COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 33
(By Senators Tomblin, Mr. President, and Boley,
By Request of the Executive)
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[Originating in the Committee on Government Organization;
reported February 23, 1995.]
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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.