WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
EIGHTIETH LEGISLATURE
REGULAR SESSION, 2011
FIFTY-EIGHTH DAY
____________
Charleston, W. Va., Thursday, March 10, 2011
The Senate met at 11 a.m.
(Senator Kessler, Acting President, in the Chair.)
Prayer was offered by Pastor Franklin D. Thomas, Living Faith
Church, Marmet, West Virginia.
Pending the reading of the Journal of Wednesday, March 9,
2011,
On motion of Senator D. Facemire, the Journal was approved and
the further reading thereof dispensed with.
At the request of Senator Unger, and by unanimous consent, the
provisions of rule number fifty-four of the Rules of the Senate,
relating to persons entitled to the privileges of the floor, were
suspended in order to grant David Spence, President of the Southern
Regional Education Board, privileges of the floor for the day.
At the request of Senator Plymale, unanimous consent being
granted, Senator Plymale addressed the Senate regarding David
Spence and the Southern Regional Education Board.
The Senate proceeded to the second order of business and the introduction of guests.
The Senate then proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 234, Revising Municipal
Economic Opportunity Development District Act.
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. 235, Revising County
Economic Opportunity Development District Act.
On motion of Senator Unger, 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-seven, after section twelve, by inserting a new
section, designated section fourteen, to read as follows:
§7-22-14. Modification of included area; notice; hearing.
(a) General. -- The order creating an economic opportunity
development district may not be amended to include additional
contiguous property until after the amendment is approved by the
Executive Director of the Development Office in the same manner as
an application to approve the establishment of the district is acted upon under section seven of this article and the amendment is
authorized by the Legislature.
(b) Limitations. -- Additional property may not be included in
the district unless it is situated within the boundaries of the
county and is contiguous to the then current boundaries of the
district.
(c) Public hearing required. -
(1) The county commission of any county desiring to amend its
order shall designate a time and place for a public hearing upon
the proposal to include additional property. The notice shall meet
the requirements set forth in section six of this article.
(2) At the time and place set forth in the notice, the county
commission shall afford the opportunity to be heard to any owners
of real property either currently included in or proposed to be
added to the existing district and to any other residents of the
county.
(d) Application to West Virginia Development Office. --
Following the hearing, the county commission may, by resolution,
apply to the Development Office to approve inclusion of the
additional property in the district.
(e) Consideration by the Executive Director of the Development
Office. -- Before the Executive Director of the Development Office
approves inclusion of the additional property in the district, the
Development Office shall determine the amount of taxes levied by article fifteen, chapter eleven of this code that were collected by
businesses located in the area the county commission proposes to
add to the district in the same manner as the base amount of tax
was determined when the district was first created. The State
Treasurer shall also deposit one twelfth of this additional tax
base amount into the General Revenue Fund each month, as provided
in section twelve of this article.
(f) Legislative action required. -- After the Executive
Director of the Development Office approves amending the boundaries
of the district, the Legislature must amend section nine of this
article to allow levy of the special district excise tax on
business located in geographic area to be included in the district.
After the Legislature amends said section, the county commission
may then amend its order: Provided, That the order may not be
effective any earlier than the first day of the calendar month that
begins sixty days after the effective date of the act of the
Legislature authorizing the levy on the special district excise tax
on businesses located in the geographic area to be added to the
boundaries of the district for which the tax is levied or a later
date as set forth in the order of the county commission.
(g) Collection of special district excise tax. -- All
businesses included in a district because of the boundary amendment
shall on the effective date of the order, determined as provided in
subsection (f) of this section, collect the special district excise tax on all sales on tangible property or services made from
locations in the district on or after the effective date of the
county commission's order or a later date as set forth in the
order.
(h) Minor Modifications. -- Notwithstanding any provision of
this article to contrary, a county commission may amend the order
creating an economic opportunity development district to make, and
may make, modifications to the boundaries of the economic
opportunity development district without holding a public hearing
or receiving approval of the Executive Director of the West
Virginia Development Office or authorization by the Legislature if
the modifications do not increase the total acreage of the economic
opportunity development district or result in a change to the base
tax revenue amount. The county commission is authorized to levy
special district excise taxes on sales of tangible personal
property and services made from business locations within the
modified boundaries of the economic opportunity development
district.;
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That §7-22-3, §7-22-4, §7-22-5, §7-22-7, §7-22-10, §7-22-12,
§7-22-14, §7-22-15, §7-22-17 and §7-22-20 of the Code of West
Virginia, 1931, as amended, 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. Com. Sub. for Senate Bill No. 235--A Bill to amend and
reenact §7-22-3, §7-22-4, §7-22-5, §7-22-7, §7-22-10, §7-22-12, §7-
22-14, §7-22-15, §7-22-17 and §7-22-20 of the Code of West
Virginia, 1931, as amended, all relating to revising the County
Economic Opportunity Development District Act generally; defining
the term "remediation"; including remediation of landfills, former
coal or other mining sites, solid waste facilities or hazardous
waste sites as permissible development expenditures for approved
projects; changing standard by which the maximum amounts of
reserves that may be established in the financing of a project are
measured; reducing the amount of capital investment required for
project approval; providing that the Development Office cannot
approve a project involving remediation unless all development
expenditures proposed within a certain time frame result in more
than $25 million in capital investment in the district; changing
"ordinance" to "order"; correcting language by changing
"municipality" to "county"; providing that the Development Office
may not approve a project involving remediation unless the county
commission submits clear and convincing information that the
proposed remediation expenditures to be financed with bonds or
notes do not constitute more than twenty-five percent of a project's total development expenditures; allowing for minor
modifications of districts without public hearing or approval by
the Development Office or the Legislature under certain
circumstances; and providing technical and clerical cleanup.
On motion of Senator Unger, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 235, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for S. B. No. 235) 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 passage of
Eng. Com. Sub. for Senate Bill No. 263, Relating to special
plates for testing of vehicles operated by certain nonprofit
corporations.
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. 295, Authorizing DHHR
promulgate legislative rules.
On motion of Senator Unger, 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 fourteen, section one, line two hundred forty, by
striking out the words "two hundred seventy-five dollars ($275.00)"
and inserting in lieu thereof "one hundred seventy-five dollars
($175.00)".
On motion of Senator Unger, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 295, as
amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for S. B. No. 295) passed with its title.
Senator Unger moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Beach, Boley,
Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for S. B. No. 295) 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 passage of
Eng. Senate Bill No. 349, Requiring bittering agent be placed
in certain engine coolants and antifreezes.
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. 514, Authorizing legislative rule for
Higher Education Policy Commission regarding authorization of
degree-granting institutions.
On motion of Senator Unger, 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 four, section two, line fifty-eight, after the word
"authorized" by changing the period to a comma and inserting the
following: with the following amendment:
On page 28, subsection 9.1.b, following the words "Good cause
shall consist of" by inserting the words "any one or more of the
following".
On motion of Senator Unger, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 514, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. S. B. No. 514) passed with its title.
Senator Unger moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Beach, Boley,
Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. S. B. No. 514) 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 passage of
Eng. Senate Bill No. 538, Creating Learn and Earn Cooperative
Education Program.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 14, Requesting DOH name
bridge in Whitesville crossing Big Coal River, "CPL Charles
'Mitchell' Hannah 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. 19, Requesting DOH name WV 3
from intersection with WV 94 to Raleigh County Line "John Protan
Highway".
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 30, Requesting DOH name
bridge number 03-119-16.22 "PFC Willie Ray Stollings Memorial
Bridge".
A message from The Clerk of the House of Delegates announced
the amendment by that body, adoption as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Senate Concurrent Resolution No. 43, Requesting DOH erect memorial sign on Route 60, at or near Caldwell exit in Greenbrier
County, "Home of Chan Whitt Jr.".
On motion of Senator Unger, the message on the resolution was
taken up for immediate consideration.
The following House of Delegates amendments to the resolution
were reported by the Clerk:
On page one, by striking out everything after the title and
inserting in lieu thereof the following:
Whereas, Chan Whitt Jr. resided in Caldwell, Greenbrier
County, his entire life, being one of seven children, until his
tragic death resulting from a motor vehicle accident in 1994; and
Whereas, Chan Whitt Jr. traveled the world over, playing in
national and international billiards tournaments, including a
tournament he played and won in Japan; and
Whereas, Chan Whitt Jr. was featured in several magazines and
gave a billiards exhibition at The Greenbrier Hotel in White
Sulphur Springs; and
Whereas, Chan Whitt Jr. was a television celebrity, appearing
on ESPN, the Today Show, PM Magazine, Good Morning America, Sports
World and That's Incredible; and
Whereas, Chan Whitt Jr. put the little town of Caldwell, West
Virginia, on the map with his enormous talent and his many travels;
and
Whereas, It is fitting to honor Chan Whitt Jr., not only for his stellar talents but for the recognition he brought to the
little town of Caldwell, Greenbrier County, and the State of West
Virginia; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways
to have made and be placed a sign under the community of Caldwell
sign on Route 60, at mile marker 165 east bound, and another sign
under the community of Caldwell sign on Route 60, at mile marker
166 west bound, in Greenbrier County, stating "Home of Chan Whitt
Jr."; and, be it
Further Resolved, That the Clerk of the House of Delegates is
hereby directed to forward a certified copy of this resolution to
the Secretary of the Department of Transportation; to Judy Steele
and to Mr. Chan's father, Chan Whitt Sr.;
And,
By striking out the title and substituting therefor a new
title, to read as follows:
Senate Concurrent Resolution No. 43--Requesting the Division
of Highways to erect a sign under the community of Caldwell sign on
Route 60, at mile marker 165 east bound, and another sign under the
community of Caldwell sign on Route 60, at mile marker 166 west
bound, in Greenbrier County, stating "Home of Chan Whitt Jr."
On motion of Senator Unger, the Senate concurred in the House
of Delegates amendments to the resolution.
The question being on the adoption of the resolution (S. C. R.
No. 43), as amended by the House of Delegates, the same was put and
prevailed.
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
Eng. Com. Sub. for House Bill No. 2438, Bringing older
contradicting language still remaining in the code into conformity
with §3-2-5(b)(3) and reestablishing a definition for "independent
voter".
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. 2532, Zipline Responsibility
Act.
On motion of Senator Unger, 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 Kessler (Acting President) appointed the
following conferees on the part of the Senate:
Senators Laird, Wills and Hall.
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 concur in the Senate amendments to,
and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 2555, Establishing the
offense of operating a motor vehicle while sending, reading or
receiving a text message.
On motion of Senator Unger, 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 Kessler (Acting President) appointed the
following conferees on the part of the Senate:
Senators Browning, Klempa 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 concurrence by that body in the Senate amendment to, and the
passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 2626, Authorizing the
Department of Commerce to promulgate legislative rules.
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. 2750, Adding consideration
of sexual assault in issuing an order to temporarily or permanently
end a parent-child relationship.
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. House Bill No. 2971, Relating to the definition of the
term "durable medical equipment".
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, of
Eng. House Bill No. 2989, Creating a process by which the West
Virginia Racing Commission may grant stay requests.
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. 3064, Finding and declaring
certain claims against the state and its agencies to be moral
obligations of the state.
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. 3205, Reducing jail sentence
for successful completion of education and rehabilitation programs.
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. 83--Requesting the Joint
Committee on Government and Finance to conduct an audit of the
efficiency of the expenditure of public education dollars to
minimize administrative expense and maximize effort on the core
mission of the public schools in preparing students fully.
Referred to the Committee on Education; 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. 113--Requesting the Division
of Highways to name the over 8 mile stretch of Route 3, from
Foster, West Virginia to its connection with Corridor G, the "PFC
Darrell Lee Cabell Memorial Highway.
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. 117--Requesting that bridge
number 20-60/18-0.04 on Route 60/18 in Belle, Kanawha County, West Virginia be named the "Larry K. Conley Memorial Bridge".
Referred to the Committee on Transportation and
Infrastructure.
Executive Communications
The Clerk then presented communications from His Excellency,
the Governor, advising that on March 9, 2011, he had approved Enr.
Senate Bill No. 507 and Enr. Committee Substitute for House Bill
No. 2613.
The Senate proceeded to the fourth order of business.
Senator Prezioso, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 620 (originating in the Committee on Finance)-
-A Bill expiring funds to the unappropriated surplus balance in the
State Fund, General Revenue, for the fiscal year ending June 30,
2011, in the amount of $7,100,000 from the Department of Military
Affairs and Public Safety - Office of the Secretary, fund 0430,
fiscal year 2006, organization 0601, activity 511, and making a
supplementary appropriation of public moneys out of the Treasury
from the balance of moneys remaining as an unappropriated surplus
balance in the State Fund, General Revenue, to the Auditor's Office
- General Administration, fund 0116, fiscal year 2011, organization
1200, to the Department of Agriculture, fund 0131, fiscal year
2011, organization 1400, to the Department of Administration - Ethics Commission, fund 0223, fiscal year 2011, organization 0220,
to the Department of Administration - Public Defender Services,
fund 0226, fiscal year 2011, organization 0221, to the Department
of Education - State Department of Education, fund 0313, fiscal
year 2011, organization 0402, to the Department of Health and Human
Resources - Consolidated Medical Service Fund, fund 0525, fiscal
year 2011, organization 0506, to the Department of Health and Human
Resources - Division of Human Services, fund 0403, fiscal year
2011, organization 0511, to the Department of Military Affairs and
Public Safety - West Virginia Parole Board, fund 0440, fiscal year
2011, organization 0605, to the Department of Military Affairs and
Public Safety - Division of Corrections - Correctional Units, fund
0450, fiscal year 2011, organization 0608, to the Department of
Military Affairs and Public Safety - Division of Veterans' Affairs,
fund 0456, fiscal year 2011, organization 0613, and to Higher
Education - Higher Education Policy Commission - Administration -
Control Account, fund 0589, fiscal year 2011, organization 0441, by
supplementing and amending the appropriations for the fiscal year
ending June 30, 2011.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
At the request of Senator Prezioso, unanimous consent being
granted, the bill (S. B. No. 620) 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.
Senator Palumbo, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2159, Relating to
prohibiting members of the news media from being compelled to give
testimony.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Corey Palumbo,
Chair.
At the request of Senator Palumbo, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2159) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
Senator Beach, from the Committee on Transportation and
Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Eng. Com. Sub. for House Bill No. 2922, Establishing the
felony offense of causing serious bodily injury to another person
by a person who is driving under the influence of alcohol,
controlled substances or other drugs.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original double committee reference
first be referred to the Committee on the Judiciary.
Respectfully submitted,
Robert D. Beach,
Chair.
The bill, under the original double committee reference, was
then referred to the Committee on the Judiciary, with amendments
from the Committee on Transportation and Infrastructure pending.
Senator Palumbo, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2969, Requiring the
disclosure of the number of stamps by brand name that have been
purchased from a nonparticipating tobacco product manufacturer.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Corey Palumbo,
Chair.
At the request of Senator Palumbo, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2969) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
Senator Palumbo, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 3143, Relating to penalties
for causing injury or death to certain animals used by law
enforcement.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Corey Palumbo,
Chair.
At the request of Senator Palumbo, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 3143) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
Senator Beach, 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. 2, The "James Paul Harrison
WWII Memorial Bridge".
House Concurrent Resolution No. 70, Naming the bridge on US
Route 220 in the city of Keyser the "Memorial Bridge".
House Concurrent Resolution No. 74, The "Larkin Ours Memorial
Bridge".
House Concurrent Resolution No. 79, The "PFC Abraham G. Sams
Memorial Bridge".
House Concurrent Resolution No. 89, The "Ten Mile Creek
Veteran's Memorial Bridge".
And,
House Concurrent Resolution No. 101, The "PFC Ralph Lewis
Boone Memorial Bridge"
And reports the same back with the recommendation that they
each be adopted.
Respectfully submitted,
Robert D. Beach,
Chair.
Senator Beach, 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. 63, The "Alan B. Mollohan
Gateway".
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Robert D. Beach,
Chair.
Senator Beach, 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. 78, The "Sergeant Robert Dewey
Thompson Memorial Bridge".
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Robert D. Beach,
Chair.
The Senate proceeded to the sixth order of business.
Senator Sypolt offered the following resolution:
Senate Concurrent Resolution No. 67--Requesting the Joint
Committee on Government and Finance to conduct a study relating to the imposition or increase of filing fees in circuit courts.
Whereas, Fees for instituting civil actions in circuit courts
are set forth in section eleven, article one, chapter fifty-nine of
the West Virginia Code, 1931, as amended; and
Whereas, These fees have been set piecemeal over time, thus
creating a disparity in the amounts charged; and
Whereas, The uses of such fees range from financing of
projects on the county level to administrative expenses in the
offices of the circuit clerks; and
Whereas, The imposition and collection of the fees is an
important and essential function of the offices of the circuit
clerks in that they provide needed funding on the county and state
level for necessary projects; and
Whereas, The Legislature recognizes the difficulties faced by
county governments in the acquisition of necessary and adequate
funding to provide services to the citizens of West Virginia; and
Whereas, Reviewing the fees in total may provide a
comprehensive and fair approach to setting the fees, collecting the
fees and better understanding their use; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to conduct a study relating to the imposition or increase
of filing fees in circuit court; and, be it
Further Resolved, That the committee is to consult with circuit clerks, the West Virginia Bar Association, Legal Aid of
West Virginia and other appropriate state and county officials in
its attempt to structure a fee schedule for circuit clerks that
both provides adequate funding on the county level while also
setting fees in a rational and fair manner for litigants; and, be
it
Further Resolved, That the committee shall report to the
Legislature its findings, conclusions and recommendations, together
with drafts of any legislation necessary to effectuate its
recommendations no later than January 1, 2012; and, be it
Further Resolved, That the expenses necessary to conduct the
study and to prepare appropriate reports, recommendations and
proposed legislation be paid from legislative appropriations to the
Joint Committee on Government and Finance.
Which, under the rules, lies over one day.
Senator Hall offered the following resolution:
Senate Concurrent Resolution No. 68--Requesting the Joint
Committee on Government and Finance study the cost-effectiveness of
transporting West Virginia's excess animal population to other
states.
Whereas, Overpopulation of domestic animals is a problem in
West Virginia and creates a financial burden on the counties of the
state; and
Whereas, West Virginia seeks a more cost-effective and humane system than its current one for addressing its domestic animal
overpopulation within its borders; and
Whereas, Many states, particularly northeastern states, have
the capacity and willingness to absorb some of West Virginia's
animal overpopulation; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance study the
cost-effectiveness of transporting West Virginia's excess animal
population to other states; and, be it
Further Resolved, That the study conducted by the Joint
Committee on Government and Finance specifically evaluate options
for animal transportation including, but not limited to, use of
shelter employees employed by counties of West Virginia, use of
volunteers and use of transporters from potential receiving states;
and, be it
Further Resolved, That the Joint Committee on Government and
Finance explore the possibility of defraying the costs of the
program through public or private sector grants or funding; and, be
it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2012, 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 legislation be paid from
legislative appropriations to the Joint Committee on Government and
Finance.
Which, under the rules, lies over one day.
Senators Plymale, Jenkins and Stollings offered the following
resolution:
Senate Concurrent Resolution No. 69--Requesting the Division
of Highways name bridge number 50-152-32.48, in Wayne County, the
"Staff Sergeant Sidney H. Blankenship Memorial Bridge".
Whereas, Sidney H. Blankenship was born June 4, 1939; and
Whereas, Staff Sergeant Sidney H. Blankenship served his
country during the Vietnam War; and
Whereas, Staff Sergeant Sidney H. Blankenship was wounded
during a surprise attack by a battalion of North Vietnamese Army
troops on February 26, 1968; and
Whereas, Although wounded, Staff Sergeant Sidney H.
Blankenship calmly organized and encouraged the troops to provide
an effective defense against the enemy attack; and
Whereas, Staff Sergeant Sidney H. Blankenship was hit three
times, but kept his fighting spirit by aiding in the defense of the
command post; and
Whereas, After nearly four hours of rigorous fighting, the
North Vietnamese Army moved back to take care of the dead and wounded; and
Whereas, For his bravery, Staff Sergeant Sidney H. Blankenship
was awarded the Silver Star Medal, the third highest medal awarded,
the Bronze Star and the Purple Heart; and
Whereas, Sadly, Staff Sergeant Sidney H. Blankenship passed
away December 22, 2010, bring an end to a life of dedicated public
service; and
Whereas, It is fitting and proper, to honor the life of Staff
Sergeant Sidney H. Blankenship, for his dedicated service to his
state country, by naming this bridge in his memory; therefore, be
it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways
to name bridge number 50-152-32.48, in Wayne County, the "Staff
Sergeant Sidney H. Blankenship Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby
requested to have made and be placed signs identifying the bridge
as the "Staff Sergeant Sidney H. Blankenship Memorial Bridge"; and,
be it
Further Resolved, That the Clerk of the Senate is hereby
directed to forward a copy of this resolution to the Secretary of
the Department of Transportation and the family of Staff Sergeant
Sidney H. Blankenship.
Which, under the rules, lies over one day.
Senators Stollings, Unger and Browning offered the following
resolution:
Senate Concurrent Resolution No. 70--Requesting the Division
of Highways name bridge number 03-85-14.72, in Boone County, the
"Fred York Memorial Bridge".
Whereas, Fred York was born November 10, 1930; and
Whereas, Fred York grew up in Wharton, West Virginia, and
attended Van High School, where he played football and baseball;
and
Whereas, Fred York attended Morris Harvey College in
Charleston, West Virginia; and
Whereas, Fred York worked hard in the coal mines of southern
West Virginia to support his family; and
Whereas, Fred York was a member of the local Moose Lodge and
the Knights of Pythius; and
Whereas, Fred York was very involved in his community, giving
his time to little league baseball and various charitable events;
and
Whereas, Sadly, Fred York passed away July 17, 2006, leaving
behind a host of family and friends, all of whom miss him dearly;
and
Whereas, It is fitting, to honor the life of Fred York, for
his dedicated service to his community, by naming this bridge in
his memory; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways
to name bridge number 03-85-14.72, in Boone County, the "Fred York
Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby
requested to have made and be placed signs identifying the bridge
as the "Fred York Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby
directed to forward a copy of this resolution to the Secretary of
the Department of Transportation and the family of Fred York.
Which, under the rules, lies over one day.
Senators Hall, McCabe, Minard and Browning offered the
following resolution:
Senate Concurrent Resolution No. 71--Requesting the Joint
Committee on Government and Finance to study the impacts of cost
sharing, coinsurance and specialty tier pricing for prescription
medications.
Whereas, In response to increasing prescription drug costs,
many health plans and prescription drug plans have increased
enrollee cost-sharing amounts, instituted coinsurance, and created
specialty tiers, resulting in increased medication costs for
patients participating in those plans; and
Whereas, The National Conference of State Legislatures reports
that between 2000 and 2009, copayments for insured workers have increased twenty-five percent for generic drugs, eighty percent for
preferred drugs, fifty-nine percent for nonpreferred drugs, and
forty-four percent for fourth-tier drugs or specialty tier drugs;
and
Whereas, Many health plans and prescription drug plans now
require individuals to pay a coinsurance or percentage of the cost
of fourth-tier or specialty tier prescription medications; and
Whereas, Fourth-tier or specialty tier medications often
include medications for chronic diseases, including certain types
of cancer, hemophilia, multiple sclerosis, myositis, neuropathy,
arthritis, human immunodeficiency virus, and other diseases and
disorders; and
Whereas, Coinsurance, cost-sharing, and specialty tier pricing
place significant and onerous financial burdens upon insured
individuals with chronic health care issues requiring prescription
medication, in many cases leading to decreased adherence or failure
to take medications as prescribed, resulting in acute incidents and
negative health outcomes; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is
requested to study the impacts of cost sharing, coinsurance and
specialty tier pricing for prescription medications; and, be it
Further Resolved, That the study shall: (1) Determine the
impact of cost sharing, coinsurance and specialty tier pricing on access to prescription medications for chronic health disorders;
and (2) identify and evaluate options for reducing any negative
impacts of cost sharing, coinsurance and specialty tier pricing,
including but not limited to statutory limitations on cost sharing
obligations for prescription medications; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the Legislature on the first day of the regular
session, 2012, on its findings, conclusions and recommendations,
together with drafts of legislation necessary to effectuate its
recommendations; and, be it
Further Resolved, That the expense 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.
Senators Hall, Plymale, Sypolt and Browning offered the
following resolution:
Senate Resolution No. 50--Requesting the U. S. Congress oppose
an unwarranted effort by President Barack Obama's administration by
withholding further funding for the Office of Surface Mining,
Reclamation and Enforcement for the stream protection rule until
such time as the agency justifies the need for new rules.
Whereas, The Office of Surface Mining, Reclamation and
Enforcement (OSMRE) is considering new sweeping regulations that would cut surface mining in production and jobs in the eastern part
of the country by twenty-one to thirty percent, cut underground
coal mining jobs nationwide by up to fifty percent, and risk
eliminating over sixty-six thousand direct and indirect jobs
nationwide; and
Whereas, From 2003 to 2008 OSMRE conducted a five-year process
including public hearings, the submission of thousands of public
comments, and preparation of an environmental impact statement that
culminated in final regulations adding significant new
environmental protections regarding the placement of excess spoil
and clarifying its regulations relating to stream buffer zones
pursuant to the Surface Mining Control and Reclamation Act (SMCRA);
and
Whereas, OSMRE's 2008 regulations were consistent with a final
decision from the Fourth Circuit Court of Appeals in Kentuckians
for the Commonwealth v. Rivenburgh, 317 F.3d 425, 442 (4th Cir.
2003), holding that it is "beyond dispute that SMCRA recognizes the
possibility of placing excess spoil material in waters of the
United States even though those materials do not have a beneficial
purpose" and such regulations helped to significantly reduce
regulatory uncertainty brought on by earlier litigation questioning
the meaning of the agency's stream buffer zone rule and whether it
prohibited valley fills in streams; and
Whereas, The Secretary of the Interior attempted to avoid a public rule-making process by asking a court to vacate the 2008
OSMRE stream buffer zone rule without public comment as required
under the Administrative Procedure Act, but was rebuked by a
federal court which ruled that the secretary may not repeal the
stream buffer zone rule without going through the rule-making
process, including public notice and comment (see National Parks
Conservation Association v. Salazar, 620 F. Supp 2nd 3 (D.D.C.
2009); and
Whereas, OSMRE, in its own words admitted that before any
public comments were even received on its proposals that it had
"already decided to change the [stream buffer zone] rule following
the change of Administrations on January 20, 2009" (see 75 Fed.
Reg. 34,667 (June 18, 2010)) and the agency is calling the new rule
the "stream protection rule" (SPR); and further that the stream
protection rule is much broader in scope than the 2008 stream
buffer zone rule; and
Whereas, OSMRE has failed to justify why a new "stream
protection regulation" (SPR) is necessary, nor explain the problem
that the agency is attempting to fix and such concerns have been
echoed by the Interstate Mining Compact Commission, an organization
representing state mining regulators with substantial expertise in
SMCRA regulation; and
Whereas, OSMRE is inappropriately rushing to complete the rule
making because the agency committed to a self-imposed deadline of February 28, 2011 to publish a proposed rule through a unilateral
settlement agreement with environmental groups. In attempting to
meet this artificial deadline OSMRE committed violations of the
required National Environmental Policy Act process so flagrant that
eight of the state cooperating agencies expressed their serious
concerns about the draft environmental impact statement and
objecting to its quality, completeness and accuracy, as well as
calling the document "nonsensical and difficult to follow," and
ultimately threatening to pull out of the process; and
Whereas, The coal mining industry is critical to the economic
and social well-being of the citizens of West Virginia accounting
for high wage jobs, millions of dollars instate and local taxes,
and adding billions of dollars to the gross domestic product;
therefore, be it
Resolved by the Senate:
That the U. S. Congress is requested to oppose an unwarranted
effort by President Barack Obama's administration by withholding
further funding for the Office of Surface Mining, Reclamation and
Enforcement for the stream protection rule until such time as the
agency justifies the need for new rules; and, be it
Further Resolved, That the Senate expresses its serious
concern about the scope, the justification, and the substance of
the OSMRE's stream protection rule, as well as to the procedure and
process that the agency has been using to implement these regulations and calls upon the agency to immediately suspend work
on the environmental impact statement and the regulation until such
time as the agency:
(1) Clearly and publicly articulates why the 2008 regulation
has not been implemented and provides specific details regarding
each of its provisions and why the agency believes that they are
insufficient;
(2) Provides scientific data and other objective information
to justify each and every provision of the new proposal;
(3) Explains why the agency is contradicting its own annual
state inspection reports which indicate good environmental
performance and refute the need for this new regulation;
(4) Justifies why a more limited approach would not achieve
the objectives of the agency; and
(5) Surveys all of the state regulatory authorities to
determine whether they agree that such significant regulatory
changes are necessary; and, be it
Further Resolved, That the Senate hereby calls upon the House
and Senate members in our state delegation in the U. S. Congress to
oppose this unwarranted effort by President Barack Obama's
administration by withholding further funding for the Office of
Surface Mining, Reclamation and Enforcement for the stream
protection rule until such time as the agency justifies the need
for new rules; and, be it
Further Resolved, That the Clerk of the Senate is hereby
directed to forward a copy of this resolution to Senator Joe
Manchin, Senator Jay Rockefeller, Congressman Nick Rahall,
Congressman David McKinley and Congresswoman Shelley Moore Capito.
Which, under the rules, lies over one day.
Senators Unger, Foster, Edgell, Jenkins, Plymale, Stollings,
McCabe, Prezioso, Minard, Klempa, Williams, Browning and Kessler
(Acting President) offered the following resolution:
Senate Resolution No. 51--Recognizing the West Virginia
Directors of Senior and Community Services for receiving the 2011
National Institute of Senior Centers State Association of the Year
Award (NISC).
Whereas, NISC operates as an important facet of the National
Council on Aging which exists to develop programming and secure
federal funding for aging programs nationwide; and
Whereas, This association is viewed as a major player in terms
of senior programs and services in West Virginia; and
Whereas, There are directors in every portion of the state who
give selflessly each and every day and this award is an
acknowledgment of their tireless service; and
Whereas, The criteria for receiving the award includes
advocacy efforts, enhancing professional senior center leadership
at local state and national levels, developing resources to improve
and strengthen the range and quality of programs and services in senior centers and the enhancing of senior center images; and
Whereas, The Chairman of NISC, Mr. David S. Taylor, says the
West Virginia Directors of Senior and Community Services is one of
the best associations in the country; therefore, be it
Resolved by the Senate:
That the Senate hereby recognizes the West Virginia Directors
of Senior and Community Services for receiving the 2011 National
Institute of Senior Centers State Association of the Year Award
(NISC); and, be it
Further Resolved, That the Senate extends its sincere
appreciation to the West Virginia Directors of Senior and Community
Services for their outstanding service to the seniors of West
Virginia; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to the appropriate representatives of the
West Virginia Directors of Senior and Community Services.
At the request of Senator Unger, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
Senators Hall, Edgell, Plymale, Stollings, Minard, Sypolt and
Browning offered the following resolution:
Senate Resolution No. 52--Urging the members of the West
Virginia delegation to the United States Congress to: (1) Adopt
legislation prohibiting the EPA, by any means necessary, from regulating greenhouse gas emissions, including if necessary
defunding EPA greenhouse gas regulatory activities; (2) impose a
moratorium on promulgation of any new air quality regulation by the
EPA by any means necessary, except to directly address an imminent
health or environmental emergency, for a period of at least two
years, including defunding EPA air quality regulatory activities;
and (3) require the Obama administration to undertake a study
identifying all regulatory activity that the EPA intends to
undertake in furtherance of its goal of "taking action on climate
change and improving air quality" and specifying the cumulative
effect of all of these regulations on the economy, jobs and
American economic competitiveness.
Whereas, The United States Environmental Protection Agency
(EPA) has proposed or is proposing numerous new regulations,
particularly in the area of air quality and regulation of
greenhouse gases, that are likely to have major effects on the
economy, jobs and U.S. competitiveness in worldwide markets; and
Whereas, The EPA's regulatory activity as to air quality and
greenhouse gases has become known as the "train wreck" because of
the numerous and overlapping requirements and because of the
potentially devastating consequences this regulatory activity may
have on the economy; and
Whereas, Concern is growing that, with cap-and-trade
legislation having failed in Congress, the EPA is attempting to obtain the same results through the adoption of regulations; and
Whereas, EPA over-regulation is driving jobs and industry out
of America; and
Whereas, Neither the EPA nor the Administration has undertaken
any comprehensive study of what the cumulative effect of all of
this new regulatory activity will have on the economy, jobs and
competitiveness; and
Whereas, The EPA has not performed any comprehensive study of
what the environmental benefits of its greenhouse regulation will
be in terms of impacts on global climate; and
Whereas, State agencies are routinely required to identify the
costs of their regulations and to justify those costs in light of
the benefits; and
Whereas, Since the EPA has identified "taking action on
climate change and improving air quality" as its first strategic
goal for the 2011-15 time period, the EPA should be required to
identify the specific actions it intends to take to achieve these
goals and to assess the total cost of all these actions together;
and
Whereas, The Legislature supports continuing improvements in
the quality of the nation's air and believes that such improvements
can be made in a sensible fashion without damaging the economy so
long as there is a full understanding of the cost of the
regulations at issue; and
Whereas, The primary goal of government at the present time
must be to promote economic recovery and to foster a stable and
predictable business environment that will lead to the creation of
jobs; and
Whereas, Public health and welfare will suffer without
significant new job creation and economic improvement, because
people with good jobs are better able to take care of themselves
and their families than the unemployed and because environmental
improvement is only possible in a society that generates wealth;
therefore, be it
Resolved by the Senate:
That the members of the West Virginia delegation to the United
States Congress are urged to: (1) Adopt legislation prohibiting
the EPA by any means necessary from regulating greenhouse gas
emissions, including if necessary defunding EPA greenhouse gas
regulatory activities; (2) impose a moratorium on promulgation of
any new air quality regulation by the EPA by any means necessary,
except to directly address an imminent health or environmental
emergency, for a period of at least two years, including defunding
EPA air quality regulatory activities; and (3) require the Obama
administration to undertake a study identifying all regulatory
activity that the EPA intends to undertake in furtherance of its
goal of "taking action on climate change and improving air quality"
and specifying the cumulative effect of all of these regulations on the economy, jobs, and American economic competitiveness; and, be
it
Further Resolved, That this study should be a multiagency
study drawing on the expertise both of the EPA and of agencies and
departments having expertise in and responsibility for the economy
and the electric system and should provide an objective
cost-benefit analysis of all of the EPA's current and planned
regulation together; and, be it
Further Resolved, That the Clerk of the Senate is hereby
directed to forward a copy of this resolution to members of the
West Virginia Congressional Delegation and the President of the
United States.
Which, under the rules, lies over one day.
On motion of Senator Unger, the Senate requested the return
from the House of Delegates of
Eng. Com. Sub. for House Bill No. 2520, Relating to centers
for housing young adult offenders.
Passed by the Senate on yesterday, Wednesday, March 9, 2011,,
The bill still being in the possession of the Senate,
On motion of Senator Unger, the Senate reconsidered the vote
by which in adopted Senator Unger's motion that Engrossed Committee
Substitute for House Bill No. 2520 take effect from passage.
The vote thereon having been reconsidered,
The question again being on the adoption of Senator Unger's motion that Engrossed Committee Substitute for House Bill No. 2520
take effect from passage.
Thereafter, at the request of Senator Unger, and by unanimous
consent, his aforestated motion was withdrawn.
On motion of Senator Palumbo, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2520--A Bill to amend and
reenact §25-4-6 of the Code of West Virginia, 1931, as amended,
relating to assignment of youthful offenders to correctional
facilities; specifying circuit court jurisdiction; modifying age
criteria for eligibility for commitment to youthful offender
center; and providing maximum age for center commitment.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2520), as just amended, was then read a third time and put upon its
passage.
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2520) passed with its Senate amended
title.
Senator Unger moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Beach, Boley,
Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2520) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Petitions
Senator Barnes presented a petition from Kathy King and
thirty-nine Hampshire County residents, requesting repairs to
Kernschool Road in Hampshire County.
Referred to the Committee on Transportation and
Infrastructure.
At the request of Senator Unger, unanimous consent being granted, the Senate returned to the fourth order of business.
Senator Prezioso, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Senate Concurrent Resolution No. 72 (originating in the
Committee on Finance)--Requesting the Joint Committee on Government
and Finance to study the funding of fairs and festivals in this
state.
Whereas, There are over 416 fairs and festivals throughout
this state which are funded in the Budget Bill; and
Whereas, Over $2.8 million from the Division of Culture and
History-Lottery Education Fund is appropriated and expended on said
fairs and festivals; and
Whereas, There exists a great disparity in the funding levels
of said fairs and festivals; and
Whereas, There has been no justification presented to the
Legislature explaining this disparity; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the funding of fairs and festivals in this
state; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2012, 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,
Roman W. Prezioso, Jr.,
Chair.
At the request of Senator Prezioso, unanimous consent being
granted, the resolution (S. C. R. No. 72) contained in the
preceding report from the Committee on Finance was taken up for
immediate consideration.
On motion of Senator Prezioso, the resolution was then
referred to the Committee on Rules.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 38, Requesting Joint
Committee on Government and Finance study needs, challenges and
issues facing West Virginians with Alzheimer's.
On unfinished business, coming up in regular order, was
reported by the Clerk.
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.
Senate Concurrent Resolution No. 44, Requesting Joint
Committee on Government and Finance study utility services.
On unfinished business, coming up in regular order, was
reported by the Clerk.
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.
Senate Concurrent Resolution No. 55, Requesting DOH name State
Route 35 from mouth of Sweetwater Branch to Gourd Branch, in Wayne
County, "Perry Brothers Memorial Highway".
On unfinished business, coming up in regular order, was
reported by the Clerk.
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.
Senate Concurrent Resolution No. 56, Requesting DOH name State
Route 35 from State Route 152 at Missouri Branch to Tank Hollow, in
Wayne County, "Crum Brothers Memorial Highway".
On unfinished business, coming up in regular order, was reported by the Clerk.
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.
Senate Concurrent Resolution No. 62, Requesting Joint
Committee on Government and Finance authorize Joint Interim
Committee on Economic Development study efficient mineral
development.
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on Economic
Development; and then to the Committee on Rules.
Senate Concurrent Resolution No. 63, Requesting DOH name
bridge in Mingo County "Reverend Arnold and Nell Mollette Memorial
Bridge".
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on
Transportation and Infrastructure.
Senate Resolution No. 49, Authorizing Senate Committee on
Confirmations meet and be paid for interims between regular
sessions of Eightieth Legislature.
On unfinished business, coming up in regular order, was
reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
The Senate proceeded to the eighth order of business.
Eng. Com. Sub. for House Bill No. 2498, Relating to the
practice of dentistry.
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, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2498) 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. 2550, Interstate Compact on
Educational Opportunity for Military Children.
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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2550) 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. 2663, Relating to public
service commissioners presiding at hearings.
On third reading, coming up in regular order, with the right
having been granted on yesterday, Wednesday, March 9, 2011, for
further amendments to be received on third reading, was reported by
the Clerk.
On motion of Senator Snyder, the Senate reconsidered its
action by which on yesterday, Wednesday, March 9, 2011, it adopted
the Government Organization committee amendment to the bill (shown
in the Senate Journal of that day, pages 46 to 57, inclusive).
The vote thereon having been reconsidered,
The question again being on the adoption of the Government Organization committee amendment to the bill.
Thereafter, on motion of Senator Snyder, the following
amendments to the Government Organization committee amendment to
the bill were reported by the Clerk, considered simultaneously, and
adopted:
On page fourteen, section five, subsection (a), after the word
"customers" by striking out the comma and the words "sixty years of
age or older,";
And,
On page fourteen, section five, subsection (a), subdivision
(4), after "(SNAP)" by inserting the words "if they are sixty years
of age or older".
The question now being on the adoption of the Government
Organization committee to the bill, as amended, the same was put
and prevailed.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2663), as just amended, was then read a third time and put upon its
passage.
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2663) 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. 2663--A Bill to amend and
reenact §11-13-3f of the Code of West Virginia, 1931, as amended be
amended and reenacted; to amend and reenact §11-13F-1 of said code;
to amend and reenact §11-24-11 of said code; to amend and reenact
§24-1-3 and §24-1-4 of said code; to amend and reenact §24-2A-2 of
said code; to amend said code by adding thereto a new section,
designated §24-2A-5; and to amend and reenact §24-3-2, all relating
to duties of the Public Service Commission; requiring at least one
commissioner be present at any public hearing on a public utility;
requiring the commission establish a website and toll-free
telephone number for reception of public comments; adding cost of
providing private water utility services to qualified low-income
residents to matters that the commission must certify and deleting
obsolete 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. 2745, Providing that certain
information provided by insurance companies to the Insurance
Commissioner is confidential.
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, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2745) 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. 2745--A Bill to amend and
reenact §33-4-14 of the Code of West Virginia, 1931, as amended;
and to amend said code by adding thereto a new article, designated
§33-4A-1, §33-4A-2, §33-4A-3, §33-4A-4, §33-4A-5, §33-4A-6, §33-4A-
7 and §33-4A-8, all relating to the Insurance Commission generally;
providing that certain information provided by insurance companies to the Insurance Commissioner is confidential; exempting such
confidential information from the freedom of information disclosure
requirements; providing that such confidential information is not
subject to subpoena or discoverable in a private civil action;
commissioner's authority to release or share documents otherwise
treated as confidential in furtherance of regulatory or legal
action brought as a part of the commissioner's official duties;
commissioner's authority to share otherwise confidential and
privileged documents, materials or information with other state,
federal and international regulatory agencies; commissioner's
authority to share otherwise confidential and privileged documents
with state, federal and international law-enforcement authorities;
stating conditions attached thereto; authorizing emergency rules
and legislative rules; creating an all-payer claims database;
declaring purpose of the all-payer claims database; defining terms;
developing the database by the Insurance Commissioner, Secretary of
Health and Human Resources and Chairperson of the Health Care
Authority; providing for compliance with privacy laws; permitting
fees and assessments to be assessed; authorizing penalties to be
set by rule; authorizing injunctive relief; establishing special
revenue account; and allowing other sanctions.
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. 2752, Increasing the maximum age for persons applying for appointment for the police force in a
Class I or Class II city from thirty-five to forty years.
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, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2752) passed with its title.
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. 2757, Providing for
evaluation of professional personnel in the public schools.
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, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2757) 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. 2757--A Bill to amend and
reenact §18A-2-2, §18A-2-6, §18A-2-7, §18A-2-8a, §18A-2-12 and
§18A-2-12a of the Code of West Virginia, 1931, as amended, all
relating to school personnel; changing certain deadlines associated
with the termination, resignation and transfer of school personnel
and rehiring of probationary employees; requiring state board rules
adopting a written system for the evaluation of the employment
performance of personnel; requiring an emergency rule if necessary;
setting forth minimum professional personnel positions to be
evaluated; requiring evaluations to be on an annual basis; setting
forth processes for evaluating teachers, professional support
personnel and athletic coaches that depend on years of employment
and whether employed in a different school with a different
principal; requiring meeting after evaluation has concluded to discuss evaluation; requiring recording of names of certain
employees evaluated whose performance is satisfactory; requiring
record of walk-through evaluations; requiring provision of written
results of evaluation; exempting any school receiving a federal
School Improvement Grant from certain evaluation requirements that
conflict with any conditions for receiving the grant; and
clarifying written improvement plan.
Senator Unger moved that the bill take effect July 1, 2011.
On this question, the yeas were: Barnes, Beach, Boley,
Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2757) takes effect July 1, 2011.
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. 2860, Authorizing the
promulgation of rules by the Governor's Committee on Crime,
Delinquency and Correction.
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, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2860) 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. 2860--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §15-9-5, all relating to authorization of the
promulgation of certain rules by the Governor's Committee on Crime,
Delinquency and Correction regarding identification, investigation,
reporting, and prosecution of suspected child abuse and neglect;
convening certain meetings of advisory committee to assist in
development of rules; and providing for composition of advisory
committee.
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. 2863, Providing for the
costs of disability physical and/or mental examinations approved by
the Consolidated Public Retirement Board under the West Virginia
State Police plan.
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, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2863) 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. 2885, Allowing a guardian or
conservator to be employed or in an employment contract with a
behavioral health provider.
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, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2885) 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. 2936, Changing the date of
the canvassing of votes in a primary election.
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, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2936) 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. 2936--A Bill to amend and
reenact §3-5-17 of the Code of West Virginia, 1931, as amended,
relating to changing the date of the canvassing of votes in a
primary election from the Friday following a primary election to
the fifth day following a primary election that is not a Saturday,
Sunday or legal holiday.
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. 2946, Requiring the issuance
of a lawful prescription for dispensing drug products containing
chemical precursors of methamphetamine.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
Pending extended discussion and a point of inquiry to the
Acting President with resultant response thereto,
The question being "Shall Engrossed Committee Substitute for
House Bill No. 2946 pass?"
On this question, the yeas were: Beach, Edgell, D. Facemire,
Fanning, Foster, Green, Jenkins, Laird, McCabe, Palumbo, Snyder,
Stollings, Unger, Wells, Wills and Kessler (Acting President)--16.
The nays were: Barnes, Boley, Browning, Chafin, K. Facemyer,
Hall, Klempa, Miller, Minard, Nohe, Plymale, Prezioso, Sypolt,
Tucker, Williams and Yost--16.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting not
having voted in the affirmative, the Acting President declared the
bill (Eng. Com. Sub. for H. B. No. 2946) rejected on a tie vote.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
In accordance with rule number forty-four of the Rules of the
Senate, Senator Miller will file a written vote explanation as to
the passage of Engrossed Committee Substitute for House Bill No.
2946, which vote explanation will be printed in the Appendix to the
Journal.
Eng. Com. Sub. for House Bill No. 2949, Providing definitions
of "low income" for purposes of property tax relief programs.
On third reading, coming up in regular order, with the right
having been granted on yesterday, Wednesday, March 9, 2011, for
amendments to be received on third reading, was reported by the Clerk.
There being no amendments offered,
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2949) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2949) 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. 2986, Relating to forest
fire seasons.
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, Beach,
Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker,
Unger, Wells, Williams, Wills, Yost and Kessler (Acting
President)--29.
The nays were: Boley, Hall and Nohe--3.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2986) passed.
The following amendment to the title of the bill, from the
Committee on Natural Resources, was reported by the Clerk and
adopted:
Eng. Com. Sub for House Bill No. 2986--A Bill to amend and
reenact §20-3-5 of the Code of West Virginia, 1931, as amended,
relating to forest fire seasons; modifying prohibited and
permissible fire times and forest fire seasons; revising the
procedure for obtaining a burning permit; establishing permit fees
for certain entities; exempting agriculture from permit fees;
setting forth fire control requirements; and establishing criminal
and civil penalties.
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. 3034, Recognizing
outstanding students who are top achievers in scholastic studies.
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, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 3034) 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. 3034--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto two new
sections, designated §18-2-38 and §18-2-39; and to amend said code
by adding thereto a new section, designated §18-2E-8g, all relating
to student performance and progress; requiring the state board to
promulgate a rule establishing a high-quality digital learning
program; specifying ten elements the program must encompass which
are elements pertaining to student eligibility, student access,
personalized learning, advancement, content, instruction, digital
learning providers, assessment, accountability, funding and delivery; recognizing the State Board of Education's Middle School
Global 21 initiative including its goals, objectives and process;
recognizing that the State Board of Education is seeking state
funding for the implementation of the initiative; and requiring
State Board of Education to report to the Legislative Oversight
Commission on Education Accountability at certain intervals on the
implementation of the initiative until fully implemented; requiring
the State Board of Education to establish a program to recognize
certain students who are top scorers in each subject area of the
statewide summative assessment known as the WESTEST2 or any
successor tests, in each grade level tested; and requiring the
scores on the test to be made a part of the student's permanent
record.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3075, Increasing the time period in the
hold-harmless provision when distributing state aid to local health
departments.
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, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. H. B. No. 3075) 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. 3094, Requiring the
Secretary of the Department of Health and Human Services to use
existing department funds to develop a program to compensate
employees for personal property loss.
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, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 3094) 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. 3126, Requiring a railroad
company to provide pesticide safety information.
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, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 3126) passed.
The following amendment to the title of the bill, from the
Committee on Transportation and Infrastructure, was reported by the
Clerk and adopted:
Eng. Com. Sub. for House Bill No. 3126--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §31-2-16, relating to railroad companies
providing pesticide safety information and training; requiring a
railroad company to provide pesticide safety information at a
central location accessible to employees of the railroad company;
requiring a railroad company to make available to the public on its
Internet site a description of how to obtain information regarding
the railroad company's use of pesticides, including a telephone
number for the company; and requiring a railroad company to provide
pesticide safety training annually to its employees who work along
railroad rights,of,way, in rail yards or other employees who may
work in areas to which pesticides have been applied.
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. 3196, Establishing a program
and procedure for certifying medications assistive persons in the
health industry.
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, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 3196) passed.
On motion of Senator Wills, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 3196--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
article, designated §30-7D-1, §30-7D-2 and §30-7D-3, §30-7D-4, §30-
7D-5, §30-7D-6, §30-7D-7, §30-7D-8, §30-7D-9, §30-7D-10, §30-7D-11,
§30-7D-12 and §30-7D-13, all relating to medication assistive
persons in the nursing home setting; creating a pilot program;
defining terms; requiring certification; designating certain
facilities; stating qualifications to serve as a medication
assistive person; detailing the scope of a medication assistive
person's work; setting requirements for renewal of certifications;
creating disciplinary authority in the West Virginia Board of
Examiners for Registered Professional Nurses; creating misdemeanor
offenses for certain violations; creating criminal penalties;
vesting the Kanawha County circuit court with jurisdictional and
power to enjoin violations; creating the medication assistive
person advisory committee; ensuring nurses responsibilities are not
changed; and authorizing emergency rule-making authority.
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. 3204, Creating the West
Virginia Enterprise Resource Planning Board and Executive
Committee.
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, Beach,
Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 3204) passed with its title.
Senator Unger moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Beach, Boley,
Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 3204) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Pending announcement of meetings of standing committees of the
Senate, including a minority party caucus,
On motion of Senator Unger, the Senate recessed until 6 p.m.
today.
At the expiration of the recess, the Senate reconvened,
Senator Kessler (Acting President) laid before the Senate the
following communication:
DEPARTMENT OF MILITARY AFFAIRS
AND PUBLIC SAFETY
Charleston
March 10, 2011
The Honorable Earl Ray Tomblin
President, Senate of West Virginia
The Honorable Jeffrey V. Kessler
Acting President, Senate of West Virginia
State Capitol
Charleston, West Virginia
Senator Kessler:
This is to notify you that in accordance with the provisions
of the Open Government Proceedings Act §6-9A, et seq., of the West
Virginia Code, timely notice of the meeting of the Board of the
West Virginia Regional Jail and Correctional Facility Authority
(WVRJCFA) was filed February 4, 2011, with the Secretary of State's
office for publication in the West Virginia State Register. The
meeting was held March 9, 2011, at 1:30 p.m. at South Central
Regional Jail, 1001 Centre Way, Charleston, WV 25309. As the duly
elected Chairman of the Board of WVRJCFA, I am authorized to advise
you that a quorum was ascertained and by a majority vote and in
accordance with West Virginia Code §31-20, et seq., Larry Parsons
was appointed, subject to the advice and consent of the Senate, as
Executive Director, to serve at the will and pleasure of the Board,
for a term of five years to commence on April 1, 2011.
Accordingly, I am herewith submitting the name Larry Parsons
as Executive Director for the WVRJCFA for the confirmation process
of the West Virginia State Senate.
Sincerely,
Joseph C. Thornton,
Chair.
Which communication was received and referred to the Committee
on Confirmations and incorporated with the nominations received earlier this session; all to be considered as a special order of
business for Saturday, March 12, 2011, at 11 a.m.
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 and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 155--Extending the Committee
of Conference relating to consideration of Com. Sub. for House Bill
No. 2464, Adding additional requirements to the Ethics Act.
Resolved by the Legislature of West Virginia:
That pursuant to Rule No. 3 of the Joint Rules of the Senate
and House of Delegates, the Committee of Conference is hereby
extended for a period of one day for the express purpose of
consideration of matters of disagreement between the two houses as
to Com. Sub. for House Bill No. 2464.
At the request of Senator Unger, and by unanimous consent, the
message was taken up for immediate consideration and reference of
the resolution to a committee dispensed with.
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.
Executive Communications
Senator Kessler (Acting President) laid before the Senate the
following communication from His Excellency, the Governor.
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
March 10, 2011
Senate Executive Message No. 7
TO:The Honorable Members of the
West Virginia Senate
Ladies and Gentlemen:
I respectfully withdraw the following nomination for your
advice and consent from Executive Message No. 4 dated March 3,
2011, by way of the nominee resigning from her appointment:
43.For Member, Kanawha Valley Community and Technical
College Board of Governors, Martha Rader, Charleston, Kanawha
County, for the term ending June 30, 2015.
Thank you for correcting your records.
Sincerely,
Earl Ray Tomblin,
Governor.
Which communication was received and referred to the Committee
on Confirmations.
Senator Kessler (Acting President) then laid before the Senate
the following communication from His Excellency, the Governor, consisting of an executive nomination for appointee:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
March 10, 2011
Senate Executive Message No. 8
TO:The Honorable Members of the
West Virginia Senate
Ladies and Gentlemen:
I respectfully submit the following nominations for your
advice and consent:
1.For Superintendent, State Police, Carl R. Smithers, South
Charleston, Kanawha County, to serve at the will and pleasure of
the Governor.
Notice of this appointment was previously provided to the
appropriate legislative staff at the time the appointment was made.
Sincerely,
Earl Ray Tomblin,
Governor.
Which communication was received and referred to the Committee
on Confirmations and incorporated with the executive nominations
received earlier this session; all to be considered as a special
order of business for Saturday, March 12, 2011, at 11 a.m.
The Senate proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill No. 2013, Requiring the West
Virginia Enhanced 911 Council to propose Emergency Medical Dispatch
procedures.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2075, Relating to
acquisition of a municipal business license.
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:
On page two, section four, line fifteen, by striking out the
words "multiple purposes" and inserting in lieu thereof the words
"anything which requires a state license that is done within the
corporate limits of a municipality".
The bill (Eng. Com. Sub. for H. B. No. 2075)
, as amended, was
then ordered to third reading.
On motion of Senator Unger, 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,
Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2075) was then read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Beach,
Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2075) passed with its title.
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. 2248, Expanding the list of
federal law-enforcement officers who are extended the authority of
state and local law-enforcement officers to enforce the laws of
this state.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. House Bill No. 2345, Changing the membership of the PEIA
Financial Board.
On second reading, coming up in regular order, was read a
second time.
On motion of Senator Plymale, the following amendment to the
bill was reported by the Clerk and adopted:
On page three, section four, line twenty-two, by striking out
the word "Three" and inserting in lieu thereof the word "Five".
The bill (Eng. H. B. No. 2345), as amended, was then ordered
to third reading.
On motion of Senator Unger, 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,
Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. H. B. No. 2345) was then
read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Beach,
Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. H. B. No. 2345) passed.
On motion of Senator Plymale, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. House Bill No. 2345--A Bill
to amend and reenact §5-16-4
of the Code of West Virginia, 1931, as amended, relating to
increasing the board membership of the Public Employees Insurance
Agency Finance Board.
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. 2362, Increasing penalties
for financial exploitation of an elderly person or incapacitated
adult.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-29b. Financial exploitation of
an elderly person, protected
person or incapacitated adult
; penalties;
definitions.
(a) Financial exploitation occurs when a person intentionally
misappropriates or misuses the funds or assets of an elderly
person, protected person or incapacitated adult
. Any person who
violates this section is guilty of larceny and shall be ordered to
pay
restitution.
(b) In determining the value of the money, goods, property or
services referred to in subsection (a) of the section, it shall be
permissible to cumulate amounts or values where such money, goods,
property or services were fraudulently obtained as part of a common
scheme or plan.
(c)
Financial institutions and their employees, as defined by
section one, article two-a, chapter thirty-one-a of this code and
as permitted by section four, subsection thirteen of that article,
others engaged in financially related activities as defined by
section one, article eight-c, chapter thirty-one-a of this code,
caregivers, relatives and other concerned persons are permitted to report suspected cases of financial exploitation to state or
federal law enforcement authorities, the county prosecuting
attorney and to
the Department of Health and Human Resources, Adult
Protective Services Division or Medicaid Fraud Division, as
appropriate. Public officers and employees are required to report
suspected cases of financial exploitation to the appropriate
entities as stated above.
The requisite agencies shall investigate
or cause the investigation of the allegations.
(d) When financial exploitation is suspected and to the extent
permitted by federal law, financial institutions and their
employees or other business entities required by federal law or
regulation to file suspicious activity reports and currency
transaction reports shall also be permitted to disclose suspicious
activity reports or currency transaction reports to the prosecuting
attorney of any county in which the transactions underlying the
suspicious activity reports or currency transaction reports
occurred.
(e) Any person or entity is immune from civil liability for
reporting suspected cases of financial exploitation pursuant to
this section.
(f)
For the purposes of this section:
(1) "Incapacitated adult" means a person as defined by section
twenty-nine of this article;
(2) "Elderly person" means a person who is sixty-five years
or older; and
(3) "Protected person" means any person who is defined as a
"protected person" in subsection thirteen, section four, article
one, chapter forty-four-a of this code and who is subject to the
protections of chapter forty-four-a or forty-four-c of this code.
The bill (Eng. Com. Sub. for H. B. No. 2362), as amended, was
then ordered to third reading.
On motion of Senator Unger, 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,
Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2362) was then read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Beach,
Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2362) 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. 2362--
A Bill to amend and
reenact §61-2-29b of the Code of West Virginia, 1931, as amended,
relating to crimes against the elderly, protected persons or
incapacitated persons; financial exploitation of the elderly,
protected persons and incapacitated adults for misappropriating or
misusing assets; permitting the prosecutor to cumulate amounts or
values when charging; permitting banking institutions and others to
report suspected financial exploitation to law-enforcement
authorities and other entities; permitting financial institutions
to disclose suspicious activity reports or currency transaction
reports to the prosecuting attorney;
providing civil immunity for
reporting; ordering restitution; and establishing the criminal
penalty of larceny.
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. 2368, Relating to the
practice of beauty care.
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 the Code of West Virginia, 1931, as amended, be amended
by adding thereto two new sections designated §30-27-8a and §30-27-
11a
, all to read as follows:
ARTICLE 27. BOARD OF BARBERS AND COSMETOLOGISTS.
§30-27-8a. Barber apprentice.
(a) The board may establish an apprenticeship program to
become a barber. A barber apprentice shall work at all times under
the direct supervision of a licensed barber and any permit issued
by the board to work as a barber apprentice does not allow a person
to practice individually as a barber.
(b) An applicant for a barber apprenticeship
shall present
satisfactory evidence that he or she:
(1) Is at least eighteen years of age;
(2) Is of good moral character;
(3) Has a high school diploma, a GED, or has passed the
"ability to benefit test" approved by the United States Department of Education;
(4) Has paid the applicable fee;
(5) Has a certificate of health from a licensed physician;
(6) Is a citizen of the United States or is eligible for
employment in the United States; and
(7) Has fulfilled any other requirement specified by the
board.
(c) An applicant for a sponsor of a barber apprentice
shall
present satisfactory evidence that he or she:
(1) Is licensed as a barber under the provisions of this
article;
(2) Has paid the applicable fee; and
(3) Has fulfilled any other requirement specified by the
board.
(d)
The board may propose emergency rules and
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, including:
(1) The requirements for:
(A) The barber apprenticeship program;
(B) The barber apprentice permit; and
(C) A licensed barber to sponsor a barber apprentice;
(2) Procedures for an examination;
(3) A fee schedule; and
(4) Any other rules necessary to effectuate the provisions of
this section.
§30-27-11a.
Shampoo assistant
.
(a) The board may establish a shampoo assistant permit. A
shampoo assistant shall work at all times under the direct
supervision of a licensed barber or cosmetologist and any permit
issued by the board to work as a shampoo assistant does not allow
a person to practice individually as a shampoo assistant.
(b) A shampoo assistant is only authorized to perform the
following services:
(1) Shampooing and rinsing hair;
(2) Removing rollers or permanent rods; and
(3) Cleansing or other sink-related functions not requiring
the skill of a licensee.
(c) An applicant for a shampoo assistant permit
shall present
satisfactory evidence that he or she:
(1) Is at least sixteen years of age;
(2) Is of good moral character;
(3) Is in high school or has a high school diploma, a GED, or
has passed the "ability to benefit test" approved by the United
States Department of Education;
(4) Has paid the applicable fee;
(5) Has a certificate of health from a licensed physician;
(6) Is a citizen of the United States or is eligible for employment in the United States; and
(7) Has fulfilled any other requirement specified by the
board.
(d)
The board may 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,
including:
(1) The requirements and procedures for a shampoo assistant
permit;
(2) A fee schedule; and
(3) Any other rules necessary to effectuate the provisions of
this section.
The bill (Eng. Com. Sub. for H. B. No. 2368), as amended, was
then ordered to third reading.
On motion of Senator Unger, 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,
Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2368) was then read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Beach,
Boley, Browning, Edgell, D. Facemire, Fanning, Foster, Green,
Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Nohe, Palumbo,
Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells,
Williams, Wills, Yost and Kessler (Acting President)--29.
The nays were: K. Facemyer, Hall and Minard--3.
Absent: Chafin and Tomblin (Mr. President
)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2368) 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. 2368--A Bill
to
amend
the
Code of West Virginia, 1931, as amended, by adding thereto two new
sections, designated §30-27-8a and §30-27-11a
, relating to the
Board of Barbers and Cosmetologists; authorizing the establishment
of a barber apprenticeship program and shampoo assistant permit;
and rule-making and emergency rule-making authority.
Senator Unger moved that the bill take effect from passage.
On this question,
the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, Fanning, Foster, Green, Helmick,
Jenkins, Klempa, Laird, McCabe, Miller, Nohe, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells,
Williams, Wills, Yost and Kessler (Acting President)--29.
The nays were: K. Facemyer, Hall and Minard--3.
Absent: Chafin and Tomblin (Mr. President
)--2.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2368) takes effect from passage.
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. 2437, Requiring study
relating to mandating the utilization of devices that case
underground mining machines to shut-off when methane is detected.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Energy, Industry and Mining, were reported by the Clerk, considered
simultaneously, and adopted:
On page two, line five, by striking out the word "Office" and
inserting in lieu thereof the word "Board";
On page two, line eight, by striking out the word "Office" and
inserting in lieu thereof the word "Board";
On page two, line nine, by striking out the word "devises" and inserting in lieu thereof the word "devices";
And,
On page two, line ten, by striking out the word "Office" and
inserting in lieu thereof the word "Board".
The bill (Eng. Com. Sub. for H. B. No. 2437), as amended, was
then ordered to third reading.
On motion of Senator Unger, 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,
Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder,
Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and
Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2437) was then read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Beach,
Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2437) passed with its title.
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. 2451, Relating to victim
impact statements.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 11A. VICTIM PROTECTION ACT OF 1984.
§61-11A-2. Testimony of crime victim at sentencing hearing.
(a) For the purposes of this section, "victim" means a person
who is a victim of a felony, or where a death occurs during
commission of a misdemeanor the fiduciary of a deceased victim's
estate or a member of a deceased victim's immediate family or a
nonrelated person who resided with the deceased victim at the time of the crime for at least twelve months preceding the crime id such
person is known to the prosecutor.
(b) Prior to the imposition of sentence upon any a defendant
who has been found guilty of a felony or of a misdemeanor if death
occurred as a result of the crime or has pleaded guilty or nolo
contendere to any a felony, or of a misdemeanor if death occurred
as a result of the crime
the court shall permit the victim of the
crime to appear before the court for the purpose of making an oral
statement for the record if the victim notifies the court of his or
her desire to make such a statement after receiving notification
provided in subsection (c) of this section. If the victim fails to
so notify the court, such failure shall constitute constitutes a
waiver of the right to make an oral statement. In lieu of such
appearance and oral statement, the victim may submit a written
statement to the court or to the probation officer in charge of the
case. Such probation officer shall forthwith file any such the
statement delivered to his or her office with the sentencing court
and the statement shall be made a part of the record at the
sentencing hearing. Any such statement, whether oral or written,
shall relate solely to the facts of the case and the extent of any
injuries, financial losses and loss of earnings directly resulting
from the crime for which the defendant is being sentenced.
(c) Within a reasonable time prior to the imposition of
sentence upon such defendant, the prosecuting attorney or assistant prosecuting attorney in charge of the case shall make reasonable
efforts, in writing, advise the person who was the victim of such
crime or, in the case of a minor, the parent or guardian of such
minor or the fiduciary of his or her estate if he or she be then
deceased, of the date, time and place of the original sentencing
hearing and of the victim's rights to submit a written or oral
statement to the sentencing court. as hereinabove provided.
(d) The oral or written statement given or submitted by any a
victim in accordance with the provisions of this section shall be
is in addition to and not in lieu of the victim impact statement
required by the provisions of section three of this article.
§61-11A-6. State guidelines for fair treatment of crime victims
and witnesses in the criminal justice system.
(a) No later than July 1, 1984, the Attorney General shall
promulgate rules and regulations in accordance with the provisions
of chapter twenty-nine-a of this code, establishing guidelines for
law-enforcement agencies and prosecuting attorneys' offices
consistent with the purposes of this article. The Attorney General
shall seek the advice of the department of public safety and
department of human services West Virginia State Police and
Department of Health and Human Resources in preparing such rules
and regulations. In preparing such rules and regulations, the
following objectives shall be considered:
(1) The arresting law-enforcement agency should ensure that victims routinely receive emergency social and medical services as
soon as possible and are given information on the following:
(A) Availability of crime victim compensation, where
applicable;
(B) Community-based victim treatment programs;
(C) The role of the victim in the criminal justice process
including what they can expect from the system as well as what the
system expects from them; and
(D) Stages in the criminal justice process of significance to
a crime victim and the manner in which information about such
stages can be obtained.
(2) The prosecuting attorney or his or her assistant should
ensure that victims and witnesses receive information on steps that
law-enforcement officers and prosecuting attorneys can take to
protect victims and witnesses from intimidation.
(3) All victims and witnesses who have been scheduled to
attend criminal justice proceedings should be notified by the
prosecuting attorneys' offices as soon as possible of any
scheduling changes which will affect their appearances.
(4) Victims, witnesses, and one member of the immediate family
of those victims and witnesses and any nonrelated person who
resided with the victim for at least twelve months preceding the
crime should, if such persons provide the appropriate official with
a current address and telephone number, receive prompt advance notification, if possible, of judicial proceedings relating to
their case, from the prosecuting attorney's office, including:
(A) The arrest of an accused;
(B) The initial appearance of an accused before a judicial
officer;
(C) The release of the accused pending judicial proceedings;
and
(D) Proceedings in the prosecution of the accused including,
but not limited to, the entry of a plea of guilty, trial,
sentencing, and, where a term of imprisonment is imposed, the
release of the accused from such imprisonment.
(5) The victim of a serious crime, or in the case of a minor
child or a homicide, the family of the victim, shall be consulted
by the prosecuting attorney in order to obtain the views of the
victim or family about the disposition of any criminal case brought
as a result of such crime including the views of the victim or
family about:
(A) Dismissal;
(B) Release of the accused pending judicial proceedings;
(C) Plea negotiations; and
(D) Pretrial diversion program.
(6) Victims and other prosecution witnesses should if
practical, be provided prior to court appearance, be provided a
waiting area that is separate from all other witnesses prior to court appearances, if feasible.
(7) Law-enforcement agencies should promptly return victim's
victims' property held for evidentiary purposes unless there is a
compelling law-enforcement reason for retaining it.
(8) A victim or witness who so requests should be assisted by
law-enforcement agencies and prosecuting attorneys in informing
employers that the need for victim and witness cooperation in the
prosecution of the case may necessitate absence of that victim or
witness from work. A victim or witness who, as a direct result of
a crime or of cooperation with law-enforcement agencies or
attorneys for the government, is subjected to serious financial
strain, should be assisted by the appropriate state agencies in
dealing with creditors.
(b) Nothing in this section shall be construed as creating a
cause of action against the State of West Virginia or any of its
political subdivisions.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 12. PROBATION AND PAROLE.
§62-12-23. Notification of parole hearing; victim's right to be
heard; notification of release on parole.
(a) Following the sentencing of a person who has been
convicted of murder, aggravated robbery, sexual assault in the
first or second degree, kidnapping, child abuse resulting in
injury, child neglect resulting in injury, arson or a sexual offense against a minor, the prosecuting attorney who prosecuted
the offender shall prepare a "Parole Hearing Notification Form".
This form shall contain the following information:
(1) The name of the county in which the offender was
prosecuted and sentenced;
(2) The name of the court in which the offender was prosecuted
and sentenced;
(3) The name of the prosecuting attorney or assistant
prosecuting attorney who prosecuted the offender;
(4) The name of the judge who presided over the criminal case
and who sentenced the offender;
(5) The names of the law-enforcement agencies and officers who
were primarily involved with the investigation of the crime for
which the offender was sentenced; and
(6) The names, addresses and telephone numbers of the victims
of the crime for which the offender was sentenced or the names,
addresses and telephone numbers of the immediate family members of
each victim of the crime including, but not limited to, each
victim's spouse, father, mother, brothers, and sisters and any
nonrelated person who resided with an adult victim at the time of
the crime and for at least twelve months preceding the crime.
(b) The prosecuting attorney shall retain the original of the
Parole Hearing Notification Form and shall provide copies of it to
the circuit court which sentenced the offender, the Parole Board, the Commissioner of Corrections and to all persons whose names and
addresses are listed on the "Parole Hearing Notification Form".
form.
(c) At least forty-five days prior to the date of a parole
hearing, the Parole Board shall notify all persons who are listed
on the Parole Hearing Notification Form of the date, time and place
at which a parole hearing will be held. of the hearing. Such notice
shall be sent by certified mail, return receipt requested. The
notice shall state that the victims of the crime have the right to
submit a written statement to the Parole Board and to attend the
parole hearing to be heard regarding the propriety of granting
parole to the prisoner. The notice shall also state that only the
victims may submit written statements and speak at the parole
hearing unless a victim is deceased, is a minor or is otherwise
incapacitated.
(d) The panel considering the parole shall inquire during the
parole hearing as to whether the victims of the crime or their
representatives, as provided in this section, are present. If so,
the panel shall permit those persons to speak at the hearing
regarding the propriety of granting parole for the prisoner.
(e) If the panel grants parole, it shall immediately set a date
on which the prisoner will be released. Such date shall be no
earlier than thirty days after the date on which parole is granted.
On the date on which parole is granted, the Parole Board shall notify all persons listed on the Parole Hearing Notification Form
that parole has been granted and that the prisoner will be released
on a particular date the date of release. A written statement of
reasons for releasing the prisoner, prepared pursuant to subdivision
(4), subsection (b), section thirteen of this article, shall be
provided upon request to all persons listed on the Parole Hearing
Notification Form.
On motion of Senator Palumbo, the following amendment to the
bill (Eng. Com. Sub. for H. B. No. 2451) was next reported by the
Clerk and adopted:
By striking out the enacting section and inserting in lieu
thereof a new enacting section, to read as follows:
That §61-11A-2 and §61-11A-6 of the Code of West Virginia,
1931, as amended, be amended and reenacted; and that §62-12-23 of
said code be amended and reenacted, all to read as follows:
.
The bill (Eng. Com. Sub. for H. B. No. 2451), as amended, was
then ordered to third reading.
On motion of Senator Unger, 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,
Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2451) was then read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Beach,
Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt,
Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting
President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2451) passed.
The following amendment, from the Committee on the Judiciary,
was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2451--A Bill
to amend and
reenact §61-11A-2 and §61-11A-6 of the Code of West Virginia, 1931,
as amended; and to amend and reenact §62-12-23 of said code, all
relating to clarifying definition of "victim"; requiring prosecutors
to make reasonable efforts to contact victims; expanding coverage of sentencing allocation to misdemeanors where death occurs; and
adding persons who resided with crime victims to those who are
provided notice of matters in the prosecutorial process and the
right to be heard at sentencing and parole proceedings.
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. 2505, Adding synthetic
cannabinoids and hallucinogens and stimulants to the Schedule I list
of controlled substances.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page twenty-eight, section two hundred four, after line two
hundred ninety-seven, by adding a new subdivision, designated
subdivision (8), to read as follows:
(8) N-benzylpiperazine, also known as BZP.
The bill (Eng. Com. Sub. for H. B. No. 2505), as amended, was
then ordered to third reading.
On motion of Senator Unger, 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: Beach,
Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt,
Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting
President)--31.
The nays were: None.
Absent: Barnes, Chafin and Tomblin (Mr. President
)--3.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2505) was then read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Beach,
Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt,
Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting
President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2505) passed with its title.
Senator Unger moved that the bill take effect thirty days from
passage.
On this question,
the yeas were: Barnes, Beach, Boley,
Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green,
Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker,
Unger, Wells, Williams, Wills, Yost and Kessler (Acting
President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2505) takes effect thirty days from
passage.
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. 2517, Allowing Correctional
Industries to directly purchase workers' compensation coverage for
inmates.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2521, Eliminating the requirement of
serving domestic violence orders by certified mail.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and
inserting in lieu thereof the following:
That §48-27-311 and §48-27-701 of the Code of West Virginia,
1931, as amended, be amended and reenacted to read as follows:
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
§48-27-311. Service of process.
A protective order may be served on the respondent by means of
a Class I legal advertisement published notice, with the publication
area being the most current known county in which the respondent
resides, published in accordance with the provisions of section two,
article three, chapter fifty-nine of this code if: (1) The
petitioner files an affidavit with the court stating that an attempt
at personal service pursuant to Rule 4 of the West Virginia Rules
of Civil Procedure has been unsuccessful or evidence is adduced at
the hearing for the protective order that the respondent has left
the State of West Virginia; and (2) a copy of the order is mailed
by certified or registered mail to the respondent at the
respondent's last known residence and returned undelivered personal
service by law enforcement has been unsuccessful. Simultaneously
with the publication, the respondent shall be served with the
protective order and the order of publication by first class mail
to the most current known residence address of the respondent.
Any protective order issued by the court of this state which
is served in compliance with the provisions of Rule 4(f) of the West
Virginia Rules of Civil Procedure served outside the boundaries of
this state shall carry the same force and effect as if it had been personally served within this state's boundaries.
§48-27-701. Service of pleadings and orders by law-enforcement
officers.
Notwithstanding any other provision of this code to the
contrary, all law-enforcement officers are hereby authorized to
serve all pleadings and orders filed or entered pursuant to this
article on Sundays and legal holidays. No law-enforcement officer
shall refuse to serve any pleadings or orders entered pursuant to
this article. Law enforcement shall attempt to serve all protective
orders without delay: Provided, That service of process shall be
attempted within seventy-two hours of law enforcement's receipt of
the order to every address provided by petitioner. Any law-
enforcement agency which serves pleadings or orders pursuant to this
section may receive the fee authorized therefor by Rule 4 of the
Rules of Practice and Procedure for Domestic Violence Civil
Proceedings. If service is not made, law enforcement shall continue
to attempt service on the respondent until proper service is made.
The bill (Eng. H. B. No. 2521), as amended, was then ordered
to third reading.
On motion of Senator Unger, 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,
Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Plymale, Prezioso, Snyder, Stollings, Sypolt,
Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting
President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. H. B. No. 2521) was then
read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Beach,
Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt,
Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting
President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. H. B. No. 2521) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. House Bill No. 2521--A Bill
to amend and reenact §48-27-
311 and §48-27-701 of the Code of West Virginia, 1931, as amended,
relating to prevention and treatment of domestic violence generally; eliminating the requirement of serving domestic violence orders by
certified mail where personal service fails in order to expedite
service and eliminate delays in conducting final hearings;
authorizing fee to law enforcement for service of process; and
clarifying that personal service must be attempted at every address
for respondent provided by petitioner.
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. 2539, Authorizing the West
Virginia State Police to enter into agreements for certain forensic
services with the Marshall University Forensic Science Center.
On second reading, coming up in regular order, was read a
second time.
At the request of Senator Palumbo, unanimous consent being
granted, the bill was advanced to third reading with the right for
amendments to be considered on that reading.
Eng. Com. Sub. for House Bill No. 2542, Clarifying requirements
and procedures for access to cemeteries and grave sites located on
private land.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 13A. GRAVES LOCATED UPON PRIVATELY OWNED LANDS.
§37-13A-1. Access of certain persons to cemeteries and graves
located on private land.
(a) Any authorized person who wishes to visit a cemetery or
grave site located on privately owned land and for which no public
ingress or egress is available, shall have the right to reasonable
ingress or egress for the purposes described in subsection (c) of
this section after providing the owner of the privately owned land
with reasonable notice as defined in subsection (c) of this section.
(b) An authorized person intending to visit the cemetery or
grave site for the purpose of installing a monument or grave marker
pursuant subdivision (b) of this section shall give reasonable
notice to the property owner which is to include a description of
the monument or grave marker to be installed. As used in this
article, "reasonable notice" means written notice of the date and
time the authorized person intends to visit the cemetery or grave
site delivered to the property owner at least ten days prior to the
date of the intended visit.
(C) The right of access to cemeteries or grave sites provided
in subsection (a) of this section shall be during reasonable hours
and only for the purposes of:
(1) Visiting graves;
(2) Maintaining the grave site or cemetery, including the installation of a monument or a grave marker: Provided, That a
property owner may deny access to the cemetery or grave site because
the owner objects to the installation of the type or style of the
monument or grave marker that has been described in the notice given
pursuant to subsection (b), section one of this article;
(3) Burying a deceased person in a cemetery plot by those
granted rights of burial to that plot; and
(4) Conducting genealogy research.
(c)(1) The access route to the cemetery or grave site may be
designated by the landowner if no traditional access route is
obviously visible by a view of the property. If no traditional
access route is obviously visible by a view of the property, the
landowner is not required to incur any expense in improving a
designated access route.
(2) Unless the property owner has caused a traditional access
route to the cemetery or grave site to be unusable or unavailable,
the property owner is not required to make any improvements to their
property to satisfy the requirement of providing reasonable ingress
and egress to a cemetery or burial site pursuant to this section.
(d) A property owner who is required to permit authorized
persons reasonable ingress and egress for the purpose of visiting
a cemetery or grave site and who acts in good faith and in a
reasonable manner pursuant to this section is not liable for any
personal injury or property damage that occurs in connection with the access to the cemetery or grave site.
(e) Nothing in this section shall be construed to limit or
modify the power or authority of a court in any action of law or
equity to order the disinterment and removal of the remains from a
cemetery and interment in a suitable location.
§37-13A-2. Definitions.
In this article:
(1) "Authorized person" means:
(A) A family member, close friend or descendant of a deceased
person;
(B) A cemetery plot owner; or
(C) A person who has the written permission of a family member
or descendant of a deceased person to enter the property solely for
the purpose of installing monuments or grave markers or preparing
the cemetery plot for burying a deceased person by those granted
rights of burial to that plot; or
(D) A person engaged in genealogy research.
(2) "Governmental subdivision" means any county commission or
municipality.
(3) "Reasonable ingress and egress" or "reasonable access"
means access to the cemetery or grave site within ten days of the
receipt of written notice of the intent to visit the cemetery or
grave site. If the property owner cannot provide reasonable access
to the cemetery or grave site on the desired date, the property owner shall provide reasonable alternative dates when the property
owner can provide access within five days of the receipt of the
initial notice.
§37-13A-5. Cause of action for injunctive relief.
(a) An authorized person denied reasonable access under the
provisions of this article, including the denial of permission to
use vehicular access or the denial of permission to access the
cemetery or grave site to install a monument or grave marker, may
institute a proceeding in the circuit court of the county in which
the cemetery or grave site is located to enjoin the owner of the
private lands on which the cemetery or grave site is located, or his
or her agent, from denying the authorized person reasonable ingress
and egress to the cemetery or grave site for the purposes set forth
in this article. In granting relief, the court may set the
frequency of access, hours and duration of the access.
(b) The court or the judge thereof may issue a preliminary
injunction in any case pending a decision on the merits of any
application filed without requiring the filing of a bond or other
equivalent security.
The bill (Eng. Com. Sub. for H. B. No. 2542), as amended, was
then ordered to third reading.
On motion of Senator Unger, 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,
Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2542) was then read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Beach,
Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt,
Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting
President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2542) 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. 2542--A Bill
to amend and reenact §37-13A-1, §37-13A-2 and §37-13A-5 of the Code of West
Virginia, 1931, as amended, all relating to access to cemeteries and
grave sites located on privately owned land generally; allowing
access for the purposes of installation of monuments or grave
markers; allowing access to an authorized person who has the written
permission of a family member or descendant of a deceased person to
enter the property solely for the purpose of installing monuments
or grave markers or preparing the cemetery plot for burying a
deceased person by those granted rights of burial to that plot;
requiring notice and description of monuments or grave markers to
be installed; permitting denial of installation by property owner;
and providing injunctive relief.
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. 2639, Authorizing
miscellaneous boards and agencies to promulgate legislative rules.
On second reading, coming up in regular order, was read a
second time.
At the request of Senator Williams, unanimous consent being
granted, the bill was advanced to third reading with the unreported
Judiciary committee amendment pending and the right for further
amendments to be considered on that reading.
Eng. House Bill No. 2695, Relating to the educational
broadcasting authority.
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 and adopted:
On pages two through sixteen, by striking out all of section
one and inserting in lieu thereof a new section one, to read as
follows:
§5F-2-1. Transfer and incorporation of agencies and boards; funds.
(a) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Administration:
(1) Building Commission provided in article six, chapter five
of this code;
(2) Public Employees Insurance Agency provided in article
sixteen, chapter five of this code;
(3) Governor's Mansion Advisory Committee provided in article
five, chapter five-a of this code;
(4) Commission on Uniform State Laws provided in article one-a,
chapter twenty-nine of this code;
(5) West Virginia Public Employees Grievance Board provided in
article three, chapter six-c of this code;
(6) Board of Risk and Insurance Management provided in article
twelve, chapter twenty-nine of this code;
(7) Boundary Commission provided in article twenty-three,
chapter twenty-nine of this code;
(8) Public Defender Services provided in article twenty-one,
chapter twenty-nine of this code;
(9) Division of Personnel provided in article six, chapter
twenty-nine of this code;
(10) The West Virginia Ethics Commission provided in article
two, chapter six-b of this code;
(11) Consolidated Public Retirement Board provided in article
ten-d, chapter five of this code; and
(12) Real Estate Division provided in article ten, chapter
five-a of this code.
(b) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Commerce:
(1) Division of Labor provided in article one, chapter
twenty-one of this code, which includes:
(A) Occupational Safety and Health Review Commission provided
in article three-a, chapter twenty-one of this code; and
(B) Board of Manufactured Housing Construction and Safety
provided in article nine, chapter twenty-one of this code;
(2) Office of Miners' Health, Safety and Training provided in
article one, chapter twenty-two-a of this code. The following boards are transferred to the Office of Miners' Health, Safety and
Training for purposes of administrative support and liaison with the
office of the Governor:
(A) Board of Coal Mine Health and Safety and Coal Mine Safety
and Technical Review Committee provided in article six, chapter
twenty-two-a of this code;
(B) Board of Miner Training, Education and Certification
provided in article seven, chapter twenty-two-a of this code; and
(C) Mine Inspectors' Examining Board provided in article nine,
chapter twenty-two-a of this code;
(3) The West Virginia Development Office, which includes the
Division of Tourism and the Tourism Commission provided in article
two, chapter five-b of this code;
(4) Division of Natural Resources and Natural Resources
Commission provided in article one, chapter twenty of this code;
(5) Division of Forestry provided in article one-a, chapter
nineteen of this code;
(6) Geological and Economic Survey provided in article two,
chapter twenty-nine of this code; and
(7) Workforce West Virginia provided in chapter twenty-one-a
of this code, which includes:
(A) Division of Unemployment Compensation;
(B) Division of Employment Services Service;
(C) Division of Workforce Development; and
(D) Division of Research, Information and Analysis; and
(8) Division of Energy provided in article two-f, chapter
five-b of this code;
(9) Division of Tourism Commission provided in article two-h,
chapter five-b of this code.
(c) The Economic Development Authority provided in article
fifteen, chapter thirty-one of this code is continued as an
independent agency within the executive branch.
(d) The Water Development Authority and the Water Development
Authority Board provided in article one, chapter twenty-two-c of
this code is continued as an independent agency within the executive
branch.
(e) The following agencies and boards, including all of the
allied, advisory and affiliated entities, are transferred to the
Department of Environmental Protection for purposes of
administrative support and liaison with the office of the Governor:
(1) Air Quality Board provided in article two, chapter
twenty-two-b of this code;
(2) Solid Waste Management Board provided in article three,
chapter twenty-two-c of this code;
(3) Environmental Quality Board, or its successor board,
provided in article three, chapter twenty-two-b of this code;
(4) Surface Mine Board provided in article four, chapter
twenty-two-b of this code;
(5) Oil and Gas Inspectors' Examining Board provided in article
seven, chapter twenty-two-c of this code;
(6) Shallow Gas Well Review Board provided in article eight,
chapter twenty-two-c of this code; and
(7) Oil and Gas Conservation Commission provided in article
nine, chapter twenty-two-c of this code.
(f) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Education and the Arts:
(1) Library Commission provided in article one, chapter ten of
this code;
(2) Educational Broadcasting Authority provided in article
five, chapter ten of this code;
(3) (2) Division of Culture and History provided in article
one, chapter twenty-nine of this code;
(4) (3) Division of Rehabilitation Services provided in section
two, article ten-a, chapter eighteen of this code.
(g) The Educational Broadcasting Authority provided in article
five, chapter ten of this code, is part of the Department of
Education and the Arts for purposes of administrative support and
liaison with the office of the Governor.
(g) (h) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and
administered as a part of the Department of Health and Human
Resources:
(1) Human Rights Commission provided in article eleven, chapter
five of this code;
(2) Division of Human Services provided in article two, chapter
nine of this code;
(3) Bureau for Public Health provided in article one, chapter
sixteen of this code;
(4) Office of Emergency Medical Services and the Emergency
Medical Services Advisory Council provided in article four-c,
chapter sixteen of this code;
(5) Health Care Authority provided in article twenty-nine-b,
chapter sixteen of this code;
(6) Commission on Mental Retardation provided in article
fifteen, chapter twenty-nine of this code;
(7) Women's Commission provided in article twenty, chapter
twenty-nine of this code; and
(8) The Child Support Enforcement Division provided in chapter
forty-eight of this code.
(h) (i) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Military Affairs and Public Safety:
(1) Adjutant General's Department provided in article one-a,
chapter fifteen of this code;
(2) Armory Board provided in article six, chapter fifteen of
this code;
(3) Military Awards Board provided in article one-g, chapter
fifteen of this code;
(4) West Virginia State Police provided in article two, chapter
fifteen of this code;
(5) Division of Homeland Security and Emergency Management and
Disaster Recovery Board provided in article five, chapter fifteen
of this code and Emergency Response Commission provided in article
five-a of said chapter;
(6) Sheriffs' Bureau provided in article eight, chapter fifteen
of this code;
(7) Division of Justice and Community Services provided in
article nine a, chapter fifteen of this code;
(8) Division of Corrections provided in chapter twenty-five of
this code;
(9) Fire Commission provided in article three, chapter
twenty-nine of this code;
(10) Regional Jail and Correctional Facility Authority provided
in article twenty, chapter thirty-one of this code;
(11) Board of Probation and Parole provided in article twelve, chapter sixty-two of this code. and
(12) Division of Veterans' Affairs and Veterans' Council
provided in article one, chapter nine-a of this code.
(i) (j) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Revenue:
(1) Tax Division provided in article one, chapter eleven of
this code;
(2) Racing Commission provided in article twenty-three, chapter
nineteen of this code;
(3) Lottery Commission and position of Lottery Director
provided in article twenty-two, chapter twenty-nine of this code;
(4) Agency of Insurance Commissioner provided in article two,
chapter thirty-three of this code;
(5) Office of West Virginia Alcohol Beverage Control
Commissioner provided in article sixteen, chapter eleven of this
code and article two, chapter sixty of this code;
(6) Board of Banking and Financial Institutions provided in
article three, chapter thirty-one-a of this code;
(7) Lending and Credit Rate Board provided in chapter
forty-seven-a of this code;
(8) Division of Banking provided in article two, chapter
thirty-one-a of this code;
(9) The State Budget Office provided in article two of this
chapter;
(10) The Municipal Bond Commission provided in article three,
chapter thirteen of this code;
(11) The Office of Tax Appeals provided in article ten-a,
chapter eleven of this code; and
(12) The State Athletic Commission provided in article five-a,
chapter twenty-nine of this code.
(j) (k) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are incorporated in and
administered as a part of the Department of Transportation:
(1) Division of Highways provided in article two-a, chapter
seventeen of this code;
(2) Parkways, Economic Development and Tourism Authority
provided in article sixteen-a, chapter seventeen of this code;
(3) Division of Motor Vehicles provided in article two, chapter
seventeen-a of this code;
(4) Driver's Licensing Advisory Board provided in article two,
chapter seventeen-b of this code;
(5) Aeronautics Commission provided in article two-a, chapter
twenty-nine of this code;
(6) State Rail Authority provided in article eighteen, chapter
twenty-nine of this code; and
(7) Public Port Authority provided in article sixteen-b,
chapter seventeen of this code.
(l) The Veterans' Council provided in article one, chapter
nine-a of this code, including all of the allied, advisory,
affiliated or related entities and funds associated with it is,
incorporated in and administered as part of the Department of
Veteran's Assistance.
(k) (m) Except for powers, authority and duties that have been
delegated to the secretaries of the departments by the provisions
of section two of this article, the position of administrator and
the powers, authority and duties of each administrator and agency
are not affected by the enactment of this chapter.
(l) (n) Except for powers, authority and duties that have been
delegated to the secretaries of the departments by the provisions
of section two of this article, the existence, powers, authority and
duties of boards and the membership, terms and qualifications of
members of the boards are not affected by the enactment of this
chapter. All boards that are appellate bodies or are independent
decision makers shall not have their appellate or independent
decision-making status affected by the enactment of this chapter.
(m) (o) Any department previously transferred to and
incorporated in a department by prior enactment of this section
means a division of the appropriate department. Wherever reference
is made to any department transferred to and incorporated in a department created in section two, article one of this chapter, the
reference means a division of the appropriate department and any
reference to a division of a department so transferred and
incorporated means a section of the appropriate division of the
department.
(n) (p) When an agency, board or commission is transferred
under a bureau or agency other than a department headed by a
secretary pursuant to this section, that transfer is solely for
purposes of administrative support and liaison with the Office of
the Governor, a department secretary or a bureau. Nothing in this
section extends the powers of department secretaries under section
two of this article to any person other than a department secretary
and nothing limits or abridges the statutory powers and duties of
statutory commissioners or officers pursuant to this code.
The bill (Eng. H. B. No. 2695), as amended, was then ordered
to third reading.
On motion of Senator Unger, 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,
Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--31.
The nays were: Sypolt--1.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. H. B. No. 2695) was then
read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Beach, Boley,
Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green,
Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe,
Palumbo, Plymale, Prezioso, Snyder, Stollings, Tucker, Unger, Wells,
Williams, Wills, Yost and Kessler (Acting President)--29.
The nays were: Barnes, Hall and Sypolt--3.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. H. B. No. 2695) 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. 2695--A Bill to amend and reenact §5F-2-1,
of the Code of West Virginia, 1931, as amended; to amend and reenact
§10-5-1, §10-5-2, §10-5-3 and §10-5-4 of said code; and to amend
said code by adding thereto a new section, designated §10-5-6, all
relating generally to organization and authority of executive branch
agencies and departments; relating to the Educational Broadcasting
Authority; modifying organizational structure; declaring legislative findings; deleting outdated language; authorizing the authority and
its employees to work with certain private nonprofit corporations;
authorizing the use of the authority's property and facilities for
fundraising purposes; authorizing the authority to solicit funds for
the support of public broadcasting; requiring memoranda of
understanding; and providing exemption from disclosure for names of
private donors.
Senator Unger moved that the bill take effect from passage.
On this question,
the yeas were: Beach, Boley, Browning,
Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Helmick,
Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo,
Plymale, Prezioso, Snyder, Stollings, Tucker, Unger, Wells,
Williams, Wills, Yost and Kessler (Acting President)--29.
The nays were: Barnes, Hall and Sypolt--3.
Absent: Chafin and Tomblin (Mr. President)--2.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. H. B. No. 2695) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2763, Prohibiting the Executive Director
of Workforce West Virginia from billing a reimbursable employer
under the unemployment compensation law for overpaid amounts of
benefits paid to a claimant.
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 and adopted:
On
page three, section eleven, line twenty-nine, after the word
"Fund" by changing the period to a colon and inserting the following
proviso: Provided, That no employer shall be entitled to any
payment under this subdivision unless such employer has filed all
requested adequate separation information within the required time
frame.
The bill (Eng. H. B. No. 2763), as amended, was then ordered
to third reading.
On motion of Senator Unger, 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,
Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. H. B. No. 2763) was then read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Beach,
Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt,
Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting
President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. H. B. No. 2763) passed with its title.
Senator Unger moved that the bill take effect from passage.
On this question,
the yeas were: Barnes, Beach, Boley,
Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green,
Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe,
Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker,
Unger, Wells, Williams, Wills, Yost and Kessler (Acting
President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. H. B. No. 2763) takes effect from passage.
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. 2864, All relating to the
creation of a misdemeanor crime of unlawful restraint in the first
and second degree.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-14g. Unlawful restraint; penalties.
(a) Any person who, without legal authority intentionally
restrains another with the intent that the other person not be
allowed to leave the place of restraint and who does so by physical
force or by overt or implied threat of violence or by actual
physical restraint but without the intent to obtain any other
concession or advantage as those terms are used in section fourteen-
a of this article is guilty of a misdemeanor and upon conviction
shall be confined in jail for not more than one year, fined not more
than $1,000, or both.
(b) In any prosecution under this section, it is an affirmative
defense that:
(1) The defendant acted reasonably and in good faith to protect
the person from imminent physical danger; or
(2) The person restrained was a child less than eighteen years
old and that the actor was a parent or legal guardian, or a person
acting under authority granted by a parent or legal guardian of such
child, or by a teacher or other school personnel acting under
authority granted by section one, article five, chapter eighteen-a
of this code, and that his or her sole purpose was to assume control
of such child.
(c) As used in this section to "restrain" means to restrict a
persons movement without his or her consent.
(d) This section shall not apply to acts done by a law
enforcement officer in the lawful exercise of his or her duties.
§61-2-28. Domestic violence -- Criminal acts.
(a) Domestic battery. -- Any person who unlawfully and
intentionally makes physical contact of an insulting or provoking
nature with his or her family or household member or unlawfully and
intentionally causes physical harm to his or her family or household
member, is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in a county or regional jail for not more than
twelve months, or fined not more than five hundred dollars, or both.
(b) Domestic assault. -- Any person who unlawfully attempts to
commit a violent injury against his or her family or household
member or unlawfully commits an act which places his or her family or household member in reasonable apprehension of immediately
receiving a violent injury, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in a county or regional jail
for not more than six months, or fined not more than one hundred
dollars, or both.
(c) Second offense. -- Domestic assault or domestic battery.
A person convicted of a violation of subsection (a) of this
section after having been previously convicted of a violation of
subsection (a) or (b) of this section, after having been convicted
of a violation of subsection (b) or (c), section nine of this
article or subsection (a), section fourteen-g of this article where
the victim was his or her current or former spouse, current or
former sexual or intimate partner, person with whom the defendant
has a child in common, person with whom the defendant cohabits or
has cohabited, a parent or guardian, the defendant's child or ward
or a member of the defendant's household at the time of the offense
or who has previously been granted a period of pretrial diversion
pursuant to section twenty-two, article eleven of this chapter for
a violation of subsection (a) or (b) of this section, or a violation
of subsection (b) or (c), section nine of this article or subsection
(a), section fourteen-g of this article where the victim was a
current or former spouse, current or former sexual or intimate
partner, person with whom the defendant has a child in common,
person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the
defendant's household at the time of the offense is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in a
county or regional jail for not less than sixty days nor more than
one year, or fined not more than one thousand dollars, or both.
A person convicted of a violation of subsection (b) of this
section after having been previously convicted of a violation of
subsection (a) or (b) of this section, after having been convicted
of a violation of subsection (b) or (c), section nine of this
article or subsection (a), section fourteen-g of this article where
the victim was a current or former spouse, current or former sexual
or intimate partner, person with whom the defendant has a child in
common, person with whom the defendant cohabits or has cohabited,
a parent or guardian, the defendant's child or ward or a member of
the defendant's household at the time of the offense or having
previously been granted a period of pretrial diversion pursuant to
section twenty-two, article eleven of this chapter for a violation
of subsection (a) or (b) of this section or subsection (b) or (c),
section nine of this article or subsection (a), section fourteen-g
of this article where the victim was a current or former spouse,
current or former sexual or intimate partner, person with whom the
defendant has a child in common, person with whom the defendant
cohabits or has cohabited, a parent or guardian, the defendant's
child or ward or a member of the defendant's household at the time of the offense shall be confined in a county or regional jail for
not less than thirty days nor more than six months, or fined not
more than five hundred dollars, or both.
(d) Any person who has been convicted of a third or subsequent
violation of the provisions of subsection (a) or (b) of this
section, a third or subsequent violation of the provisions of
section nine of this article or subsection (a), section fourteen-g
of this article where the victim was a current or former spouse,
current or former sexual or intimate partner, person with whom the
defendant has a child in common, person with whom the defendant
cohabits or has cohabited, a parent or guardian, the defendant's
child or ward or a member of the defendant's household at the time
of the offense or who has previously been granted a period of
pretrial diversion pursuant to section twenty-two, article eleven
of this chapter for a violation of subsection (a) or (b) of this
section or a violation of the provisions of section nine of this
article or subsection (a), section fourteen-g of this article in
which the victim was a current or former spouse, current or former
sexual or intimate partner, person with whom the defendant has a
child in common, person with whom the defendant cohabits or has
cohabited, a parent or guardian, the defendant's child or ward or
a member of the defendant's household at the time of the offense,
or any combination of convictions or diversions for these offenses,
is guilty of a felony if the offense occurs within ten years of a prior conviction of any of these offenses and, upon conviction
thereof, shall be confined in a state correctional facility not less
than one nor more than five years or fined not more than two
thousand five hundred dollars, or both.
(e) As used in this section, "family or household member" means
"family or household member" as defined in 48-27-204 of this code.
(f) A person charged with a violation of this section may not
also be charged with a violation of subsection (b) or (c), section
nine of this article for the same act.
(g) No law-enforcement officer may be subject to any civil or
criminal action for false arrest or unlawful detention for effecting
an arrest pursuant to this section or pursuant to 48-27-1002 of this
code.
The bill (Eng. Com. Sub. for H. B. No. 2864), as amended, was
then ordered to third reading.
On motion of Senator Unger, 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,
Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2864) was then read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Beach,
Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt,
Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting
President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2864) 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. 2864--A Bill
to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section designated §61-2-14g; and to amend and reenact §61-2-28 of
said code, all relating to the creation of the misdemeanor offense
of unlawful restraint; distinguishing the offense from that of
kidnapping; defining restrain; providing for affirmative defenses;
and penalties.
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. 2888, Strengthening of
protections for whistleblowers of unsafe working conditions in
mines.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on the
Judiciary, were reported by the Clerk, considered simultaneously,
and adopted:
On page two, section twelve, line five, by striking out the
word "board" and inserting in lieu thereof the word "Board";
On page two, section twelve, line eight, by striking out the
word "Office" and inserting in lieu thereof the word "Board";
And,
On page two, section twelve, line nine, by striking out the
word "to".
The bill (Eng. Com. Sub. for H. B. No. 2888), as amended, was
then ordered to third reading.
On motion of Senator Unger, 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,
Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2888) was then read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Beach,
Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt,
Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting
President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2888) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2918, Relating to permanent business
registrations.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2953, Relating to dedication
of coalbed methane severance tax proceeds.
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 and adopted:
On page twelve, section twenty-a, line one hundred seventy-two,
by striking out the word "providing" and inserting in lieu thereof
the word "provides".
The bill (Eng. Com. Sub. for H. B. No. 2953), as amended, was
then ordered to third reading.
On motion of Senator Unger, 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,
Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2953) was then read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Beach,
Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt,
Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting
President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2953) passed with its title.
Senator Unger moved that the bill take effect from passage.
On this question,
the yeas were: Barnes, Beach, Boley,
Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green,
Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe,
Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker,
Unger, Wells, Williams, Wills, Yost and Kessler (Acting
President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 2953) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2993, Relating to the West Virginia
Commercial Patents Incentives Tax Act.
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 and adopted:
By striking out everything after the enacting section and
inserting in lieu thereof the following:
ARTICLE 13AA. COMMERCIAL PATENT INCENTIVES TAX ACT.
§11-13AA-3. Definitions.
(a) General. -- When used in this article, or in the
administration of this article, terms defined in subsection (b) of
this section have the meanings ascribed to them by this section,
unless a different meaning is clearly required by either the context
in which the term is used, or by specific definition, in this
article.
(b) Terms defined. --
(1) "Agreement" means any agreement or contractual relationship
entered into after the effective date of this section between a
person developing patents in this state and either:
(A) A corporation established under the laws of this state that
meet the requirements of section three, article twelve, chapter eighteen-b of this code; or
(B) A center for economic development and technological
advancement created pursuant to section three, article twelve-a,
chapter eighteen-b of this code.
(2) "Business activity" means all activities engaged in or
caused to be engaged in by a person with the object of gain or
economic benefit, direct or indirect. For purposes of this
definition, the term "gain or economic benefit, direct or indirect"
does not include income realized by any person in the form of wages,
salary or income that is reported on federal form W-2.
(3) "Commercial use" means selling, licensing, leasing or
otherwise making patents available to a third party for a price,
fee, royalty, commission or other consideration called by whatever
name. "Commercial use" also means, in the case of patents developed
by the developer for the developer's own commercial use, the first
use of the patents in a manufacturing or other business activity of
the developer. "Commercial use" does not include any selling,
licensing, leasing or otherwise making patents available to a third
party when done by a broker or by any person who does not own the
patent sold, licensed, leased or otherwise made available.
(4) "Commissioner" and "Tax Commissioner" are used
interchangeably herein and mean the Tax Commissioner of the State
of West Virginia or his or her designee.
(5) "Copyright" means a copyright that is registered with the United States Copyright Office or with a similar office of a foreign
country when the foreign copyright is recognized under federal law.
(6) "Credit year" means the taxable year in which the person
realizes the net profit attributable to a patent. In the case of
a license or lease to use patents, "credit year" means each taxable
year during the term of the license or lease to use patents.
(7) (6) "Delegate" in the phrase "or his or her delegate", when
used in reference to the Tax Commissioner, means any officer or
employee of the Tax Department of the Department of Revenue duly
authorized by the Tax Commissioner directly, or indirectly, by one
or more redelegations of authority to perform the functions
mentioned or described in this article.
(7) "Development of a patent," "developing patents" or
"development" means the act of inventing or discovering any new and
useful process, machine, article of manufacture, or composition of
matter, or any new and useful improvement thereto through
significant investment of money, performance of research, or
application of design or engineering expertise, which culminates in
the issuance of a patent, as defined in this article.
(8) "Developer" means a person engaged in this state in
developing patents for direct use in a manufacturing process or
product and who has an agreement, as defined in this section, with
Marshall University or West Virginia University.
(9) "Directly used in manufacturing process or product, "and "direct use in manufacturing process or product" mean the use of
patents directly in those activities or operations which constitute
an integral and essential part of the manufacturing processes and
products, as contrasted with and distinguished from those activities
or operations which are simply incidental, convenient or remote to
the manufacturing activity such as those activities that are
incidental. Those activities that are incidental to business
activities such as bills, marketing, inventory control, order
fulfillment, shipping and tracking are not considered an integral
and essential part of the manufacturing process or product with
reference to patents
means application or incorporation of a
patented process, machine, article of manufacture or composition of
matter, in manufacturing operations or processes, or in manufactured
products, in circumstances where United States or foreign patent
laws require that the specific patent for the process, machine,
article of manufacture or composition of matter be owned by the
manufacturer, or purchased, leased, licensed or authorized by
contract to be applied or incorporated in the manufacturing
operation, processes or product, and where such lawful ownership,
purchase, lease, licensure or contractual authorization is in
effect.
(10) "Manufacturing" means any business activity classified as
having a sector identifier, consisting of the first two digits of
the six-digit North American Industry Classification System code number of thirty-one, thirty-two or thirty-three.
(11) "Mask work" means a series of related images, however
fixed or encoded:
(A) Having or representing the predetermined, three-dimensional
pattern of metallic, insulating or semiconductor material present
or removed from the layers of a semiconductor chip product; and
(B) In which series the relation of the images to one another
is that each image has the pattern of the surface of one form of the
semiconductor chip product.
(12) "Net profits" means West Virginia taxable income as
determined for purposes of article twenty four of this chapter,
before application of this credit and after application of all
credits allowable under this chapter except this credit. In the
case of taxpayers that are not subject to the tax imposed by article
twenty-four, "net profits" means West Virginia taxable income as
determined for purposes of article twenty-one of this chapter,
before application of this credit and after application of all
credits allowable under this chapter except this credit. In
circumstances where net profit is not solely attributable to and the
exclusive result of the direct use of a patent in a manufacturing
process or product in this state, the taxpayer shall determine net
profit solely attributable to and the exclusive result of the direct
use of a patent in a manufacturing process or product in this state,
and net profit for purposes of determining the amount of credit allowable under this article shall be the net profit solely
attributable to and the exclusive result of the direct use of a
patent in a manufacturing process or product in this state.
(12) (13) "Owner", when used in reference to a pass-through
entity, means a person who owns an equity interest in the pass-
through entity.
(13) (14) "Partnership" includes a syndicate, group, pool,
joint venture or other unincorporated organization through or by
means of which any business, financial operation or venture is
carried on, which is not a sole proprietorship, trust or estate, and
which is treated as a partnership for federal income tax purposes
for the taxable year.
(14) (15) "Pass-through entity" means a partnership, limited
liability company, small business corporation (S corporation) or
other entity treated as a partnership for federal income tax
purposes for the taxable year.
(15) (16) "Patent" means a United States or foreign national
patent grant or United States certificate of invention or
certificate of protection under the Plant Variety Protection Office
of the United States Department of Agriculture patent issued
pursuant to 35 U.S.C. §101, et seq. or the Patent Cooperation Treaty
done at Washington, on June 19, 1970
and is limited to plant
patents, design patents and patents developed in this state for
direct use in a manufacturing process or product, or both developed for use and directly used in a manufacturing process or product in
this state. For purposes of this article, patents do not include
copyrights, trademarks, mask works, trade secrets or any
intellectual property that is not a patent.
(16) (17) "Person" includes a natural person, corporation,
limited liability company or partnership. A single member liability
company that is treated as a disregarded entity for federal income
tax purposes is be treated as a disregarded entity for purposes of
this article.
(17) (18) "Purchase" means a transaction under which title to
an item is transferred for consideration, or a license or lease
contract for at least three years is executed, regardless of whether
title to the item is transferred at the end of the lease or license
period.
(18) (19) "Taxpayer" means any person subject to the tax
imposed by article twenty-three or twenty-four of this chapter or
to both taxes. In the case of a sole proprietorship that is not
subject to either the tax imposed by article twenty-three or twenty-
four of this chapter, the term "taxpayer" means a natural person who
owns a disregarded entity and who is subject to the tax imposed by
article twenty-one of this chapter on his or her income from
business activity in this state, or any sole proprietor who is
subject to the tax imposed by article twenty-one of this chapter.
(19) (20) "Trademark" means any trademark, trade name, service mark or other identifying symbol or name that is registered with the
United States Patent and Trademark Office or with a similar office
of a foreign country when the foreign registration is recognized
under federal law.
(20) (21) "Trade secret" means information, including a
formula, pattern, compilation, program device, method, technique or
process, that:
(A) Derives independent economic value, actual or potential,
from not being generally known to, and not being readily
ascertainable by proper means, by other persons who can obtain
economic value from its disclosure or use; and
(B) Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
§11-13AA-4. Tax incentive for developing patents in this state.
(a) Allowance of credit. -- A person engaging in this state in
developing
plant patent, design patent or patents for direct use in
a manufacturing process or product and who has an agreement, as
defined in section three of this article, with Marshall University
or West Virginia University is allowed a credit, when computing the
person's liability for business franchise tax imposed by article
twenty-three of this chapter and corporation net income tax imposed
by article twenty-four of this chapter, in the amount allowed under
subsection (b) of this section. When the developer is a sole
proprietor or a pass-through entity, that amount of the credit remaining after first applying it against the tax liability under
article twenty-three of this chapter for the taxable year is allowed
when computing the tax imposed by article twenty-one of this chapter
on income from the person's business activity. No credit is allowed
under this article for any activity, investment, assets, or
expenditures for which any of the tax credits authorized under
articles thirteen-d, thirteen-e, thirteen-q, thirteen-r, thirteen-s,
or thirteen-x of this chapter, has been authorized, taken or
allowed. No credit is allowed under this article for any activity,
investment, assets, or expenditures for which the tax credits
authorized under article thirteen, chapter eighteen-b, has been,
authorized, taken or allowed.
(b) Amount of credit. -- The amount of credit allowed under
this section is equal to twenty percent of the royalties, license
fees or other consideration received by the developer during the
taxable year from the sale, lease or licensing of a patent developed
in this state for direct use in a manufacturing process or product
by the person in taxable years beginning on or after January 1,
2011: Provided, That the amount of credit allowed under this
section is thirty percent, rather than twenty percent, when the
person reinvests at least eighty percent of the amount of the credit
claimed for the taxable year in depreciable property purchased for
purposes of developing additional patents in this state in taxable
years beginning on or after January 1, 2011, or improving upon a patent developed in this state or contributing to a stipend to
retain a graduate or post-doctoral student in this state integral
to the development of the patents or related technology in taxable
years beginning on or after January 1, 2011, during the next taxable
year of the person, and the person has an agreement, as defined in
section three of this article, for the development of a patent.
(c) Rules for application of credit. -- The amount of credit
computed under this section is allowed in accordance with the
following rules and applied as provided in subsection (d) of this
section:
(1) No credit is allowed under this section for royalties,
rents, license fees or other consideration received by the developer
of the patent for a patent developed outside this state, except as
provided in subdivision (2) of this subsection;
(2) When the person developed the patent for direct use in a
manufacturing process or product through that person's activity in
this state and through that person's activity in one or more other
states, the consideration received by the developer during the
taxable year from the sale, lease or license of the patent developed
through multistate activity of the developer is multiplied by a
fraction, the numerator of which is the direct costs of developing
the patent in this state and the denominator of which is the total
direct costs of developing the patent. The product of this
computation establishes the consideration to be used in subsection (b) of this section;
(3) If a person receives a portion of a royalty that would be
eligible for a tax credit under this section because of a business
association, licensing agreement or otherwise, the person may
receive the tax credit allowable to the portion of royalties that
person receives provided the person has an agreement, as defined in
section three of this article and otherwise meets the requirements
for entitlement to this credit, as set forth in subsection (a) of
this section;
(4) Unused credit may be carried forward until used for a
period of nine the earlier of the tax year when the credit is used
up or
the ninth consecutive tax year after the taxable year in which
the credit allowed by this section accrues to the person the first
tax year in which the taxpayer is eligible to claim the credit. When
the person is an owner of a pass-through entity, credit accrues to
may be taken by the owner beginning in the tax year when it accrues
to credit may be taken by the pass-through entity or when the pass
through entity gains entitlement to the credit;
(5) No credit is allowed under this section for consideration
received by the developer for patents developed for direct use in
a manufacturing process or product before the taxable year beginning
January 1, 2011. For purposes of this subdivision, a patent was
developed for direct use in a manufacturing process or product
before January 1, 2011, if before that date it was sold, leased or licensed to a third party prior to January 1, 2011, or before that
day it was reduced to practice for purely commercial purposes by the
developer or a person related to the developer, as defined in
subsection (b), Section 267 of the Internal Revenue Code of 1986,
as amended; and as defined in section nine, article twenty-one of
this chapter or section three, article twenty-four of this chapter;
and
(6) No credit is allowed under this section for consideration
received by the developer from a person related to the developer,
as defined in subsection (b), Section 267 of the Internal Revenue
Code of 1986, as amended for patents developed for direct use in a
manufacturing process or product; and
(6) (7) No credit is allowed under this section beginning with
the eleventh taxable year after the patent was first directly used
in a manufacturing process or product.
(d) Application of credit. -- The amount of the credit computed
under this section is allowed as a credit against tax as provided
in this subsection, but the credit may not reduce the tax below
zero.
(1) Business franchise tax.-- The amount of the allowable
credit shall first be taken as a credit against the tax liability
of the developer for the taxable year under article twenty-three of
this chapter.
(2) Corporation net income tax. -- The amount of the allowable credit remaining, if any, after first applying the credit against
the tax imposed by article twenty-three of this chapter shall then
be taken as a credit when computing the liability of the developer
for the taxable year under article twenty-four of this chapter.
(3) Personal income tax on business income. --
(A) When the developer is a sole proprietor, the amount of the
allowable credit is taken as a credit when computing the liability
of the developer for the taxable year on business income under
article twenty-one of this chapter.
(B) When the developer is a pass-through entity, the amount of
allowable credit remaining, if any, after first applying the credit
against the tax imposed by article twenty-three of this chapter for
the taxable year is allowed as a credit against the tax imposed for
the taxable year on the West Virginia source income of the pass-
through entity under article twenty-one of this chapter and the
amount of the credit is distributed to the owners of the pass-
through entity in the same manner as items of partnership income,
gain loss or deduction are distributed or allocated for the taxable
year.
§11-13AA-5. Tax credit for use of a patent in a manufacturing
process or product in this state that was developed
in this state.
(a) Allowance of credit. -- A person directly using a plant
patent, design patent or patent developed in this state in a manufacturing process or product in this state is allowed a credit
against the person's liability for business franchise tax imposed
by article twenty-three of this chapter and corporation net income
tax imposed by article twenty-four of this chapter, the amount
computed under subsection (b) of this section. When the user of a
patent is a sole proprietor or a pass-through entity, that amount
of credit allowed against income taxes shall be against the tax
imposed by article twenty-one of this chapter.
(b) Amount of credit. -- The amount of credit allowed under
this section is equal to twenty percent of the net profit
attributable to the patent: Provided, That the amount of credit
allowed under this section is equal to thirty percent of the net
profit attributable to the patent when the person claiming the
credit reinvests in capital improvements to add product lines to or
increase productivity in this state during the next taxable year an
amount equal to at least eighty percent of the tax credit amount
used for the taxable year.
(c) Rules for application of credit. -- The amount of credit
computed under this section is allowed in accordance with the
following rules and applied as provided in subsection (d) of this
section:
(1) The credit allowed by this section is applied after all
other credits allowed by this chapter have been applied against the
person's business franchise tax and West Virginia income tax liabilities for the taxable year under this chapter;
(2) Unused credit may be carried forward until used for a
period of nine the earlier of the tax year when the credit is used
up or
the ninth consecutive tax year after the taxable year in which
the credit allowed by this section accrues to the person the first
tax year in which the taxpayer is eligible to claim the credit. When
the person is an owner of a pass-through entity, credit accrues to
may be taken by the owner beginning in the tax year when it accrues
to credit may be taken by the pass-through entity or when the pass
through entity gains entitlement to the credit;
(3) Any credit not used within the ten-year period described
in subdivision (2) of this subsection is forfeited beginning with
the eleventh taxable year after the taxable year in which the credit
accrued to the person first tax year in which the taxpayer is
eligible to claim the credit;
(4) No credit is allowed under this section for using a patent
in this state when the person began using the patent before January
1, 2011;
(5) No credit is allowed under this section for using a patent
in this state for which the taxpayer is allowed credit under another
article of this chapter.
(6) No credit is allowed under this section for any patent
acquired from, by or between, leased from, by or between, licensed
from, by or between, or otherwise authorized to be used from, by or between related persons, as defined in subsection (b), Section 267
of the Internal Revenue Code of 1986, as amended.
(7) Amounts received from, by or between related persons, as
defined in subsection (b), Section 267 of the Internal Revenue Code
of 1986, as amended, are disallowed when calculating net profit
attributable to a patent.
(d) Application of credit. -- The amount of the credit computed
under this section is allowed as a credit against tax as provided
in this subsection, but the credit may not reduce the tax below
zero.
(1) Business franchise tax. -- The amount of the allowable
credit shall first be taken as a credit against the tax liability
of the person allowed the credit for the taxable year under article
twenty-three of this chapter.
(2) Corporation net income tax. -- The amount of the allowable
credit remaining, if any, after first applying the credit against
the tax imposed by article twenty-three of this chapter shall then
be taken as a credit when computing the liability of the corporation
for the taxable year under article twenty-four of this chapter.
(3) Personal income tax on business income. --
(A) When the person allowed the credit is a sole proprietor,
the amount of the allowable credit is taken as a credit when
computing the liability of the person allowed the credit for the
taxable year on business income under article twenty-one of this chapter.
(B) When the person allowed the credit is a pass-through
entity, the amount of allowable credit remaining, if any, after
first applying the credit against the tax imposed by article twenty-
three of this chapter for the taxable year is allowed as a credit
against the tax imposed for the taxable year on the West Virginia
source income of the pass-through entity under article twenty-one
of this chapter and the amount of the credit is distributed to the
owners of the pass-through entity in the same manner as items of
partnership income, gain loss or deduction are distributed or
allocated for the taxable year.
§11-13AA-7. Identification of a patent and required records.
(a) Required records. -- Every developer of a patent in this
state for direct use in a manufacturing process or product and every
person who uses a patent directly in a manufacturing process or
product in this state who claims a credit under this article shall
maintain sufficient records to establish the following facts for
each item of a patent for which a credit is allowed under this
article:
(1) Its identity;
(2) The amount of net profit attributable to the patent;
(3) The month and taxable year in which the patent was first
used, placed in service or directly used in the person's
manufacturing process or product in this state;
(4) The amount of credit taken; and
(5) The date the patent was disposed of or otherwise ceased to
be directly used in the person's manufacturing process or product
in this state.
(b) Enhanced deduction of credit. -- Any person who claims the
enhanced credit under section four or five of this article shall
maintain sufficient records to clearly establish entitlement to
claim the amount of the enhanced credit. At a minimum those records
shall identify:
(1) Each and every item of depreciable property purchased for
purposes of claiming the enhanced credit;
(2) The date the depreciable property identified in subdivision
(1) of this subsection was purchased, its cost and its estimated
useful life determined using strait straight-line method of
depreciation;
(3) The date the depreciable property identified in subdivision
(1) of this subsection was placed in service or used in the person's
business activity in this state;
(4) The date the depreciable property identified in subdivision
(1) of this subsection was taken out of service or use in the
person's business activity in this state and the reason why the
property was taken out of service or use; and
(5) Other information that the Tax Commissioner may reasonably
require by rule promulgated as provided in section eleven of this article.
(c) New jobs. -- Every person who claims a credit under this
article shall also maintain sufficient records to establish the
number and types of new jobs, if any created, the wages and benefits
paid to employees filling the new jobs and the duration of each job.
(d) Exception. -- This section does not apply to an owner of
a pass-through entity that develops or uses a patent for which a
credit is allowed under this article.
§11-13AA-11. Interpretation and construction.
(a) No inference, implication or presumption of legislative
construction or intent may be drawn or made by reason of the
location or grouping of any particular section, provision or portion
of this article; and no legal effect may be given to any descriptive
matter or heading relating to any section, subsection or paragraph
of this article.
(b) The provisions of this article shall be reasonably strictly
construed in order to effectuate the legislative intent recited in
section two of this article.
§11-13AA-12. Effective date.
The provisions of this article retroactively become effective
on July January 1, 2011, and apply only to a patent developed in
this state after the taxable years in tax years beginning on or
after January 1, 2011, and to a patent purchased, leased or licensed
for use on or after that date for direct use in the taxpayer's manufacturing process or product in this state.
The bill (Eng. H. B. No. 2993), as amended, was then ordered
to third reading.
On motion of Senator Unger, 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,
Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. H. B. No. 2993) was then
read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Beach,
Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt,
Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting
President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. H. B. No. 2993) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3000, Making it lawful to hunt coyotes with
a green colored light.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3004, Relating to the Greater
Huntington Park and Recreation District.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3028, Expanding the
responsibilities of the Maternal Mortality Review Team.
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:
On page three, section two, line six, by striking out the words
"infant deaths" and inserting in lieu thereof the word "infants".
The bill (Eng. Com. Sub. for H. B. No. 3028), as amended, was
then ordered to third reading.
On motion of Senator Unger, 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,
Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
3028) was then read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Beach,
Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt,
Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting
President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 3028) passed with its title.
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. 3054, Relating to DNA data
collection.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3105, Providing immunity from
civil or criminal liability for first responders who use forced
entry to a residence.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page two, section twenty-six, line four, by striking out the
words "A first responder is not" and inserting in lieu thereof the
words "Neither a first responder nor his or her supervisor, agency,
employer or supervising entity is".
The bill (Eng. Com. Sub. for H. B. No. 3105), as amended, was
then ordered to third reading.
On motion of Senator Unger, 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,
Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
3105) was then read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Beach,
Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt,
Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting
President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 3105) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3119, Increasing the expenditure limit on
public service district construction and purchase contracts.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 3134, Relating to child support
enforcement.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page five, section three hundred two, lines twenty-four and
twenty-five, by striking out the words "twenty-four months but not
to exceed".
The bill (Eng. H. B. No. 3134), as amended, was then ordered
to third reading.
On motion of Senator Unger, 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,
Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. H. B. No. 3134) was then
read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Beach,
Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt,
Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting
President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. H. B. No. 3134) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. House Bill No. 3134--A Bill
to amend and reenact §48-1-
204, §48-1-244 and §48-1-302 of the Code of West Virginia, 1931, as
amended; to amend and reenact §48-14-408 and §48-14-410 of said
code; and to amend and reenact §48-24-106 of said code, all relating
to child support enforcement; lowering the accrued interest rate;
requiring employers provide information as to the issuance of a
bonus to the Bureau for Child Support Enforcement; extending the
time parties may agree to for payment of arrearages under a payment
plan from twenty-four to sixty months; requiring certain employers
to submit support withheld electronically; and making various
technical corrections.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3137, Providing for additional
circumstances giving rise to "state 'on' indicators" for purposes
of extended unemployment compensation.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3163, Relating to workers'
compensation programs of state government entities.
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 and adopted:
On page seven, section twenty-one-a, line ninety-two, after the
word "finance" by inserting the words "monthly and".
The bill (Eng. Com. Sub. for H. B. No. 3163), as amended, was
then ordered to third reading.
On motion of Senator Unger, 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,
Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
3163) was then read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Beach,
Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green,
Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Palumbo,
Plymale, Prezioso, Snyder, Stollings, Tucker, Unger, Wells,
Williams, Wills, Yost and Kessler (Acting President)--28.
The nays were: Boley, Hall, Nohe and Sypolt--4.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 3163) passed with its title.
Senator Unger moved that the bill take effect from passage.
On this question,
the yeas were: Barnes, Beach, Browning,
Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Helmick,
Jenkins, Klempa, Laird, McCabe, Miller, Minard, Palumbo, Plymale,
Prezioso, Snyder, Stollings, Tucker, Unger, Wells, Williams, Wills,
Yost and Kessler (Acting President)--28.
The nays were: Boley, Hall, Nohe and Sypolt--4.
Absent: Chafin and Tomblin (Mr. President)--2.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 3163) takes effect from passage.
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. 3185, Allowing county
commissions to waive or reduce impact fees and capital improvement
fees of affordable housing units in their county.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
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 section, designated §7-20-7a, to read as
follows:
ARTICLE 20. FEES AND EXPENDITURES FOR COUNTY DEVELOPMENT.
§7-20-7a. Impact fees for affordable housing.
(a) The Legislature finds that:
(1) There is a lack of affordable housing in counties that
impose impact fees because the cost of the fees along with the
economic conditions in those counties has resulted in low and
moderate income persons, persons on fixed incomes, the elderly and persons with special needs, not being able to obtain safe, decent
and affordable housing;
(2) A lack of affordable housing affects the ability of a
community to develop and maintain strong and stable economies, and
impairs the health, stability and self-esteem of individuals and
families; and
(3) Financing affordable housing particularly in high growth
counties is becoming increasingly difficult.
For these reasons, it is in the public interest to encourage
counties that have imposed impact fees and those considering the
imposition of impact fees to fairly assess and discount impact fees
so as not to limit safe, decent and affordable housing.
(b) On or before July 1, 2012, a county imposing impact fees
shall enact an affordable housing component with a discount impact
fees schedule, based upon the new homes value compared to the most
recent annual single dwelling residential housing index created in
section two-b, article one, chapter eleven of this code, to the
county's impact fees ordinance. The impact fees schedule shall be
updated annually to reflect the changes to the single dwelling
residential housing index.
(c) The affordable housing component shall:
(1) Take into account all the different types of housing,
including single family detached, single family attached, duplex,
town house,
apartment
, condominium and
manufactured home
; and
(2) Include a discount for mobile homes, as defined in section
one, article one, chapter seventeen-a of this code, based upon the
value set out in the National Automobile Dealers Association book.
(d) The county commission shall annually approve, by a majority
vote, any increase or decrease in the impact fees schedule.
The bill (Eng. Com. Sub. for H. B. No. 3185), as amended, was
then ordered to third reading.
On motion of Senator Unger, 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,
Beach, Boley, Browning, Edgell, K. Facemyer, Fanning, Foster, Green,
Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe,
Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker,
Unger, Wells, Williams, Wills, Yost and Kessler--31.
The nays were: D. Facemire--1.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
3185) was then read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Beach,
Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt,
Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 3185) 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. 3185--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §7-20-7a, relating to impact fees; providing
legislative findings; requiring counties to have an affordable
housing component in the county's impact fees ordinance; providing
requirements for the affordable housing component; and requiring a
vote by the county commission to increase or decrease impact fees.
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. 3202, Relating to residential
rental security deposits.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 6A. RESIDENTIAL RENTAL SECURITY DEPOSITS.
§37-6A-1. Definitions.
When used in this article, unless expressly stated otherwise:
(1) "Action" means recoupment, counterclaim, set off or other
civil suit and any other proceeding in which rights are determined,
including without limitation actions for possession, rent, unlawful
detainer, unlawful entry and distress for rent.
(2) "Application fee" means any deposit of money, however
denominated, which is paid by a tenant to a landlord, lessor or
agent of a landlord for the purpose of being considered as a tenant
for a dwelling unit.
(3) "Dwelling unit" means a structure or part of a structure
that is used as a home or residence by one or more persons who
maintain a household, including, but not limited to, a manufactured
home.
(4) "Facility" means something that is built, constructed,
installed or established to perform some particular function.
(5) "Landlord" means the owner or lessor of the dwelling unit
or the building of which such dwelling unit is a part. "Landlord"
also includes a managing agent of the premises who fails to disclose
the name of such owner or lessor.
(6) "Managing agent" means a person authorized by the landlord
to act on behalf of the landlord under a management agreement.
(7) "Notice period" means: (A) within 60 days of the
termination of the tenancy; or (B) within 45 days of the occupation
of the premise by a subsequent tenant, whichever time period is
shorter.
(8) "Owner" means one or more persons, jointly or severally,
in whom is vested:
(A) All or part of the legal title to the property, or
(B) All or part of the beneficial ownership and a right to
present use and enjoyment of the premises, and the term includes a
mortgagee in possession.
(9) "Person" means any individual, group of individuals,
corporation, partnership, business trust, association or other legal
entity, or any combination thereof.
(10) "Premises" means a dwelling unit and the structure of
which it is a part and facilities and appurtenances therein and
grounds, areas and facilities held out for the use of tenants
generally or whose use is promised to the tenant.
(11) "Rent" means all money, other than a security deposit, a
nonrefundable fee or money paid to the landlord by the tenant for
damage caused by the tenant to the dwelling unit, owed or paid to
the landlord under the rental agreement.
(12) "Rental agreement" means all agreements, written
(including an electronic record as defined by paragraph (7), section
two, article one, chapter thirty-nine-a of the code) or oral, express or implied, embodying the terms and conditions concerning
the use and occupancy of a dwelling unit and premises.
(13) "Roomer" means a person occupying a dwelling unit that
lacks a major bathroom or kitchen facility, in a structure where one
or more major facilities are used in common by occupants of the
dwelling unit and other dwelling units. Major facility in the case
of a bathroom means toilet, and either a bath or shower, and in the
case of a kitchen means refrigerator, stove or sink.
(14) "Security deposit" means any refundable deposit of money
that is furnished by a tenant to a landlord to secure the
performance of the terms and conditions of a rental agreement, or
as security for damages to the leased premises. Security deposit
does not include: (A) Rent; (B) a pet fee; or (C) application fee:
Provided, That the parties expressly agree, in writing, that a pet
fee or application fee is nonrefundable. A security deposit does not
include prepaid rent.
(15) "Sublease" means the transfer by any tenant of any but not
all interests created by a rental agreement.
(16) "Tenant" means a person entitled under a rental agreement
to occupy a dwelling unit to the exclusion of others and shall
include a roomer.
(17) "Utility" means electricity, natural gas, propane gas,
water, sewer, telephone and cable television provided by a public
utility or such other person providing residential utility services. If the rental agreement so provides, a landlord may use submetering
equipment or energy allocation equipment, or a ratio utility billing
system.
§37-6A-2. Security deposits.
(a) Upon termination of the tenancy and within the applicable
notice period, any security deposit held by the landlord, minus any
deductions for damages or other charges, shall be delivered to the
tenant, together with a written itemization of any such damages or
other charges as provided in subsection (c) of this section.
(b) Upon termination of the tenancy, any security deposit held
by the landlord may be applied by the landlord only to:
(1) The payment of rent due, including the reasonable charges
for late payment of rent specified in the rental agreement;
(2) The payment of the amount of damages which the landlord has
suffered by reason of the tenant's noncompliance with the rental
agreement, less reasonable wear and tear;
(3) The payment of unpaid utilities that were billed to and
paid by the landlord, are the obligation of the tenant under the
rental agreement and unpaid by the tenant;
(4) The payment of reasonable costs for the removal and storage
of the tenant's personal property. The landlord may dispose of the
stored personal property pursuant to the provisions of subdivisions
(1) through (3), subsection (h), section three, article three-a,
chapter fifty-five of this code; and
(5) To other damages or charges as provided in the rental
agreement, including but not limited to, paying for the services of
a third party contractor to repair damages to the property caused
by the tenant.
(c) In the event that damages to the premises exceed the amount
of the security deposit and require the services of a third party
contractor, the landlord shall give written notice to the tenant,
advising him or her of that fact, within the applicable notice
period. If notice is given as prescribed in this subsection, the
landlord shall have an additional fifteen day period to provide an
itemization of the damages and the cost of repair.
(d) Nothing in this section shall be construed by a court of
law or otherwise as entitling the tenant, upon the termination of
the tenancy, to an immediate credit against the tenant's delinquent
rent account in the amount of the security deposit.
(e) The holder of the landlord's interest in the premises at
the time of the termination of the tenancy, regardless of how the
interest is acquired or transferred, is bound by this section and
shall be required to return any security deposit received by the
original landlord that is duly owed to the tenant. The provisions
of this subsection apply whether or not such security deposit is
transferred with the landlord's interest by law or equity, and
regardless of any contractual agreements between the original
landlord and his or her successors in interest.
(f) If the tenant has any assignee or sublessee, the landlord
shall be entitled to hold a security deposit from only one party in
compliance with the provisions of this section.
(g) For the purposes of this section, the delivery to a tenant
of a security deposit and/or any notice prescribed by this section,
may be accomplished by either personal delivery to the tenant, or
by mailing the deposit and/or notice to the tenant's last known
address or forwarding address as provided by the tenant. It shall
be the responsibility of the tenant to provide an accurate address
to the landlord.
If personal delivery is not reasonably possible
and a deposit or notice mailed to the tenant at his or her last
known address or forwarding address provided is returned as non-
deliverable, then the landlord shall hold the deposit or notice for
the period of six months, to be personally delivered to the tenant,
or his or her authorized agent or attorney, at the landlord's place
of business during normal business hours within seventy-two hours
after a written request is received from the tenant.
§37-6A-3. Maintenance of records by landlord.
The landlord shall:
(1) Maintain and itemize records for each tenant of all
deductions from security deposits provided under this article which
the landlord has made by reason of a tenant's noncompliance with the
rental agreement for one year after the termination of the tenancy;
and
(2) Either permit a tenant or his or her authorized agent or
attorney to inspect the tenant's records of deductions at any time
during normal business hours within seventy-two hours of a written
request, or at the landlord's option, provide a tenant or his or her
authorized agent or attorney a copy of the tenant's record of
deductions during normal business hours within seventy-two hours of
a written request.
§37-6A-4. Prohibited provision in rental agreements.
A rental agreement may not contain a provision that the tenant
agrees to waive or forego rights or remedies under this article.
A provision prohibited by this section included in a rental
agreement is unenforceable. If a landlord brings an action to
enforce any of the prohibited provisions, the tenant may recover
actual damages sustained by him or her and reasonable attorney's
fees.
§37-6A-5. Landlord's noncompliance.
(a) If a landlord fails to comply with any of the provisions
of this article, and such noncompliance is willful or not in good
faith, the tenant is entitled to a judgment for:
(1) The amount of any unreturned security deposit; and
(2) Damages for annoyance or inconvenience resulting from the
landlord's nonconformance equal to one and a half times the amount
wrongfully withheld, unless the tenant owes rent to the landlord,
in which case, the court shall order an amount equal to any amount awarded to the tenant pursuant to this subsection to be credited
against any rent due to the landlord.
(b) Jurisdiction for any civil action brought pursuant to this
article shall be in magistrate court or circuit court in the county
where the residential rental premises or units are located.
(c) This section does not limit rights or remedies available
to a landlord or tenant under any other law.
§37-6A-6. Application and effective date of this article.
(a) The provisions of this article shall apply to all
residential rental premises or units used for dwelling purposes.
(b) The provisions of this article do not apply to agreements
for the payment of security deposits entered into prior to the
effective date of this article.
The bill (Eng. Com. Sub. for H. B. No. 3202), as amended, was
then ordered to third reading.
On motion of Senator Unger, 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,
Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
3202) was then read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Beach,
Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt,
Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting
President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 3202) 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. 3202--A Bill
to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
article, designated §37-6A-1, §37-6A-2, §37-6A-3, §37-6A-4, §37-6A-5
and §37-6A-6,
all relating to residential rental security deposits;
providing relevant definitions; providing for deduction from and
returning of security deposits; maintaining records; prohibiting
certain provisions in rental agreements; providing remedies upon landlord's noncompliance; setting forth application of article; and
providing for security deposits prior to effective date of article.
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. 3225, Expanding the
definition of harassment, intimidation or bullying.
On second reading, coming up in regular order, was read a
second time.
At the request of Senator
Palumbo
, as chair of the Committee
on
the Judiciary
, and by unanimous consent, the unreported
Judiciary
committee amendment to the bill was withdrawn.
On motion of Senator Plymale, the following amendments to the
bill were reported by the Clerk, considered simultaneously, and
adopted:
On page five, section three, line thirty, by striking out the
word "and";
On page five, section three, line thirty-three, after the word
"code", by changing the period to a semicolon and inserting the word
"and";
And,
On page five, section three, after line thirty-three, by
inserting a new subdivision, designated subdivision (11), to read
as follows:
(11) A requirement that each county board shall input into the uniform integrated regional computer information system (commonly
known as the West Virginia Education Information System) described
in section twenty-six, article two of this chapter, and compile an
annual report regarding the means of harassment, intimidation or
bullying that have been reported to them, and the reasons therefor,
if known. The West Virginia Department of Education shall compile
the information and report it annually beginning July 1, 2012, to
the Legislative Oversight Committee on Education Accountability.
The bill (Eng. Com. Sub. for H. B. No. 3225), as amended, was
then ordered to third reading.
On motion of Senator Unger, 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,
Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning,
Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe,
Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings,
Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler
(Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
3225) was then read a third time and put upon its passage.
On the passage of the bill,
the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster,
Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller,
Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt,
Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting
President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having
voted in the affirmative, the Acting President declared the bill
(Eng. Com. Sub. for H. B. No. 3225) passed.
On motion of Senator Plymale, the following amendment to the
title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 3225--A Bill
to amend and
reenact §18-2C-2 and §18-2C-3 of the Code of West Virginia, 1931,
as amended, all relating to harassment, intimidation or bullying of
students; expanding the definition of harassment, intimidation or
bullying; expanding the areas where harassment, intimidation and
bullying are prohibited to include school buses and school bus
stops; requiring county board and West Virginia Department of
Education policies regarding harassment, intimidation or bullying;
and establishing reporting requirements.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate proceeded to the tenth order of business.
Com. Sub. for Senate Bill No. 70, Budget Bill.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
Eng. Com. Sub. for House Bill No. 2981, Clarifying payment for
trade certifications and allowing use of tuition assistance for West
Virginia National Guard members enrolled in a doctor of medicine or
osteopathic medicine program.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
At the request of Senator Unger, and by unanimous consent, the
Senate returned to the fourth order of business.
Senator Prezioso, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2161, Creating the Herbert
Henderson Office of Minority Affairs.
And has amended same.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 3, 2011;
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
Senator Plymale, from the Committee on Education, submitted the
following report, which was received:
Your Committee on Education has had under consideration
Eng. House Bill No. 2164, Relating to public school support
computation of local share.
And has amended same.
Eng. House Bill No. 3116, Relating to the authority of school
curriculum teams and local school collaborative processes.
And has amended same.
And,
Eng. Com. Sub for House Bill No. 3171, Providing educators with
the education and training necessary to ensure the safety of state
schools.
And has amended same.
And reports the same back with the recommendation that they
each do pass, as amended; but under the original double committee
references first be referred to the Committee on Finance.
Respectfully submitted,
Robert H. Plymale,
Chair.
At the request of Senator Plymale, unanimous consent being
granted, Engrossed House Bill No. 2164 and Engrossed Committee
Substitute for House Bill No. 3171 contained in the preceding report
from the Committee on Education were each taken up for immediate consideration, read a first time, ordered to second reading and,
under the original double committee references, were then referred
to the Committee on Finance, with amendments from the Education
pending.
At the request of Senator Prezioso, as chair of the Committee
on Finance, unanimous consent was granted to dispense with the
second committee reference of Engrossed House Bill No. 3116
contained in the foregoing report from the Committee on Education.
At the request of Senator Plymale, and by unanimous consent,
Engrossed House Bill No. 3116 was taken up for immediate
consideration, read a first time and ordered to second reading.
Senator Snyder, 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. 2512, Relating to
pawnbrokers.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original double committee reference
first be referred to the Committee on the Judiciary.
Respectfully submitted,
Herb Snyder,
Chair.
At the request of Senator Snyder, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2512) contained in
the preceding report from the Committee on Government Organization
was taken up for immediate consideration, read a first time, ordered
to second reading and, under the original double committee
reference, was then referred to the Committee on the Judiciary, with
an amendment from the Committee on Government Organization pending.
Senator Snyder, 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. 2513, Relating to the
practice of pharmacy.
With amendments from the Committee on Health and Human
Resources pending;
And has also amended same.
Now on second reading, having been read a first time and
referred to the Committee on Government Organization on March 8,
2011;
And reports the same back with the recommendation that it do
pass as last amended by the Committee on Government Organization.
Respectfully submitted,
Herb Snyder,
Chair.
Senator Prezioso, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2551, Relating generally to estates and
trusts and their administration.
With amendments from the Committee on the Judiciary pending;
And has also amended same.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 8, 2011;
And reports the same back with the recommendation that it do
pass as amended by the Committee on the Judiciary to which the bill
was first referred; and as last amended by the Committee on Finance.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
Senator Palumbo, from the Committee on the Judiciary, submitted
the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2562, Relating to the State
Athletic Commission.
With amendments from the Committee on Government Organization
pending;
And has also amended same.
Now on second reading, having been read a first time and referred to the Committee on the Judiciary on March 3, 2011;
And reports the same back with the recommendation that it do
pass as last amended by the Committee on the Judiciary.
Respectfully submitted,
Corey Palumbo,
Chair.
Senator Prezioso, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2693, Requiring insurance
coverage for autism spectrum disorders.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
At the request of Senator Prezioso, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2693) 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.
Senator Prezioso, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2845, Creating a senior resident lifetime
hunting, fishing and trapping license that will cost $25.
And has amended same.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 3, 2011;
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
Senator Snyder, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Eng. Com. Sub. for House Bill No. 3021, Adding two new members
to the Comprehensive Behavioral Health Commission.
And has amended same.
Now on second reading, having been read a first time and
referred to the Committee on Government Organization on March 4,
2011;
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Herb Snyder,
Chair.
Senator Palumbo, from the Committee on the Judiciary, submitted
the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 3100, Permitting the sale of liquor on
election day.
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 Finance.
Respectfully submitted,
Corey Palumbo,
Chair.
At the request of Senator Prezioso, as chair of the Committee
on Finance, unanimous consent was granted to dispense with the
second committee reference of the bill contained in the foregoing
report from the Committee on the Judiciary.
At the request of Senator Palumbo, and by unanimous consent,
the bill (Eng. H. B. No. 3100) was taken up for immediate
consideration, read a first time and ordered to second reading.
Senator Palumbo, from the Committee on the Judiciary, submitted
the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 3144, Creating a criminal offense and adding misdemeanor criminal penalties for picketing or
disrupting funerals.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Corey Palumbo,
Chair.
At the request of Senator Palumbo, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 3144) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
Senator Snyder, 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. 3172, Including certain
employees of the office of the West Virginia Alcohol Beverage
Control Commissioner be included in the classified service.
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 Finance.
Respectfully submitted,
Herb Snyder,
Chair.
At the request of Senator Snyder, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 3172) contained in
the preceding report from the Committee on Government Organization
was taken up for immediate consideration, read a first time, ordered
to second reading and, under the original double committee
reference, was then referred to the Committee on Finance.
Senator Stollings, from the Committee on Health and Human
Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under
consideration
House Concurrent Resolution No. 75, Urging the Governor of
Florida and the Florida State Senate Legislature not to repeal
Florida's prescription tracking system.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Ron Stollings,
Chair.
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 Senator Plymale.
On motion of Senator Unger, a leave of absence for the day was
granted Senator Tomblin (Mr. President).
Pending announcement of meetings of standing committees of the
Senate, including the Committee on Rules,
On motion of Senator Unger, the Senate adjourned until
tomorrow, Friday, March 11, 2011, at 11 a.m.
__________