WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-SIXTH LEGISLATURE

REGULAR SESSION, 2003

TWENTY-FIRST DAY

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Charleston, W. Va., Tuesday, January 28, 2003

     The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)

     Prayer was offered by the Reverend Karen Brown, Lakeview United Methodist Church, St. Albans, West Virginia.
     Pending the reading of the Journal of Monday, January 27, 2003,
     On motion of Senator Facemyer, 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.
     Senator Tomblin (Mr. President) presented a communication from the Department of Tax and Revenue, submitting its quarterly report summarizing closing agreements as required by chapter eleven, article ten, section five-q of the code of West Virginia.
     Which communication and report were received and filed with the Clerk.
     Senator Tomblin (Mr. President) presented a communication from the Division of Forestry, submitting its annual report, in accordance with chapter nineteen, article one-a, section two of the code of West Virginia.
     Which communication and report were received and filed with the Clerk.
     The Senate proceeded to the fourth order of business.
     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 Bill No. 162, Expunging certain motor vehicle license information for nineteen-year-olds.
     And reports back a committee substitute for same with the following title:
     Com. Sub. for Senate Bill No. 162 (originating in the Committee on the Judiciary)--A Bill to amend and reenact section fourteen, article two, chapter seventeen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to motor vehicles; and expunging motor vehicle license information for nineteen-year-olds when denials, suspensions or revocations of their licenses are due to school attendance.
     And,
     Senate Bill No. 210, Permitting retired state police to carry concealed weapon for life.
     And reports back a committee substitute for same with the following title:
     Com. Sub. for Senate Bill No. 210 (originating in the Committee on the Judiciary)--A Bill to amend and reenact section twenty-five, article two, chapter fifteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to permitting a retired member of the state police to carry a concealed weapon for the life of the member.
     With the recommendation that the two committee substitutes do pass.
                              Respectfully submitted,
                               Jeffrey V. Kessler,
                               Chair.
     Senator Ross, from the Committee on Transportation, submitted the following report, which was received:
     Your Committee on Transportation has had under consideration
     Senate Bill No. 182, Meeting federal standards for certain child passenger seats and safety devices.
     And reports the same back with the recommendation that it do pass.
                              Respectfully submitted,
                               Mike Ross,
                               Chair.
     Senator Jenkins, from the Committee on Pensions, submitted the following report, which was received:
     Your Committee on Pensions has had under consideration
     Senate Bill No. 235, Authorizing consolidated public retirement board to promulgate legislative rule relating to benefit determination and appeal.
     Senate Bill No. 236, Authorizing consolidated public retirement board to promulgate legislative rule relating to teachers defined benefit plan.
     Senate Bill No. 237, Authorizing consolidated public retirement board to promulgate legislative rule relating to public employees retirement system.
     And,
     Senate Bill No. 238, Authorizing consolidated public retirement board to promulgate legislative rule relating to state police disability determination and appeal process.
     And reports the same back with the recommendation that they each do pass; but under the original triple committee references first be referred to the Committee on Finance; and then to the Committee on the Judiciary.
                              Respectfully submitted,
                               Evan H. Jenkins,
                               Chair.
     The bills, under the original triple committee references, were referred to the Committee on Finance; and then to the Committee on the Judiciary.
     Senator Ross, from the Committee on Transportation, submitted the following report, which was received:
     Your Committee on Transportation has had under consideration
     Senate Bill No. 277, Authorizing division of highways to promulgate legislative rule relating to traffic and safety.
     And,
     Senate Bill No. 278, Authorizing division of highways to promulgate legislative rule relating to transportation of hazardous wastes upon roads and highways.
     And reports the same back with the recommendation that they each do pass; but under the original double committee references first be referred to the Committee on the Judiciary.
                              Respectfully submitted,
                               Mike Ross,
                               Chair.
     The bills, under the original double committee references, were then referred to the Committee on the Judiciary.
     Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
     Your Committee on Finance has had under consideration
     Senate Bill No. 324, Authorizing real estate appraiser licensing and certification board to promulgate legislative rule relating to requirements for licensure and certification.
     Senate Bill No. 327, Authorizing real estate commission to promulgate legislative rule relating to schedule of fees.
     Senate Bill No. 331, Authorizing tax commissioner to promulgate legislative rule relating to payment of taxes by electronic funds transfer.
     And,
     Senate Bill No. 332, Authorizing tax commissioner to promulgate legislative rule relating to tax credit for medical malpractice insurance premiums.
     And reports the same back with the recommendation that they each do pass; but under the original double committee references first be referred to the Committee on the Judiciary.
                              Respectfully submitted,
                               Walt Helmick,
                               Chair.
     The bills, under the original double committee references, were then referred to the Committee on the Judiciary.
     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 Bill No. 337, Simplifying process for adoption of children from foreign countries.
     And reports the same back with the recommendation that it do pass.
                              Respectfully submitted,
                               Jeffrey V. Kessler,
                               Chair.
     Senator Ross, from the Committee on Transportation, submitted the following report, which was received:
     Your Committee on Transportation has had under consideration
     Senate Concurrent Resolution No. 7, Requesting Division of Highways name bridge on Route 80 at Verner "William Chapman Browning Bridge".
     And reports the same back with the recommendation that it be adopted.
                              Respectfully submitted,
                               Mike Ross,
                               Chair.
     Senator Ross, from the Committee on Transportation, submitted the following report, which was received:
     Your Committee on Transportation has had under consideration
     Senate Concurrent Resolution No. 11, Requesting Division of Highways name bridge on Route 5 near Elizabeth "World War II Veterans Memorial Bridge".
     And reports the same back with the recommendation that it be adopted.
                              Respectfully submitted,
                               Mike Ross,
                               Chair.
     Senator Ross, from the Committee on Transportation, submitted the following report, which was received:
     Your Committee on Transportation has had under consideration
     Senate Concurrent Resolution No. 14, Requesting Division of Highways authorize sign by Little Kanawha River Parkway Commission at Intersection of Interstate 79 and Exit 79 at Burnsville.
     And reports the same back with the recommendation that it be adopted.
                              Respectfully submitted,
                               Mike Ross,
                               Chair.
     The Senate proceeded to the sixth order of business.
     On motions for leave, severally made, the following bills were introduced, read by their titles, and referred to the appropriate committees:
     By Senator Ross:
     Senate Bill No. 370--A Bill to amend and reenact section seventeen, article fifteen, chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to auxiliary lighting on motor vehicles; allowing original equipment roof-mounted light bar lighting devices on motor vehicles when used off road; and requiring that the devices be turned off and covered when the motor vehicle is operated on a road or highway.
     Referred to the Committee on Transportation.
     By Senator Caldwell:
     Senate Bill No. 371--A Bill to amend and reenact section twenty-four, article three, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to enhanced criminal penalties for obtaining money, property and services by false pretenses from persons sixty-five years of age and older.
     Referred to the Committee on the Judiciary.
     By Senators Unger, Prezioso, Jenkins, Smith and Plymale:
     Senate Bill No. 372--A Bill to amend and reenact section thirteen, article two, chapter fifteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to allowing members of the state police to engage in political activities while out of uniform and off duty.
     Referred to the Committee on the Judiciary.
     By Senators Love, Rowe, Ross, Sharpe and Hunter:
     Senate Bill No. 373--A Bill to amend and reenact section five, article twelve, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section eleven, article two, chapter eleven-a of said code; and to further amend said article by adding thereto a new section, designated section twenty, all relating to payment of personal property taxes as a condition precedent to receiving or maintaining a business registration certificate; requiring sheriffs to notify delinquent personal property owners; and requiring the tax commissioner to suspend or refuse to issue a business registration certificate where business has not paid delinquent personal property taxes.
     Referred to the Committee on Finance.
     By Senators Love, Rowe and Caldwell:
     Senate Bill No. 374--A Bill to amend and reenact section fourteen, article three, chapter seventeen-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to authorizing a special registration license plate to honorably discharged female military veterans.
     Referred to the Committee on Transportation; and then to the Committee on Finance.
     By Senator Bowman:
     Senate Bill No. 375--A Bill to amend and reenact sections seven and nine, article eleven, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to contractor licensing generally; and allowing the transfer of a license to a new business entity in which the license holder is the principal owner, partner or officer.
     Referred to the Committee on Government Organization.
     By Senator Love:
     Senate Bill No. 376--A Bill to amend and reenact section three, article six-b, chapter thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section six, article seventeen-a of said chapter, all relating to declination of automobile liability insurance and homeowner's insurance solely based on adverse credit reports generally; and requiring certain carriers to provide counseling and information to consumers if policies are rerated using credit scoring.
     Referred to the Committee on Banking and Insurance.
     By Senators Minard and Jenkins:
     Senate Bill No. 377--A Bill to repeal section twenty-six, article twelve, chapter thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section thirteen, article three of said chapter; to amend and reenact section eighteen, article four of said chapter; to amend and reenact sections three, eight, ten, eighteen, twenty- eight and thirty-two, article twelve of said chapter; to amend and reenact section two, article twenty-one of said chapter; to amend and reenact section two, article twenty-two of said chapter; to amend and reenact sections two and thirty-three, article twenty- three of said chapter; to amend and reenact section four, article twenty-four of said chapter; to amend and reenact section twenty- four, article twenty-five-a of said chapter; to amend and reenact section twenty-six, article twenty-five-d of said chapter; and to amend and reenact section twenty-one, article thirty-two of said chapter, all relating to insurance vending machines; license requirement for insurance producers; continuing education required; fees charged; agent appointments and service representatives; and renumbering chapter relating to the references to article twelve and excess line brokers.
     Referred to the Committee on Banking and Insurance; and then to the Committee on Finance.
     By Senators Minard, Jenkins, Bowman, Rowe and Hunter:
     Senate Bill No. 378--A Bill to amend and reenact section four, article two, chapter thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to the subpoena power of the office of the insurance commissioner.
     Referred to the Committee on Banking and Insurance; and then to the Committee on the Judiciary.
     By Senators Oliverio, Caldwell, Fanning, Kessler, Deem, Facemyer, Smith, Ross, Sharpe, Hunter, Rowe, Jenkins, McKenzie, Minard, Minear and Plymale:
     Senate Bill No. 379--A Bill to amend chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article six-f, relating to the establishment of the citizen review panel to review the procedures of child protective services; providing for the composition and duties of membership; providing for confidentiality requirements; providing for expense reimbursement; providing for civil penalties; and providing for immunity from liability.
     Referred to the Committee on the Judiciary; and then to the Committee on Finance.
     By Senators Oliverio, Caldwell, Fanning, Kessler, Deem, Facemyer, Unger and Sharpe:
     Senate Bill No. 380--A Bill to amend and reenact sections one, three, four, five, six, seven, eight, nine, eleven and thirteen, article eighteen, chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto three new sections, designated section four-a, seven-a and fourteen, all relating to the licensing of private investigators and security guards; registration of private investigative and security guard employees; prohibited acts; penalties for late registration; and fees and charges for services of the secretary of state.
     Referred to the Committee on the Judiciary; and then to the Committee on Finance.
     By Senator Minard:
     Senate Bill No. 381--A Bill to amend and reenact section one thousand three hundred one, article thirteen, chapter thirty-one-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to adding professional surveyors to the list of professionals who may organize professional limited liability companies.
     Referred to the Committee on the Judiciary.
     By Senator Bailey:
     Senate Bill No. 382--A Bill to amend and reenact section four, article seven, chapter sixty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating generally to applications for private club license; and giving the commissioner authority to investigate character and criminal records, if any, of applicant's chief executive officer, chief operating officer and in-state manager of local operation seeking a private club license.
     Referred to the Committee on the Judiciary.
     By Senators Bailey and Bowman:
     Senate Bill No. 383--A Bill to amend and reenact section eleven, article two, chapter sixty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating generally to powers of alcohol beverage control commissioner; and allowing commissioner, with permission of governor, to sell current warehouse located in Nitro, Putnam County, and purchase another warehouse in location to be determined within discretion of commissioner and permission of governor.
     Referred to the Committee on Government Organization.
     By Senators Bailey and Bowman:
     Senate Bill No. 384--A Bill to amend and reenact section ten, article two, chapter sixty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to the current location of offices of the alcohol beverage control administration.
     Referred to the Committee on Government Organization.
     Senators Hunter, Helmick, Ross and Minear offered the following resolution:
     Senate Concurrent Resolution No. 20--Requesting the Joint Committee on Government and Finance study the impact of the diminishing tax base and loss of revenue that occurs when federal and state parks and forests located within the state geographically expand and also explore alternative sources of revenue that local governments may look toward when private lands are converted to public lands within the boundaries of parks and forests.
     Whereas, When federal and state parks and forests expand their boundaries to include former private lands within their boundaries, counties and local governments lose tax revenue associated with property taxes and other taxes previously imposed while the property was held privately; therefore, be it
     Resolved by the Legislature of West Virginia:
     That the Joint Committee on Government and Finance is hereby requested to study the impact of the diminishing tax base and loss of revenue that occurs when federal and state parks and forests located within the state geographically expand and to also explore alternative sources of revenue that local governments may look toward when private lands are converted to public lands within the boundaries of parks and forests; and, be it
     Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2004, 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.
     Which, under the rules, lies over one day.
Petitions

     Senator Rowe presented a petition from Lisa Jennings and numerous West Virginia residents, requesting the Legislature to reform the medical liability system.
     Referred to the Committee on the Judiciary.
     Senator Ross presented a petition from Don Johnson and fifteen Randolph County teachers, requesting the Legislature to increase the tobacco tax by one dollar per pack of cigarettes.
     Referred to the Committee on Finance.
     Senator Minard presented a petition from Marjorie E. Carr and numerous West Virginia residents, requesting the Legislature to reform the medical liability system.
     Referred to the Committee on the Judiciary.
     The Senate proceeded to the eighth order of business.
     Eng. Senate Bill No. 281, Continuing department of environmental protection.
     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: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Snyder--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 281) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Eng. Senate Bill No. 282, Continuing division of motor vehicles.
     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: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Snyder--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 282) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Eng. Senate Bill No. 283, Continuing public service 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: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Snyder--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 283) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Eng. Senate Bill No. 284, Continuing division of purchasing within department of administration.
     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: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Snyder--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 284) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     The Senate proceeded to the ninth order of business.
     Com. Sub. for Senate Bill No. 39, Making false alarm felony in certain cases.
     On second reading, coming up in regular order, was read a second time.
     On motion of Senator McKenzie, the following amendments to the bill were reported by the Clerk and considered simultaneously:
     On page two, section twenty-seven, line seventeen, by striking out the words "confined in the county jail" and inserting in lieu thereof the words "sentenced to home confinement";
     On page two, section twenty-seven, line eighteen, by striking out the word "confined" and inserting in lieu thereof the words "sentenced to home confinement";
     On page three, section twenty-seven, line twenty-one, by striking out the words "confined in the county or regional jail" and inserting in lieu thereof the words "sentenced to home confinement";
     On page three, section twenty-seven, line twenty-nine, by striking out the word "felony" and inserting in lieu thereof the word "misdemeanor";
     And,
 On page three, section twenty-seven, lines thirty through thirty-two, by striking out the words "shall be confined in a state correctional facility for not less than one nor more than three years, or fined not more than five thousand dollars, or both" and inserting in lieu thereof the words "shall be sentenced to home confinement for one year and fined one thousand dollars. In addition, any person found guilty under this subsection shall attend counseling for a period of one year during home confinement".
 Following discussion,
 The question being on the adoption of Senator McKenzie's amendments to the bill, the same was put and did not prevail.
 On motion of Senator Kessler, the following amendment to the bill was next reported by the Clerk and adopted:
 On page two, section twenty-seven, line seventeen, after the word "county" by inserting the words "or regional".
 The bill (Com. Sub. for S. B. No. 39), as amended, was then ordered to engrossment and third reading.
 Com. Sub. for Senate Bill No. 109, Notifying third party of entry of order affecting child's care and education.
 On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
 Senate Bill No. 120, Changing qualification rank for adjutant general to lieutenant.
 On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
 Senate Bill No. 205, Modifying criminal intent for animal cruelty crimes; fines.
 On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
 At the request of Senator Chafin, and by unanimous consent, the Senate returned to the fourth order of business.
 Senator McCabe, from the Committee on Economic Development, submitted the following report, which was received:
 Your Committee on Economic Development has had under consideration
 Senate Bill No. 256, Authorizing development office to promulgate legislative rule relating to community development assessment and real property valuation procedures for office of coalfield development.
 And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on the Judiciary.
                            Respectfully submitted,
                             Brooks F. McCabe, Jr.,
                             Chair.
 The bill, under the original double committee reference, was then referred to the Committee on the Judiciary.
 The Senate proceeded to the eleventh order of business and the introduction of guests.
 The Senate then proceeded to the twelfth order of business.
 Remarks were made by Senators Chafin, Sprouse, Bowman, Deem, Minear and Boley.
 Senator Oliverio then moved that the Senate adjourn until tomorrow, Wednesday, January 29, 2003, at 11 a.m.
 Thereafter, at the request of Senator Oliverio, and by unanimous consent, his foregoing motion was withdrawn.
 On motion of Senator Chafin, a leave of absence for the day was granted Senator Snyder.
 Pending announcement of meetings of standing committees of the Senate,
 On motion of Senator Chafin, the Senate adjourned until tomorrow, Wednesday, January 29, 2003, at 11 a.m.
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