HB3313 SFA Hamiltion #1 3-9
Lazell 7879
Senator Hamilton moved to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:
(a) Plenary power and authority are hereby conferred upon every county commission to adopt ordinances regulating the repair, alteration, or improvement, or the vacating and closing or removal or demolition, or any combination thereof, of any dwellings or other buildings, except for buildings used for farm agricultural production operations purposes on land actually being used for farming agricultural production as defined in §19-19-2 of this code, unfit for human habitation due to dilapidation, defects increasing the hazard of fire, accidents, or other calamities, lack of ventilation, light or sanitary facilities, or any other conditions prevailing in any dwelling or building, whether used for human habitation or not, which would cause the dwellings or other buildings to be unsafe, unsanitary, dangerous, or detrimental to the public safety or welfare, whether the result of natural or manmade force or effect.
(b) Plenary power and authority are hereby conferred upon every county commission to adopt ordinances regulating the removal and clean up of any accumulation of refuse or debris, overgrown vegetation or toxic spillage or toxic seepage located on private lands which is determined to be unsafe, unsanitary, dangerous, or detrimental to the public safety or welfare, whether the result of natural or manmade force or effect.
(c) The county commission, in formally adopting ordinances, shall designate an enforcement agency which shall consist of the county engineer (or other technically qualified county employee or consulting engineer), county health officer or his or her designee, a fire chief from a county fire company, the county litter control officer, if the commission chooses to hire one, and two members-at-large selected by the county commission to serve two-year terms. The county sheriff shall serve as an ex officio member of the enforcement agency and the county officer charged with enforcing the orders of the county commission under this section.
(d) In addition to the powers and duties imposed by this section, county litter control officers shall have authority to issue citations for open dumps, as prohibited by §22-15-10(a) of this code, unlawful disposal of litter, as prohibited by §22-15A-4 of this code, and failure to provide proof of proper disposal of solid waste, as prohibited by §22C-4-10(a) of this code, after completing a training course offered by the West Virginia Department of Environmental Protection: Provided, That any litter control officer who is trained and certified as a law-enforcement officer and whose certification is active has the same authority as any other law-enforcement officer to enforce all litter laws in this code. Nothing in this subsection supersedes the authority or duty of the Department of Environmental Protection or other law-enforcement officers to preserve law and order and enforce the litter control program.
(e) Any ordinance adopted pursuant to the provisions of this section shall provide fair and equitable rules of procedure and any other standards considered necessary to guide the enforcement agency, or its agents, in the investigation of dwelling or building conditions, accumulation of refuse or debris, overgrown vegetation, or toxic spillage or toxic seepage and shall provide for fair and equitable rules of procedure for instituting and conducting hearings in the matters before the county commission. Any entrance upon premises for the purpose of making examinations shall be made in a manner that causes the least possible inconvenience to the persons in possession.
(f) (1) Complaints authorized by this section shall be brought before the county commission. Complaints shall be initiated by citation issued by the county litter control officer or petition of the county engineer (or other technically qualified county employee or consulting engineer) on behalf of and at the direction of the enforcement agency, but only after that agency has investigated and determined that any dwelling, building, accumulation of refuse or debris, overgrown vegetation, or toxic spillage or toxic seepage is unsafe, unsanitary, dangerous, or detrimental to the public safety or welfare and should be repaired, altered, improved, vacated, removed, closed, cleaned, or demolished.
(2) The county commission shall cause the owner or owners of the private land in question to be served with a copy of the complaint. Service shall be accomplished in the manner provided in rule four of the West Virginia Rules of Civil Procedure.
(3) The complaint shall state the findings and recommendations of the enforcement agency and that unless the owner or owners of the property file with the clerk of the county commission a written request for a hearing within 10 days of receipt of the complaint, an order will be issued by the county commission implementing the recommendations of the enforcement agency.
(4) If the owner or owners of the property file a request for a hearing, the county commission shall issue an order setting this matter down for hearing within 20 days. Hearings shall be recorded by electronic device or by court reporter. The West Virginia Rules of Evidence do not apply to the proceedings, but each party has the right to present evidence and examine and cross-examine all witnesses.
(5) The enforcement agency has the burden of proving its allegation by a preponderance of the evidence and has the duty to go forward with the evidence.
(6) At the conclusion of the hearing, the county commission shall make findings of fact, determinations, and conclusions of law as to whether the dwelling or building: Is unfit for human habitation due to dilapidation; has defects that increase the hazard of fire, accidents, or other calamities; lacks ventilation, light, or sanitary facilities; or any other conditions prevailing in the dwelling or building, whether used for human habitation or not and whether the result of natural or manmade force or effect, which would cause the dwelling or other building to be unsafe, unsanitary, dangerous, or detrimental to the public safety or welfare; or whether there is an accumulation of refuse or debris, overgrown vegetation, toxic spillage or toxic seepage on private lands which is determined to be unsafe, unsanitary, dangerous, or detrimental to the public safety or welfare, whether the result of natural or manmade force or effect.
(7) The county commission has authority to order the owner or owners thereof to repair, alter, improve, vacate, remove, close, clean up, or demolish the dwelling or building in question or to remove or clean up any accumulation of refuse or debris, overgrown vegetation, or toxic spillage or toxic seepage within a reasonable time and to impose daily civil monetary penalties on the owner or owners who fail to obey an order.
(8) Appeals from the county commission to the circuit court shall be in accordance with the provisions of §58-3-1 et seq. of this code.
(g) Upon the failure of the owner or owners of the private land to perform the ordered duties and obligations as set forth in the order of the county commission, the county commission may advertise for and seek contractors to make the ordered repairs, alterations, or improvements or the ordered demolition, removal, or clean up. The county commission may enter into any contract with any contractor to accomplish the ordered repairs, alterations, or improvements or the ordered demolition, removal, or clean up.
(h) A civil proceeding may be brought in circuit court by the county commission against the owner or owners of the private land or other responsible party that the subject matter of the order of the county commission to subject the private land in question: (1) To a lien for the amount of the contractor’s costs in making these ordered repairs, alterations, or improvements or ordered demolition, removal, or clean up, together with any daily civil monetary penalty imposed; (2) to order and decree the sale of the private land in question to satisfy the lien; (3) to order and decree that the contractor may enter upon the private land in question at any and all times necessary to make ordered repairs, alterations, or improvements, or ordered demolition, removal, or clean up; and (4) to order the payment of all costs incurred by the county with respect to the property and for reasonable attorney fees and court costs incurred in the prosecution of the action.
(i) County commissions may receive and accept grants, subsidies, donations, and services in kind consistent with the objectives of this section.
In addition to all other powers and duties now conferred by law upon county commissions, commissions are hereby authorized to enact ordinances, issue orders and take other appropriate and necessary actions for the elimination of hazards to public health and safety and to abate or cause to be abated anything which the commission determines to be a public nuisance. The ordinances may provide for a misdemeanor penalty for its violation. The ordinances may further be applicable to the county in its entirety or to any portion of the county as considered appropriate by the county commission: Provided, That county commissions may not establish or approve ordinances, rules, regulations, or take other actions that cancel or alter the purchase, use, or application of any federal or state registered pesticides, herbicides, or insecticide products.
Notwithstanding §7-1-3 of this code, the county commission may not establish or approve ordinances, rules, regulations, license requirements or any other authorization of agricultural production operations as defined in §19-19-2 of this code that duplicate or exceed contravene or are stricter than any state law or regulations for the purpose of the establishment, expansion, or continuation of agricultural businesses. Furthermore, all existing ordinances, rules, regulations, licensing, or any other county authority enacted by county commissions regarding agricultural production operations as defined in §19-19-2 of this code are hereby declared invalid and unenforceable to the extent that they contravene or are stricter than any state law or regulation for the purpose of the establishment, expansion, or continuation of agricultural businesses.
Nothing in this section applies to federal law.
(a) Notwithstanding any provision of this code to the contrary, any county commission may adopt ordinances, rules and regulations providing for the custody and care of animals that have been abandoned, neglected or cruelly treated for the protection of any such animal and to prevent it from becoming a public nuisance or risk to public health or safety or the environment: Provided, That the county commission may not establish or approve ordinances, rules, or regulations that duplicate or exceed chapter 19 of this code.
(b) Any such ordinance, rule, or regulation may require each owner to provide for each of his or her animals:
(1) Adequate food which provides sufficient quantity and nutritive value to maintain each animal in good health;
(2) Adequate water which provides easy access to clean, fresh, potable water of a drinkable temperature in sufficient volume and suitable intervals to maintain normal hydration for each animal;
(3) Adequate shelter to protect the animal from the elements and other animals;
(4) Adequate space in the primary enclosure for the particular animal depending upon its age, size, species and weight which is regularly cleaned to prevent an unsanitary accumulation of urine and feces;
(5) Adequate exercise to assure that the animal maintains normal muscle tone and mass for the age, species, size, and condition of the animal; and
(6) Veterinary care when needed or to prevent suffering or disease transmission.
(c) Any such ordinance, rule, or regulation may limit the number of animals owned, kept, or maintained by an individual, group or organization, whether public or private, based on the person’s ability to provide for the animals as set forth in subsection (b) of this section.
(d) Any such ordinance, rule, or regulation shall provide appropriate penalties for violations and shall authorize humane officers to take possession of any animal that is not properly cared for as required by such ordinance, rule, or regulation.
For the purposes of this article:
(a) "Agriculture" shall mean the production of food, fiber, and woodland products, by means of cultivation, tillage of the soil, and by the conduct of animal, livestock, dairy, apiary, equine or poultry husbandry, and the practice of forestry, silviculture, horticulture, harvesting of silviculture products, packing, shipping, milling, and marketing, which for purposes of this definition would include storage, preparation, presentation, auctioning, and transport of agricultural products conducted by the proprietor of the agricultural operation of agricultural products, or any other legal plant or animal production and all farm practices.
(b) "Agricultural land" shall mean any amount of land and the improvements thereupon, used or usable in the production of food, fiber, or woodland products of an annual value of $1,000 or more, by the conduct of the business of agriculture, as defined in subsection (a) of this section.
(c) "Agricultural operation" shall mean any facility or equipment as defined in §19-39-2 of this code utilized for agriculture.
ARTICLE 39. EQUIPMENT RIGHT TO REPAIR ACT.
This article shall be known and cited as the Equipment Right to Repair Act.
(a) "Authorized repair provider" means a person or entity that has an arrangement for a definite or indefinite period in which a manufacturer grants, to a separate person or entity, a license to use a tradename, service mark, or related characteristic for purposes of offering the services of diagnosis, maintenance, or repair of equipment under the name of the original equipment manufacturer. An original equipment manufacturer who offers the services of diagnosis, maintenance, or repair of its own equipment, and who does not have an arrangement described in this subsection with an unaffiliated individual or business, shall be considered an authorized repair provider with respect to such equipment.
(b) "Commissioner" means the Commissioner of the Department of Agriculture.
(c) "Documentation" means any manual, diagram, reporting output, service code description, schematic diagram, security codes, passwords, or other guidance or information used in effecting the services of diagnosis, maintenance, or repair of equipment.
(d) "Embedded software" means any programmable instructions provided on firmware, and all relevant patches and fixes made by the manufacturer, delivered with equipment and used for its operation. "Embedded software" includes a basic internal operating system, an internal operating system, a machine code, an assembly code, a root code, a microcode, and other similar components.
(e) "Equipment" means:
(1) For farm equipment: Equipment that is used or intended for use in a farm or ranch operation, including, but not limited to, a combine, farm tractor, trailer, sprayer, tillage implement, baler, engine, motor, other equipment used to plant, cultivate, irrigate, or harvest agricultural products or to ranch, and attachments and repair parts for farm equipment, but excluding a motor vehicle designed primarily for transporting persons or property on public roadways.
(2) For forestry equipment: Equipment that includes, but is not limited to, sawmill operations, heavy forestry vehicles used in logging operations for felling, delimbing, skidding, and processing logs, and includes attachments and repair parts for forestry equipment.
(3) For lawn and garden equipment: equipment that includes, but is not limited to, lawn mowers and tractors, yard power equipment, lawn and garden care equipment, and any tool or equipment used for landscaping or working in gardens or yards.
(f) "Fair and reasonable terms" means, with respect to a part, tool, software, or documentation offered by an original equipment manufacturer:
(1) For parts:
(A) Costs that are fair to both parties, considering the agreed-upon conditions, promised quality, and timeliness of delivery. "Fair and reasonable" costs are subject to statutory and regulatory limitations; and
(B) On terms that:
(i) Do not impose on an owner or an independent repair provider any substantial obligation to use or any restriction on the use of the part to diagnose, maintain, or repair equipment sold, leased, or otherwise supplied by the original equipment manufacturer, including a condition that the owner or independent repair provider become an authorized repair provider of the original equipment manufacturer, or a requirement that a part be registered, paired with, or approved by the original equipment manufacturer or an authorized repair provider before such part is operational; and
(ii) Prohibit an original equipment manufacturer from imposing any additional cost or burden that is not reasonably necessary or is designed to be an impediment on the owner or independent repair provider.
(2) For tools and documentation:
(A) Costs that are equivalent to the lowest actual cost for which the original equipment manufacturer offers the tool, software, or documentation to an authorized repair provider, including any discount, rebate, or other financial incentive offered to an authorized repair provider; and
(B) On terms that:
(i) Are equivalent to the most favorable terms under which an original equipment manufacturer offers the part, tool, software, or documentation to an authorized repair provider, including the methods and timeliness of delivery of the part, tool, software, or documentation;
(ii) Do not impose on an owner or an independent repair provider any substantial obligation to use or any restriction on the use of the tool, software, or documentation to diagnose, maintain, or repair equipment sold, leased, or otherwise supplied by the original equipment manufacturer, including a condition that the owner or independent repair provider become an authorized repair provider of the original equipment manufacturer, or a requirement that a tool be registered, paired with, or approved by the original equipment manufacturer or an authorized repair provider before such part or tool is operational; and
(iii) Prohibit an original equipment manufacturer from imposing any additional cost or burden that is not reasonably necessary or is designed to be an impediment on the owner or independent repair provider.
(3) For documentation: "Fair and reasonable terms" also means that the documentation is made available by the original equipment manufacturer at no charge, except that, when the documentation is requested in physical printed form, a charge may be included for the reasonable actual costs of preparing and sending the copy.
(g) "Firmware" means a software program or set of instructions programmed on a hardware device to allow the device to communicate with other computer hardware.
(h) "Independent repair provider" means a person or business operating in the state that is not affiliated with an original equipment manufacturer, or its authorized repair provider, other than through an arrangement with the manufacturer, whether for a definite or indefinite period, which is engaged in the services of diagnosis, maintenance, or repair of equipment, and related attachments and repair parts.
(i) "Original equipment manufacturer" or "manufacturer" means a business engaged in the business of selling, leasing, or otherwise supplying new equipment manufactured by or on behalf of itself, to any individual or business.
(j) "Owner" means an individual or business who owns or leases equipment purchased or used in this state.
(k) "Part" means any replacement part, whether new or used, made available by an original equipment manufacturer to an authorized repair provider for purposes of effecting the services of maintenance or repair of equipment manufactured by or on behalf of, sold, or otherwise supplied by the original equipment manufacturer.
(l) "Tools" means any software program, hardware implement, or other apparatus used for diagnosis, maintenance, or repair of equipment, including software or other mechanisms that provision, program, or pair a new part, calibrate functionality, or perform any other function required to bring the product back to fully functional condition, including any updates.
(m) "Trade Secret" means the same as defined in 18 U.S.C. § 1839(3).
§19-39-3. Jurisdiction of the commissioner.
The commissioner is vested with jurisdiction over all aspects of this article and has exclusive authority to perform all acts necessary to implement this article.
§19-39-4. Requirements.
(a) A manufacturer of equipment sold or leased, offered for sale or lease, or used in this state, shall make available to any independent repair provider and owner of equipment, on fair and reasonable terms, any documentation, parts, and tools, required for the diagnosis, maintenance, or repair of the equipment, inclusive of any technical updates and corrections to embedded software or information. This requirement also applies to any attachments or parts for the equipment. The documentation, parts, and tools shall be made available to any independent repair provider and owner of equipment on the same conditions, and in the same timeframe, as the manufacturer makes diagnostic, service, or repair documentation available to an authorized repair provider.
(b) For equipment, attachments, or parts that contain an electronic security lock or other security-related function, the original equipment manufacturer shall make available to any owner and independent repair provider, on fair and reasonable terms, any special documentation, tools, and parts needed to access and reset the lock or function when disabled in the course of diagnosis, maintenance, or repair of such equipment, attachments, or parts. Such documentation, tools, and parts may be made available through appropriate secure release systems.
§19-39-5. Limitations.
(a) Nothing in this article shall require a manufacturer to divulge any trade secret to any owner or independent repair provider.
(b) Nothing in this article shall abrogate, interfere with, contradict, or alter the terms of any authorized repair agreement executed and in force between an authorized repair provider and manufacturer, including, but not limited to, the performance or provision of warranty or recall repair work by an authorized repair provider on behalf of a manufacturer pursuant to the agreement, except that any provision in the agreement purporting to waive, avoid, restrict, or limit the manufacturer's or authorized repair provider’s compliance with this article shall be void.
(c) A manufacturer or authorized repair provider shall not be required to provide an owner or independent repair provider access to non-diagnostic and repair documentation provided by the manufacturer to an authorized repair provider pursuant to the terms of an authorizing agreement.
(d) No original equipment manufacturer or authorized repair provider shall be liable for any damage or injury caused to any equipment, attachments, or parts by an independent repair provider or owner which occurs during the course of repair, diagnosis, or maintenance.
§19-39-6. Prohibitions.
Independent repair providers and owners may not modify or disable any:
(1) Software for horsepower or emission control systems installed on any new equipment, attachments, or parts sold, leased, or used in this state; or
(b) Safety features installed on any new equipment, attachments, or parts sold, leased, or used in this state.
§19-39-7. Rulemaking.
The commissioner shall propose rules for legislative approval and promulgate emergency rules in accordance with the provisions of §29A-3-1 et seq. of this code to implement this article, including establishing a mechanism for the administrative resolution of violations of this article and the assessment and collection of civil penalties by consent order or agreement as an alternative to instituting a civil action. Furthermore, all existing ordinances, rules, regulations, licensing, or any other county authority enacted by county commissions regarding agricultural production operations as defined in §19-19-2 of this code are hereby declared invalid and unenforceable to the extent that they contravene or are stricter than any rule which implements this article.
§19-39-8. Violations; civil penalties; injunctive relief.
(a) Any manufacturer, authorized repair provider, independent repair provider, or owner that violates any provision of this article or rule promulgated hereunder, is liable for a civil penalty of not less than $1,000 for each violation. Each day a violation continues after notice by the commissioner constitutes a separate violation. The penalty may be recovered by a civil action brought by the commissioner, in the name of the state, in the circuit court of Kanawha County or in the circuit court of the county in which the violation occurred or is occurring.
(b) Upon application by the commissioner, the circuit courts of the state or the judges thereof in vacation may by injunction, compel compliance with, and enjoin any violation of this article or rule promulgated hereunder or the terms and conditions of any consent order or agreement. The court or the judge thereof in vacation may issue a temporary or preliminary injunction in any case pending a decision on the merits of any injunction application filed. Notwithstanding any other provision of this code to the contrary, the state is not required to furnish bond as a prerequisite to obtaining injunctive relief under this article. An application for an injunction under the provisions of this section may be filed and injunctive relief granted notwithstanding that all the administrative remedies provided for in this article or rule have not been pursued or invoked against the person or persons against whom such relief is sought.
(c) Legal counsel and services for the commissioner in all civil penalty and injunction proceedings in the circuit court and in the Supreme Court of Appeals of this state shall be provided by the Attorney General or his or her assistants and by the prosecuting attorneys of the several counties as well, all without additional compensation, or the commissioner, with the written approval of the Attorney General, may employ counsel to represent him or her in a particular proceeding.
§19-39-9. Applicability.
This bill applies to equipment, attachments, and parts sold, leased, or in use in this state on and after the effective date of this article.
§19-39-10. Effective date.
This article shall take effect on July 1, 2023.
Adopted
Rejected