds shall be distributed to the respective counties and municipalities entitled to the moneys in the
manner set forth in subsection
(e) (f) of this section.
(e) (f) The moneys in the "Oil and Gas County Revenue Fund" and
the moneys in the "All Counties and Municipalities Oil and Gas
Revenue Fund" shall be allocated among and distributed annually to
the counties and municipalities entitled to the moneys by the state
Treasurer in the manner specified in this section. On or before
each distribution date, the state Treasurer shall determine the
total amount of moneys in each fund which will be available for
distribution to the respective counties and municipalities entitled
to the moneys on that distribution date. The amount to which an oil
and gas producing county is entitled from the "Oil and Gas County
Revenue Fund" shall be determined in accordance with subsection
(f)
(g) of this section, and the amount to which every county and
municipality shall be entitled from the "All Counties and
Municipalities Oil and Gas Revenue Fund" shall be determined in
accordance with subsection
(g) (h) of this section. After
determining, as set forth in subsections
(f) and (g) (g) and (h) of
this section, the amount each county and municipality is entitled
to receive from the respective fund or funds, a warrant of the State
Auditor for the sum due to the county or municipality shall issue
and a check drawn thereon making payment of the sum shall thereafter
be distributed to the county or municipality.
(f) (g) The amount to which an oil and gas producing county is
entitled from the oil and gas county revenue fund shall be
determined by:
(1) In the case of moneys derived from tax on the severance of
gas:
(A) Dividing the total amount of moneys in the fund derived
from tax on the severance of gas then available for distribution by
the total volume of cubic feet of gas extracted in this state during
the preceding year; and
(B) Multiplying the quotient thus obtained by the number of
cubic feet of gas taken from the ground in the county during the
preceding year; and
(2) In the case of moneys derived from tax on the severance of
oil:
(A) Dividing the total amount of moneys in the fund derived
from tax on the severance of oil then available for distribution by
the total number of barrels of oil extracted in this state during
the preceding year; and
(B) Multiplying the quotient thus obtained by the number of
barrels of oil taken from the ground in the county during the
preceding year.
(g) (h) The amount to which each county and municipality is
entitled from the "All Counties and Municipalities Oil and Gas Revenue Fund" shall be determined in accordance with the provisions
of this subsection. For purposes of this subsection "population"
means the population as determined by the most recent decennial
census taken under the authority of the United States:
(1) The Treasurer shall first apportion the total amount of
moneys available in the all counties and municipalities oil and gas
revenue fund by multiplying the total amount in the fund by the
percentage which the population of each county bears to the total
population of the state. The amount thus apportioned for each
county is the county's "base share".
(2) Each county's base share shall then be subdivided into two
portions. One portion is determined by multiplying the base share
by that percentage which the total population of all unincorporated
areas within the county bears to the total population of the county,
and the other portion is determined by multiplying the base share
by that percentage which the total population of all municipalities
within the county bears to the total population of the county. The
former portion shall be paid to the county and the latter portion
shall be the "municipalities' portion" of the county's base share.
The percentage of the latter portion to which each municipality in
the county is entitled shall be determined by multiplying the total
of the latter portion by the percentage which the population of each
municipality within the county bears to the total population of all municipalities within the county.
(h) (i) Moneys distributed to any county or municipality under
the provisions of this section, from either or both special funds,
shall be deposited in the county or municipal general fund and may
be expended by the county commission or governing body of the
municipality for such purposes as the county commission or governing
body shall determine to be in the best interest of its respective
county or municipality:
Provided, That in counties with population
in excess of two hundred thousand, at least seventy-five percent of
the funds received from the Oil and Gas County Revenue Fund shall
be apportioned to and expended within the oil and gas producing area
or areas of the county, the oil and gas producing areas of each
county to be determined generally by the State Tax Commissioner:
Provided, however, That the moneys distributed to any county or
municipality under the provisions of this section shall not be
budgeted for personal services in an amount to exceed one-fourth of
the total amount of the moneys.
(i) (j) On or before March 28, 1997, and each March 28
thereafter, each county commission or governing body of a
municipality receiving any such moneys shall submit to the Tax
Commissioner on forms provided by the Tax Commissioner a special
budget, detailing how the moneys are to be spent during the
subsequent fiscal year. The budget shall be followed in expending the moneys unless a subsequent budget is approved by the State Tax
Commissioner. All unexpended balances remaining in the county or
municipality general fund at the close of a fiscal year shall remain
in the General Fund and may be expended by the county or
municipality without restriction.
(j) (k) On or before December 15, 1996, and each December 15
thereafter, the Tax Commissioner shall deliver to the Clerk of the
Senate and the Clerk of the House of Delegates a consolidated report
of the budgets, created by subsection
(i) (j) of this section, for
all county commissions and municipalities as of July 15 of the
current year.
(k) (l) The State Tax Commissioner shall retain for the benefit
of the state from the dedicated tax attributable to the severance
of oil and gas the amount of $35,000 annually as a fee for the
administration of the additional tax by the Tax Commissioner.;
And,
That both houses recede from their positions as to the title
of the bill and agree to the same as follows:
Eng. House Bill No. 4177--A Bill to amend and reenact §11-13A-
5a of the Code of West Virginia, 1931, as amended, relating to
dedicating five percent of coal severance tax to the county of
origin as phased in over a five year period and providing
permissible uses for the moneys.
Respectfully submitted,
K. Steven Kominar,
Chair, Jeff Eldridge, Ron Walters,
Conferees
on the part of the House of Delegates.
John Pat Fanning,
Chair, C. Randy White, Karen L. Facemyer,
Conferees on the part of the Senate.
Senator Fanning, Senate cochair, of the committee of
conference, was recognized to explain the report.
Thereafter, on motion of Senator Fanning, the report was taken
up for immediate consideration and adopted.
Engrossed House Bill No. 4177, as amended by the conference
report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were: Barnes,
Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K.
Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins,
Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams,
Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4177) passed with its conference amended title.
[CLERK'S NOTE: Engrossed House Bill No. 4177 (
Dedicating five percent of coal severance tax to the county of origin) was not
enrolled due to technical deficiency.]
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the adoption by that body of the committee of conference report,
passage as amended by the conference report with its conference
amended title, to take effect July 1, 2010, and requested the
concurrence of the Senate in the adoption thereof, as to
Eng. House Bill No. 4593, Relating to high school graduation
improvement.
Whereupon, Senator Prezioso, from the committee of conference
on matters of disagreement between the two houses, as to
Eng. House Bill No. 4593, Relating to high school graduation
improvement.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendments of the Senate to Engrossed House
Bill No. 4593 having met, after full and free conference, have
agreed to recommend and do recommend to their respective houses, as
follows:
That both Houses recede from their respective positions on the
Senate amendment on page eight, subsection (g) and agree to the same as follows:
"(g) A child
shall be is exempt from the compulsory school
attendance requirement set forth in
subsection (a) of this section
section one-a of this article if the child is granted a work permit
pursuant to the subsection.
After due investigation the county
superintendent may
after due investigation grant work permits to
youths under
sixteen years of age the termination age designated in
section one-a of this article, subject to state and federal labor
laws and regulations.
Provided, That A work permit may not be
granted on behalf of any youth who has not completed the eighth
grade of school.";
And,
That both Houses recede from their respective positions with
respect to §18-8-1a, and agree to the same as follows:
"§18-8-1a. Commencement and termination of compulsory school
attendance; public school entrance requirements; exceptions.
(a) Notwithstanding the provisions of section one of this article,
compulsory school attendance
shall begin begins with the school year
in which the sixth birthday is reached prior to September 1 of such
year or upon enrolling in a publicly supported kindergarten program
and,
continue subject to subdivision (3) of this subsection,
continues to the sixteenth birthday or for as long as the student
shall continue continues to be enrolled in a school system after the sixteenth birthday.
Provided, That
(1) A child may be removed from such kindergarten program when the
principal, teacher and parent or guardian concur that the best
interest of the child would not be served by requiring further
attendance.
Provided, however That the principal shall make the
final determination with regard to compulsory school attendance in
a publicly supported kindergarten program.
Provided further, That
(2) The compulsory school attendance provision of this article shall
be enforced against a person eighteen years of age or older for as
long as the person continues to be enrolled in a school system, and
shall may not be enforced against the parent, guardian, or custodian
of
such the person.
(3) Beginning with the 2011-2012 high school freshman cohort class
of students, and notwithstanding the provisions of section one of
this article, compulsory school attendance begins with the school
year in which the sixth birthday is reached prior to September 1 of
such year or upon enrolling in a publicly supported kindergarten
program and continues to the seventeenth birthday or for as long as
the student continues to be enrolled in a school system after the
seventeenth birthday.
(4) Beginning with the December 2010 interim meeting period, and
semiannually thereafter, the state superintendent shall report to
the Legislative Oversight Commission on Education Accountability on the impact of the increased age requirement of subdivision (3) of
this subsection, and the progress of the state board and the county
boards in implementing the requirements of section six of this
article.
(b) Attendance at a state-approved or Montessori kindergarten, as
provided in section eighteen, article five of this chapter,
shall
be is deemed school attendance for purposes of this section. Prior
to entrance into the first grade in accordance with section five,
article two of this chapter, each child must have either:
(1) Successfully completed such publicly or privately supported,
state-approved kindergarten program or Montessori kindergarten
program; or
(2) Successfully completed an entrance test of basic readiness
skills approved by the county in which the school is located.
Provided, That such The test
may be administered in lieu of
kindergarten attendance only under extraordinary circumstances to
be determined by the
county board.
(c) Notwithstanding the provisions of this section and of section
five, article two of this chapter and section eighteen, article five
of this chapter, a county board may provide for advanced entrance
or placement under policies adopted by said board for any child who
has demonstrated sufficient mental and physical competency for such
entrance or placement.
Nothing herein shall prevent
(d) This section does not prevent a student from another state from
enrolling
in the same grade in a public school in West Virginia
in
such grade as the student was enrolled at the school from which the
student transferred.";
That the House agree to the Senate amendment as to §18-8-4;
That the House agree to the Senate amendment as to §18-8-6;
That the House agree to the Senate amendment which struck §18-9A-3a;
That the House agree to the Senate amendment as to §18-9A-21;
That the House agree to all other Senate amendments to the bill;
That both houses recede from their respective positions as to the
enacting section, and agree to the same, as follows:
That the Code of West Virginia, 1931, as amended, be amended by
adding thereto a new section, designated §18-8-6; that §18-8-1, §18-
8-1a and §18-8-4 of said code be amended and reenacted; that §18-9A-
21 of said code be amended and reenacted; and that §62-15-4 of said
code be amended and reenacted, all to read as follows:;
And,
That the Senate and House agree to a new title as follows:
Eng. House Bill No. 4593--A Bill to amend the Code of West Virginia,
1931, as amended, by adding thereto a new section, designated §18-8-
6; to amend and reenact §18-8-1, §18-8-1a and §18-8-4 of said code;
to amend and reenact §18-9A-21 of said code; and to amend and
reenact §62-15-4 of said code, all relating to improving student participation, success and high school graduation rates; increasing
the minimum age for ending compulsory school attendance; reducing
the number of days of unexcused absences at which proceedings to
enforce attendance begin; establishing the "High School Graduation
Improvement Act"; establishing legislative findings and intent;
requiring county board of education plan for improving student
retention and increasing graduation rate; requiring state board of
education to develop, expand and assist certain programs; requiring
certain state superintendent reports to Legislative Oversight
Commission on Education Accountability; increasing funding for
alternative education programs; and authorizing establishment of
additional juvenile drug courts.
Respectfully submitted,
Mary M. Poling,
Chair, Brady Paxton, Josh Stowers, David G.
Perry, Walter Duke,
Conferees on the part of the House of Delegates.
Roman W. Prezioso, Jr.,
Chair, Larry J. Edgell, C. Randy White,
Donna J. Boley, Jesse O. Guills,
Conferees on the part of the
Senate.
On motions of Senator Prezioso, severally made, the report of
the committee of conference was taken up for immediate consideration
and adopted.
Engrossed House Bill No. 4593, as amended by the conference
report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were: Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Helmick, Jenkins, Kessler, Laird,
McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Unger, Wells, White, Yost and Tomblin (Mr.
President)--29.
The nays were: Barnes, Hall, Sypolt and Williams--4.
Absent: Caruth--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4593) passed with its conference amended title.
Senator Chafin moved that the bill take effect July 1, 2010.
On this question, the yeas were: Boley, Bowman, Browning,
Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Guills, Helmick, Jenkins, Kessler, Laird, McCabe, Minard,
Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Unger,
Wells, White, Yost and Tomblin (Mr. President)--29.
The nays were: Barnes, Hall, Sypolt and Williams--4.
Absent: Caruth--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4593) takes effect July 1, 2010.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
The Senate again proceeded to the fourth order of business.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Eng. Com. Sub. for House Bill No. 4623, Adding six additional
members to the Equal Pay Commission, three from the House of
Delegates and three from the Senate.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4623) contained in
the preceding report from the Committee on Government Organization
was taken up for immediate consideration, read a first time and
ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--32.
The nays were: Barnes--1.
Absent: Caruth--1.
The bill was read a second time and ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4623) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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. No. 4623) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Unger, from the Committee on Transportation and
Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had
under consideration
House Concurrent Resolution No. 70, The "Jerry Alan Jones
Memorial Bridge".
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
John R. Unger II,
Chair.
At the request of Senator Unger, unanimous consent being
granted, the resolution (H. C. R. No. 70) contained in the preceding
report from the Committee on Transportation and Infrastructure was
taken up for immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
that that body had agreed to the appointment of a committee of conference of six from each house on the disagreeing votes of the
two houses, as to
Eng. Com. Sub. for Senate Bill No. 213, Budget Bill.
The message further announced the appointment of the following
conferees on the part of the House of Delegates:
Delegates White, Campbell, M. Poling, Kominar, Perdue and
Anderson.
On motion of Senator Chafin, the Senate agreed to the
appointment of a conference committee on the bill.
Whereupon, Senator Tomblin (Mr. President) appointed the
following conferees on the part of the Senate:
Senators Helmick, McCabe, Plymale, Prezioso, Bowman and K.
Facemyer.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the fourth order of business.
Senator Tomblin (Mr. President), from the Committee on Rules,
submitted the following report, which was received:
Your Committee on Rules has had under consideration
Senate Concurrent Resolution No. 8, Requesting Joint Committee
on Government and Finance study gubernatorial succession.
Senate Concurrent Resolution No. 73, Requesting Joint Committee
on Government and Finance study green public policy initiatives.
Senate Concurrent Resolution No. 75, Requesting Joint Committee
on Judiciary study limiting certain DNR Parks and Recreation
liability.
Senate Concurrent Resolution No. 77, Requesting Joint Committee
on Government and Finance study vocational education from middle
school through adulthood.
Senate Concurrent Resolution No. 78, Requesting Joint Committee
on Government and Finance study improving student achievement.
Senate Concurrent Resolution No. 79, Requesting Joint Committee
on Judiciary study establishing additional civil and criminal
forfeiture statutes.
Senate Concurrent Resolution No. 83, Requesting Joint Committee
on Government and Finance authorize study revising Health Care
Authority's powers and duties.
Senate Concurrent Resolution No. 86, Requesting Joint Committee
on Government and Finance study DNR Parks and Recreation section
deferred maintenance, profitability and recommended facility
closures.
House Concurrent Resolution No. 7, Requesting the Joint
Committee on Government and Finance to continue studying the needs,
challenges, and issues facing West Virginia veterans returning from
recent service.
And,
House Concurrent Resolution No. 102, Requesting a study of the
issues relating to creating a matching grant pilot project.
And reports the same back with the recommendation that they be
adopted.
Respectfully submitted,
Earl Ray Tomblin,
Chairman ex officio.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 8 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 73 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 75 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 77 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 78 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 79 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 83 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, Senate Concurrent Resolution No. 86 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, unanimous consent being
granted, House Concurrent Resolution No. 7 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
At the request of Senator Chafin, unanimous consent being
granted, House Concurrent Resolution No. 102 contained in the
preceding report from the Committee on Rules was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate proceeded to the twelfth order of business.
Remarks were made by Senators Barnes, Snyder and Kessler.
Thereafter, at the request of Senator Guills, and by unanimous
consent, the remarks by Senator Barnes were ordered printed in the
Appendix to the Journal.
At the request of Senator Bowman, unanimous consent being
granted, the remarks by Senator Kessler were ordered printed in the
Appendix to the Journal.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments, as amended
by the House of Delegates, passage as amended, with its Senate
amended title, and requested the concurrence of the Senate in the
House of Delegates amendment to the Senate amendments, as to
Eng. Com. Sub. for House Bill No. 4604, Increasing the criminal
penalties for persons who obstruct, flee from or make false
statements to law-enforcement officers.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the Senate
amendments to the bill were reported by the Clerk:
On page three, section seventeen, lines five through seven,
subsection (e), by striking out the words "a state correctional
facility less than one year nor more than five years, or both" and
inserting in lieu thereof the words "confined in a regional jail nor
more than one year, or both".
On motion of Senator Chafin, the Senate concurred in the foregoing House of Delegates amendment to the Senate amendments to
the bill.
Engrossed Committee Substitute for House Bill No. 4604, as
amended, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley,
Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer,
Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler,
Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caruth--1.
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. No. 4604) passed with its Senate amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the twelfth order of business.
Remarks were made by Senators Guills, Bowman and Oliverio.
Thereafter, at the request of Senator Barnes, and by unanimous
consent, the remarks by Senator Guills were ordered printed in the
Appendix to the Journal.
At the request of Senator Kessler, unanimous consent being granted, the remarks by Senator Bowman were ordered printed in the
Appendix to the Journal.
At the request of Senator Prezioso, and by unanimous consent,
the remarks by Senator Oliverio were ordered printed in the Appendix
to the Journal.
The Senate proceeded to the thirteenth order of business.
At the request of Senator Unger, the name of Senator Unger was
removed as a sponsor of
Senate Bill No. 309 (
Authorizing Board of
Osteopathy promulgate legislative rule relating to licensing
procedures for osteopathic physicians),
Senate Bill No. 310
(
Authorizing Board of Osteopathy promulgate legislative rule
relating to formation and approval of professional limited liability
companies),
Senate Bill No. 312 (
Authorizing Board of Trustees of
Outdoor Heritage Conservation Fund promulgate legislative rule
relating to fund),
Senate Bill No. 313 (
Authorizing Division of
Personnel promulgate legislative rule relating to administration of
division),
Senate Bill No. 314 (
Authorizing Real Estate Appraiser
Licensing and Certification Board promulgate legislative rule
relating to requirements for licensure and certification),
Senate
Bill No. 315 (
Authorizing Real Estate Appraiser Licensing and
Certification Board promulgate legislative rule relating to renewal
of licensure or certification),
Senate Bill No. 316 (
Authorizing
Secretary of State promulgate legislative rule relating to early voting in person satellite precincts),
Senate Bill No. 317
(
Authorizing Secretary of State promulgate legislative rule relating
to Vote-by-Mail Pilot Project Phase 1: Class IV Early Voting by
Mail),
Senate Bill No. 318 (
Authorizing Secretary of State
promulgate legislative rule relating to Vote-by-Mail Pilot Project
Phase 2: Voting by Mail),
Senate Bill No. 319 (
Authorizing Board of
Examiners for Speech-Language Pathology and Audiology promulgate
legislative rule relating to licensure of speech-pathology and
audiology),
Senate Bill No. 321 (
Authorizing State Tax Department
promulgate legislative rule relating to residential solar energy tax
credit),
Senate Bill No. 322 (
Authorizing Division of Tourism
promulgate legislative rule relating to direct advertising grants
program),
Senate Bill No. 323 (
Authorizing DOT promulgate
legislative rule relating to valuation of used rolling stock and
equipment),
Senate Bill No. 371 (
Updating language in WV Medical
Practice Act),
Senate Bill No. 383 (
Increasing Enhanced 911 Wireless
Tower Access Assistance Fund allocation),
Senate Bill No. 403
(
Authorizing Commissioner of Agriculture promulgate legislative rule
relating to best management practices for land application of waste
products from aquaculture facilities),
Senate Bill No. 404
(
Authorizing Alcohol Beverage Control Commission promulgate
legislative rule relating to nonintoxicating beer licensing and
operations procedures),
Senate Bill No. 406 (
Authorizing Directors of WV Health Insurance Plan promulgate legislative rule relating to
premium subsidy),
Senate Bill No. 408 (
Authorizing DHHR promulgate
legislative rule relating to out-of-school time child care center
licensing requirements),
Senate Bill No. 409 (
Authorizing Insurance
Commissioner promulgate legislative rule relating to variable life
insurance),
Senate Bill No. 410 (
Authorizing Insurance Commissioner
promulgate legislative rule relating to annuity disclosure),
Senate
Bill No. 411 (
Authorizing Insurance Commissioner promulgate
legislative rule relating to Medicare supplement insurance),
Senate
Bill No. 412 (
Authorizing Insurance Commissioner promulgate
legislative rule relating to coordination of health benefits),
Senate Bill No. 413 (
Authorizing Insurance Commissioner promulgate
legislative rule relating to preventive care pilot program),
Senate
Bill No. 414 (
Authorizing Lottery Commission promulgate legislative
rule relating to limited gaming facilities),
Senate Bill No. 415
(
Authorizing Board of Psychologists promulgate legislative rule
relating to qualifications for licensure as psychologist or school
psychologist),
Senate Bill No. 416 (
Authorizing State Police
promulgate legislative rule relating to State Police Career
Progression System),
Senate Bill No. 417 (
Authorizing State Police
promulgate legislative rule relating to carrying of handguns by
retired or medically discharged members),
Senate Bill No. 418
(Authorizing State Tax Department promulgate legislative rule relating to film industry investment tax credit),
Senate Bill No.
419 (
Authorizing State Tax Department promulgate legislative rule
relating to corporation net income tax),
Senate Bill No. 481
(
Requiring Library Commission propose legislative rule regarding
grants-in-aid distribution),
Senate Bill No. 491 (
Creating
Unintentional Pharmaceutical Drug Overdose Fatality Review Team),
Senate Bill No. 524 (
Authorizing pilot program for nursing home
medication administration),
Senate Bill No. 534 (
Requiring
practitioners report suspected controlled substance prescription
fraud),
Senate Bill No. 552 (
Creating Office of Child Advocacy),
Senate Bill No. 566 (
Allowing certain community work program labor
be credited to fines or court costs),
Senate Bill No. 570 (
Requiring
public access to electronic system of certain public documents),
Senate Bill No. 572 (
Authorizing Children's Health
Insurance Program Board establish coverage criteria),
Senate Bill
No. 588 (
Clarifying responsibilities of Higher Education Policy
Commission),
Senate Bill No. 678 (
Developing statewide mental
hygiene petition evaluation and adjudication system).
__________
The midnight hour having arrived, the President stated all
unfinished legislative business, with the exception of the budget
bill, had expired due to the time element.
A series of messages from the House of Delegates having been received at his desk, the following communications were reported by
the Clerk.
A message from the Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment to the House
of Delegates amendments to, and the passage as amended, with its
House of Delegates amended title, of
Eng. Com. Sub. for Senate Bill No. 186, Creating DOT
administrative law judge office.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report, with
its House of Delegates amended title, as to
Eng. Com. Sub. for Senate Bill No. 218, Providing for early
parole eligibility for certain inmates.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report with
its conference amended title, of
Eng. Com. Sub. for Senate Bill No. 230, Relating to Board of
Optometry.
A message from The Clerk of the House of Delegates announced
that that body had receded from its amendment to, and the passage
as amended by deletion, of
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 236, Creating
Aquaculture Development Act.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report, with
its House of Delegates amended title, to take effect from passage,
as to
Eng. Com. Sub. for Senate Bill No 273, Authorizing DEP
promulgate legislative rules.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report, to
take effect from passage, as to
Eng. Com. Sub. for Senate Bill No. 480, Relating to public
higher education personnel.
[CLERK'S NOTE: Engrossed Committee Substitute for Senate Bill
No. 480 (
Relating to public higher education personnel) was not
enrolled due to technical deficiency.]
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 519, Extending Social Security benefits
to Municipal Police Officers and Firefighters Retirement System members.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of the committee of
conference report, passage as amended by the conference report, as
to
Eng. Com. Sub. for Senate Bill No. 567, Creating Nonprofit
Adventure and Recreational Responsibility Act.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 31, Requesting Joint Committee
on Government and Finance study tourism industry development.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 33, Requesting DOH name bridge
over Peters Creek, Nicholas County, "Homer J. Summers Memorial
Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 41, Authorizing issuance of
revenue bonds to provide capital improvements for state colleges and
universities.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 42, Requesting DOH name bridge
in Mingo County "Bobby Lee Jarrell Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 43, Requesting DOH name bridge
in Lincoln County "Private Brunty Willis Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 44, Requesting DOH name bridge
in Logan County "G. R. 'Bob' Johnson Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 49, Requesting DOH name bridge
in Mercer County "Isabella Freeman Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 56, Requesting DOH name bridge
in Mercer County "Phoebe Goodwill Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 57, Requesting DOH name bridge
in Mercer County "Yon-Peraldo Memorial Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 58, Requesting DOH name bridge
in Mercer County "Andrew Scott Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 59, Requesting DOH name bridge
in Mercer County "Maria Cooper Memorial Bridge".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 61, Urging EPA not veto Spruce
Mine permit.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 70, Requesting DOH name
section of Wyoming County Route 1 "Gary 'Beatle' Sutherland Road".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4188, Anti-Criminal Street
Gang Act.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. House Bill No. 4277, Authorizing the Secretary of the
Department of Environmental Protection to issue National Pollutant
Discharge Elimination System permits.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, to take effect
from passage, of
Eng. Com. Sub. for House Bill No. 4527, Limiting the liability
of apiary owners and operators.
On motion of Senator Chafin, the Senate adjourned until
tomorrow, Sunday, March 14, 2010, at 12:15 a.m., for an extended
session to complete action on the annual state budget, under
authority of the Governor's proclamation issued March 10, 2010,
extending the second annual session of the seventy-ninth Legislature
until and including the twentieth day of March, two thousand ten,
solely for that purpose, as being the only permissive legislation
within constitutional purview.
__________
Webmaster | © 2024 West Virginia Legislature **
