ENROLLED
H. B. 101
(By Mr. Speaker, Mr. Kiss, and Delegate Ashley)
[By Request of the Executive]
[Passed April 20, 1997; in effect July 1, 1997. Approved by the
Governor.]
AN ACT to amend article one, chapter sixteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, by
adding thereto a new section, designated section eighteen-a;
to amend and reenact sections eighteen-b and nineteen, article
five of said chapter; to amend and reenact section ten,
article two, chapter seventeen-b of said code; to amend and
reenact section six, article three of said chapter; to amend
and reenact sections nine and thirteen, article one, chapter
seventeen-e of said code; to amend and reenact sections one
and five, article two, chapter eighteen-a of said code; to
amend and reenact section one, article seven, chapter
eighteen-b of said code; to amend article one, chapter
nineteen of said code by adding thereto a new section,
designated section ten; to amend and reenact section seven,
article two, chapter twenty-one of said code; to amend and reenact section two, article three-c of said chapter; to amend
and reenact section five-c, article five of said chapter; to
amend and reenact section seven, article eleven of said
chapter; to amend and reenact section one, article nine,
chapter twenty-two-a of said code; to amend and reenact
section three, article seven, chapter twenty-two-c of said
code; to amend and reenact section four, article three-b,
chapter twenty-nine of said code; to amend and reenact
sections six and thirteen, article one, chapter thirty of said
code; to amend and reenact section three, article twelve,
chapter thirty-three of said code; to amend and reenact
section nine, article fourteen, chapter thirty-seven of said
code; to amend and reenact section five, article twelve,
chapter forty-seven of said code; to amend and reenact section
thirty, article one-a, chapter forty-eight-a of said code; to
amend and reenact sections thirty-one, thirty-two, thirty- three and thirty-four, article two of said chapter; to further
amend said article by adding thereto a new section, designated
section thirty-three-a; to further amend said chapter by
adding thereto a new article, designated article five-a; and
to amend and reenact sections three and six, article six of
said chapter, all relating generally to enacting legislation
to comply with mandates of the federal Personal Responsibility
and Work Reconciliation Act of l996 regarding the establishment, modification or enforcement of child support.
Be it enacted by the Legislature of West Virginia:
That article one, chapter sixteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
eighteen-a; that sections eighteen-b and nineteen, article five of
said chapter be amended and reenacted; that section ten, article
two, chapter seventeen-b of said code be amended and reenacted;
that section six, article three of said chapter be amended and
reenacted; that sections nine and thirteen, article one, chapter
seventeen-e of said code be amended and reenacted; that sections
one and five, article two, chapter eighteen-a of said code be
amended and reenacted; that section one, article seven, chapter
eighteen-b of said code be amended and reenacted; that article one,
chapter nineteen of said code be amended by adding thereto a new
section, designated section ten; that section seven, article two,
chapter twenty-one of said code be amended and reenacted; that
section two, article three-c of said chapter be amended and
reenacted; that section five-c, article five of said chapter be
amended and reenacted; that section seven, article eleven of said
chapter be amended and reenacted; that section one, article nine,
chapter twenty-two-a of said code be amended and reenacted; that
section three, article seven, chapter twenty-two-c of said code be
amended and reenacted; that section four, article three-b, chapter twenty-nine of said code be amended and reenacted; that sections
six and thirteen, article one, chapter thirty of said code be
amended and reenacted; that section three, article twelve, chapter
thirty-three of said code be amended and reenacted; that section
nine, article fourteen, chapter thirty-seven of said code be
amended and reenacted; that section five, article twelve, chapter
forty-seven of said code be amended and reenacted; that section
thirty, article one-a, chapter forty-eight-a of said code be
amended and reenacted; that sections thirty-one, thirty-two,
thirty-three and thirty-four, article two of said chapter be
amended and reenacted; that said article be further amended by
adding thereto a new section, designated section thirty-three-a;
that said chapter be further amended by adding thereto a new
article, designated article five-a; and that sections three and
six, article six of said chapter be amended and reenacted, all to
read as follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 1. STATE BUREAU OF PUBLIC HEALTH.
§16-1-18a. Requirement for social security number on applications.
The director of health shall require every applicant for a
license, permit, certificate of registration, or registration under
this chapter to place his or her social security number on the
application.
ARTICLE 5. VITAL STATISTICS.
§16-5-18b. Limitation on use of social security numbers.
A social security account number obtained in accordance with
the provisions of this article with respect to the filing of: (1)
A certificate of birth; (2) an application for a delayed
registration of birth; (3) a judicial order establishing a record
of birth; (4) an adoption order or decree; or (5) a certificate of
paternity shall not be transmitted to a clerk of the county
commission. Such social security account number shall not appear
upon the public record of the register of births or upon any
certificate of birth registration issued by the state registrar,
local registrar, county clerk or other issuing authority, if any.
Such social security account numbers shall be made available by the
state registrar to the child support enforcement division created
by chapter forty-eight-a upon the request of the division, to be
used solely in connection with the enforcement of child support
orders.
§16-5-19. Death registration.
(a) A death certificate for each death which occurs in this
state shall be filed with the local registrar of the registration
district in which the death occurs within three days after such
death, and prior to removal of the body from the state, and shall
be registered by such registrar if it has been completed and filed
in accordance with this section:
Provided, That
(1) If the place of death is unknown, a death certificate shall be filed in the registration district in which a dead body is
found within three days after the finding;
(2) If death occurs in a moving conveyance, a death
certificate shall be filed in the registration district in which
the dead body is first removed from such conveyance; and
(3) If the death occurs in a district other than where the
deceased resided, a death certificate shall be filed in the
registration district in which the death occurred and in the
district in which the deceased resided.
(b) The funeral director or person acting for him who first
assumes custody of a dead body shall file the death certificate.
He shall obtain the necessary personal data from the next of kin or
the best qualified person or source available. The funeral
director or person acting for him shall obtain the medical
certification of the cause of death from the person responsible for
making such certification. The personal data obtained shall
include the deceased person's social security number or numbers.
The social security account number of an individual who has died
shall be placed in the records relating to the death and shall be
recorded on the death certificate. A record of the social security
number or numbers shall be filed with the local registrar of the
district in which the deceased person resided within seven days
after the death, and the local registrar shall transmit such number
or numbers to the state registrar of vital statistics in the same manner as other personal data is transmitted to the state
registrar.
(c) The medical certification shall be completed and signed
within twenty-four hours after death by the physician in charge of
the patient's care for the illness or condition which results in
death except when inquiry is required pursuant to chapter sixty- one, article twelve or other applicable provisions of this code.
(d) When death occurs without medical attendance and inquiry
is not required pursuant to chapter sixty-one, article twelve or
other applicable provisions of this code, the local health officer
shall investigate the cause of death and complete and sign the
medical certification within twenty-four hours after receiving
notice of the death.
(e) When death occurs in a manner subject to investigation,
the coroner or other officer or official charged with the legal
duty of making such investigation shall investigate the cause of
death and shall complete and sign the medical certification within
twenty-four hours after making determination of the cause of death.
(f) In order that each county may have a complete record of
the deaths occurring in said county, the local registrar shall
transmit each month to the county clerk of his county a copy of the
certificates of all deaths occurring in said county, and if any
person shall die in a county other than that county within the
state in which such person last resided prior to death, then the state registrar shall, if possible, also furnish a copy of such
death certificate to the clerk of the county commission of the
county wherein such person last resided, from which copies the
clerk shall compile a record of such deaths and shall enter the
same in a systematic and orderly way in a well-bound register of
deaths for that county, which such register shall be a public
record. The form of said death register shall be prescribed by
the state registrar of vital statistics.
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 2. ISSUANCE OF LICENSE, EXPIRATION AND RENEWAL.
§17B-2-10. Restricted licenses.
(a) The division upon issuing a driver's license shall have
authority whenever good cause appears to impose restrictions
suitable to the licensee's driving ability with respect to the type
of or special mechanical control devices required on a motor
vehicle which the licensee may operate or such other restrictions
applicable to the licensee as the division may determine to be
appropriate to assure the safe operation of a motor vehicle by the
licensee.
(b) The division shall issue a restricted license to a person
who has failed to pay overdue child support or comply with
subpoenas or warrants relating to paternity or child support
proceedings, if a circuit court orders restrictions of the person's
license as provided in article five-a, chapter forty-eight-a of this code.
(c) The division may either issue a special restricted license
or may set forth such restrictions upon the usual license form.
(d) The division may upon receiving satisfactory evidence of
any violation of the restrictions of such license suspend or revoke
the same but the licensee shall be entitled to a hearing as upon a
suspension or revocation under this chapter.
(e) It is a misdemeanor for any person to operate a motor
vehicle in any manner in violation of the restrictions imposed in
a restricted license issued to such person.
ARTICLE 3. CANCELLATION, SUSPENSION OR REVOCATION OF LICENSES.
§17B-3-6. Authority of division to suspend or revoke license;
hearing.
(a) The division is hereby authorized to suspend the driver's
license of any person without preliminary hearing upon a showing by
its records or other sufficient evidence that the licensee:
(1) Has committed an offense for which mandatory revocation of
a driver's license is required upon conviction;
(2) Has by reckless or unlawful operation of a motor vehicle,
caused or contributed to an accident resulting in the death or
personal injury of another or property damage;
(3) Has been convicted with such frequency of serious offenses
against traffic regulations governing the movement of vehicles as
to indicate a disrespect for traffic laws and a disregard for the safety of other persons on the highways;
(4) Is an habitually reckless or negligent driver of a motor
vehicle;
(5) Is incompetent to drive a motor vehicle;
(6) Has committed an offense in another state which if
committed in this state would be a ground for suspension or
revocation;
(7) Has failed to pay or has defaulted on a plan for the
payment of all costs, fines, forfeitures or penalties imposed by a
magistrate court or municipal court within ninety days, as required
by section two-a, article three, chapter fifty or section two-a,
article ten, chapter eight of this code;
(8) Has failed to appear or otherwise respond before a
magistrate court or municipal court when charged with a motor
vehicle violation as defined in section three-a of this article;
(9) Is under the age of eighteen and has withdrawn either
voluntarily or involuntarily from a secondary school, as provided
in section eleven, article eight, chapter eighteen of this code; or
(10) Has failed to pay overdue child support or comply with
subpoenas or warrants relating to paternity or child support
proceedings, if a circuit court has ordered the suspension of the
license as provided in article five-a, chapter forty-eight-a of
this code and the child support enforcement division has forwarded
to the division a copy of the court order suspending the license, or has forwarded its certification that the licensee has failed to
comply with a new or modified order that stayed the suspension and
provided for the payment of current support and any arrearage due
.
(b) The driver's license of any person having his or her
license suspended shall be reinstated if:
(1) The license was suspended under the provisions of
subdivision (7), subsection (a) of this section and the payment of
costs, fines, forfeitures or penalties imposed by the applicable
court has been made;
(2) The license was suspended under the provisions of
subdivision (8), subsection (a) of this section, and the person
having his or her license suspended has appeared in court and has
prevailed against the motor vehicle violations charged; or
(3) The license was suspended under the provisions of
subdivision (10), subsection (a) of this section, and the division
has received a court order restoring the license or a certification
by the child support enforcement division that the licensee is
complying with the original support order or a new or modified
order that provides for the payment of current support and any
arrearage due.
(c) Any reinstatement of a license under subdivision (1), (2)
or (3), subsection (b) of this section shall be subject to a
reinstatement fee designated in section nine of this article.
(d) Upon suspending the driver's license of any person as hereinbefore in this section authorized, the division shall
immediately notify the licensee in writing, sent by certified mail,
return receipt requested, to the address given by the licensee in
applying for license, and upon his request shall afford him an
opportunity for a hearing as early as practical within not to
exceed twenty days after receipt of such request in the county
wherein the licensee resides unless the division and the licensee
agree that such hearing may be held in some other county. Upon
such hearing the commissioner or his duly authorized agent may
administer oaths and may issue subpoenas for the attendance of
witnesses and the production of relevant books and papers and may
require a reexamination of the licensee. Upon such hearing the
division shall either rescind its order of suspension or, good
cause appearing therefor, may extend the suspension of such license
or revoke such license. The provisions of this subsection (d)
providing for notice and hearing are not applicable to a suspension
under subdivision (10), subsection (a) of this section.
CHAPTER 17E. UNIFORM COMMERCIAL DRIVER'S LICENSE ACT.
ARTICLE 1. COMMERCIAL DRIVER'S LICENSE.
§17E-1-9. Commercial driver license qualification standards.
(a) (1)
General. -- No person may be issued a commercial
driver's license unless that person is a resident of this state and
has passed a knowledge and skills test for driving a commercial
motor vehicle which complies with minimum federal standards established by federal regulations enumerated in 49 C.F.R. part
383, sub-parts G and H, and has satisfied all other requirements of
the Federal Commercial Motor Vehicle Safety Act in addition to
other requirements imposed by state law or federal regulations.
The tests will be administered by the West Virginia state police
according to rules promulgated by the commissioner.
(2)
Third party testing. -- The commissioner may authorize a
person, including an agency of this or another state, an employer,
private individual or institution, department, agency or
instrumentality of local government, to administer the skills test
specified by this section:
Provided, That (i) the test is the same
which would otherwise be administered by the state and (ii) the
party has entered into an agreement with the state which complies
with the requirements of 49 C.F.R. part 383.75.
(3)
Indemnification of driver examiners. -- No person who has
been officially trained and certified by the state as a driver
examiner, who administers any such driving test, and no other
person, firm or corporation by whom or with which such person is
employed or is in any way associated, may be criminally liable for
the administration of such tests, or civilly liable in damages to
the person tested or other persons or property unless for gross
negligence or willful or wanton injury.
(4) Monitoring of third party testing will be carried out by
the West Virginia state police according to rules promulgated by the commissioner.
(b)
Waiver of skills test. -- The commissioner may waive the
skills test specified in this section for a commercial driver
license applicant who meets the requirements of 49 C.F.R. part
383.77 and those requirements specified by the commissioner.
(c)
Limitations on issuance of license. -- A commercial
driver's license or commercial driver's instruction permit may not
be issued to a person while the person is subject to a
disqualification from driving a commercial motor vehicle, or while
the person's driver's license is suspended, revoked or canceled in
any state; nor may a commercial driver's license be issued by any
other state unless the person first surrenders all such licenses to
the department, which must be returned to the issuing state(s) for
cancellation. The division shall issue a restricted commercial
driver's license to a person who has failed to pay overdue child
support or comply with subpoenas or warrants relating to paternity
or child support proceedings, if a circuit court orders
restrictions of the person's license as provided in article five-a,
chapter forty-eight-a of this code.
(d) Commercial driver's instruction permit. -- (1) A
commercial driver's instruction permit may be issued to an
individual who holds a valid operator or Class "D" driver license
who has passed the vision and written tests required for issuance
of a commercial driver license. (2) The commercial instruction permit may not be issued for a period to exceed six months. Only
one renewal or reissuance may be granted within a two-year period.
The holder of a commercial driver's instruction permit may drive a
commercial motor vehicle on a highway only when accompanied by the
holder of a commercial driver license valid for the type of vehicle
driven who occupies a seat beside the individual for the purpose of
giving instruction or testing. (3) A commercial driver's
instruction permit may only be issued to an individual who is at
least eighteen years of age and has held an operator's or junior
operator's license for at least two years. (4) The applicant for
a commercial driver's instruction permit must also be otherwise
qualified to hold a commercial driver's license.
§17E-1-13. Disqualification and cancellation.
(a) Disqualification offenses.
-- Any person is disqualified
from driving a commercial motor vehicle for a period of not less
than one year if convicted of a first violation of:
(1) Driving a commercial motor vehicle under the influence of
alcohol or a controlled substance;
(2) Driving a commercial motor vehicle while the alcohol
concentration of the person's blood or breath is four hundredths or
more;
(3) Leaving the scene of an accident involving a commercial
motor vehicle driven by the person;
(4) Using a commercial motor vehicle in the commission of any felony as defined in this article: Provided,
That the commission
of any felony involving the manufacture, distribution, or
dispensing of a controlled substance, or possession with intent to
manufacture, distribute or dispense a controlled substance falls
under the provisions of subsection (d) of this section;
(5) Refusal to submit to a test to determine the driver's
alcohol concentration while driving a commercial motor vehicle.
In addition, the conviction of any of the following offenses
as an operator of any vehicle is a disqualification offense:
(1) Manslaughter or negligent homicide resulting from the
operation of a motor vehicle as defined under the provisions of
section five, article three, chapter seventeen-b, and section one,
article five, chapter seventeen-c of this code;
(2) Driving while license is suspended or revoked, as defined
under the provisions of section three, article four, chapter
seventeen-b of this code;
(3) Perjury or making a false affidavit or statement under
oath to the department of motor vehicles, as defined under the
provisions of subsection (4), section five, article three, and
section two, article four, chapter seventeen-b of this code.
If any of the above violations occurred while transporting a
hazardous material required to be placarded, the person is
disqualified for a period of not less than three years.
(b) A person is disqualified for life if convicted of two or more violations of any of the offenses specified in subsection (a)
of this section, or any combination of those offenses, arising from
two or more separate incidents.
(c) The commissioner may issue rules establishing guidelines,
including conditions, under which a disqualification for life under
subsection (b) of this section may be reduced to a period of not
less than ten years.
(d) A person is disqualified from driving a commercial motor
vehicle for life who uses a commercial motor vehicle in the
commission of any felony involving the manufacture, distribution or
dispensing of a controlled substance, or possession with intent to
manufacture, distribute or dispense a controlled substance.
(e) A person is disqualified from driving a commercial motor
vehicle for a period of not less than sixty days if convicted of
two serious traffic violations, or one hundred twenty days if
convicted of three serious violations, committed in a commercial
motor vehicle arising from separate incidents occurring within a
three-year period.
(f) A person is disqualified from driving a commercial motor
vehicle if he or she has failed to pay overdue child support or
comply with subpoenas or warrants relating to paternity or child
support proceedings, if a circuit court has ordered the suspension
of the commercial driver's license as provided in article five-a,
chapter forty-eight-a of this code and the child support enforcement division has forwarded to the division a copy of the
court order suspending the license, or has forwarded its
certification that the licensee has failed to comply with a new or
modified order that stayed the suspension and provided for the
payment of current support and any arrearage due. A
disqualification under this section shall continue until the
division has received a court order restoring the license or a
certification by the child support enforcement division that the
licensee is complying with the original support order or a new or
modified order that provides for the payment of current support and
any arrearage due.
(g) After suspending, revoking or canceling a commercial
driver's license, the department shall update its records to
reflect that action within ten days.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 2. SCHOOL PERSONNEL.
§18A-2-1. Employment in general.
The employment of professional personnel shall be made by the
board only upon nomination and recommendation of the
superintendent. In case the board refuses to employ any or all of
the persons nominated, the superintendent shall nominate others and
submit the same to the board at such time as the board may direct.
All personnel so nominated and recommended for employment and for
subsequent assignment shall meet the certification, licensing, training, and other eligibility classifications as may be required
by provisions of this chapter and by state board regulation. In
addition to any other information required, the application for any
certification or licensing shall include the applicant's social
security number. Professional personnel employed as deputy,
associate or assistant superintendents by the board in offices,
departments or divisions at locations other than a school and who
are directly answerable to the superintendent shall serve at the
will and pleasure of the superintendent and may be removed by the
superintendent upon approval of the board. Such professional
personnel shall retain seniority rights only in the area or areas
in which they hold valid
certification or licensure
.
§18A-2-5. Employment of service personnel; limitation.
The board is authorized to employ such service personnel,
including substitutes, as is deemed necessary for meeting the needs
of the county school system:
Provided, That the board may not
employ a number of such personnel whose minimum monthly salary
under section eight-a, article four, of this chapter is specified
as pay grade "H", which number exceeds the number employed by the
board on the first day of March, one thousand nine hundred
eighty-eight.
Effective the first day of July, one thousand nine hundred
eighty-eight, a county board shall not employ for the first time
any person who has not obtained a high school diploma or general educational development certificate (GED) or who is not enrolled in
an approved adult education course by the date of employment in
preparation for obtaining a GED:
Provided, That such employment
is contingent upon continued enrollment or successful completion of
the GED program.
Before entering upon their duties service personnel shall
execute with the board a written contract which shall be in the
following form:
"COUNTY BOARD OF EDUCATION
SERVICE PERSONNEL CONTRACT OF EMPLOYMENT
THIS (Probationary or Continuing) CONTRACT OF EMPLOYMENT, made
and entered into this _________ day of _____________, 19____, by
and between THE BOARD OF EDUCATION OF THE COUNTY OF
_______________, a corporation, hereinafter called the 'Board,' and
(Name and Social Security Number of Employee), of (Mailing
Address), hereinafter called the 'Employee.'
WITNESSETH, that whereas, at a lawful meeting of the Board of
Education of the County of ___________ held at the offices of said
Board, in the City of _____________________, ________________
County, West Virginia, on the ______ day of ___________________,
19____, the Employee was duly hired and appointed for employment as
a (Job Classification) at (Place of Assignment) for the school year
commencing __________ for the employment term and at the salary and
upon the terms hereinafter set out.
NOW, THEREFORE, pursuant to said employment, Board and
Employee mutually agree as follows:
(1) The Employee is employed by the Board as a (Job
Classification) at (Place of Assignment) for the school year or
remaining part thereof commencing _____________, 19_____. The
period of employment is _______ days at an annual salary of
$_______ at the rate of $________ per month.
(2) The Board hereby certifies that the Employee's employment
has been duly approved by the Board and will be a matter of the
Board's minute records.
(3) The services to be performed by the Employee shall be such
services as are prescribed for the job classification set out above
in paragraph (1) and as defined in Section 8, Article 4, Chapter
18A of the Code of West Virginia, as amended.
(4) The Employee may be dismissed at any time for immorality,
incompetency, cruelty, insubordination, intemperance or willful
neglect of duty pursuant to the provisions of Section 8, Article 2,
Chapter 18A of the Code of West Virginia, as amended.
(5) The Superintendent of the ____________ County Board of
Education, subject to the approval of the Board, may transfer and
assign the Employee in the manner provided by Section 7, Article 2,
Chapter 18A of the Code of West Virginia, as amended.
(6) This contract shall at all times be subject to any and all
existing laws, or such laws as may hereafter be lawfully enacted, and such laws shall be a part of this contract.
(7) This contract may be terminated or modified at any time by
the mutual consent of the Board and the Employee.
(8) This contract must be signed and returned to the Board at
its address of __________________________________ within thirty
days after being received by the Employee.
(9) By signing this contract the Employee accepts employment
upon the terms herein set out.
WITNESS the following signatures as of the day, month and year
first above written:
_____________, (President, ______ County Board of Education)
_____________, (Secretary, ______ County Board of Education)
_____________, (Employee)"
The use of this form shall not be interpreted to authorize
boards to discontinue any employee's contract status with the board
or rescind any rights, privileges or benefits held under contract
or otherwise by any employee prior to the effective date of this
section.
Each contract of employment shall be designated as a
probationary or continuing contract. The employment of service
personnel shall be made a matter of minute record. The employee
shall return the contract of employment to the county board of
education within thirty days after receipt or otherwise he shall
forfeit his right to employment.
Under such regulation and policy as may be established by the
county board, service personnel selected and trained for teacher- aide classifications, such as monitor aide, clerical aide,
classroom aide and general aide, shall work under the direction of
the principal and teachers to whom assigned.
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 7. PERSONNEL GENERALLY.
§18B-7-1. Seniority for full-time classified personnel; seniority
to be observed in reducing work force; preferred
recall list; renewal of listing; notice of vacancies.
(a) Definitions for terms used in this section shall be in
accordance with those provided in section two, article nine of this
chapter except that the provisions of this section shall apply only
to classified employees whose employment, if continued, shall
accumulate to a minimum total of one thousand forty hours during a
calendar year and extend over at least nine months of a calendar
year:
Provided, That this section shall also apply for one year to
any classified employee who is involuntarily transferred to a
position in nonclassified status for which he or she did not apply.
(b) All decisions by the appropriate governing board or their
agents at state institutions of higher education concerning
reductions in work force of full-time classified personnel, whether
by temporary furlough or permanent termination, shall be made in
accordance with this section. For layoffs by classification for reason of lack of funds or work, or abolition of position or
material changes in duties or organization and for recall of
employees so laid off, consideration shall be given to an
employee's seniority as measured by permanent employment in the
service of the state system of higher education. In the event that
the institution wishes to lay off a more senior employee, the
institution must demonstrate that the senior employee cannot
perform any other job duties held by less senior employees of that
institution in the same job class or any other equivalent or lower
job class for which the senior employee is qualified:
Provided,
That if an employee refuses to accept a position in a lower job
class, such employee shall retain all rights of recall hereinafter
provided. If two or more employees accumulate identical seniority,
the priority shall be determined by a random selection system
established by the employees and approved by the institution.
(c) Any employee laid off during a furlough or reduction in
work force shall be placed upon a preferred recall list and shall
be recalled to employment by the institution on the basis of
seniority. An employee's listing with an institution shall remain
active for a period of one calendar year from the date of
termination or furlough or from the date of the most recent
renewal. If an employee fails to renew the listing with the
institution, the employee's name may be removed from the list. An
employee placed upon the preferred list shall be recalled to any position opening by the institution within the classification(s) in
which the employee had previously been employed or to any lateral
position for which the employee is qualified. An employee on the
preferred recall list shall not forfeit the right to recall by the
institution if compelling reasons require such employee to refuse
an offer of reemployment by the institution.
The institution shall be required to notify all employees
maintaining active listings on the preferred recall list of all
position openings that from time to time exist. Such notice shall
be sent by certified mail to the last known address of the
employee. It shall be the duty of each employee listed to notify
the institution of any change in address and to timely renew the
listing with the institution. No position openings shall be filled
by the institution, whether temporary or permanent, until all
employees on the preferred recall list have been properly notified
of existing vacancies and have been given an opportunity to accept
reemployment.
(d) A nonexempt classified employee, including a nonexempt
employee who has not accumulated a minimum total of one thousand
forty hours during the calendar year or whose contract does not
extend over at least nine months of a calendar year, who meets the
minimum qualifications for a job opening at the institution where
the employee is currently employed, whether the job be a lateral
transfer or a promotion, and applies for same shall be transferred or promoted before a new person is hired unless such hiring is
affected by mandates in affirmative action plans or the
requirements of Public Law 101-336, the Americans with Disabilities
Act. If more than one qualified, nonexempt classified employee
applies, the best-qualified nonexempt classified employee shall be
awarded the position. In instances where such classified employees
are equally qualified, the nonexempt classified employee with the
greatest amount of continuous seniority at that state institution
of higher education shall be awarded the position. A nonexempt
classified employee is one to whom the provisions of the federal
Fair Labor Standards Act, as amended, apply.
(e) In addition to any other information required, any
application for personnel governed by the provisions of this
section shall include the applicant's social security number.
CHAPTER 19. AGRICULTURE.
ARTICLE 1. DEPARTMENT OF AGRICULTURE.
§19-1-10. Requirement for social security number on applications.
The commissioner shall require every applicant for a license,
permit, certificate of registration, or registration under this
chapter to place his or her social security number on the
application.
CHAPTER 21. LABOR.
ARTICLE 2. EMPLOYMENT AGENCIES.
§21-2-7. License required; displaying license; annual tax.
No employment agent shall engage in the business for profit or
receive any fee, charge commission or other compensation, directly
or indirectly, for services as employment agent, without first
having obtained a license therefor from the state tax commissioner.
Such license shall not be issued until the commissioner of labor
shall have approved in writing the application therefor, and, when
issued, such license shall constitute a license from the state to
operate as an employment agent for compensation and shall not be
transferable. Such license shall at all times be kept posted in a
conspicuous place at the place of business of such employment
agent. Every employment agent shall pay the annual license tax
provided for in article twelve, chapter eleven of this code.
In addition to any other information required, an application
for a license under this section shall include the applicant's
social security number.
ARTICLE 3C. ELEVATOR SAFETY.
§21-3C-2. Inspectors; certificates of competency; application;
examination; reexamination.
No person may serve as an elevator inspector unless he or she
successfully completes the examination required by this article and
holds a certificate of competency for elevator inspections issued
by the division.
Application for examination for elevator inspections shall be
in writing, accompanied by a fee of ten dollars, upon a form designed and furnished by the division and shall, at a minimum,
state the level of education of the applicant, list his or her
employers, his or her period of employment and the position held
with each. In addition to any other information required, the
application shall include the applicant's social security number.
The applicant shall also submit a letter from one or more of his or
her previous employers concerning his or her character and
experience.
Applications which contain any willfully submitted false or
untrue information shall be rejected. After review of the
application by the division, the applicant, if deemed appropriate
by the division, shall be tested by means of a written examination
as prescribed by the division dealing with the construction,
installation, operation, maintenance and repair of elevators and
their accessories.
The division shall issue a certificate of competency for
elevator inspections to any applicant who successfully completes
the examination, as determined by standards set in legislative
rules promulgated by the division, as authorized by this article.
An applicant who fails to successfully complete an initial
examination may submit an application for a second examination
ninety days or more after the initial examination and upon payment
of the ten dollar examination fee. Should an applicant fail to
successfully complete the prescribed examination on the second trial, he or she shall not be permitted to submit an application
for another examination for a period of one year after the second
failure.
Any person hired as an elevator inspector by a county or
municipality shall possess a certificate of competency issued by
the division.
The division may hire certified inspectors or enter into a
contract to hire inspectors who are certified by the division. The
division shall hire an inspector supervisor who shall supervise the
inspection activities under this article.
ARTICLE 5. WAGE AND PAYMENT COLLECTION.
§21-5-5c. License required for polygraph examiners;
qualifications; promulgation of rules governing
administration of polygraph tests.
(a) No person, firm or corporation shall administer a
polygraph, lie detector or other such similar test utilizing
mechanical measures of physiological reactions to evaluate
truthfulness to an employee or prospective employee without holding
a current valid license to do so as issued by the commissioner of
labor. No test shall be administered by a licensed corporation
except by an officer or employee thereof who is also licensed.
(b) A person is qualified to receive a license as an examiner
if he:
(1) Is at least eighteen years of age;
(2) Is a citizen of the United States;
(3) Has not been convicted of a misdemeanor involving moral
turpitude or a felony;
(4) Has not been released or discharged with other than
honorable conditions from any of the armed services of the United
States or that of any other nation;
(5) Has passed an examination conducted by the commissioner of
labor or under his supervision, to determine his competency to
obtain a license to practice as an examiner;
(6) Has satisfactorily completed not less than six months of
internship training; and
(7) Has met any other qualifications of education or training
established by the commissioner of labor in his sole discretion
which qualifications are to be at least as stringent as those
recommended by the American polygraph association.
(c) The commissioner of labor may design and by procedural
rule designate and thereafter administer any test he deems
appropriate to those persons applying for a license to administer
polygraph, lie detector or such similar test to employees or
prospective employees. The test designed by the commissioner of
labor shall be so designed as to ensure that the applicant is
thoroughly familiar with the code of ethics of the American
polygraph association and has been trained in accordance with
association rules. The test must also include a rigorous examination of the applicant's knowledge of and familiarity with
all aspects of operating polygraph equipment.
(d) The license to give a polygraph, lie detector or similar
test to employees or prospective employees shall be issued for a
period of one year. It may be reissued from year to year.
(e) The commissioner of labor shall charge a fee of one
hundred dollars for each issuance or reissuance of a license to
give a polygraph, lie detector or similar test to employees or
prospective employees. Such fee shall be deposited in the general
revenue fund of the state. In addition to any other information
required, an application for a license shall include the
applicant's social security number.
(f) The commissioner of labor shall promulgate legislative
rules pursuant to the provisions of chapter twenty-nine-a, article
three, governing the administration of polygraph, lie detector or
such similar test to employees. Such legislative rules shall
include:
(1) The type and amount of training or schooling necessary for
a person before which he may be licensed to give or interpret such
polygraph, lie detector or similar test;
(2) Standards of accuracy which shall be met by machines or
other devices to be used in polygraph, lie detector or similar
tests; and
(3) The conditions under which a polygraph, lie detector or such similar test may be given.
ARTICLE 11. WEST VIRGINIA CONTRACTOR LICENSING ACT.
§21-11-7. Application for and issuance of license.
(a) A person desiring to be licensed as a contractor under
this article shall submit to the board a written application
requesting licensure, providing the applicant's social security
number and such other information as the board may require, on
forms supplied by the board . The applicant shall pay a license fee
not to exceed one hundred fifty dollars:
Provided, That electrical
contractors already licensed under section four, article three-b,
chapter twenty-nine of this code, shall pay no more than twenty
dollars.
(b) A person holding a business registration certificate to
conduct business in this state as a contractor on the thirtieth day
of September, one thousand nine hundred ninety-one, may register
with the board, certify by affidavit the requirements of subsection
(c), section fifteen hereof, and pay such license fee not to exceed
one hundred fifty dollars and shall be issued a contractor's
license without further examination.
CHAPTER 22A. MINERS' HEALTH, SAFETY AND TRAINING.
ARTICLE 9. MINE INSPECTORS' EXAMINING BOARD.
§22A-9-1. Mine inspectors' examining board.
The mine inspectors' examining board is continued. It
consists of five members who, except for the public representative on such board, shall be appointed by the governor, by and with the
advice and consent of the Senate. Members so appointed may be
removed only for the same causes and in like manner as elective
state officers
. One of the members of the board shall be a
representative of the public, who shall be the director of the
school of mines at West Virginia university. Two members of the
board shall be persons who by reason of previous training and
experience may reasonably be said to represent the viewpoint of
coal mine operators and two members shall be persons who by reason
of previous training and experience may reasonably be said to
represent the viewpoint of coal mine workers.
The director of the office of miners' health, safety and
training is an ex officio member of the board and shall serve as
secretary of the board, without additional compensation; but the
director has no right to vote with respect to any matter before the
board.
The members of the board, except the public representative,
shall be appointed for overlapping terms of eight years, except
that the original appointments shall be for terms of two, four, six
and eight years, respectively. Any member whose term expires may
be reappointed by the governor. Members serving on the effective
date
of this article may continue to serve until their terms
expire.
Each member of the board shall be paid the same compensation, and each member of the board shall be paid the expense
reimbursement, as is paid to members of the Legislature for their
interim duties as recommended by the citizens legislative
compensation commission and authorized by law for each day or
portion thereof engaged in the discharge of official duties. Any
such amounts shall be paid out of the state treasury upon a
requisition upon the state auditor, properly certified by such
members of the board.
The public member is chair of the board. Members of the
board, before performing any duty, shall take and subscribe to the
oath required by section 5, article IV of the constitution of West
Virginia.
The mine inspectors' examining board shall meet at such times
and places as shall be designated by the chair. It is the duty of
the chair to call a meeting of the board on the written request of
three members or the director of the office of miners' health,
safety and training. Notice of each meeting shall be given in
writing to each member by the secretary at least five days in
advance of the meeting. Three members is a quorum for the
transaction of business.
In addition to other duties expressly set forth elsewhere in
this article, the board shall:
(1) Establish, and from time to time revise, forms of
application for employment as mine inspectors, which shall include the applicant's social security number, and forms for written
examinations to test the qualifications of candidates for that
position;
(2) Adopt and promulgate reasonable rules relating to the
examination, qualification and certification of candidates for
appointment as mine inspectors, and hearing for removal of
inspectors, required to be held by section twelve, article one of
this chapter. All of such rules shall be printed and a copy
thereof furnished by the secretary of the board to any person upon
request;
(3) Conduct, after public notice of the time and place
thereof, examinations of candidates for appointment as mine
inspector. By unanimous agreement of all members of the board, one
or more members of the board or an employee of the office of
miners' health, safety and training may be designated to give a
candidate the written portion of the examination;
(4) Prepare and certify to the director of the office of
miners' health, safety and training a register of qualified
eligible candidates for appointment as mine inspectors. The
register shall list all qualified eligible candidates in the order
of their grades, the candidate with the highest grade appearing at
the top of the list. After each meeting of the board held to
examine such candidates, and at least annually, the board shall
prepare and submit to the director of the office of miners' health, safety and training a revised and corrected register of qualified
eligible candidates for appointment as mine inspector, deleting
from such revised register all persons (a) who are no longer
residents of West Virginia, (b) who have allowed a calendar year to
expire without, in writing, indicating their continued availability
for such appointment, (c) who have been passed over for appointment
for three years, (d) who have become ineligible for appointment
since the board originally certified that such person was qualified
and eligible for appointment as mine inspector, or (e) who, in the
judgment of at least four members of the board, should be removed
from the register for good cause;
(5) Cause the secretary of the board to keep and preserve the
written examination papers, manuscripts, grading sheets, and other
papers of all applicants for appointment as mine inspector for such
period of time as may be established by the board. Specimens of
the examinations given, together with the correct solution of each
question, shall be preserved permanently by the secretary of the
board;
(6) Issue a letter or written notice of qualification to each
successful eligible candidate;
(7) Hear and determine proceedings for the removal of mine
inspectors in accordance with the provisions of this article;
(8) Hear and determine appeals of mine inspectors from
suspension orders made by the director pursuant to the provisions of section four, article one of this chapter:
Provided, That an
aggrieved inspector, in order to appeal from any order of
suspension, shall file such appeal in writing with the mine
inspectors' examining board not later than ten days after receipt
of notice of suspension. On such appeal the board shall affirm the
act of the director unless it be satisfied from a clear
preponderance of the evidence that the director has acted
arbitrarily;
(9) Make an annual report to the governor and the director
concerning the administration of mine inspection personnel in the
state service, making such recommendations as the board considers
to be in the public interest.
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS,
AUTHORITIES, COMMISSIONS AND COMPACTS.
ARTICLE 7. OIL AND GAS INSPECTORS' EXAMINING BOARD.
§22C-7-3. Oil and gas inspectors' examining board created;
composition; appointment, term and compensation of
members; meetings; powers and duties generally;
continuation following audit.
(a) There is hereby continued an oil and gas inspectors'
examining board consisting of five members, two of whom shall be ex
officio members and three of whom shall be appointed by the
governor, by and with the advice and consent of the Senate.
Appointed members may be removed only for the same causes and like manner as elective state officers. One member of the board shall
be the representative of the public at large and shall be a person
who is knowledgeable about the subject matter of this article and
has no direct or indirect financial interest in oil and gas
production other than the receipt of royalty payments which do not
exceed a five-year average of six hundred dollars per year; one
member shall be a person who by reason of previous training and
experience may reasonably be said to represent the viewpoint of
independent oil and gas operators; and one member shall be a person
who by reason of previous training and experience may reasonably be
said to represent the viewpoint of major oil and gas producers.
The chief of the office of oil and gas of the division of
environmental protection and the chief of the office of water
resources of the division of environmental protection shall be ex
officio members.
The appointed members of the board shall be appointed for
overlapping terms of six years, except that the original
appointments shall be for terms of two, four and six years,
respectively. Any member whose term expires may be reappointed by
the governor.
The board shall pay each member the same compensation and
expense reimbursement as is paid to members of the Legislature for
their interim duties as recommended by the citizens legislative
compensation commission and authorized by law for each day or portion thereof engaged in the discharge of official duties.
The chief of the office of oil and gas shall serve as chair of
the board. The board shall elect a secretary from its members.
Members of the board, before performing any duty, shall take
and subscribe to the oath required by section 5, article IV of the
constitution of West Virginia.
The board shall meet at such times and places as shall be
designated by the chair. It is the duty of the chair to call a
meeting of the board on the written request of two members. Notice
of each meeting shall be given in writing to each member by the
secretary at least five days in advance of the meeting. A majority
of members is a quorum for the transaction of business.
(b) In addition to other powers and duties expressly set forth
elsewhere in this article, the board shall:
(1) Establish, and from time to time revise, forms of
application for employment as an oil and gas inspector and
supervising inspector, which shall include the applicant's social
security number, and forms for written examinations to test the
qualifications of candidates, with such distinctions, if any, in
the forms for oil and gas inspector and supervising inspector as
the board may from time to time deem necessary or advisable;
(2) Adopt and promulgate reasonable rules relating to the
examination, qualification and certification of candidates for
appointment, and relating to hearings for removal of inspectors or the supervising inspector, required to be held by this article.
All of such rules shall be printed and a copy thereof furnished by
the secretary of the board to any person upon request;
(3) Conduct, after public notice of the time and place
thereof, examinations of candidates for appointment. By unanimous
agreement of all members of the board, one or more members of the
board or an employee of the division of environmental protection
may be designated to give to a candidate the written portion of the
examination;
(4) Prepare and certify to the director of the division of
environmental protection a register of qualified eligible
candidates for appointment as oil and gas inspectors or as
supervising inspectors, with such differentiation, if any, between
the certification of candidates for oil and gas inspectors and for
supervising inspectors as the board may from time to time deem
necessary or advisable. The register shall list all qualified
eligible candidates in the order of their grades, the candidate
with the highest grade appearing at the top of the list. After
each meeting of the board held to examine such candidates and at
least annually, the board shall prepare and submit to the director
of the division of environmental protection a revised and corrected
register of qualified eligible candidates for appointment, deleting
from such revised register all persons: (a) Who are no longer
residents of West Virginia; (b) who have allowed a calendar year to expire without, in writing, indicating their continued availability
for such appointment; (c) who have been passed over for appointment
for three years; (d) who have become ineligible for appointment
since the board originally certified that such persons were
qualified and eligible for appointment; or (e) who, in the judgment
of at least three members of the board, should be removed from the
register for good cause;
(5) Cause the secretary of the board to keep and preserve the
written examination papers, manuscripts, grading sheets and other
papers of all applicants for appointment for such period of time as
may be established by the board. Specimens of the examinations
given, together with the correct solution of each question, shall
be preserved permanently by the secretary of the board;
(6) Issue a letter or written notice of qualification to each
successful eligible candidate;
(7) Hear and determine proceedings for the removal of
inspectors or the supervising inspector in accordance with the
provisions of this article;
(8) Hear and determine appeals of inspectors or the
supervising inspector from suspension orders made by said director
pursuant to the provisions of section two, article six, chapter
twenty-two of this code:
Provided, That in order to appeal from
any order of suspension, an aggrieved inspector or supervising
inspector shall file such appeal in writing with the oil and gas inspectors' examining board not later than ten days after receipt
of the notice of suspension. On such appeal the board shall affirm
the action of said director unless it be satisfied from a clear
preponderance of the evidence that said director has acted
arbitrarily;
(9) Make an annual report to the governor concerning the
administration of oil and gas inspection personnel in the state
service; making such recommendations as the board considers to be
in the public interest; and
(10) Render such advice and assistance to the director of the
division of environmental protection as the director shall from
time to time determine necessary or desirable in the performance of
such duties.
(c) After having conducted a preliminary performance review
through its joint committee on government operations, pursuant to
article ten, chapter four of this code, the Legislature hereby
finds and declares that the oil and gas inspectors' examining board
within the division of environmental protection should be continued
and reestablished. Accordingly, notwithstanding the provisions of
said article, the oil and gas inspectors' examining board within
the division of environmental protection shall continue to exist
until the first day of July, two thousand.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 3B. SUPERVISION OF ELECTRICIANS.
§29-3B-4. Licenses; classes of licenses; issuance of licenses by
commissioner; qualifications required for license;
nontransferability and nonassignability of licenses;
expiration of license; renewal; reciprocity.
(a) The following four classes of license may be issued by the
state fire marshal: "Master electrician license," "journeyman
electrician's license," "apprentice electrician license" and
"temporary electrician license." Additional classes of specialty
electrician license may be issued by the state fire marshal.
(b) The state fire marshal shall issue the appropriate class
of license to a person, firm or corporation upon a finding that
such person, firm or corporation possesses the qualifications for
the class of license to be issued.
(c) The qualifications for each class of license to be issued
are as follows:
(1) For a "master electrician license" a person must have five
years of experience in electrical work of such breadth,
independence and quality that such work indicates that the
applicant is competent to perform all types of electrical work and
can direct and instruct journeyman electricians and apprentice
electricians in the performance of electrical work. Such
applicant, or a member of a firm or an officer of a corporation if
the applicant be a firm or corporation, must also pass the master
electrician examination given by the state fire marshal with a grade of eighty percent correct or better;
(2) For a "journeyman electrician's license," a person must
have at least four years of experience in performing electrical
work under the direction or instruction of a master electrician or
must have completed a formal apprentice program, or an electrical
vocational education program of at least one thousand eighty hours
in length and approved by the state board of education or its
successor, providing actual electrical work experience and training
conducted by one or more master electricians. Such applicant must
also pass the journeyman electrician's examination given by the
state fire marshal with a grade of eighty percent correct or
better;
(3) For an "apprentice electrician license," a person must
pass the apprentice electrician's examination given by the state
fire marshal with a grade of eighty percent correct or better or be
enrolled in an electrical apprentice program approved by the state
fire marshal;
(4) A one time temporary master or journeyman electrician
license of ninety-days duration may be issued to an applicant
providing the applicant has completed a United States department of
labor/bureau of apprenticeship and training registered electrical
apprenticeship program, or an electrical vocational education
program of at least one thousand eighty hours in length and
approved by the state board of education or its successor, and have at least four years of experience in performing electrical work and
furnishes the state fire marshal with satisfactory evidence of
electrical work;
(5) Other specialty electrician license may be issued by the
state fire marshal which limits the work in a limited area of
expertise. Such applicant must pass the specialty electrician's
examination given by the state fire marshal with a grade of eighty
percent correct or better.
(d) (1) Certificates of license for a master electrician's
license issued by the state fire marshal shall specify the name of
the person, firm or corporation so qualifying and the name of the
person, who in the case of a firm shall be one of its members and
in the case of a corporation shall be one of its officers, passing
the master electrician examination.
(2) Licenses issued to electricians shall specify the name of
the person who is thereby authorized to perform electrical work or,
in the case of apprentice electricians, to work with other classes
of electricians to perform electrical work.
(e) No license issued under this article is assignable or
transferable.
(f) All licenses issued by the state fire marshal shall expire
on the thirtieth day of June following the year of issue or
renewal.
(g) (1) Each expiring license may be renewed without need for examination and without limit as to the number of times renewed,
for the same class of license previously issued and for the same
person, firm or corporation to whom it was originally issued upon
payment to the state fire marshal of a renewal fee of fifty dollars
if such application for renewal and payment of such fee is made
before the date of expiration of the license.
(2) In the case of a failure to renew a license on or before
the thirtieth day of June the person named in the license may, upon
payment of the renewal fee and an additional fee of fifteen
dollars, receive from the state fire marshal a deferred renewal of
such license which shall expire on the thirtieth day of June in the
ensuing year. No person, firm or corporation may perform
electrical work upon expiration of such person's, firm's or
corporation's license until a deferred renewal for such license is
issued by the state fire marshal even if such person, firm or
corporation has applied for the deferred renewal of such license.
(h) To the extent that other jurisdictions provide for the
licensing of electricians, the state fire marshal may grant the
same or equivalent classification of license without written
examination upon satisfactory proof furnished to the state fire
marshal that the qualifications of such applicant are equal to the
qualifications required by this article and upon payment of the
required fee:
Provided, That as a condition to reciprocity, the
other jurisdictions must extend to licensed electricians of this state, the same or equivalent classification.
(I) In addition to any other information required, the
applicant's social security number shall be recorded on any
application for a license submitted pursuant to the provisions of
this section.
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 1. GENERAL PROVISIONS APPLICABLE TO ALL STATE BOARDS OF
EXAMINATION OR REGISTRATION REFERRED TO IN CHAPTER.
§30-1-6. Application for license or registration; examination fee.
(a) Every applicant for license or registration under the
provisions of this chapter shall apply for such license or
registration in writing to the proper board and shall transmit with
his or her application an examination fee which the board is
authorized to charge for an examination or investigation into the
applicant's qualifications to practice.
(b) Each board referred to in this chapter is authorized to
establish by rule a deadline for application for examination which
shall be no less than ten nor more than ninety days prior to the
date of the examination.
(c) Boards may set by rule fees relating to the licensing or
registering of individuals, which shall be sufficient to enable the
boards to carry out effectively their responsibilities of licensure
or registration and discipline of individuals subject to their
authority:
Provided, That when any board proposes to promulgate a rule regarding fees for licensing or registration, that board shall
notify its membership of the proposed rule by mailing a copy of the
proposed rule to the membership at the time that the proposed rule
is filed with the secretary of state for publication in the state
register in accordance with section five, article three, chapter
twenty-nine-a of this code.
(d) In addition to any other information required, the
applicant's social security number shall be recorded on the
application.
§30-1-13. Roster of licensed or registered practitioners.
The secretary of every such board shall also prepare and
maintain a complete roster of the names, social security numbers
and office addresses of all persons licensed, or registered, and
practicing in this state the profession or occupation to which such
board relates, arranged alphabetically by name and also by the
counties in which their offices are situated. The board may call
for and require a registration whenever it deems it necessary or
expedient to secure an accurate roster.
CHAPTER 33. INSURANCE.
ARTICLE 12. AGENTS, BROKERS, SOLICITORS AND EXCESS LINES.
§33-12-3. Application.
(a) Application for an agent's, broker's or solicitor's
license or renewal thereof shall be made to the commissioner upon
a form prescribed by him and shall contain the applicant's name, social security number and such information and supporting
documents as the commissioner may require, and the commissioner may
require such application to be made under the applicant's oath.
(b) If for an agent's license, the application shall show the
kinds of insurance to be transacted, and shall be accompanied by
the written appointment of the applicant as agent by at least one
licensed insurer for each kind of insurance for which application
is made.
(c) If for a solicitor's license, the application shall be
accompanied by written appointment of the applicant as solicitor by
a licensed agent.
(d) If for a broker's license, the application shall be
accompanied by a statement upon a form prescribed by the
commissioner as to the trustworthiness and competency of the
applicant, signed by at least three licensed resident agents of
this state.
(e) Willful misrepresentation of any fact in any such
application or any documents in support thereof is a violation of
this chapter.
CHAPTER 37. REAL PROPERTY.
ARTICLE 14. THE REAL ESTATE APPRAISER LICENSING AND CERTIFICATION
ACT.
§37-14-9. Applications for license.
An individual who desires to engage in real estate appraisal
activity in this state shall make application for a license, in
writing, in such form as the board may prescribe. In addition to
any other information required, the applicant's social security
number shall be recorded on the application.
To assist the board in determining whether grounds exist to
deny the issuance of a license to an applicant, the board may
require the fingerprinting of every applicant for an original
license.
CHAPTER 47. REGULATION OF TRADE.
ARTICLE 12. REAL ESTATE COMMISSION, BROKERS AND SALESPERSONS.
§47-12-5. Applications for licenses.
Every applicant for a real estate broker's license shall apply
therefor in writing upon blanks prepared by the commission which
shall contain the applicant's social security number and such other
data and information as the commission shall require.
(a) Such application for broker's license shall be accompanied
by the recommendation of at least two citizens who are property
owners at the time of signing said application and have been
property owners for at least twelve months preceding such
application, who have known the applicant for two years and are not
related to the applicant, certifying that the applicant bears a
good reputation for honesty and trustworthiness, and recommending that a license be granted to the applicant.
(b) Every applicant for a salesperson's license shall apply
therefor in writing upon blanks prepared by the commission which
shall contain the applicant's social security number and such other
data and information as the commission may require. The
application shall be accompanied by a sworn statement by the broker
in whose employ the applicant desires to enter, certifying that, in
his or her opinion, the applicant is honest and trustworthy, and
recommending the license be granted to the applicant.
CHAPTER 48A. ENFORCEMENT OF FAMILY OBLIGATIONS.
ARTICLE 1A. ENFORCEMENT OF FAMILY OBLIGATIONS.
§48A-1A-30. Support order.
"Support order" means a judgment, decree, or order, whether
temporary, final, or subject to modification, issued by a court or
an administrative agency of competent jurisdiction, for the support
and maintenance of a child, including a child who has attained the
age of majority under the law of the issuing state, or a child and
the parent with whom the child is living, which provides for
monetary support, health care, arrearage, or reimbursements, and
which may include related costs and fees, interest and penalties,
income withholding, attorneys' fees, and other relief.
ARTICLE 2. WEST VIRGINIA SUPPORT ENFORCEMENT COMMISSION; CHILD
SUPPORT ENFORCEMENT DIVISION; ESTABLISHMENT AND ORGANIZATION.
§48A-2-31. Providing information to consumer reporting agencies.
(a) For purposes of this section, the term "consumer reporting
agency" means any person who, for monetary fees, dues, or on a
cooperative nonprofit basis, regularly engages, in whole or in
part, in the practice of assembling or evaluating consumer credit
information or other information on consumers for the purpose of
furnishing consumer reports to third parties.
(b) The commission shall propose and adopt a procedural rule
in accordance with the provisions of sections four and eight,
article three, chapter twenty-nine-a of this code, establishing
procedures whereby information regarding the amount of overdue
support owed by an obligor will be reported periodically by the
child support enforcement division to any consumer reporting
agency, after a request by the consumer reporting agency that it be
provided with the periodic reports.
(c) The procedural rule adopted by the commission shall
provide that any information with respect to an obligor shall be
made available only after notice has been sent to the obligor of
the proposed action, and such obligor has been given a reasonable
opportunity to contest the accuracy of the information.
(d) The procedural rule adopted shall afford the obligor with
procedural due process prior to making information available with
respect to the obligor.
(e) The information made available to a consumer reporting
agency regarding overdue support may only be made available to an
entity that has furnished evidence satisfactory to the division
that the entity is a consumer reporting agency as defined in
subsection (a) of this section.
(f) The child support enforcement division may impose a fee
for furnishing such information, not to exceed the actual cost
thereof.
§48A-2-32. Establishment of central state case registry.
The child support enforcement division shall establish and
maintain a central state case registry of child support orders.
All orders in cases when any party receives any service provided by
the child support enforcement division shall be included in the
registry. Any other support order entered or modified in this
state on or after the first day of October, one thousand nine
hundred ninety-eight, shall be included in the registry. The child
support enforcement division, upon receipt of any information
regarding a new hire provided pursuant to section three, article
five of this chapter shall compare information received to
determine if the new hire's income is subject to wage withholding
and notify the employer pursuant to that section.
§
48A-2-33. Subpoenas.
In order to obtain financial and medical insurance information pursuant to the establishment, enforcement and modification
provisions set forth in this chapter or chapter forty-eight of this
code, the child support enforcement division may serve, by
certified mail or personal service, an administrative subpoena on
any person, corporation, partnership, financial institution, labor
organization or state agency, for an appearance or for production
of financial or medical insurance information. In case of
disobedience to the subpoena, the child support enforcement
division may invoke the aid of any circuit court in requiring the
appearance or production of records and financial documents. The
child support enforcement division may assess a civil penalty of no
more than one hundred dollars for the failure of any person,
corporation, financial institution, labor organization or state
agency to comply with requirements of this section.
§48A-2-33a. Nonliability for financial institutions providing
financial records to the division of child support
enforcement.
(a) Notwithstanding any other provision of this code, a
financial institution shall not be liable under the law of this
state to any person for disclosing any financial record of an
individual to the division of child support enforcement in response
to a subpoena issued by the division pursuant to section thirty- three of this article.
(b) The division of child support enforcement, after obtaining
a financial record of an individual from a financial institution
may disclose such financial record only for the purpose of, and to
the extent necessary in, establishing, modifying, or enforcing a
child support obligation of such individual.
(c) The civil liability of a person who knowingly, or by
reason of negligence, discloses a financial record of an individual
in violation of subsection (b) of this section is governed by the
provisions of federal law as set forth in 42 U.S.C. §669A.
(d) For purposes of this section the term "financial
institution" means:
(1) Any bank or savings association;
(2) A person who is an institution-affiliated party, as that
term is defined in the Federal Deposit Insurance Act, 12 U.S.C.
§1813(u);
(3) Any federal credit union or state-chartered credit union,
including an institution-affiliated party of a credit union; and
(4) Any benefit association, insurance company, safe deposit
company, money-market mutual fund, or similar entity authorized to
do business in this state.
(e) For purposes of this section, the term "financial record"
means an original of, a copy of, or information known to have been
derived from, any record held by a financial institution pertaining
to a customer's relationship with the financial institution.
§48A-2-34. Employment and income reporting.
(a) Except as provided in subsections (b) and (c) of this
section, all employers doing business in the state of West Virginia
shall report to the child support enforcement division:
(1) The hiring of any person who resides or works in this
state to whom the employer anticipates paying earnings; and
(2) The rehiring or return to work of any employee who resides
or works in this state.
(b) Employers are not required to report the hiring, rehiring
or return to work of any person who:
(1) Is employed for less than one month's duration; or
(2) Is employed sporadically so that the employee will be paid
for less than three hundred fifty hours during a continuous
six-month period; or
(3) Has gross earnings of less than three hundred dollars per
month.
(c) The commission may establish additional exemptions to
reduce unnecessary or burdensome reporting through promulgation of
a legislative rule pursuant to chapter twenty-nine-a of this code.
(d) Employers shall report by mailing to the child support
enforcement division a copy of the employee's W-4 form. However,
an employer may transmit such information through another means if
approved in writing by the child support enforcement division prior to the transmittal.
(e) Employers shall submit a report within fourteen days of
the date of the hiring, rehiring or return to work of the employee.
The report shall include the employee's name, address, social
security number and date of birth and the employer's name and
address, any different address of the payroll office and the
employer's federal tax identification number.
(f) An employer of an obligor shall provide to the child
support enforcement division, upon its written request, information
regarding the obligor's employment, wages or salary, medical
insurance and location of employment.
(g) Any employer who fails to report in accordance with the
provisions of this section shall be assessed a civil penalty of no
more than twenty dollars. If the failure to report is the result of
a conspiracy between the employer and the employee to not supply
the required report or to supply a false or incomplete report, the
employer shall be assessed a civil penalty of no more than three
hundred fifty dollars.
(h) Employers required to report under this section may assess
each employee so reported one dollar for the administrative costs
of reporting.
ARTICLE 5A. ENFORCEMENT OF SUPPORT ORDER THROUGH ACTION AGAINST
LICENSE.
§48A-5A-1. Definitions.
For purposes of this article, the words or terms defined in
this section have the meanings ascribed to them. These definitions
are applicable unless a different meaning clearly appears from the
context.
(1) "Action against a license" means action taken by the child
support enforcement division to cause the denial, nonrenewal,
suspension or restriction of a license applied for or held by (A)
a support obligor owing overdue support, or (B) a person who has
failed to comply with subpoenas or warrants relating to paternity
or child support proceedings;
(2) "License" means a license, permit, certificate of
registration, registration, credential, stamp or other indicia that
evidences a personal privilege entitling a person to do an act that
he or she would otherwise not be entitled to do, or evidences a
special privilege to pursue a profession, trade, occupation,
business or vocation.
§48A-5A-2. Licenses subject to action.
The following licenses are subject to an action against a
license as provided for in this article:
(1) A permit or license issued under chapter seventeen-b of
this code, authorizing a person to drive a motor vehicle;
(2) A commercial driver's license, issued under chapter seventeen-e of this code, authorizing a person to drive a class of
commercial vehicle;
(3) A permit, license or stamp issued under article two or
two-b, chapter twenty of this code, regulating a person's
activities for wildlife management purposes, authorizing a person
to serve as an outfitter or guide, or authorizing a person to hunt
or fish;
(4) A license or registration issued under chapter thirty of
this code, authorizing a person to practice or engage in a
profession or occupation;
(5) A license issued under article twelve, chapter forty-seven
of this code, authorizing a person to transact business as a real
estate broker or real estate salesperson;
(6) A license or certification issued under article fourteen,
chapter thirty-seven of this code, authorizing a person to transact
business as a real estate appraiser;
(7) A license issued under article twelve, chapter thirty- three of this code, authorizing a person to transact insurance
business as an agent, broker or solicitor;
(8) A registration made under article two, chapter thirty-two
of this code, authorizing a person to transact securities business
as a broker-dealer, agent or investment advisor;
(9) A license issued under article twenty-two, chapter twenty-nine of this code, authorizing a person to transact business as a
lottery sales agent;
(10) A license issued under articles thirty-two or thirty- four, chapter sixteen of this code, authorizing persons to pursue
a trade or vocation in asbestos abatement or radon mitigation;
(11) A license issued under article eleven, chapter twenty-one
of this code, authorizing a person to act as a contractor;
(12) A license issued under article two-c, chapter nineteen of
this code, authorizing a person to act as an auctioneer; and
(13) A license, permit or certificate issued under chapter
nineteen of this code, authorizing a person to sell, market or
distribute agricultural products or livestock.
§48A-5A-3. Action against license; notice to licensee.
(a) The child support enforcement division shall send a
written notice of an action against a license to a person who:
(1) Owes overdue child support, if the child support arrearage
equals or exceeds the amount of child support payable for six
months;
(2) Has failed for a period of six months to pay medical
support ordered under section fifteen-a, article two, chapter
forty-eight of this code; or
(3) Has failed, after appropriate notice, to comply with
subpoenas or warrants relating to paternity or child support proceedings.
(b) In the case of overdue child support or noncompliance with
a medical support order, notice of an action against a license
shall be served only if other statutory enforcement methods to
collect the support arrearage have been exhausted or are not
available.
(c) The division shall send a notice of action against a
license by regular mail and by certified mail, return receipt
requested, to the person's last-known address or place of business
or employment. Simultaneous certified and regular mailing of the
written notice shall constitute effective service unless the United
States Postal Service returns the mail to the child support
enforcement division within the thirty-day response period marked
"moved, unable to forward," "addressee not known," "no such
number/street," "insufficient address," or "forwarding order
expired." If the certified mail is returned for any other reason
without the return of the regular mail, the regular mail service
shall constitute effective service. If the mail is addressed to
the person at his or her place of business or employment, with
postal instructions to deliver to addressee only, service will be
deemed effective only if the signature on the return receipt
appears to be that of the person. Acceptance of the certified mail
notice signed by the person, the person's attorney, or a competent member of the person's household above the age of sixteen shall be
deemed effective service.
(d) The notice shall be substantially in the following form:
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NOTICE OF ACTION AGAINST LICENSE
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Name and address:
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Date:
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Case No:
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|
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Social Security No:
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|
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Circuit Court of County, West Virginia
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Section 1.
?
The child support enforcement division has determined that you have failed to comply with an order to pay child
support, and that the amount you owe equals six months child support or more. The amount you owe is
calculated to be $____________ as of the ______ day of ____________, _________.
?
The child support enforcement division has determined that you have failed to comply with a medical support
order for a period of six months. The amount you owe is calculated to be $___________ as of the _______
day of ______________, __________.
?
The child support enforcement division has determined that you have failed to comply with a medical support
order requiring you to obtain health insurance for your child or children.
?
The child support enforcement division has determined that you have failed to comply with a subpoena or
warrant relating to a paternity or child support proceeding.
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Section 2.
Under West Virginia law, your failure to comply as described in Section 1 may result in an action against certain
licenses issued to you by the State of West Virginia. Action may be taken against a driver's license, a recreational
license such as a hunting and fishing license, and a professional or occupational license necessary for you to work.
An application for a license may be denied. A renewal of a license may be refused. A license which you currently
hold may be suspended or restricted in its use.
The Child Support Enforcement Division has determined that you are a current license holder, have applied for, or
are likely to apply for the following license or licenses:
To avoid an action against your licenses, check which of the following actions you will take:
?
I want to pay in full the overdue amount I owe as child support. I am enclosing a check or money order in the
amount of $ .
?
I want pay in full the amount I owe as medical support. I am enclosing a check or money order in the amount of
$ .
?
I am requesting a meeting with a representative of the Child Support Enforcement Division to arrange a payment
plan that will allow me to make my current payments as they become due and to pay on the arrearage I owe or
to otherwise bring me into compliance with current support orders.
?
I am requesting a hearing before the family law master or circuit judge to contest an action against my licenses.
Please serve me with any petition filed, and provide me with notice of the time and place of the hearing.
Signed 6_____________________________ Date: _____________
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Section 3.
You must check the appropriate box or boxes in Section 2, sign your name and mail this form to the Child Support
Enforcement Division before the______ day of ___________, _______. Otherwise, the Child Support Enforcement
Division may begin an action against your licenses in the Circuit Court without further notice to you. Mail this form
to the following address:
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(e) The notice shall advise the person that further failure to comply may result in an action against licenses held by the person,
and that any pending application for a license may be denied,
renewal of a license may be refused, or an existing license may be
suspended or restricted unless, within thirty days of the date of
the notice, the person pays the full amount of the child support
arrearage or the medical support arrearage, makes a request for a
meeting with a representative of the child support enforcement
division to arrange a payment plan or to otherwise arrange
compliance with existing support orders, or makes a request for a
court hearing to the child support enforcement division. An action
against a license shall be terminated if the person pays the full
amount of the child support arrearage or medical support arrearage,
or provides proof that health insurance for the child has been
obtained as required by a medical support order or enters into a
written plan with the child support enforcement division for the
payment of current payments and payment on the arrearage.
(f) If the person fails to take one of the actions described
in subsection (e) of this section within thirty days of the date of
the notice and there is proof that service on the person was
effective, the child support enforcement division shall file a
certification with the circuit court setting forth the person's
noncompliance with the support order or failure to comply with a
subpoena or warrant and the person's failure to respond to the written notice of the potential action against his or her license.
If the circuit court is satisfied that service of the notice on the
person was effective as set forth in this section, it shall without
need for further due process or hearing, enter an order suspending
or restricting any licenses held by the person. Upon the entry of
the order, the child support enforcement division shall forward a
copy to the person and to any appropriate agencies responsible for
the issuance of a license.
(g) If the person requests a hearing, the child support
enforcement division shall file a petition for a judicial hearing
before the family law master. The hearing shall occur within
forty-two days of the receipt of the person's request. If, prior
to the hearing, the person pays the full amount of the child
support arrearage or medical support arrearage or provides health
insurance as ordered, the action against a license shall be
terminated. No action against a license shall be initiated if the
child support enforcement division has received notice that the
person has pending a motion to modify the child support order, if
that motion was filed prior to the date that the notice of the
action against the license was sent by the child support
enforcement division. The court shall consider the child support
enforcement division's petition to deny, refuse to renew, suspend
or restrict a license in accordance with section four of this article.
§48A-5A-4. Hearing on denial, nonrenewal, suspension or
restriction of license.
(a) The court shall order a licensing authority to deny,
refuse to renew, suspend or restrict a license if it finds that:
(1) All appropriate enforcement methods have been exhausted or
are not available;
(2) The person is the holder of a license or has an
application pending for a license;
(3) The requisite amount of child support or medical support
arrearage exists or health insurance for the child has not been
provided as ordered, or the person has failed to comply with a
subpoena or warrant relating to a paternity or child support
proceeding;
(4) No motion to modify the child support order, filed prior
to the date that the notice was sent by the child support
enforcement division, is pending before the court; and
(5) There is no equitable reason, such as involuntary
unemployment, disability, or compliance with a court-ordered plan
for the periodic payment of the child support arrearage amount, for
the person's noncompliance with the child support order.
(b) If the court is satisfied that the conditions described in
subsection (a) of this section exist, it shall first consider suspending or restricting a driver's license prior to professional
license. If the person fails to appear at the hearing after being
properly served with notice, the court shall order the suspension
of all licenses held by the person.
(c) If the court finds that a license suspension will result
in a significant hardship to the person, to the person's legal
dependents under eighteen years of age living in the person's
household, to the person's employees, or to persons, businesses or
entities to whom the person provides goods or services, the court
may allow the person to pay a percentage of the past-due child
support amount as an initial payment, and establish a payment
schedule to satisfy the remainder of the arrearage within one year,
and require that the person comply with any current child support
obligation. If the person agrees to this arrangement, no
suspension or restriction of any licenses shall be ordered.
Compliance with the payment agreement shall be monitored by the
child support enforcement division.
(d) If a person has good cause for not complying with the
payment agreement within the time permitted, the person shall
immediately file a motion with the court and the child support
enforcement division requesting an extension of the payment plan.
The court may extend the payment plan if it is satisfied that the
person has made a good faith effort to comply with the plan and is unable to satisfy the full amount of past-due support within the
time permitted due to circumstances beyond the person's control.
If the person fails to comply with the court-ordered payment
schedule, the court shall, upon receipt of a certification of
noncompliance from the child support enforcement division, and
without further hearing, order the immediate suspension or
restriction of all licenses held by the person.
§48A-5A-5. Enforcement of order by licensing authority.
(a) The child support enforcement division shall provide the
licensing authority with a copy of the order requiring the denial,
nonrenewal, suspension or restriction of a license. Upon receipt
of an order requiring the suspension or restriction of a license
for nonpayment of child support, the licensing authority shall
immediately notify the applicant or licensee of the effective date
of the denial, nonrenewal, suspension or limitation, which shall be
twenty days after the date of the notice, direct any licensee to
refrain from engaging in the activity associated with the license,
surrender any license as required by law, and inform the applicant
or licensee that the license shall not be approved, renewed or
reinstated until the court or child support enforcement division
certifies compliance with court orders for the payment of current
child support and arrearage. The child support enforcement
division, in association with the affected licensing authorities, may develop electronic or magnetic tape data transfers to notify
licensing authorities of denials, nonrenewals, suspensions and
reinstatements. No liability shall be imposed on a licensing
authority for suspending or restricting a license if the action is
in response to a court order issued in accordance with this
article. Licensing authorities shall not have jurisdiction to
modify, remand, reverse, vacate or stay a court order to deny, not
renew, suspend or restrict a license for nonpayment of child
support.
(b) The denial, nonrenewal, suspension or restriction of a
license ordered by the court shall continue until the child support
enforcement division files with the licensing authority either a
court order restoring the license or a child support enforcement
division certification attesting to compliance with court orders
for the payment of current child support and arrearage.
(c) Each licensing authority shall require license applicants
to certify on the license application form, under penalty of false
swearing, that the applicant does not have a child support
obligation, the applicant does have such an obligation but any
arrearage amount does not equal or exceed the amount of child
support payable for six months, or the applicant is not the subject
of a child-support related subpoena or warrant. A license shall
not be granted to any person who applies for a license if there is an arrearage equal to or exceeding the amount of child support
payable for six months or if it is determined that the applicant
has failed to comply with a warrant or subpoena in a paternity or
child support proceeding. The application form shall state that
making a false statement may subject the license holder to
disciplinary action including, but not limited to, immediate
revocation or suspension of the license.
(d) The provisions of this article apply to all orders issued
before or after the enactment of this article. All child support,
medical support and health insurance provisions in existence on or
before the effective date of this article shall be included in
determining whether a case is eligible for enforcement. This
article applies to all child support obligations ordered by any
state, territory or district of the United States that are being
enforced by the child support enforcement division, that are
payable directly to the obligee, or have been registered in this
state in accordance with the uniform interstate family support act.
§48A-5A-6. Procedure where license to practice law may be subject
to denial, suspension or restriction.
If a person who has been admitted to the practice of law in
this state by order of the supreme court of appeals is determined
to be in default under a support order or has failed to comply with
a subpoena or warrant in a paternity or child support proceeding, such that his or her other licenses are subject to suspension or
restriction under this article, the child support enforcement
division may send a notice listing the name and social security
number or other identification number to the lawyer disciplinary
board established by the supreme court of appeals. The Legislature
hereby requests the supreme court of appeals to promptly adopt
rules pursuant to its constitutional authority to govern the
practice of law that would include as attorney misconduct for which
an attorney may be disciplined, situations in which a person
licensed to practice law in West Virginia has been determined to be
in default under a support order or has failed to comply with a
subpoena or warrant in a paternity or child support proceeding.
§48A-5A-7. Effect of determination as to authority of federal
government to require denials, suspensions or
restrictions of licenses.
The provisions of this article have been enacted to conform to
the mandates of the federal "Personal Responsibility and Work
Opportunity Reconciliation Act of 1996". If a court of competent
jurisdiction should determine, or if it is otherwise determined
that the federal government lacked authority to mandate the license
denials, nonrenewals, suspensions or restrictions contemplated by
this article, then the provisions of this article shall be null and
void and of no force and effect.
ARTICLE 6. ESTABLISHMENT OF PATERNITY.
§48A-6-3. Medical testing procedures to aid in the determination
of paternity.
(a) Prior to the commencement of an action for the
establishment of paternity, the child support enforcement division
may order the mother, her child and the man to submit to genetic
tests to aid in proving or disproving paternity. The division may
order the tests upon the request of a party, supported by a sworn
statement. If the request is made by a party alleging paternity,
the statement shall set forth facts establishing a reasonable
possibility of requisite sexual contact between the parties. If
the request is made by a party denying paternity, the statement may
set forth facts establishing a reasonable possibility of the
nonexistence of sexual contact between the parties or other facts
supporting a denial of paternity. If genetic testing is not
performed pursuant to an order of the child support enforcement
division, the court may, on its own motion, or shall upon the
motion of any party, order such tests. A request or motion may be
made upon ten days' written notice to the mother and alleged
father, without the necessity of filing a complaint. When the
tests are ordered, the court or the division shall direct that the
inherited characteristics, including, but not limited to, blood
types be determined by appropriate testing procedures at a hospital, independent medical institution or independent medical
laboratory duly licensed under the laws of this state, or any other
state, and an expert qualified as an examiner of genetic markers
shall analyze, interpret and report on the results to the court or
to the division of child support enforcement. The results shall be
considered as follows:
(1) Blood or tissue test results which exclude the man as the
father of the child are admissible and shall be clear and
convincing evidence of nonpaternity and, if a complaint has been
filed, the court shall, upon considering such evidence, dismiss the
action.
(2) Blood or tissue test results which show a statistical
probability of paternity of less than ninety-eight percent are
admissible and shall be weighed along with other evidence of the
defendant's paternity.
(3) Undisputed blood or tissue test results which show a
statistical probability of paternity of more than ninety-eight
percent shall, when filed, legally establish the man as the father
of the child for all purposes and child support may be established
pursuant to the provisions of this chapter.
(4) When a party desires to challenge the results of the blood
or tissue tests or the expert's analysis of inherited
characteristics, he or she shall file a written protest with the family law master or circuit court or with the division of child
support enforcement, if appropriate, within thirty days of the
filing of such test results, and serve a copy of such protest upon
the other party. The written protest shall be filed at least
thirty days prior to any hearing involving the test results. The
court or the child support enforcement division, upon reasonable
request of a party, shall order that additional tests be made by
the same laboratory or another laboratory within thirty days of the
entry of the order, at the expense of the party requesting
additional testing. Costs shall be paid in advance of the testing.
When the results of the blood or tissue tests or the expert's
analysis which show a statistical probability of paternity of more
than ninety-eight percent are confirmed by the additional testing,
then the results are admissible evidence which is clear and
convincing evidence of paternity. The admission of the evidence
creates a presumption that the man tested is the father.
(b) Documentation of the chain of custody of the blood or
tissue specimens is competent evidence to establish the chain of
custody. A verified expert's report shall be admitted at trial
unless a challenge to the testing procedures or a challenge to the
results of test analysis has been made before trial. The costs and
expenses of making the tests shall be paid by the parties in
proportions and at times determined by the court.
(c) Except as provided in subsection (d) of this section, when
a blood test is ordered pursuant to this section, the moving party
shall initially bear all costs associated with the blood test
unless that party is determined by the court to be financially
unable to pay those costs. This determination shall be made
following the filing of an affidavit pursuant to section one,
article two, chapter fifty-nine of this code. When the court finds
that the moving party is unable to bear that cost, the cost shall
be borne by the state of West Virginia. Following the finding that
a person is the father based on the results of a blood test ordered
pursuant to this section, the court shall order that the father be
ordered to reimburse the moving party for the costs of the blood
tests unless the court determines, based upon the factors set forth
in this section, that the father is financially unable to pay those
costs.
(d) When a blood test is ordered by the child support
enforcement division, the division shall initially bear all costs
subject to recoupment from the alleged father if paternity is
established.
§48A-6-6. Establishing paternity by acknowledgment of natural
father.
(a) A written, notarized acknowledgment by both the man and
woman that the man is the father of the named child legally establishes the man as the father of the child for all purposes and
child support may be established under the provisions of this
chapter.
(b) The written acknowledgment shall include:
(1) Filing instructions;
(2) The parties' social security numbers and addresses; and
(3) A statement, given orally and in writing, of the
alternatives to, the legal consequences of, and the rights and
obligations of acknowledging paternity, including, but not limited
to, the duty to support a child. If either of the parents is a
minor, the statement shall include an explanation of any rights
that may be afforded due to the minority status.
(c) Failure or refusal to include all information required by
subsection (b) of this section shall not affect the validity of the
written acknowledgment, in the absence of a finding by a court of
competent jurisdiction that the acknowledgment was obtained by
fraud, duress or material mistake of fact, as provided in
subsection (d) of this section.
(d) An acknowledgment executed under the provisions of this
section may be rescinded within the earlier of sixty days from the
date of execution or the date of an administrative or judicial
proceeding relating to the child in which the signatory is a party.
After the sixty-day period has expired, the acknowledgment may thereafter be challenged only on the basis of fraud, duress or
material mistake of fact, upon a finding of clear and convincing
evidence by a court of competent jurisdiction. The legal
responsibilities, including child support obligations, of a
signatory to the acknowledgment may not be suspended during any
challenge, except for good cause shown.
(e) The original written acknowledgment should be filed with
the state registrar of vital statistics. Upon receipt of any
acknowledgment executed pursuant to this section, the registrar
shall forward the copy of the acknowledgment to the child support
enforcement division and the parents, if the address of the parents
is known to the registrar. If a birth certificate for the child
has been previously issued which is incorrect or incomplete, a new
birth certificate shall be issued.
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