COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 494
(By Senators Hunter, Unger, Oliverio, Caldwell, Minard, Dempsey,
Kessler, Weeks, Rowe, McCabe, Bowman, Prezioso, White, Love,
Jenkins, Boley, Deem, Sharpe, Plymale, Helmick, Edgell, Chafin,
Bailey, Fanning, Ross, Smith, Minear, Facemyer, Guills and
Tomblin, Mr. President)
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[Originating in the Committee on the Judiciary;
reported February 24, 2003.]
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A BILL to amend the code of West Virginia, one thousand nine
hundred thirty-one, as amended, by adding thereto a new
chapter, designated chapter twenty-four-f, relating to
authorizing the public service commission to regulate
transactions between cemeteries, companies that set and
install memorial head markers and veterans or their survivors
concerning fees for setting United States department of
veterans' affairs grave markers at the graves of deceased
veterans; legislative findings; exemptions; enforcement of
orders; judicial review; and designation of the affected
cemeteries as outside the purview of utility regulation.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended by adding thereto a new chapter,
designated chapter twenty-four-f, to read as follows:
CHAPTER 24F. VETERANS' GRAVE MARKERS.
ARTICLE 1. VETERANS' GRAVE MARKERS.
§24F-1-1. Legislative findings.
(a) The Legislature finds that it is in the public interest to
regulate transactions between cemeteries, companies that set and
install memorial monument markers and veterans in the fees and
total charges for the setting of United States department of
veterans' affairs grave markers at the graves of deceased United
States armed forces veterans by authorizing the public service
commission to regulate the fees and total charges.
(b) The Legislature further finds that the public service
commission is the appropriate agency to determine the reasonable
rates to be charged by these cemeteries and companies that set and
install memorial monument markers for the setting of these markers.
§24F-1-2. Powers and duties.
(a) In addition to its other powers and duties, the public
service commission may determine, establish and modify, in a manner
that it considers appropriate, the fees and total charges imposed
by cemeteries and companies that set and install memorial monument
markers for the setting of United States department of veterans' affairs grave markers at the graves of deceased United States armed
forces veterans.
If the commission establishes fees and total charges as
authorized by this section, its shall establish:
(1) A maximum fee schedule to be designated "the regional
perpetual care fees" which represents the costs to a cemetery for
the initial care of the grave marker; and
(2) A maximum fee schedule to be designated as "the regional
installation fees" which represents the costs of installation of
the grave marker.
Any fees established under this section shall consider
regional market forces and may consider classes of veterans'
markers or any other relevant conditions. The fees described in
this section, when added together, shall be designated as the
"total charges" permitted for the installation of a veteran's
affairs memorial marker. No other fees, charges or other costs may
be assessed to the veteran's estate or family for the installation
or maintenance of the veteran's grave marker.
(b) Any fees and total charges established by the public
service commission may only apply to the installation of memorial
markers that are provided to the veteran without charge by the U.
S. government upon application.
§24F-1-3. Cemeteries and companies that set and install memorial
monument markers affected by rate regulation for setting of department of veterans' affairs grave markers.
Unless otherwise exempted in accordance with section six,
article five-a, chapter thirty-five of this code, all cemeteries,
cemetery associations, cemetery companies and perpetual care
cemetery companies, irrespective of how each may be defined in
articles five, five-a and five-b, chapter thirty-five of this code,
and companies that set and install memorial monument markers fall
within the purview of the regulatory powers exercised by the public
service commission in accordance with this chapter.
§24F-1-4. Enforcement powers.
The public service commission may compel obedience to its
lawful orders, as issued pursuant to this chapter, by mandamus or
injunction or other proper proceedings in the name of the state in
any circuit court having jurisdiction of the parties or of the
subject matter, or the supreme court of appeals direct, and the
proceedings shall have priority over all pending cases.
§24F-1-5. Review of final orders of commission.
Any party feeling aggrieved by the entry of a final order by
the commission, which affects that party, may present a petition in
writing to the supreme court of appeals, or to a judge thereof in
vacation, within thirty days after the entry of the order praying
for the suspension of the final order. The applicant shall deliver
a copy of the petition to the secretary of the commission on or
before the date the petition is presented to the court or the judge and the secretary shall promptly file with the clerk of the court
all papers, documents, evidence and other records constituting the
complete record in the case or certified copies of the records that
were before the commission at the time of the entry of the order
which is appealed. The court or judge shall fix a time for the
hearing on the application, but the hearing, unless by agreement of
the parties, may not be held sooner than five days after its
presentation; and notice of the time and place of the hearing shall
be immediately delivered to the secretary of the commission. The
commission may be represented at the hearing by one or more of its
members or by counsel. After hearing the appeal, if the court or
judge is of the opinion that an order suspending order should be
issued, the court or the judge may require bond, upon reasonable
conditions and in reasonable penalty, and impose terms and
conditions upon the petitioner that are just and reasonable.
Before the day fixed for the final hearing, the commission shall
file a written statement of its reasons for the entry of the order
with the court. After arguments by counsel, the court shall decide
the matter in controversy.
§24F-1-6. Cemeteries and companies that set and install memorial
monument markers not regulated as utilities.
No provision of this chapter may be construed to grant the
public service commission the power to regulate an affected
cemetery or a company that sets and installs memorial monument markers as a utility.
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(NOTE: The purpose of this bill is to require the public
service commission to regulate transactions between cemeteries,
companies that set and install memorial monument markers and
veterans or their survivors for the limited purpose of setting fees
for the placement of United States department of veterans' affairs
grave markers at the graves of deceased veterans. The bill makes
clear that the cemeteries and companies that set and install
memorial monument markers are not being regulated as utilities.
This chapter is new; therefore strike-throughs and
underscorings have been omitted.)