ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 33
(By Senators Tomblin, Mr. President, and Boley,
By Request of the Executive)
____________
[Originating in the Committee on Government Organization;
reported February 23, 1995.]
____________
A BILL to amend and reenact article one, chapter five-b of the
code of West Virginia, one thousand nine hundred thirty-
one, as amended, relating to recodifying the laws relating
to the tourism functions of the division of tourism and
parks subsequent to the transfer by executive order of
state parks, state recreation areas and wildlife
recreation areas to the division of natural resources;
continuing the division of tourism in the bureau of
commerce, consisting of those functions of the division of
tourism and parks not so transferred; creating a new tourism commission, composed of both private-sector and
public-sector members, to govern the activities of the
division of tourism; authorizing the formation of a
nonprofit private corporation whose directors may include
members of the tourism commission; authorizing the
combining of public and private funds for use in the
promotion and development of tourism in West Virginia;
calling for the tourism commission to review the internal
organization of the division of tourism and to consider
various tourism initiatives and to make recommendations on
the same; and revising and recodifying the provisions of
said article to reflect the new organizational structure.
Be it enacted by the Legislature of West Virginia:
That article one, chapter five-b of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted to read as follows:
ARTICLE 1. TOURISM DEVELOPMENT ACT OF 1995.
§5B-1-1. Short title.
This article shall be known and may be cited as "The
Tourism Development Act of 1995".
§5B-1-2. Construction.
This article shall be liberally construed to effectuate
the purposes set forth in section two of this article.
§5B-1-3. Division of tourism.
There is hereby continued in the bureau of commerce the
division of tourism, consisting of all those offices, powers
and functions of the former division of tourism and parks
related to tourism promotion and development and which were not
included in the transfer, by executive order, to the division
of natural resources of those offices, powers and functions
related to state parks, state recreation areas and wildlife
recreation areas.
§5B-1-4. West Virginia tourism commission created; members,
appointment and expenses; appointment and compensation of
director.
(a) There is hereby created within the West Virginia
division of tourism the West Virginia tourism commission, which
is a body corporate and politic, constituting a public
corporation and government instrumentality. Membership on the
council shall consist of eleven members:
(1) Nine members to be appointed by the governor, with the
advise and consent of the Senate, representing both public-sector and private-sector participants in the state's tourism
industry. Of the nine members so appointed, seven shall
represent private-sector participants in the state's tourism
industry and two shall represent public-sector participants in
the state's tourism industry. In making the private-sector
appointments the governor shall select from a list provided by
the West Virginia hospitality and travel association of at
least two qualified applicants for each position. Of the seven
private-sector members so appointed, no more than three shall
be from each congressional district within the state and shall
be appointed to provide the broadest geographic distribution
which is feasible.
(2) One ex officio member to be appointed by the governor
with the advice and consent of the Senate from the membership
of the West Virginia parkways, economic development and tourism
authority created in section three, article sixteen-a, chapter
seventeen of this code.
(3) One ex officio member to be appointed by the governor
with the advice and consent of the Senate from the membership
of the West Virginia infrastructure and jobs development
council created in article fifteen-a, chapter thirty-one of this code.
(b) Not later than the first day of July, one thousand
nine hundred ninety-five, the governor shall appoint the eleven
members of the commission to staggered terms. The terms of the
commission members first taking office on or after the
effective date of this legislation shall expire, as designated
by the governor, at the time of appointment or nomination,
three at the end of the second year, three at the end of the
third year and three at the end of the fourth year, after the
first day of July, one thousand nine hundred ninety-five. As
these original appointments expire, each subsequent appointment
shall be for a full four-year term. Any member whose term has
expired shall serve until his successor has been duly appointed
and qualified. Any person appointed to fill a vacancy shall
serve only for the unexpired term. Any member shall be
eligible for reappointment. In cases of any vacancy in the
office of a member, such vacancy shall be filled by the
governor in the same manner as the original appointment.
(c) Members of the commission shall not be entitled to
compensation for services performed as members. A majority of
the members shall constitute a quorum for the purpose of conducting business. The commission shall elect a chair for a
term to run concurrent with the term of office of the member
elected as chair. The chair is eligible for successive terms
in that position.
(d) The governor shall appoint, with the advice and
consent of the Senate an executive director of the division of
tourism by reason of education and experience which is relevant
to the duties of the position, to serve at the will and
pleasure of the governor. The salary of the director shall be
fixed by the commission. The director shall have overall
management responsibility and administrative control and
supervision within the division of tourism. It is the
intention of the Legislature that the director shall provide
professional and technical expertise in the field of tourism
promotion and development in order to support the policy-making
functions of the commission, but that the director is not a
public officer, agent, servant or contractor within the meaning
of section thirty-eight, article VI of the constitution of the
state of West Virginia.
§5B-1-5. Powers and duties of tourism commission.
(a) The commission shall enhance the promotion and development of tourism through the development of a
comprehensive tourism promotion and development strategy for
West Virginia. "Comprehensive tourism promotion and
development strategy" means a plan that outlines strategies and
activities designed to continue, diversify or expand the
tourism base of the state as a whole; create tourism jobs;
develop a highly skilled tourism work force; facilitate
business access to capital for tourism; advertise and market
the resources offered by the state with respect to tourism
promotion and development; facilitate cooperation among local,
regional and private tourism enterprises; improve
infrastructure on a state, regional and community level in
order to facilitate tourism development; improve the tourism
business climate generally; and leverage funding from sources
other than the state, including local federal and private
sources.
(b) In developing its strategies, the commission shall
consider the following:
(1) Improvement and expansion of existing tourism
marketing and promotion activities;
(2) Promotion of cooperation among municipalities, counties, and the West Virginia infrastructure and jobs
development council in funding physical infrastructure to
enhance the potential for tourism development;
(c) The tourism commission and the division of tourism
shall have all powers and duties specified in this article with
regard to the sections of tourism, advertising and promotion,
and sales and marketing, inasmuch as such powers and duties may
be exercised by the director of the division of tourism or the
respective sections under the commission's supervision, or
directly by the commission. In addition, the commission and
the division of tourism shall also have the power and duty:
(1) To acquire for the state in the name of the commission
by purchase, lease or agreement, or accept or reject for the
state, in the name of the commission, gifts, donations,
contributions, bequests or devises of money, security or
property, both real and personal, and any interest in such
property, to effectuate or support the purposes of this
article;
(2) To make recommendations to the governor and the
Legislature of any legislation deemed necessary to facilitate
the carrying out of any of the foregoing powers and duties and to exercise any other power that may be necessary or proper for
the orderly conduct of the business of the commission and the
effective discharge of the duties of the commission; and
(3) To cooperate and assist in the production of motion
pictures and television and other communications.
In addition, the commission shall have such powers as may
be necessary or appropriate to carry out the duties and
programs described in this article.
(d) The commission shall promulgate rules to carry out the
purposes and programs of the division of tourism, to include
generally the programs available and the procedure and
eligibility of applications relating to assistance under such
programs; these rules and regulations shall be subject to the
provisions of chapter twenty-nine-a of this code.
§5B-1-6. Program and policy action statement; submission to
joint committee on government and finance.
The division of tourism, the West Virginia development
office and any other authorities, boards, commissions,
corporations or other entities created or amended under this
chapter and article eleven, chapter eighteen-b of this code,
shall prepare and submit to the joint committee on government and finance on/or before the first day of December, one
thousand nine hundred ninety-five, and each year thereafter, a
program and policy action statement which shall outline in
specific detail according to the purpose, powers and duties of
the office or section, its procedure, plan and program to be
used in accomplishing its goals and duties as required under
this article.
§5B-1-7. Public private partnerships.
(a) The commission is authorized to enter into contractual
or joint venture agreements with a nonprofit corporation
organized pursuant to the corporate laws of the state,
organized to permit qualification pursuant to Section 501(c) of
the Internal Revenue Code and for purposes of the promotion and
development of tourism in West Virginia, and funded from
sources other than the state. Members of the commission are
authorized to sit on the board of directors of the private
nonprofit corporation.
(b) From time to time the commission may enter into joint
ventures wherein the division of tourism and the nonprofit
corporation share in the development and funding of tourism
promotion or development programs.
(c) All contracts and joint venture agreements must be
approved by vote of the commission. Contracts entered into
pursuant to this section for longer than one fiscal year shall
contain, in substance, a provision that the contract shall be
considered canceled without further obligation on the part of
the state if the Legislature or, where appropriate, the federal
government, shall fail to appropriate sufficient funds therefor
or shall act to impair the contract or cause it to be canceled.
§5B-1-8. Tourism promotion fund created; use of funds; and
establishment of tourism promotion fund commission.
There is hereby created in the state treasury, a special
revenue fund to be known as the "tourism promotion fund". It
shall be expended by the West Virginia tourism commission in
the following manner:
(a) A minimum of five percent of the moneys deposited in
the fund each year shall be used solely for direct advertising
for West Virginia travel and tourism:
Provided, That no less
than twenty percent of these funds be expended with the
approval of the director of the division of natural resources
to effectively promote and market the state's parks, state
forests, state recreation areas and wildlife recreational resources. Direct advertising means advertising which is
limited to television, radio, mailings, newspaper, magazines
and outdoor billboards, or any combination thereof;
(b) The balance of the moneys deposited in the fund shall
be used for direct advertising within the state's travel
regions as defined by the commission. The funds shall be made
available to these districts beginning the first day of July,
one thousand nine hundred ninety-five, according to rules
promulgated by the division of tourism; and
(c) All advertising expenditures over twenty-five thousand
dollars from the tourism promotion fund require prior approval
of the commission.
§5B-1-9. Sections continued.
(a) There are hereby continued within the division of
tourism:
(1) The section of tourism;
(2) The section of advertising and promotion; and
(3) The section of sales and marketing.
(b) Each section shall be under the control of an
administrator, to be appointed by the director, who shall be
qualified by reason of exceptional training and experience in the field of activities of the respective section and who shall
serve at the will and pleasure of the director. The tourism
commission shall have authority to establish such additional
sections as it may determine necessary to carry out the
purposes of this article.
§5B-1-10. Section of tourism; purpose; powers and duties
generally.
It shall be the duty of the section of tourism:
(a) To promote and enhance the tourism industry and
improve tourist facilities and attractions;
(b) To compile a list of all tourist facilities in this
state, and develop relative thereto a series of films,
videotapes, pamphlets, brochures and other advertising or
promotional media and to distribute the same in such a manner
as to enhance the public's knowledge about West Virginia and
its many attractions;
(c) To develop a plan for tourist facility expansion and
new development, including financing;
(d) To develop a system, means and mechanism to distribute
the promotional media described in subdivision (b) of this
section, both nationally and internationally; and to make it available to travel agents, tour groups, magazines, radio and
television stations, and the travel editors thereof; to
develop, in cooperation with the division of highways, a series
of information stations along interstate and other major
highways of this state, utilizing existing rest stop areas and
other areas at or near the main points of egress and ingress of
this state, for the purpose of making the information available
to the public at large;
(e) To develop and implement a marketing strategy,
employing radio, television, magazine and newspaper
advertising, or any combination thereof, that would attract
visitors nationally to visit and enjoy the tourist facilities
of this state;
(f) To encourage, cooperate with and participate in, any
group or organization, including regional travel councils, to
promote and advertise, or encourage the use of, tourist
facilities in West Virginia;
(g) To provide professional assistance, technical advice
or marketing strategies to any privately owned facility or
attraction which is open and available to the general public,
which has developed or is attempting to develop its own advertising program;
(h) To assist tour groups, travel agencies, public
carriers and other similar entities in developing a program of
preplanned tours, visits or vacations in the state of West
Virginia; and, in conjunction therewith, to coordinate the
activities of tour groups, travel agencies, public carriers or
other similar entities with the services offered by tourist
facilities and to encourage tourist facilities to offer special
or discount rates to any party traveling with tour groups,
travel agencies, public carriers or other similar entities;
(i) To cooperate with the division of highways in
developing a system of informational highway signing relating
to the recreational, scenic, historic and transportational
facilities and attractions of the state that comply with the
current federal and state regulations on outdoor advertising
and signing as required by the manual of uniform traffic
control devices; and
(j) To perform such other duties or functions, or to
engage in such other activities, as the director may from time
to time direct.
§5B-1-11. Section of advertising and promotion; purpose; powers and duties generally.
It shall be the duty of the section of advertising and
promotion:
(a) To develop films, videotapes, computer software,
phonograph records, tape recordings, pamphlets, brochures,
booklets, information sheets, radio, television or newspaper
advertising, magazine inserts, advertisements or supplements,
billboards or any other thing of like kind or nature which is,
or may be, likely to inform the public at large or any
specifically targeted group or industry about the benefits of
living in, investing in, producing in, buying from, contracting
with, or in any other way related to, the state of West
Virginia or any business, industry, agency, institution or
other entity therein;
(b) To employ or contract with professional or technical
experts or consultants as may be necessary to create and
produce the items set forth in subdivision (a) of this section;
(c) To spend such sums of money as may be necessary,
within legislative appropriation therefor or as otherwise
authorized pursuant to section eight of this article, to
purchase advertising time or space in or upon any medium generally engaged or employed for said purpose to distribute or
disseminate the items of advertising described in subdivision
(d) of this section:
Provided, That of any funds which are
appropriated to the division of tourism and allocated for
purposes of advertising and marketing expenses for the
promotion and development of tourism, not less than twenty
percent of the funds shall be expended with the approval of the
director of the division of natural resources to advertise,
promote and market state parks, state forests, state recreation
areas and wildlife recreational resources;
(d) To use available resources to distribute the items of
advertising and promotion described in subdivision (a) of this
section, to such group or groups, audience or audiences,
corporations, partnerships, associations, including public and
private colleges and universities and to individuals, who or
which are, or may be, interested in some aspect of the state of
West Virginia;
(e) To engage in, participate in, promote or sponsor,
trade shows, fairs, informational seminars or symposiums, or
other similar events, including privately funded trade shows,
fairs, informational seminars or symposiums, or similar event or events of like kind and nature, whether located within or
without this state, or beyond the borders of the United States,
to promote generally the state of West Virginia or to assist
any business, industry or other entity, whether public or
private, in promoting, advertising or advancing the reputation
of the state of West Virginia or any corporation, association,
partnership, institution, business, industry or other entity
which is, or may be, likely to produce additional employment or
employment opportunities or business or business opportunities
in the state of West Virginia; and
(f) To perform such other duties or functions, or to
engage in such other activities, as the director may from time
to time direct.
§5B-1-12. Section of sales and marketing; purpose; powers and
duties generally.
It shall be the duty of the section of sales and
marketing:
(a) To develop programs necessary for the promotion and
marketing of the state's hospitality and tourism industry as
well as its arts, crafts and products, and to implement the
programs in this state, in the United States and in other countries;
(b) To design, develop and create, or to provide for the
design, development and creation of, such films, videotapes,
pamphlets, brochures and other advertising and promotional
media, and to distribute the material in a manner that will
enhance the public's knowledge of the state's hospitality and
tourism industry as well as its arts, crafts and products;
(c) To sponsor or to participate in trade shows, trade
fairs or other events in order to display, sell or increase
public awareness of, the state's hospitality and tourism
industry as well as its arts, crafts and products;
(d) To design and implement a program of direct marketing
of one hospitality and travel industry and direct sales of West
Virginia arts, crafts and products; and to provide for the
publication and distribution of a catalog which adequately
displays and describes the arts, crafts and products being
offered for sale, employing such direct mail or other means of
distribution as the director deems appropriate;
(e) To cooperate with artists, craftsmen, guilds,
cooperatives, industry representatives, professional trade
associations and other organizations, to enhance or promote the state's arts, crafts and products, and to assist these artists,
craftsmen, guilds, cooperatives, industry representatives,
professional trade associations and organizations in the
development of their own marketing programs;
(f) To develop markets in the state of West Virginia,
other states and other nations for arts, crafts and products by
employing persons who shall act as sales agents for said arts,
crafts and products;
(g) To cooperate with other governmental divisions, and
with other groups, guilds, cooperatives, industry
representatives, professional trade associations or other
organizations, whether public or private, to further enhance
and promote the sale, use, distribution or public knowledge of
West Virginia arts, crafts and products; and
(h) To perform such other duties or functions, or to
engage in such other activities, as the director may from time
to time direct.
§5B-1-13. Sunset provision.
Unless sooner terminated by law, the division of tourism
shall terminate on the first day of July, one thousand nine
hundred ninety-seven, in accordance with the provisions of article ten, chapter four of this code.