H. B. 2365
(By Delegates Kominar, Amores, Givens,
Pino, Stemple and L. White)
[Introduced February 20, 2001; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section nine, article thirteen-a,
chapter sixteen of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to public
service districts; and providing that unpaid charges for
services do not become a lien against the owner of real
property, nor is the owner liable for the charges unless the
owner contracted directly with the provider for the
services.
Be it enacted by the Legislature of West Virginia:
That section nine, article thirteen-a, chapter sixteen of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 13A. PUBLIC SERVICE DISTRICTS FOR WATER, SEWERAGE AND GAS SERVICES.
§16-13A-9. Rules; service rates and charges; discontinuance of
service; failure to cure delinquency; civil
actions; deferral of filing fees and costs in
magistrate court action; limitations with respect
to foreclosure; lien for delinquent service rates
or charges; required water and sewer connections.
(a) The board may make, enact and enforce all needful rules
and regulations in connection with the acquisition, construction,
improvement, extension, management, maintenance, operation, care,
protection and the use of any public service properties owned or
controlled by the district, and the board shall establish rates
and charges for the services and facilities it furnishes, which
shall be sufficient at all times, notwithstanding the provisions
of any other law or laws, to pay the cost of maintenance,
operation and depreciation of such the public service properties
and principal of and interest on all bonds issued, other
obligations incurred under the provisions of this article and all
reserve or other payments provided for in the proceedings which
authorized the issuance of any bonds hereunder. The schedule of
such the rates and charges may be based upon either: (a) (1) The
consumption of water or gas on premises connected with such the facilities, taking into consideration domestic, commercial,
industrial and public use of water and gas; or (b) (2) the number
and kind of fixtures connected with such the facilities located
on the various premises; or (c) (3) the number of persons served
by such the facilities; or (d) (4) any combination thereof; or
(e) (5) may be determined on any other basis or classification
which the board may determine to be fair and reasonable, taking
into consideration the location of the premises served and the
nature and extent of the services and facilities furnished.
Where water, sewer and gas services are all furnished to any
premises, the schedule of charges may be billed as a single
amount for the aggregate thereof. The board shall require all
users of services and facilities furnished by the district to
designate on every application for service whether the applicant
is a tenant or an owner of the premises to be served. If the
applicant is a tenant, he or she shall state the name and address
of the owner or owners of the premises to be served by the
district. All new applicants for service shall deposit a minimum
of fifty dollars with the district to secure the payment of
service rates and charges in the event they become delinquent as
provided in this section. In any case where a deposit is forfeited to pay service rates and charges which were delinquent
at the time of disconnection or termination of service, no
reconnection or reinstatement of service may be made by the
district until another minimum deposit of fifty dollars has been
remitted to the district. Whenever any rates, rentals or charges
for services or facilities furnished remain unpaid for a period
of thirty days after the same become due and payable, the
property and the owner thereof, as well as the user of the
services and facilities provided are delinquent and the owner,
user and property are liable at law until such time as all such
rates and charges are fully paid: Provided, That the property
owner shall be given notice of any said delinquency by certified
mail, return receipt requested. The board may, under reasonable
rules promulgated by the public service commission, shut off and
discontinue water or gas services to all delinquent users of
either water or gas facilities, or both: Provided, however, That
upon written request of the owner or owners of the premises, the
board shall shut off and discontinue water and gas services where
any rates, rentals, or charges for services or facilities remain
unpaid by the user of the premises for a period of sixty days
after the same became due and payable.
(b) Whenever any rates and charges for services or
facilities furnished remain unpaid for a period of thirty days
after they become due and payable, the user of the services and
facilities provided is delinquent and shall be held liable at law
until such time as all the rates and charges are fully paid.
(c) All rates or charges whenever delinquent, as provided by
ordinance of the public service district, are liens of equal
dignity, rank and priority with the lien on the premises of
state, county, school and municipal taxes for the amount thereof
upon the real property served, and the public service district
has plenary power and authority from time to time to enforce the
lien in a civil action to recover the money due for the services
rendered plus court fees and costs and reasonable attorney fees:
Provided, That an owner of real property may not be held liable
for the delinquent rates or charges for services or facilities of
a tenant, nor may any lien attach to real property for the reason
of delinquent rates or charges for services or facilities of a
tenant of the real property, unless the owner has contracted
directly with the public service district to purchase the
services or facilities.
(d) Public service districts are hereby granted a deferral of filing fees or other fees and costs incidental to the bringing
and maintenance of an action in magistrate court for the
collection of the delinquent rates and charges. If the public
service district collects the delinquent account, plus fees and
costs, from its customer or other responsible party, the public
service district shall pay to the magistrate court the filing
fees or other fees and costs which were previously deferred.
(e) No public service district may foreclose upon the
premises served by it for delinquent rates, fees or charges for
which a lien is authorized by this section except through the
bringing and maintenance of a civil action for such purpose
brought in the circuit court of the county wherein the public
service district lies. In every such action, the court is
required to make a finding based upon the evidence and facts
presented that the public service district had exhausted all
other remedies for the collection of debts with respect to the
delinquencies prior to the bringing of the action. In no event
may foreclosure procedures be instituted by any public service
district or on its behalf unless the delinquency had been in
existence or continued for a period of two years from the date of
the first delinquency for which foreclosure is being sought.
(f) In the event that any publicly or privately owned
utility, city, incorporated town, other municipal corporation or
other public service district included within the district owns
and operates separately either water facilities or sewer
facilities, and the district owns and operates the other kind of
facilities, either water or sewer, as the case may be, then the
district and such the publicly or privately owned utility, city,
incorporated town or other municipal corporation or other public
service district shall covenant and contract with each other to
shut off and discontinue the supplying of water service for the
nonpayment of sewer service fees and charges: Provided, That any
contracts entered into by a public service district pursuant to
this section shall be submitted to the public service commission
for approval. Any public service district providing water and
sewer service to its customers has the right to terminate water
service for delinquency in payment of either water or sewer
bills. Where one public service district is providing sewer
service and another public service district or a municipality
included within the boundaries of the sewer district is providing
water service, and the district providing sewer service
experiences a delinquency in payment, the district or the municipality included within the boundaries of the sewer district
that is providing water service, upon the request of the district
providing sewer service to the delinquent account, shall
terminate its water service to the customer having the delinquent
sewer account: Provided, however, That any termination of water
service must shall comply with all rules and orders of the public
service commission.
(g) Any district furnishing sewer facilities within the
district may require, or may by petition to the circuit court of
the county in which the property is located, compel or may
require the bureau of public division of health to compel all
owners, tenants or occupants of any houses, dwellings and
buildings located near any such sewer facilities, where sewage
will flow by gravity or be transported by such any other methods
approved by the bureau of public division of health, including,
but not limited to, vacuum and pressure systems, approved under
the provisions of section nine, article one, chapter sixteen of
this code, from such the houses, dwellings or buildings into such
the sewer facilities, to connect with and use such the sewer
facilities, and to cease the use of all other means for the
collection, treatment and disposal of sewage and waste matters from such the houses, dwellings and buildings where there is such
gravity flow or transportation by such any other methods approved
by the bureau of public division of health including, but not
limited to, vacuum and pressure systems, approved under the
provisions of section nine, article one, chapter sixteen of this
code, and such the houses, dwellings and buildings can be
adequately served by the sewer facilities of the district, and it
is hereby found, determined and declared that the mandatory use
of such the sewer facilities provided for in this paragraph
section is necessary and essential for the health and welfare of
the inhabitants and residents of such the districts and of the
state: Provided, That if the public service district determines
that the property owner must shall connect with the sewer
facilities even when sewage from such the dwellings may not flow
to the main line by gravity and the property owner must shall
incur costs for any changes in the existing dwellings' exterior
plumbing in order to connect to the main sewer line, the public
service district board shall authorize the district to pay all
reasonable costs for such the changes in the exterior plumbing,
including, but not limited to, installation, operation,
maintenance and purchase of a pump, or any other method approved by the bureau of public division of health; maintenance and
operation costs for such the extra installation should be
reflected in the users charge for approval of the public service
commission. The circuit court shall adjudicate the merits of
such the petition by summary hearing to be held not later than
thirty days after service of petition to the appropriate owners,
tenants or occupants.
(h) Whenever any district has made available sewer
facilities to any owner, tenant or occupant of any house,
dwelling or building located near such the sewer facility, and
the engineer for the district has certified that such the sewer
facilities are available to and are adequate to serve such the
owner, tenant or occupant, and sewage will flow by gravity or be
transported by such any other methods approved by the bureau of
public division of health from such the house, dwelling or
building into such the sewer facilities, the district may charge,
and such the owner, tenant or occupant shall pay the rates and
charges for services established under this article only after
thirty-day notice of the availability of the facilities has been
received by the owner.
(i) All delinquent fees, rates and charges of the district for either water facilities, sewer facilities or gas facilities
are liens on the premises served of equal dignity, rank and
priority with the lien on such premises of state, county, school
and municipal taxes. In addition to the other remedies provided
in this section, public service districts are hereby granted a
deferral of filing fees or other fees and costs incidental to the
bringing and maintenance of an action in magistrate court for the
collection of delinquent water, sewer or gas bills. If the
district collects the delinquent account, plus reasonable costs,
from its customer or other responsible party, the district shall
pay to the magistrate the normal filing fee and reasonable costs
which were previously deferred. In addition, each Each public
service district may exchange with other public service districts
a list of delinquent accounts.
(j) Anything in this section to the contrary
notwithstanding, any establishment, as defined in section three,
article eleven, chapter twenty-two, now or hereafter operating
its own sewage disposal system pursuant to a permit issued by the
division of environmental protection, as prescribed by section
eleven, article eleven, chapter twenty-two of this code, is
exempt from the provisions of this section.
NOTE: The purpose of this bill is to eliminate landlord
liability for a tenant's delinquent utility accounts.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.