WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-SIXTH LEGISLATURE

REGULAR SESSION, 2003

SECOND DAY

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Charleston, W. Va., Thursday, January 9, 2003

     The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)

     Prayer was offered by the Reverend Paul J. Wharton, St. Anthony's Shrine, Boomer, West Virginia, and Immaculate Conception Catholic Church, Montgomery, West Virginia.
     Pending the reading of the Journal of Wednesday, January 8, 2003,
     On motion of Senator Kessler, the Journal was approved and the further reading thereof dispensed with.
     The Senate proceeded to the second order of business and the introduction of guests.
     The Clerk presented a communication from the Board of Barbers and Cosmetologists, submitting its annual report as required by chapter sixteen, article one, section six of the code of West Virginia.
     Which report was received and filed with the Clerk.
     The Clerk presented a communication from the Board of Examiners for Registered Professional Nurses, submitting its annual report, in accordance with chapter thirty, article twenty-four, section seven of the code of West Virginia.
     Which report was received and filed with the Clerk.
     The Clerk presented a communication from the Division of Natural Resources, submitting its annual report as required by chapter twenty, article one, section seven of the code of West Virginia.
     Which report was received and filed with the Clerk.
     The Clerk presented a communication from the Division of Personnel, submitting its annual report, in accordance with chapter twenty-nine, article six, section seven of the code of West Virginia.
     Which report was received and filed with the Clerk.
     The Clerk presented a communication from the Water Development Authority, submitting its annual report as required by chapter twenty-two-c, article one, section seventeen of the code of West Virginia.
     Which report was received and filed with the Clerk.
     Senator Tomblin (Mr. President) presented a communication from the Board of Examiners for Licensed Practical Nurses, submitting its annual report, in accordance with chapter thirty, article twenty-four, section seven of the code of West Virginia.
     Which report was received and filed with the Clerk.
     Senator Tomblin (Mr. President) presented a communication from the Bureau of Employment Programs, submitting its Workers' Compensation Division schedule of maximum fees paid to medical service providers as required by chapter twenty-three, article four, section three of the code of West Virginia.
     Which communication and report were received and filed with the Clerk.
     Senator Tomblin (Mr. President) presented a communication from the Bureau of Senior Services, submitting its annual report, in accordance with chapter sixteen, article five-p, section fourteen of the code of West Virginia.
     Which report was received and filed with the Clerk.
     Senator Tomblin (Mr. President) presented a communication from the Department of Health and Human Resources, submitting its annual report of the Family Support Program as required by chapter forty- nine, article four-a, section five of the code of West Virginia.
     Which communication and report were received and filed with the Clerk.
     Senator Tomblin (Mr. President) presented a communication from the Department of Health and Human Resources, submitting its annual long-term care report, in accordance with chapter sixteen, article five-c, section three of the code of West Virginia.
     Which report was received and filed with the Clerk.
     Senator Tomblin (Mr. President) presented a communication from the Department of Tax and Revenue, submitting its quarterly report summarizing closing agreements as required by chapter eleven, article ten, section five-q of the code of West Virginia.
     Which report was received and filed with the Clerk.
     Senator Tomblin (Mr. President) presented a communication from the Office of the Attorney General, submitting its annual consumer credit and protection report, in accordance with chapter forty-six- a, article seven, section one hundred two of the code of West Virginia.
     Which communication and report were received and filed with the Clerk.
     Senator Tomblin (Mr. President) presented a communication from the Radiologic Technology Board of Examiners, submitting its annual report as required by chapter thirty, article one, section twelve of the code of West Virginia.
     Which report was received and filed with the Clerk.
     Senator Tomblin (Mr. President) presented a communication from the Women's Commission, submitting its annual report, in accordance with chapter twenty-nine, article twenty, section six of the code of West Virginia.
     Which communication and report were received and filed with the Clerk.
     The Senate proceeded to the sixth order of business.
     On motions for leave, severally made, the following bills were introduced, read by their titles, and referred to the appropriate committees:
     By Senators Tomblin (Mr. President) and Sprouse (By Request of the Executive):
     Senate Bill No. 76
--A Bill to amend and reenact section nine- e, article six, chapter twelve of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to increasing the amount available from the consolidated fund as a revolving loan to the West Virginia economic development authority for the purpose of promoting certain business or industrial development projects.
     Referred to the Committee on Economic Development; and then to the Committee on Finance.
     By Senators Tomblin (Mr. President) and Sprouse (By Request of the Executive):
     Senate Bill No. 77
--A Bill to amend article nine-a, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section three-c, relating to the amount of the total basic foundation program for public school support for the fiscal year commencing in two thousand three.
     Referred to the Committee on Education; and then to the Committee on Finance.
     By Senators Hunter, Dempsey and Weeks:
     Senate Bill No. 78
--A Bill to amend chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article five- f, relating to restricting mandatory overtime in certain health care facilities; providing for enforcement; providing certain provisions in agreements contrary to the restrictions are void; and providing criminal penalties relating to prohibiting health care workers mandatory overtime.
     Referred to the Committee on Labor; and then to the Committee on the Judiciary.
     By Senators Tomblin (Mr. President) and Sprouse (By Request of Executive):
     Senate Bill No. 79
--A Bill to repeal article twenty-six, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend article seven, chapter forty-nine of said code by adding thereto a new section, designated section thirty-four, relating to the termination of the governor's cabinet on children and families; incorporating certain of its powers and duties in the department of health and human resources; transferring of the children's fund to the department of health and human resources.
     Referred to the Committee on Government Organization; and then to the Committee on Finance.
     By Senators Prezioso, Unger and Dempsey:
     Senate Bill No. 80
--A Bill to amend and reenact section eighteen-b, article five, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend article four, chapter eighteen-a of said code by adding thereto a new section, designated section two-b, all relating to public school counselors; making legislative findings with respect to the importance of counseling for providing a thorough and efficient education for all students; establishing recommended number of students per counselor and providing for additional pay when number exceeded; requiring state board rule conforming to national standards for counseling programs to the extent practicable and certain other provisions, including minimum standards for supervision of counselors and minimum required annual staff development related to school counseling; clarifying administrative activities to which counselors may devote a portion of their time and certain duties which may not be the duties of counselors; providing for a statewide salary supplement for counselors who hold national certification and counselors who are licensed in this state or who are both nationally certified and licensed; and providing for reimbursement of expenses for national certification subject to legislative appropriation.
     Referred to the Committee on Education; and then to the Committee on Finance.
     By Senators Ross, Hunter, Rowe, Minard, Guills and Love:
     Senate Bill No. 81
--A Bill to amend and reenact sections four, five and six, article six-b, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to claims for homestead exemption; extending the time period for filing a claim for exemption; authorizing the assessor to grant or continue the exemption under certain circumstances; extending the time period by which the assessor must determine a person has waived the exemption; extending the time period by which the assessor must notify a claimant of a denial of a claim for exemption; and extending the time period in which the county commission is required to issue a determination regarding an appeal to the assessor's denial of an exemption.
     Referred to the Committee on the Judiciary; and then to the Committee on Finance.
     By Senators Ross, Love, Rowe, Snyder, Dempsey, Fanning and Facemyer:
     Senate Bill No. 82
--A Bill to amend and reenact section six, article two-c, chapter seventeen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to extending the time period for the study of the state system of orphan roads and bridges.
     Referred to the Committee on Transportation.
     By Senators Rowe, Love, Unger, Smith and Harrison:
     Senate Bill No. 83
--A Bill to amend article fifteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section nine-h, relating to reducing the sales tax on packaged food and fresh-grown food sold for human consumption off the premises from six percent to five percent; providing a definition; and procedure for eventual elimination of the tax.
     Referred to the Committee on Finance.
     By Senators Rowe, Hunter, Smith and Harrison:
     Senate Bill No. 84
--A Bill to amend article two, chapter five- b of the code of West Virginia, one thousand nine hundred thirty- one, as amended, by adding thereto a new section, designated section twelve-b, relating to creating the heritage preservation and tourism development fund; and providing that the fund is used by the division of tourism to promote various industrial and tourism projects in the state.
     Referred to the Committee on Economic Development; and then to the Committee on Finance.
     By Senator Rowe:
     Senate Bill No. 85
--A Bill to amend and reenact section four, article one-c, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to authorizing county commissions to disallow a valuation of real property to increase by more than ten percent in a year unless good cause is shown of a compelling nature to allow such an increase.
     Referred to the Committee on the Judiciary; and then to the Committee on Finance.
     By Senators Rowe and McCabe:
     Senate Bill No. 86
--
A Bill to amend article twenty-nine, chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section eleven, relating to requiring any law- enforcement agency which hires a person within three years of his or her training at the West Virginia law-enforcement training academy to pay a percentage of the cost of such training to the law-enforcement agency which had sponsored and funded the graduate's training based upon time remaining until three years have passed.
     Referred to the Committee on the Judiciary; and then to the Committee on Finance.
     By Senators Rowe, Fanning and Caldwell:
     Senate Bill No. 87
--A Bill to amend and reenact section three- v, article one, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to county commissions making flood insurance available to property owners.
     Referred to the Committee on Government Organization.
     By Senator Rowe:
     Senate Bill No. 88
--A Bill to amend and reenact section four, article nine-a, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to creating the "Tobacco Free School Act"; prohibiting possession and use of tobacco products in all school buildings and grounds; eliminating exemption from tobacco restrictions for areas not used for instructional purposes; increasing penalties for violations; authorizing state board of education to further restrict tobacco use; and permitting law-enforcement officers to issue warnings in lieu of citations for violations.
     Referred to the Committee on Education; and then to the Committee on Finance.
     By Senator Rowe:
     Senate Bill No. 89
--A Bill to amend article fifteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section nine-h; to amend and reenact section thirteen, article sixteen of said chapter; to amend and reenact section three, article seventeen of said chapter; to amend and reenact section seventeen, article three-a, chapter sixty of said code; and to amend and reenact section four, article eight of said chapter, all relating to enacting the two-percent family food tax reduction act; reducing the sales tax on packaged food and fresh-grown food sold for human consumption off the premises where sold from six percent to four percent; increasing the excise tax on cigarettes to thirty- six cents a pack; imposing a thirty-percent tax on other tobacco products; increasing the keg tax on beer to ten dollars and thirty- eight cents; providing for an increase in the wholesale prices on liquor; and increasing the liter tax on wine.
     Referred to the Committee on Finance.
     By Senators Rowe, Dempsey, Hunter, Unger and Caldwell:
     Senate Bill No. 90
--A Bill to amend and reenact section nine, article fifteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to increasing from six to eighteen a year the number of casual and occasional sales by volunteer fire departments and volunteer school support groups that are exempt from consumers sales tax.
     Referred to the Committee on Finance.
     By Senators White, Caldwell and Rowe:
     Senate Bill No. 91
--
A Bill to amend chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article thirteen-t, relating to taxation generally; setting forth short title; setting forth legislative findings; defining terms; specifying method for determining tax attributable to qualified investment; specifying eligibility for tax credit; specifying procedures for application for certification and for certification of project plans; specifying limitations on certification and criteria for certification; specifying applications for certification are public information; specifying procedures and criteria for decertification of projects or withdrawal or suspension of certification of projects or decrease of amounts of credit or qualified investment for which a project is certified; providing for audits and investigations; specifying confidentiality of certain information; providing for a project administration allowance to be deposited in a revolving fund for use by the division of tourism; establishing the small tourism business fund as a revolving fund; providing for a tax administration allowance to be deposited in a revolving fund for use by the tax department; establishing the general tax administration fund as a revolving fund; specifying method for determining qualified investment; specifying amount of tax credit allowed; setting forth application of credit; specifying method for assertion of credit and filings; specifying requirements for reporting of credit; setting forth total maximum aggregate tax credit limitation; specifying forfeiture of unused tax credits; specifying redetermination of credit; specifying recapture of credit; specifying treatment for premature disposition of qualified property; specifying treatment for premature cessation of use of qualified property; specifying recapture tax; specifying imposition of recapture tax; specifying application of the West Virginia tax procedure and administration act to the recapture tax; setting forth rules for transfer of qualified property to successors; specifying treatment of successor businesses where predecessor is entitled to the credit; specifying treatment of a mere change in the form of doing business; requiring and specifying identification of qualified tourism development property; specifying rules for failure to keep adequate records; specifying certain credit information to be published as public information; authorizing audits and joint audits or examinations of taxpayers claiming the credit and certain other persons; requiring program evaluation; setting forth expiration date for the tax credit program; specifying preservation of vested entitlements; specifying general procedure and administration and adoption of the West Virginia tax procedure and administration act as applying to the tax credit; and authorizing promulgation of regulations.
     Referred to the Committee on Economic Development; and then to the Committee on Finance.
     By Senator Minard:
     Senate Bill No. 92
--
A Bill to repeal sections ten, eleven, fourteen and seventeen, article four, chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact sections one, three, six, twelve, nineteen, twenty, twenty-one, twenty-two, twenty-three, twenty-four and twenty-five of said article; and to further amend said chapter by adding thereto a new article, designated article forty-one, all relating to the creation of the West Virginia board of dental hygienists, transferring the licensing and oversight of dental hygienists from the board of dental examiners and regulating the practice of dental hygienists in this state; providing short title; requiring license; providing definitions; appointment of board of dental hygienists and term of office; powers and duties of the board and funds; rule-making authority; creating special revenue account; license requirements and fees; licensing dental hygienist from another state; scope and limitations of practice of dental hygienists; complaints, investigations, hearing and judicial review; unlawful acts, injunctions; criminal penalties; and sunset provision.
     Referred to the Committee on Government Organization; and then to the Committee on Finance.
     By Senators Minard and Rowe:
     Senate Bill No. 93
--A Bill to amend article two, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section fifteen-b, relating to violence against public employees.
     Referred to the Committee on the Judiciary.
     By Senators Ross, Love, Weeks and Sharpe:
     Senate Bill No. 94
--A Bill to amend and reenact section nine- a, article one, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to allowing authorized representatives of the bureau for public health to conduct surveys and/or evaluations of a public water system; and providing forty-five days for a public water system to make a written response to any corrective actions taken as a result of the survey and/or evaluation.
     Referred to the Committee on Health and Human Resources.
     By Senators Ross, Love and Sharpe:
     Senate Bill No. 95
--A Bill to amend and reenact sections two, three and four, article seventeen, chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to the size, weight and load of vehicles; increasing the maximum length and width of certain vehicles; and increasing the maximum length of the combination of certain vehicles coupled together.
     Referred to the Committee on Transportation.
     By Senator Fanning:
     Senate Bill No. 96
--A Bill to amend and reenact section seven, article sixteen, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend article fifteen, chapter thirty-three of said code by adding thereto a new section, designated section four-h; to amend article sixteen of said chapter by adding thereto a new section, designated section three-q; to amend article twenty-four of said chapter by adding thereto a new section, designated section seven-h; to amend article twenty-five of said chapter by adding thereto a new section, designated section eight-f; and to amend article twenty-five-a of said chapter by adding thereto a new section, designated section eight-g, all relating to requiring health insurance policies to cover acupuncture treatment.
     Referred to the Committee on Health and Human Resources; and then to the Committee on Finance.
     By Senators Ross, Rowe, Chafin and Sharpe:
     Senate Bill No. 97
--A Bill to repeal section eleven, article one, chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to repeal section four, article six of said chapter; to repeal sections six, seven and eight, article eight of said chapter; to repeal sections four and five, article nine of said chapter; to repeal section five, article fourteen of said chapter; to amend and reenact sections two, three, five, five-a, eight, thirteen, thirty, thirty-three, thirty-seven, forty, forty-two, forty-three, forty-four, forty-seven, forty- eight, fifty, fifty-one, fifty-three and fifty-four, article one of said chapter; to further amend said article by adding thereto fifteen new sections, designated sections fifty-three-a, sixty- five, sixty-six, sixty-seven, sixty-eight, sixty-nine, seventy, seventy-one, seventy-two, seventy-three, seventy-four, seventy- five, seventy-six, seventy-seven and seventy-eight; to amend and reenact sections three, five and eight, article two of said chapter; to amend and reenact sections one, two, four, four-b, five, six, seven, eight and nine, article three of said chapter; to amend and reenact section fourteen, article four of said chapter; to amend and reenact sections one, two, three, three-a, five, six, seven, eight and nine, article six of said chapter; to further amend said article by adding thereto a new section, designated section five-a; to amend and reenact sections one, three, four, five, six, seven, eight, nine, ten, eleven and thirteen, article seven of said chapter; to amend and reenact sections one, two, three, four and five, article eight of said chapter; to amend and reenact sections one, two and three, article nine of said chapter; to amend and reenact sections two, three, four, six and eight, article ten of said chapter; to further amend said article by adding thereto two new sections, designated sections two-a and nine; to amend and reenact sections one, two, three, four, five and six, article eleven of said chapter; to further amend said article by adding thereto eight new sections, designated sections eight, nine, ten, eleven, twelve, thirteen, fourteen and fifteen; to amend and reenact sections one, two, four, five, six and eight, article twelve of said chapter; to amend and reenact sections one, two, three and four, article thirteen of said chapter; to amend and reenact sections one, two, four, seven, eight, nine and ten, article fourteen of said chapter; and to further amend said article by adding thereto eight new sections, designated sections fourteen- a, fifteen, sixteen, seventeen, eighteen, nineteen, twenty and twenty-one, all relating to updating code language to conform with current usage and with the uniform vehicle code; defining terms; specifying who may assume command at an accident scene; adopting a specific manual for uniform system; requiring adoption of manual for uniform system of traffic control; defining certain signal indications for both drivers and pedestrians; prohibiting commercial advertising on any traffic-control device; repealing speed limits on vehicles not designed for carrying passengers; adding speed limits in certain instances; adding additional terms as to devices that may be used as evidence; prohibiting specific types of races; eliminating the audible signal requirement when passing; redefining when passing is permissible; permitting special officers of the division of highways on official weighing crews to carry firearms; providing training requirements; prohibiting following too closely in certain instances; redefining who is prohibited on controlled-access highways; clarifying turning, starting and signaling in stopping and turning instances; redefining various types of rights-of-way and the duties to yield thereunder; clarifying pedestrians' rights and duties; prohibiting pedestrians who are under the influence of drugs or alcohol from being on a portion of a highway if their actions create a hazard for drivers; prohibiting standing on a highway for soliciting employment, business or contributions; redefining certain provisions relating to bicycle riders; limiting backing upon a controlled-access highway shoulder or roadway; prohibiting driving on a sidewalk; prohibiting opening door unless safe to do so; prohibiting riding in house trailers; limiting snowmobile operation on controlled-access highways and certain other conditions; requiring eye protection in certain instances if no windshield; enumerating rights and duties of wheelchair operators; and making technical revisions.     
     Referred to the Committee on Transportation; and then to the Committee on the Judiciary.
Petitions

     Senator Hunter presented a petition from Woody Williams and the Huntington Detachment #340, West Virginia Marine Corps League, requesting legislative funding to construct a covered walkway and handicapped access ramp for access on the second floor of the Capitol.
     Referred to the Committee on Military.
     The Senate proceeded to the seventh order of business.
     Senate Concurrent Resolution No. 3, Requesting Joint Committee on Government and Finance study need for creating forensic science task force.
     On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Rules.
     The Senate proceeded to the twelfth order of business.
     Remarks were made by Senator Snyder.
     Pending announcement of meetings of standing committees of the Senate, including a minority party caucus,
     On motion of Senator Chafin, the Senate adjourned until tomorrow, Friday, January 10, 2003, at 11 a.m.
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