WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-SIXTH LEGISLATURE

REGULAR SESSION, 2003

TWENTIETH DAY

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Charleston, W. Va., Monday, January 27, 2003

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

     Prayer was offered by the Reverend Dr. Karl Ruttan, St. John's Episcopal Church, Charleston, West Virginia.
     Pending the reading of the Journal of Friday, January 24, 2003,
     On motion of Senator Fanning, 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 Senate then proceeded to the third order of business.
     A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
     Eng. Com. Sub. for House Bill No. 2090--A Bill to amend article two, chapter six-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section five-a, relating to requiring the ethics commission to establish a code of conduct for state administrative law judges, including civil penalties and sanctions for violations.
     Referred to the Committee on the Judiciary.
     A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
     Eng. House Bill No. 2486--A Bill to amend and reenact section twenty-seven, article sixteen, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to continuation of the public employees insurance agency.
     Referred to the Committee on Government Organization.
     A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
     House Concurrent Resolution No. 9--Requesting the Joint Committee on Government and Finance to conduct a study on the childhood obesity epidemic in West Virginia in regards to chronic diseases, poor nutrition and inadequate exercise.
     Whereas, The prevalence of obesity has increased sharply among American adolescents and children since its recognition nearly a half century ago as a national health risk; and
     Whereas, According to the Department of Health and Human Resources, forty percent of children in West Virginia are found to be either overweight or obese; and
     Whereas, Twenty-two percent of middle and high school students ages twelve to eighteen years report that they engage in little or no strenuous physical activity with even higher percentages having high fat diets; and
     Whereas, Physical education is taught only 2.6 days per week on average in elementary schools and only one semester on average in middle school with less than forty percent of students being able to pass the President's Physical Fitness Test; and
     Whereas, Among school-age children, eighteen percent report eating five servings of fruit and vegetables daily; and
     Whereas, Obesity presents numerous problems for children. In addition to increasing the risk of obesity in adulthood, childhood obesity is the leading cause of pediatric hypertension, is associated with Type II diabetes mellitus (also known as Adult On- set Diabetes), increases the risk of coronary heart disease, increases stress on the weight-bearing joints while also affecting relationships with peers; and
     Whereas, The deleterious effects of obesity on chronic disease risks; its multiplicity of causes; its persistence from childhood into adult; the paucity of successful treatment options and the complexities of treatment guidelines, all argue for increased attention to the prevention of excessive weight gain starting as early in life as possible; and
     Whereas, This societal challenge can be dealt with through a host of treatments such as, but not limited to, parent education, physical activity, diet management, behavior modification and policy development; and
     Whereas, Reversing these current trends among our youth will require a multifaceted approach as well as active participation of health officials, researchers, educators and legislators in the formulation of obesity prevention programs; therefore, be it
     Resolved by the Legislature of West Virginia:
     That the Joint Committee on Government and Finance is hereby requested to study the effects of the childhood obesity epidemic in the State of West Virginia in regards to sedentary lifestyle, poor nutrition and chronic diseases resulting from obesity; and, be it
     Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2004, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
     Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
     Referred to the Committee on Rules.
     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), McCabe, Helmick, Bailey, Boley, Bowman, Chafin, Deem, Edgell, Facemyer, Fanning, Harrison, Hunter, Kessler, Love, McKenzie, Oliverio, Ross, Rowe, Sprouse, Unger, White, Jenkins, Minard, Sharpe, Dempsey, Smith, Guills, Minear, Caldwell and Plymale:
     Senate Bill No. 362--A Bill to amend chapter seventeen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article two-d, relating to establishment of the public-private transportation act of two thousand three; setting forth legislative findings and purposes; setting forth definitions; providing prerequisites for development of a transportation facility; providing for the creation of a public-private transportation oversight committee and its membership; setting forth the powers and duties of the committee; providing for the submission of proposals and approval by the committee; providing for service contracts; providing for the dedication of public property; setting forth the powers and duties of a developer; requiring a comprehensive agreement; providing for federal, state and local assistance; addressing material default and remedies; prohibiting governmental entities from pledging full faith and credit; providing for the exercise of condemnation; addressing utility crossings; addressing dedication of assets; providing for an exemption from purchasing rules; addressing severability; qualifying transportation facilities as public improvements; setting forth a termination date; and addressing construction.
     Referred to the Committee on Transportation; and then to the Committee on Finance.
     By Senators Sprouse, Rowe and Sharpe:
     Senate Bill No. 363--A Bill to amend article eight-d, 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 ten, relating to providing a criminal offense for falsely reporting child abuse.
     Referred to the Committee on the Judiciary.
     By Senators Prezioso, Unger, Rowe, Kessler, Helmick, Caldwell, Plymale, Sharpe, Ross, Dempsey, Love, Hunter, Sprouse, Minard, Jenkins, Fanning, White, McCabe, Bowman, Minear and Tomblin (Mr. President):
     Senate Bill No. 364--A Bill to amend and reenact sections seven and twenty-one, article five, chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to further amend said article by adding thereto a new section, designated section sixteen-b; to amend and reenact section three, article five-d of said chapter; to further amend said article by adding thereto a new section, designated section three-a; and to amend and reenact sections twenty-nine and thirty, article seven of said chapter, all relating to child welfare and juvenile justice; requiring notice of certain proceedings to the department of health and human resources and the division of juvenile services; providing for greater involvement of multidisciplinary teams; providing that quarterly judicial reviews be continued while child remains in custody; providing for when offenses are committed while in custody; providing for recommended court orders; requiring that recommended service plans be considered; requiring written findings when order deviates from treatment team's recommended plan; affording notice and opportunity to object; requiring the supreme court of appeals to develop uniform court orders in consultation with the department of health and human resources and the division of juvenile services; and providing that foster care services do not constitute a behavioral health care facility or behavioral health care service.
     Referred to the Committee on the Judiciary; and then to the Committee on Finance.
     By Senator Rowe:
     Senate Bill No. 365-- A Bill to amend and reenact sections six, seven and eight, article twenty-two, chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto a new section, designated section eighteen, all relating to landscape architects generally; and providing that the board of landscape architects set certain fees by rule.
      Referred to the Committee on Government Organization; and then to the Committee on Finance.
     By Senators Rowe, Kessler and Sharpe:
     Senate Bill No. 366-- A Bill to amend and reenact sections four and seven, article five, chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to authorizing police officers to obtain warrants requiring that blood may be drawn from a person suspected of driving under the influence.
      Referred to the Committee on the Judiciary.
     By Senators Kessler, McCabe, Sprouse and Rowe:
     Senate Bill No. 367-- A Bill to amend and reenact section four, article ten, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to animal protection.
      Referred to the Committee on the Judiciary.
     By Senators Unger, Prezioso, Love, Jenkins and Smith:
     Senate Bill No. 368-- A Bill to amend and reenact section six, article two-a, chapter fifteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to lowering the retirement age for state troopers with twenty years of service from the age of fifty-five to the age of fifty.
      Referred to the Committee on Pensions; and then to the Committee on Finance.
     By Senator Love:
     Senate Bill No. 369-- A Bill to amend and reenact section twenty-five, article thirteen-a, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to contracts for the provision of engineering, design or feasibility studies by public service districts.
      Referred to the Committee on the Judiciary; and then to the Committee on Finance.
Petitions

     Senator Dempsey presented a petition from Peggy Melton and twenty-one Boone County teachers, requesting the Legislature to increase the tobacco tax by one dollar per pack of cigarettes.
     Referred to the Committee on Finance.
     Senator Oliverio presented a petition from Larry Foreman and numerous West Virginia residents, requesting the Legislature to reform the medical liability system.
     Referred to the Committee on the Judiciary.
     Senator Prezioso presented a petition from Maggie Cain and numerous West Virginia residents, requesting the Legislature to reform the medical liability system.
     Referred to the Committee on the Judiciary.
     The Senate proceeded to the seventh order of business.
     The President then stated that the hour had arrived for the special order of business, as to
      House Concurrent Resolution No. 4, Urging President Bush to reconsider newly issued VA regulations that will change veterans' access to health care services.
      On unfinished business, having been received as a message from the House of Delegates on Wednesday, January 22, 2003, and now coming up as a special order, was reported by the Clerk.
     The question being on the adoption of the resolution,
     Thereafter, on motion of Senator Sprouse, the resolution was referred to the Committee on Rules.
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     The special order of business having been concluded, the Senate then resumed business under the seventh order.
      Senate Concurrent Resolution No. 12, Requesting Joint Committee on Government and Finance study bail bondsmen.
     On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Rules.
     Senate Concurrent Resolution No. 13, Requesting Division of Highways name bridge crossing Kermit to Kentucky "Herbert 'Hub' Cline Bridge".
     On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Transportation.
      Senate Concurrent Resolution No. 14, Requesting Division of Highways authorize sign by Little Kanawha River Parkway Commission at Intersection of Interstate 79 and Exit 79 at Burnsville.
     On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Transportation.
      Senate Concurrent Resolution No. 15, Requesting Joint Committee on Government and Finance study foster care system.
     On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Rules.
      Senate Concurrent Resolution No. 16, Requesting Federal Emergency Management Agency expedite updating flood insurance rate maps.
     On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Government Organization.
      Senate Concurrent Resolution No. 17, Requesting Congress enact National Recreation Lakes Act of 2002.
     On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Natural Resources.
      Senate Concurrent Resolution No. 18, Requesting Joint Committee on Government and Finance study improving Department of Transportation Employee Handbook.
     On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Rules.
      Senate Concurrent Resolution No. 19, Requesting Department of Health and Human Resources study teenage in-vehicle drinking and related drug use.
     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 eighth order of business.
      Eng. Com. Sub. for Senate Bill No. 178, Relating to subject matter jurisdiction in family courts.
     On third reading, coming up in regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Snyder--1.
      So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 178) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Eng. Senate Bill No. 186, Defining aggrieved person for purposes of board of zoning appeals.
     On third reading, coming up in regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Snyder--1.
      So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 186) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Eng. Senate Bill No. 189, Relating to approval of out-of-state bank applications to establish bank branches.
     On third reading, coming up in regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Sprouse, Unger, Weeks and Tomblin (Mr. President)--31.
     The nays were: Fanning and White--2.
     Absent: Snyder--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 189) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Eng. Senate Bill No. 190, Requiring more examinations for certain banks to track current practice with federal regulators.
     On third reading, coming up in regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Snyder--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 190) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Eng. Com. Sub. for Senate Bill No. 191, Relating to state-chartered credit union converting to federal or another state charter.
     On third reading, coming up in regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--32.
     The nays were: Love--1.
     Absent: Snyder--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 192) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Eng. Senate Bill No. 192, Relating to notice from certain bank holding companies.
     On third reading, coming up in regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Snyder--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 192) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Eng. Senate Bill No. 215, Making supplementary appropriation to department of health and human resources, health care authority.
     On third reading, coming up in regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Snyder--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 215) passed with its title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Snyder--1.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 215) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     The Senate proceeded to the ninth order of business.
     Senate Bill No. 281, Continuing department of environmental protection.
     On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
      Senate Bill No. 282, Continuing division of motor vehicles.
     On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
      Senate Bill No. 283, Continuing public service commission.
     On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
      Senate Bill No. 284, Continuing division of purchasing within department of administration.
     On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
      The Senate proceeded to the tenth order of business.
     Com. Sub. for Senate Bill No. 39, Making false alarm felony in certain cases.
     On first reading, coming up in regular order, was read a first time and ordered to second reading.
     Com. Sub. for Senate Bill No. 109, Notifying third party of entry of order affecting child's care and education.
     On first reading, coming up in regular order, was read a first time and ordered to second reading.
      Senate Bill No. 120, Changing qualification rank for adjutant general to lieutenant.
     On first reading, coming up in regular order, was read a first time and ordered to second reading.
      Senate Bill No. 205, Modifying criminal intent for animal cruelty crimes; fines.
     On first reading, coming up in regular order, was read a first time and ordered to second reading.
     On motion of Senator Chafin, a leave of absence for the day was granted Senator Snyder.
      Pending announcement of meetings of standing committees of the Senate,
     On motion of Senator Chafin, the Senate adjourned until tomorrow, Tuesday, January 28, 2003, at 11 a.m.
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