Senate Bill No. 28
(By Senators Minear, Mitchell, McKenzie and Sprouse)
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[Introduced February 14, 2001; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact section twelve-a, article nineteen,
chapter eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
section nine, article thirteen-a, chapter sixteen of said
code, all relating to public service districts; municipal and
county waterworks and electric power systems; public utility
services; 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 twelve-a, article nineteen, chapter eight of the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that section nine, article
thirteen-a, chapter sixteen of said code be amended and reenacted,
all to read as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 19. MUNICIPAL AND COUNTY WATERWORKS AND ELECTRIC POWER
SYSTEMS.
§8-19-12a. Lien for delinquent service rates and charges;
failure to cure delinquency; civil actions;
deferral of filing fees and costs in magistrate
court action; limitations with respect to
foreclosure.
(a) 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 is liable at law until the time all the
rates and charges are fully paid.
(b) All rates or charges for water service and sewer service
whenever delinquent, as provided by ordinance of the municipality
or order of the county commission, 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 municipality or county commission 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 a reasonable attorney's fee: 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 municipality or county commission to purchase the services or
facilities.
(c) Municipalities or county commissions are 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
municipality or county commission collects the delinquent account,
plus fees and costs, from its customer or other responsible party,
the municipality or county commission shall pay to the magistrate
court the filing fees or other fees and costs which were previously
deferred.
(d) No municipality or county commission 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 where the municipality or county
commission lies. In every such action, the court is required to
make a finding based upon the evidence and facts presented that the
municipality or county commission 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 municipality or county commission
or on its behalf unless the delinquency has been in existence or
continued for a period of two years from the date of the first
delinquency for which foreclosure is being sought.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 13A. PUBLIC SERVICE DISTRICTS FOR WATER, SEWERAGE AND GAS
SERVICES.
§16-13A-9. Rules; service rates and charges; discontinuance of
service; required water and sewer connections; lien
for delinquent fees.
(a)(1) 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 under this article. The schedule
of such the rates and charges may be based upon either:
(A) 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) The number and kind of fixtures connected with such the
facilities located on the various premises; or
(C) The number of persons served by such the facilities; or
(D) Any combination thereof of paragraphs (A), (B) and (C) of
this subdivision; or
(e) (E) 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.
(2) 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 of the charges. 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 is liable until the time all the rates
and charges are fully paid.
(c) All rates or charges for water service and sewer service
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 of the charges upon the real property served. 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 a
reasonable attorney's fee: 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 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 where 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 has 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 has 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 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
requires the property owner must to 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 incur incurs
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 shall 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 the 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 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.
§8-19-12a has been completely rewritten; therefore,
strike-throughs and underscoring have been omitted.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.