Night Session
Upon expiration of the recess, the Senate reconvened and again
proceeded to the fourth order of business.
Senator Love, from the Committee on Confirmations, submitted
the following report, which was received:
Your Committee on Confirmations has had under consideration
Senate Executive Message No. 2, dated January 23, 2003,
requesting confirmation by the Senate of the nominations mentioned
therein. The following list of names from Executive Message No. 2
is submitted:
1. For Member, Board of Directors of the West Virginia
United Health System, Inc., Betty Puskar, Morgantown, Monongalia
County, for the term ending October 15, 2008.
2. For Member, Board of Directors of the West Virginia
United Health System, Inc., Jim Jeffrey, Logan, Logan County, for
the term ending October 15, 2008.
3. For Member, Special Reclamation Fund Advisory Council,
Bill Raney, Charleston, Kanawha County, for the term ending June
30, 2004.
4. For Member, Special Reclamation Fund Advisory Council,
Michael Hick, Huntington, Cabell County, for the term ending June
30, 2006.
5. For Member, Special Reclamation Fund Advisory Council, John Rubin, Hernshaw, Kanawha County, for the term ending June 30,
2006.
6. For Member, Special Reclamation Fund Advisory Council,
The Honorable Vicki Douglas, Martinsburg, Berkeley County, for the
term ending June 30, 2008.
7. For Member, Board of Occupational Therapy, Gene Brooks,
Charleston, Kanawha County, for the term ending December 31, 2004.
8. For Member, Higher Education Policy Commission, Richard
K. Hall, Yawkey, Lincoln County, for the term ending June 30, 2005.
9. For Member, Environmental Quality Board, D. Scott
Simonton, Charleston, Kanawha County, for the term ending June 30,
2007.
10. For Member, Statewide Independent Living Council, Karen
Davis, Charleston, Kanawha County, for the term ending June 30,
2005.
11. For Member, Statewide Independent Living Council, Mark
Jenkinson, Martinsburg, Berkeley County, for the term ending June
30, 2005.
12. For Member, Statewide Independent Living Council, Jack
Mitchell, Harper's Ferry, Jefferson County, for the term ending
June 30, 2005.
13. For Member, Statewide Independent Living Council, Joe
Szilvasi, Hinton, Summers County, for the term ending June 30, 2005.
14. For Member, Statewide Independent Living Council, Chris
Cain, Nitro, Kanawha County, for the term ending June 30, 2005.
15. For Member, Statewide Independent Living Council, Joyce
Floyd, Elkins, Randolph County, for the term ending June 30, 2005.
16. For Member, Statewide Independent Living Council, Howard
Hurd, Bancroft, Putnam County, for the term ending June 30, 2005.
17. For Member, Statewide Independent Living Council, Linda
Maniak, Charleston, Kanawha County, for the term ending June 30,
2003.
18. For Member, Statewide Independent Living Council, Cathy
Reed, Fairmont, Marion County, for the term ending June 30, 2005.
19. For Member, Statewide Independent Living Council, Odessa
Williams, Huntington, Cabell County, for the term ending June 30,
2005.
20. For Member, National Coal Heritage Area Authority, The
Honorable Earnest Kuhn, Van, Boone County, for the term ending June
30, 2004.
21. For Member, National Coal Heritage Area Authority, Mack
Gillenwater, Huntington, Cabell County, for the term ending June
30, 2003.
22. For Member, National Coal Heritage Area Authority, Joanne
Tomblin, Chapmanville, Logan County, for the term ending June 30, 2006.
23. For Member, National Coal Heritage Area Authority, The
Honorable K. Steven Kominar, Kermit, Mingo County, for the term
ending June 30, 2005.
24. For Member, National Coal Heritage Area Authority, Rhenda
Morris, Beckley, Raleigh County, for the term ending June 30, 2006.
25. For Member, National Coal Heritage Area Authority, Cleo
Mathews, Hinton, Summers County, for the term ending June 30, 2003.
26. For Member, National Coal Heritage Area Authority, The
Honorable Robert H. Plymale, Ceredo, Wayne County, for the term
ending June 30, 2005.
27. For Member, National Coal Heritage Area Authority,
Richard Browning, Pineville, Wyoming County, for the term ending
June 30, 2004.
28. For Member, National Coal Heritage Area Authority, Stuart
McGhee, Bluefield, Mercer County, for the term ending June 30,
2004.
29. For Member, Real Estate Appraiser Licensing and
Certification Board, Barbara Argabrite, Vienna, Wood County, for
the term ending June 30, 2004.
30. For Member, Real Estate Appraiser Licensing and
Certification Board, Timothy W. Helmick, Cross Lanes, Kanawha
County, for the term ending June 30, 2004.
31. For Member, State Fire Commission, Kenneth Morgan,
Charleston, Kanawha County, for the term ending June 30, 2007.
32. For Member, State Fire Commission, Victor Stallard,
Williamstown, Wood County, for the term ending June 30, 2007.
33. For Member, State Fire Commission, Randy James, Gassaway,
Braxton County, for the term ending June 30, 2007.
34. For Member, State Fire Commission, Francis A. Guffey II,
Charleston, Kanawha County, for the term ending June 30, 2007.
35. For Member, State Library Commission, Kathryn McAteer,
Shepherdstown, Jefferson County, for the term ending June 30, 2003.
36. For Member, Women's Commission, Kitty B. Frazier, Cross
Lanes, Kanawha County, for the term ending June 30, 2003.
37. For Member, Board of Examiners for Registered
Professional Nurses, Linda Williams, Shady Spring, Raleigh County,
for the term ending June 30, 2007.
38. For Member, Board of Examiners for Registered
Professional Nurses, Barbara Bales Stevens, Barboursville, Cabell
County, for the term ending June 30, 2006.
39. For Member, State Board of Examiners for Licensed
Practical Nurses, Catherine J. Vance, French Creek, Upshur County,
for the term ending June 30, 2006.
40. For Member, State Board of Examiners for Licensed
Practical Nurses, Vickie Sue Bennett, Belington, Barbour County, for the term ending June 30, 2007.
41. For Member, State Board of Examiners for Licensed
Practical Nurses, Jean Hunter Yates, Milton, Cabell County, for the
term ending June 30, 2006.
42. For Member, State Board of Examiners for Licensed
Practical Nurses, Duane Napier, Huntington, Cabell County, for the
term ending June 30, 2007.
43. For Member, State Board of Examiners for Licensed
Practical Nurses, Dr. Mark K. Stephens, Charleston, Kanawha County,
for the term ending June 30, 2005.
44. For Member, State Lottery Commission, Michael Adams,
Weirton, Hancock County, for the term ending June 30, 2007.
45. For Member, Board of Architects, Lloyd W. Miller, South
Charleston, Kanawha County, for the term ending June 30, 2007.
46. For Member, Board of Architects, Jeffry Kreps,
Charleston, Kanawha County, for the term ending June 30, 2003.
47. For Member, Board of Architects, Gary Markham,
Charleston, Kanawha County, for the term ending June 30, 2007.
48. For Member, Board of Architects, Jan Fox, Charleston,
Kanawha County, for the term ending June 30, 2007.
49. For Chief Administrative Law Judge of the Office of Tax
Appeals, R. Michael Reed, Elkview, Kanawha County, to serve at the
will and pleasure of the Governor.
50. For Member, Board of Dental Examiners, Dolores Gribble,
Clarksburg, Harrison County, for the term ending June 30, 2007.
51. For Member, Board of Dental Examiners, Dina A. Vaughn,
Lewisburg, Greenbrier County, for the term ending June 30, 2007.
52. For Member, Center for Professional Development, Frank
Devono, Clarksburg, Harrison County, for the term ending June 30,
2004.
53. For Member, Center for Professional Development, Victoria
Smith, Huntington, Cabell County, for the term ending June 30,
2004.
54. For Member, Center for Professional Development, Dr.
Sandy Bailey, Beaver, Raleigh County, for the term ending June 30,
2004.
55. For Member, Center for Professional Development, Suzanne
Snyder, Fairmont, Marion County, for the term ending June 30, 2004.
56. For Member, Center for Professional Development, Lora
Sturm, Ripley, Jackson County, for the term ending June 30, 2004.
57. For Member, Board of Education, Delores W. Cook,
Ridgeview, Boone County, for the term ending November 4, 2010.
58. For Member, Board of Funeral Service Examiners, Eugene T.
Fahey, Wheeling, Ohio County, for the term ending June 30, 2006.
59. For Member, Board of Funeral Service Examiners, R. Brent
Parker, Charleston, Kanawha County, for the term ending June 30, 2005.
60. For Member, Board of Funeral Service Examiners, John
Chapman, Hurricane, Putnam County, for the term ending June 30,
2005.
61. For Member, Board of Funeral Service Examiners, A. Craig
Rotruck, Kingwood, Preston County, for the term ending June 30,
2005.
62. For Member, Board of Funeral Service Examiners, Stephen
Varner, Littleton, Wetzel County, for the term ending June 30,
2005.
63. For Director, Division of Veterans' Affairs, The
Honorable Larry A. Linch, Clarksburg, Harrison County, to serve at
the will and pleasure of the Governor.
64. For Member, Housing Development Fund, Julia Elbon,
Elkins, Randolph County, for the term ending October 30, 2006.
65. For Member, Board of Banking and Financial Institutions,
James J. Cava, Jr., Ridgeley, Mineral County, for the term ending
June 30, 2008.
67. For Member, Board of Medicine, Dr. Vettivelu Maheswaran,
Ranson, Jefferson County, for the term ending September 30, 2006.
68. For Member, School Building Authority, Steve Burton,
Pritchard, Wayne County, for the term ending July 31, 2006.
69. For Member, Human Rights Commission, Lew Tyree, Charleston, Kanawha County, for the term ending June 30, 2005.
70. For Member, Human Rights Commission, Ken Gilbert,
Parkersburg, Wood County, for the term ending June 30, 2005.
71. For Member, Human Rights Commission, Marion Capehart,
Welch, McDowell County, for the term ending June 30, 2005.
72. For Member, Human Rights Commission, Joan Browning,
Ronceverte, Greenbrier County, for the term ending June 30, 2005.
73. For Member, Human Rights Commission, H. R. Whittington,
St. Albans, Kanawha County, for the term ending June 30, 2005.
74. For Member, Human Rights Commission, Betsy Haught,
Barrackville, Marion County, for the term ending June 30, 2005.
75. For Member, Board of Examiners of Psychologists, Dr. Lane
Wagaman, Lewisburg, Greenbrier County, for the term ending June 30,
2005.
76. For Member, Board of Examiners of Psychologists, Robert
J. Childers, Washington, Wood County, for the term ending June 30,
2005.
77. For Member, Motorcycle Safety Awareness Board, Ray Carey,
Charleston, Kanawha County, for the term ending June 30, 2005.
78. For Member, Motorcycle Safety Awareness Board, Joseph M.
Tyree, Scott Depot, Putnam County, for the term ending June 30,
2005.
79. For Member, West Virginia State College Board of Governors, William B. Goode, Charleston, Kanawha County, for the
term ending June 30, 2006.
80. For Member, West Virginia State College Board of
Governors, James Rowley, Charleston, Kanawha County, for the term
ending June 30, 2006.
81. For Member, West Virginia State College Board of
Governors, Thomas D. Boston, Atlanta, Georgia, for the term ending
June 30, 2006.
82. For Member, Bluefield State College Board of Governors,
Louis Aikens, Winston-Salem, North Carolina, for the term ending
June 30, 2006.
83. For Member, Workforce Investment Council, Judi L. Almond,
Crab Orchard, Raleigh County, for the term ending May 22, 2005.
84. For Member, Committee for the Purchase of Commodities and
Services from the Handicapped, Linda Maniak, Charleston, Kanawha
County, for the term ending January 31, 2005.
85. For Member, Committee for the Purchase of Commodities and
Services from the Handicapped, Kenneth W. Kennedy, Charleston,
Kanawha County, for the term ending January 31, 2005.
86. For Member, Committee for the Purchase of Commodities and
Services from the Handicapped, LeRoy E. Dixon, Jr., Rock Cave,
Upshur County, for the term ending January 31, 2005.
87. For Member, Committee for the Purchase of Commodities and Services from the Handicapped, Dennis C. Miller, Cross Lanes,
Kanawha County, for the term ending January 31, 2005.
88. For Member, Committee for the Purchase of Commodities and
Services from the Handicapped, Everett Sullivan, Dunbar, Kanawha
County, for the term ending January 31, 2005.
89. For Member, Committee for the Purchase of Commodities and
Services from the Handicapped, Donna Prunty, Charleston, Kanawha
County, for the term ending January 31, 2005.
90. For Member, Consolidated Public Retirement Board, Carl A.
Guthrie, Belmont, Pleasants County, for the term ending June 30,
2007.
91. For Member, Consolidated Public Retirement Board, Janet
Wilson, Clarksburg, Harrison County, for the term ending June 30,
2007.
92. For Member, Women's Commission, Wendy Thomas, Huntington,
Cabell County, for the term ending June 30, 2005.
93. For Member, Women's Commission, Geraldine G. Henderson,
Buckhannon, Upshur County, for the term ending June 30, 2005.
94. For Member, Women's Commission, Mary Patricia Thompson
Steptoe, Clarksburg, Harrison County, for the term ending June 30,
2005.
95. For Member, Board of Examiners of Land Surveyors,
Marshall W. Robinson, Clay, Clay County, for the term ending June 30, 2005.
96. For Member, Shepherd College Board of Governors, Lauri M.
Bridgeforth, Winchester, Virginia, for the term ending June 30,
2006.
97. For Member, Tourism Commission, William Bright,
Summersville, Nicholas County, for the term ending May 1, 2006.
98. For Member, Board of Education, The Honorable Lloyd G.
Jackson II, Hamlin, Lincoln County, for the term ending November 4,
2011.
99. For Member, Board of Education, Sheila Hamilton,
Shepherdstown, Jefferson County, for the term ending November 4,
2006.
100. For Member, Board of Education, Priscilla Haden,
Charleston, Kanawha County, for the term ending November 4, 2004.
Senate Executive Message No. 5, dated February 26, 2003,
requesting confirmation by the Senate of the nominations mentioned
therein. The following list of names from Executive Message No. 5
is submitted:
1. For Member, Emergency Medical Services Advisory Council,
Mike St. Clair, Parkersburg, Wood County, for the term ending June
30, 2005.
2. For Member, Emergency Medical Services Advisory Council,
Chandler Phillips, Verdunville, Logan County, for the term ending June 30, 2004.
3. For Member, Emergency Medical Services Advisory Council,
Joe Coburn, Princeton, Mercer County, for the term ending June 30,
2005.
4. For Member, Emergency Medical Services Advisory Council,
John Ashcraft, New Cumberland, Hancock County, for the term ending
June 30, 2003.
5. For Member, Emergency Medical Services Advisory Council,
Keith Biddle, Huntington, Cabell County, for the term ending June
30, 2004.
6. For Member, Emergency Medical Services Advisory Council,
Dr. Mike Hartzog, Morgantown, Monongalia County, for the term
ending June 30, 2003.
7. For Member, Emergency Medical Services Advisory Council,
Joe Lynch, Charleston, Kanawha County, for the term ending June 30,
2005.
8. For Member, Emergency Medical Services Advisory Council,
Chip Sovick, Charleston, Kanawha County, for the term ending June
30, 2004.
9. For Member, Emergency Medical Services Advisory Council,
Gary Collis, Martinsburg, Berkeley County, for the term ending June
30, 2003.
10. For Member, Emergency Medical Services Advisory Council, John Riddle, Charleston, Kanawha County, for the term ending June
30, 2004.
11. For Member, Emergency Medical Services Advisory Council,
Gordon Merry, Huntington, Cabell County, for the term ending June
30, 2005.
12. For Member, Emergency Medical Services Advisory Council,
A. G. Lucas, Weirton, Hancock County, for the term ending June 30,
2004.
13. For Member, Emergency Medical Services Advisory Council,
Dr. Roger Gallant, Wheeling, Ohio County, for the term ending June
30, 2005.
15. For Member, Emergency Medical Services Advisory Council,
Stephen McIntire, Clarksburg, Harrison County, for the term ending
June 30, 2004.
16. For Member, National Coal Heritage Area Authority, Sharon
Cruikshank, Fayetteville, Fayette County, for the term ending June
30, 2006.
17. For Member, National Coal Heritage Area Authority, Claud
Banner, Welch, McDowell County, for the term ending June 30, 2005.
18. For Member, Education and State Employees Grievance
Board, Debra A. Kilgore, Princeton, Mercer County, for the term
ending July 1, 2005.
19. For Member, Concord College Board of Governors, Gene Fife, Charlottesville, Virginia, for the term ending June 30, 2006.
20. For Member, Board of Examiners of Psychologists, Allyson
D. Sammons, Charleston, Kanawha County, for the term ending June
30, 2005.
21. For Member, Board of Dental Examiners, Bernard Grubler,
Wheeling, Ohio County, for the term ending June 30, 2007.
22. For Member, Board of Dental Examiners, James Vargo,
Beckley, Raleigh County, for the term ending June 30, 2003.
And,
Senate Executive Message No. 8, dated March 7, 2003,
requesting confirmation by the Senate of the nomination mentioned
therein. The following name from Executive Message No. 8 is
submitted:
1. For Member, Emergency Medical Services Advisory Council,
Paul Seamann, Beckley, Raleigh County, for the term ending June 30,
2003.
And reports the same back with the recommendations that the
Senate do advise and consent to all of the nominations listed
above.
Respectfully submitted,
Shirley Love,
Chair.
__________
The time having arrived for the special order of business to
consider the list of nominees for public office submitted by His
Excellency, the Governor, the special order thereon was called by
the President.
Thereupon, Senator Tomblin (Mr. President) laid before the
Senate the following executive messages:
Senate Executive Message No. 2, dated January 23, 2003 (shown
in the Senate Journal of January 24, 2003, pages 15 through 25,
inclusive);
Senate Executive Message No. 5, dated February 26, 2003 (shown
in the Senate Journal of February 26, 2003, pages 35 through 37,
inclusive);
And,
Senate Executive Message No. 8, dated March 7, 2003 (shown in
the Senate Journal of March 7, 2003, pages 389 and 390).
Senator Love then moved that the Senate advise and consent to
all of the executive nominations referred to in the foregoing
report from the Committee on Confirmations.
On motion of Senator Bailey, Senator's Love motion was amended
to provide that the nomination of The Honorable Robert H. Plymale
to the National Coal Heritage Area Authority (being nomination
number 26 in Executive Message No. 2) be considered separately.
The question being on the adoption of Senator Love's motion, as amended,
The roll was then taken; and
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, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared Senator Love's
motion, as amended, had prevailed.
Senator Bailey then moved that the nomination of The Honorable
Robert H. Plymale to the National Coal Heritage Area Authority
(being nomination number 26 in Executive Message No. 2) be
confirmed.
Prior to the call of the roll, Senator Plymale moved to be
excused from voting under rule number forty-three of the Rules of
the Senate, which motion prevailed.
The roll was then taken; and
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, Prezioso, Ross, Rowe, Sharpe,
Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: None.
Excused from voting: Plymale--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared Senator Bailey's
motion had prevailed and the nomination of The Honorable Robert H.
Plymale to the National Coal Heritage Area Authority had been
confirmed.
Senator Rowe moved that the Senate advise and consent to the
nomination of Patricia Ann Hussey to the Board of Medicine (being
nomination number 66 in Executive Message No. 2).
Following discussion,
The question being on the adoption of Senator Rowe's
aforestated motion,
The roll was then taken; and
On this question, the yeas were: Hunter, Jenkins, McCabe,
Rowe and Snyder--5.
The nays were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem,
Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Kessler, Love, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Ross, Sharpe, Smith, Sprouse, Unger, Weeks, White and
Tomblin (Mr. President)--29.
Absent: None.
So, a majority of all the members elected to the Senate not
having voted in the affirmative, the President declared Senator
Rowe's motion had not prevailed and the nomination of Patricia Ann
Hussey to the Board of Medicine had not been confirmed.
__________
Consideration of executive nominations having been concluded,
At the request of Senator Hunter, unanimous consent being
granted, the Senate returned to the second order of business and
the introduction of guests.
Senator Sharpe moved that the Senate reconsider its action by
which in prior proceedings today it rejected Senator Helmick's
amendment to the House of Delegates amendments (shown in the Senate
Journal of today, pages 496 to 500, inclusive), as to
Eng. Senate Bill No. 547, Relating to judges and justices and
judicial retirement.
Senator Minard then seconded Senator Sharpe's motion for
reconsideration.
Following discussion,
Senator Fanning arose to a point of order that a motion to reconsider, if seconded, was not debatable, in accordance with
Senate Rule No. 42, which states in part "The motion to reconsider
may be put and acted upon when made. If seconded, it shall take
precedence of all other questions, . . . and unless by motion
postponed until some future date be acted upon at once."
Which point of order, the President ruled not well taken.
Following a point of inquiry to the President, with resultant
response thereto,
Senator Unger requested unanimous consent to address the
Senate.
Which consent was not granted, Senator Chafin objecting.
Senator Unger then moved that he be permitted to address the
Senate.
The question being on the adoption of Senator Unger's
aforestated motion, the same was put.
The result of the voice vote being inconclusive, Senator
Sprouse demanded a division of the vote.
A standing vote being taken, there were eighteen "yeas" and
fifteen "nays".
Whereupon, the President declared Senator Unger's aforestated
motion had prevailed.
Thereafter, Senator Unger addressed the Senate regarding
legislators' constitutional obligation to the voters concerning Senator Helmick's amendment to Engrossed Senate Bill No. 547.
The question now being on the adoption of Senator Sharpe's
motion that the Senate reconsider its action by which in prior
proceedings today it rejected Senator Helmick's amendment to the
House of Delegates amendments to the bill.
Following discussion,
Senator Helmick moved the previous question, which motion
prevailed.
The previous question having been ordered, that being on the
adoption of Senator Sharpe's motion that the Senate reconsider its
action by which in prior proceedings today it rejected Senator
Helmick's amendment to the House of Delegates amendments to the
bill (Eng. S. B. No. 547), and on this question Senator Unger
demanded the yeas and nays.
To which demand, Senator Helmick objected.
Thereafter, Senator Unger's demand for a roll call was
sustained.
The roll being taken, the yeas were: Bailey, Bowman,
Caldwell, Chafin, Deem, Dempsey, Facemyer, Fanning, Guills,
Helmick, Love, Minard, Ross, Sharpe, Smith, White and Tomblin (Mr.
President)--17.
The nays were: Boley, Edgell, Harrison, Hunter, Jenkins,
Kessler, McCabe, McKenzie, Minear, Oliverio, Plymale, Prezioso, Rowe, Snyder, Sprouse, Unger and Weeks--17.
Absent: None.
So, a majority of those present and voting not having voted in
the affirmative, the President declared Senator Sharpe's
reconsideration motion rejected on a tie vote.
On motion of Senator Deem, the following amendment to the
House of Delegates amendments to the bill (Eng. S. B. No. 547) was
reported by the Clerk:
On page two, after the enacting section, by inserting the
following:
ARTICLE 1. SUPREME COURT OF APPEALS.
§51-1-10a. Salary of justices.
The salary of each of the justices of the supreme court of
appeals shall be seventy-two thousand dollars per year: Provided,
That beginning the first day of January, one thousand nine hundred
ninety-five, the salary of each of the justices of the supreme
court shall be eighty-five thousand dollars per year: Provided,
however, That beginning the first day of July, one thousand nine
hundred ninety-nine, the salary of each of the justices of the
supreme court shall be ninety-five thousand dollars per year:
Provided further, That beginning the first day of July, two
thousand three, the salary of each of the justices of the supreme
court shall be one hundred twelve thousand five hundred dollars per year.
ARTICLE 2. CIRCUIT COURTS; CIRCUIT JUDGES.
§51-2-13. Salaries of judges of circuit courts.
The salaries of the judges of the various circuit courts shall
be paid solely out of the state treasury. No county, county
commission, board of commissioners or other political subdivision
shall supplement or add to such salaries.
The annual salary of all circuit judges shall be sixty-five
thousand dollars per year: Provided, That beginning the first day
of January, one thousand nine hundred ninety-five, the annual
salary of all circuit judges shall be eighty thousand dollars per
year: Provided, however, That beginning the first day of July, one
thousand nine hundred ninety-nine, the annual salary of all circuit
judges shall be ninety thousand dollars per year: Provided
further, That beginning the first day of July, two thousand three,
the annual salary of all circuit judges shall be one hundred five
thousand dollars per year.
Senator Bowman arose to a point of order that Senator Deem's
amendment to the House of Delegates amendments to the bill was not
germane to the bill.
Which point of order, the President ruled not well taken.
The question being on the adoption of Senator Deem's amendment
to the House of Delegates amendments to the bill.
Following discussion,
The question being on the adoption of Senator Deem's amendment
to the House of Delegates amendments to the bill, the same was put
and did not prevail.
The question now being on the adoption of the House of
Delegates amendments, as amended.
Following points of inquiry to the President, with resultant
responses thereto,
Senator Deem then moved that the Senate reconsider its action
by which it hereinbefore rejected Senator Deem's amendment to the
House of Delegates amendments to the bill (Eng. S. B. No. 547), and
on this question Senator Deem demanded the yeas and nays.
The roll being taken, the yeas were: Bailey, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Helmick,
Jenkins, Kessler, Love, McCabe, Minard, Plymale, Prezioso, Ross,
Rowe, Sharpe, Smith, Snyder, Sprouse, Unger and Tomblin (Mr.
President)--25.
The nays were: Boley, Bowman, Harrison, Hunter, McKenzie,
Minear, Oliverio, Weeks and White--9.
Absent: None.
So, a majority of those present and voting having voted in the
affirmative, the President declared Senator Deem's motion had
prevailed.
The vote thereon having been reconsidered,
The question again being on the adoption of Senator Deem's
amendment to the House of Delegates amendments to the bill.
Following discussion,
Senator Plymale moved the previous question, which motion
prevailed.
The previous question having been ordered, that being on the
adoption of Senator Deem's amendment to the House of Delegates
amendments to the bill (shown in the Senate Journal of today, pages
542 and 543), the same was put.
The result of the voice vote being inconclusive, Senator Deem
demanded a division of the vote.
A standing vote being taken, there were twenty "yeas" and ten
"nays".
Whereupon, Senator Tomblin (Mr. President) declared Senator
Deem's amendment to the House of Delegates amendments to the bill
(Eng. S. B. No. 547) adopted.
On motion of Senator Deem, the following amendments to the
House of Delegates amendments to the bill were next reported by the
Clerk, considered simultaneously, and adopted:
On page two, by striking out the enacting section and
inserting in lieu thereof a new enacting section, to read as
follows:
That section ten-a, article one, chapter fifty-one of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; that section thirteen, article two of
said chapter be amended and reenacted; and that section four,
article nine of said chapter be amended and reenacted, all to read
as follows:;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 547--A Bill to amend and reenact section
ten-a, article one, chapter fifty-one of the code of West Virginia,
one thousand nine hundred thirty-one, as amended; to amend and
reenact section four, article nine of said chapter; and to amend
and reenact section thirteen, article two of said chapter, all
relating to providing for certain judicial pay raises; providing
that persons eligible for judicial retirement no longer required to
contribute to the retirement system; and allowing military and
prosecutorial service to be counted toward years of service in the
judicial pension system.
Following a point of inquiry to the President, with resultant
response thereto,
At the request of Senator Bowman, unanimous consent being
granted, Senator Bowman addressed the Senate regarding the adoption of Senator Deem's amendments to the House of Delegates amendments
to the bill.
Following a point of inquiry to the President, with resultant
response thereto,
At the request of Senator Bowman, and by unanimous consent,
further consideration of the message on the bill was deferred until
the conclusion of House messages now lodged with the Clerk.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 583, Creating
coal resource transportation road system.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page four, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That section one, article six, chapter seventeen-c of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; that said article be further amended by adding thereto a new section, designated section ten; that sections
ten and eleven, article seventeen of said chapter be amended and
reenacted; that said article be further amended by adding thereto
a new section, designated section eleven-d; that said chapter be
further amended by adding thereto two new articles, designated
articles seventeen-a and seventeen-b; that section three, article
one, chapter seventeen-e of said code be amended and reenacted;
that chapter twenty-four-a of said code be amended by adding
thereto a new article, designated article one-a; and that article
seven of said chapter be amended by adding thereto a new section,
designated section seven, all to read as follows:
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
ARTICLE 6. SPEED RESTRICTIONS.
§17C-6-1. Speed limitations generally; penalty.
(a) No person may drive a vehicle on a highway at a speed
greater than is reasonable and prudent under the existing
conditions and the actual and potential hazards. In every event
speed shall be so controlled as may be necessary to avoid colliding
with any person, vehicle or other conveyance on or entering the
highways in compliance with legal requirements and the duty of all
persons to use due care.
(b) Where no special hazard exists that requires lower speed
for compliance with subsection (a) of this section, the speed of any vehicle not in excess of the limits specified in this section
or established as hereinafter authorized in this section is lawful,
but any speed in excess of the limits specified in this subsection
or established as hereinafter authorized in this section is
unlawful. The following speed limits apply:
(1) Fifteen miles per hour in a school zone during school
recess or while children are going to or leaving school during
opening or closing hours. A school zone is all school property,
including school grounds and any street or highway abutting such
the school grounds and extending one hundred twenty-five feet along
such the street or highway from the school grounds. The speed
restriction does not apply to vehicles traveling on a controlled-
access highway which is separated from the school or school grounds
by a fence or barrier approved by the division of highways;
(2) Twenty-five miles per hour in any business or residence
district; and
(3) Fifty-five miles per hour on open country highways, except
as otherwise provided by this chapter.
The speeds set forth in this section may be altered as
authorized in sections two and three of this article.
(c) The driver of every vehicle shall, consistent with the
requirements of subsection (a) of this section, drive at an
appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going
around a curve, when approaching a hill crest, when traveling upon
any narrow or winding roadway and when a special hazard exists with
respect to pedestrians or other traffic or by reason of weather or
highway conditions.
(d) The speed limit on controlled-access highways and
interstate highways, where no special hazard exists that requires
a lower speed, shall be not less than fifty-five miles per hour and
the speed limits specified in subsection (b) of this section do not
apply.
(e) Unless otherwise provided in this section, any person who
violates the provisions of this section is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not more than one
hundred dollars; upon a second conviction within one year
thereafter, shall be fined not more than two hundred dollars; and
upon a third or subsequent conviction within two years thereafter,
shall be fined not more than five hundred dollars: Provided, That
if such the third or subsequent conviction is based upon a
violation of the provisions of this section where the offender
exceeded the speed limit by fifteen miles per hour or more, then
upon conviction, shall be fined not more than five hundred dollars
or confined in the county or regional jail for not more than six
months, or both.
(f) Any person who violates the provisions of subdivision (1),
subsection (b) of this section is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than one hundred
dollars nor more than five hundred dollars: Provided, That if such
the conviction is based upon a violation of the provisions of
subdivision (1), subsection (b) of this section where the offender
exceeded the speed limit by fifteen miles per hour or more in the
presence of one or more children, then upon conviction, shall be
fined not less than one hundred dollars nor more than five hundred
dollars or confined in the regional or county jail for not more
than six months, or both.
(g) If an owner or driver is arrested under the provisions of
this section for the offense of driving above the posted speed
limit on a controlled-access highway or interstate highway, and if
the evidence shall show shows that the motor vehicle was being
operated at ten miles per hour or less above said the speed limit,
then, upon conviction thereof, such that person shall be fined not
more than five dollars, plus court costs.
(h) Any person operating a commercial motor vehicle engaged in
the transportation of coal on the coal resource transportation road
system who violates subsection (a), (b) or (c) of this section
shall, upon conviction, be subject to fines in triple the amount
otherwise provided in subsection (e) of this section.
_____(i) If an owner or driver is convicted under the provisions of
this section for the offense of driving above the speed limit on a
controlled-access highway or interstate highway of this state, and
if the evidence shall show shows that the motor vehicle was being
operated at ten miles per hour or less above said the speed limit,
then notwithstanding the provisions of section four, article three,
chapter seventeen-b of this code, a certified abstract of the
judgment on such the conviction shall not be transmitted to the
division of motor vehicles: Provided, That the provisions of this
subsection do not apply to conviction of owners or drivers who have
been issued a commercial driver's license as defined in chapter
seventeen-e of this code if the offense was committed while
operating a commercial vehicle.
(h) (j) If an owner or driver is convicted in another state
for the offense of driving above the maximum speed limit on a
controlled-access highway or interstate highway, and if the maximum
speed limit in such the other state is less than the maximum speed
limit for a comparable controlled-access highway or interstate
highway in this state, and if the evidence shall show shows that
the motor vehicle was being operated at ten miles per hour or less
above what would be the maximum speed limit for a comparable
controlled-access highway or interstate highway in this state, then
notwithstanding the provisions of section four, article three, chapter seventeen-b of this code, a certified abstract of the
judgment on such the conviction shall not be transmitted to the
division of motor vehicles or, if transmitted, shall not be
recorded by the division unless, within a reasonable time after
conviction, the person convicted has failed to pay all fines and
costs imposed by the other state: Provided, That the provisions of
this subsection do not apply to conviction of owners or drivers who
have been issued a commercial driver's license as defined in
chapter seventeen-e of this code if the offense was committed while
operating a commercial vehicle.
§17C-6-10. Enforcement of article with respect to operations of
commercial motor vehicles.
In addition to enforcement by officers and other persons
authorized by law, designated employees of the public service
commission of West Virginia may enforce the provisions of this
article as they relate to the operation of commercial motor
vehicles.
ARTICLE 17. SIZE, WEIGHT AND LOAD.
§17C-17-10. Officers may weigh, measure or examine vehicles and
require removal or rearrangement of excess loads.
(a) Any police officer or employee of the department division
of highways or the public service commission designated by the
commissioner of highways as a member of an official weighing crew by his or her representative agency may require the driver of any
vehicle or combination of vehicles located on or within one hundred
feet of any public highway or right-of-way, and whether moving or
stopped, to stop and submit such the vehicle or combination of
vehicles to a weighing with portable or stationary weighing devices
or submit such the vehicle or combination of vehicles to a
measuring or to any other examination necessary to determine if
such the vehicle or combination of vehicles is in violation of any
of the provisions of this article or article seventeen-a of this
chapter, and may require that such the vehicle or combination of
vehicles be driven to the nearest weighing device, but only if such
weighing device is within two miles of the place where the vehicle
or combination of vehicles is stopped.
No police officer or member of an official weighing crew may
stop a vehicle or combination of vehicles may be detained for
weighing unless a portable or stationary weighing device is
actually present at the location where, and at the time, the
vehicle or combination of vehicles is stopped or unless the vehicle
or combination of vehicles is escorted immediately after being
stopped to a the nearest portable or stationary weighing device.
In no case may a vehicle or combination of vehicles be detained
more than one hour from the time the same it is stopped for
weighing unless the vehicle or combination of vehicles is impounded for a another violation in accordance with the provisions of
section fourteen of this article or placed out of service for a
safety violation.
(b) Whenever a police officer or a member of an official
weighing crew determines that a vehicle or combination of vehicles
is in violation of any of the provisions of this article or article
seventeen-a of this chapter, he or she may require the driver to
stop such vehicle or combination of vehicles in a suitable place
and to remain standing in place or be moved to a suitable location
until such the vehicle or combination of vehicles is brought into
conformity with the provisions violated.
In the case of a weight violation all material unloaded shall
be cared for by the owner, lessee or borrower of such the vehicle
or combination of vehicles at the risk of such the owner, lessee or
borrower: Provided, That no criminal charge shall be preferred
against any driver, operator or owner of a vehicle when a
rearrangement of the load upon the vehicle, without removal
therefrom of the load from the vehicle, reduces the axle loads of
said the vehicle to such the limit as is permitted under this
chapter.
(c) Any driver of a vehicle or combination of vehicles who
fails or refuses to comply with any requirement or provision of
this section shall be guilty of a misdemeanor or, in the case of any driver of a vehicle engaged in the transportation of coal, any
other additional penalties that may be applicable under the
provisions of article seventeen-a of this chapter.
§17C-17-11. Permits for excess size and weight.
(a) The commissioner of highways public service commission
may, in its his or her discretion, upon application in writing and
good cause being shown, therefor issue a special permit in writing
authorizing: (1) The applicant, in crossing any highway of this
state, to operate or move a vehicle or combination of vehicles of
a size or weight or load exceeding the maximum specified in this
chapter or otherwise not in conformity with the provisions of this
chapter, whether the operation be is continuous or not, provided
the applicant shall agree agrees to compensate the commissioner of
highways for all damages or expenses incurred in connection with
the crossing; (2) the applicant to operate or move a vehicle or
combination of vehicles of a size or weight of vehicles or
nondivisible load exceeding the maximum specified in this chapter
or otherwise not in conformity with the provisions of this chapter;
and (3) the applicant to move or operate, for limited or continuous
operation, a vehicle hauling containerized cargo in a sealed,
seagoing container to or from a seaport or inland waterway port
that has or will be transported by marine shipment where the
vehicle is not, as a result of hauling the container, in conformity with the provisions of this article relating to weight limitations,
upon the conditions that: (A) The container be hauled only on the
roadways and highways designated by the commissioner of highways;
(B) the contents of the container are not changed from the time it
is loaded by the consignor or the consignor's agent to the time it
is delivered to the consignee or the consignee
'
s agent; and (C) any
additional conditions as the commissioner of highways or the public
service commission may impose to otherwise ensure compliance with
the provisions of this chapter.
(b) (1) The commissioner of highways may issue a special
permit to operate or move a vehicle or combination of vehicles of
a size or weight of vehicles or nondivisible load exceeding the
maximum specified in this chapter or otherwise not in conformity
with the provisions of this chapter over routes designated by the
commissioner of highways upon such terms and restrictions as
prescribed by the public service commission, together with the
commissioner may prescribe of highways.
(2) For purposes of this section, nondivisible load means any
load exceeding applicable length or weight limits which, if
separated into smaller loads or vehicles, would: (A) Compromise
the intended use of the vehicle, to the extent that the separation
would make it unable to perform the function for which it was
intended; (B) destroy the value of the load or vehicle, to the extent that the separation would make it unusable for its intended
purpose; or (C) require more than eight workhours to dismantle
using appropriate equipment: Provided, That the applicant for a
nondivisible load permit has the burden of proof as to the number
of workhours required to dismantle the load.
(c) The application for any permit other than a special annual
permit shall specifically describe the vehicle or vehicles and load
to be operated or moved along or across the highway and the
particular highway or crossing of the highway for which the permit
to operate is requested, and whether the permit is requested for a
single trip or for a continuous operation.
(d) The commissioner of highways public service commission is
authorized to issue or withhold a permit at his or her discretion;
or, if the permit is issued, to limit the number of trips, or to
establish seasonal or other time limitations within which the
vehicles described may be operated on or across the highways
indicated, or otherwise to limit or prescribe conditions of
operation of the vehicle or vehicles, when necessary to assure
against undue damage to the road foundations, surface, or
structures, and may require the undertaking, bond or other security
as may be considered necessary to compensate for any injury to any
roadway structure and to specify the type, number and the location
for escort vehicles for any vehicle: Provided, That in establishing limitations on permits issued under this section, the
public service commission shall consult with the commissioner of
highways and may not issue, limit or condition a permit in a manner
inconsistent with the authority of the commissioner of highways.
The commissioner public service commission may charge a fee
not to exceed five dollars for the issuance of a permit for a
mobile home and a reasonable fee for the issuance of a permit for
any other vehicle under the provisions of this section to pay the
administrative costs thereof.
(e) Every permit shall be carried in the vehicle or
combination of vehicles to which it refers and shall be open to
inspection by any police officer or authorized agent of the
commissioner of highways granting the permit or the public service
commission, and no person shall violate any of the terms or
conditions of the special permit.
§17C-17-11d. Establishing maximum road highway weights.
Effective the first day of July, two thousand three, the
maximum gross vehicle weight on existing state-maintained roads and
public highways designated for gross weight vehicle load of eighty
thousand pounds shall have a tolerance of ten percent. All
requirements for vehicle design and axle weights otherwise
established under this code remain applicable. In no case may the
commissioner authorize weight limits on any state-maintained road or public highway that would jeopardize or otherwise limit federal
highway fund appropriations to this state. The commissioner of
highways shall, by the thirty-first day of December, two thousand
three, review and revise, as the commissioner deems appropriate,
weight limits for all state-maintained roads and public highways
and provide to the joint committee of government and finance a
report denoting all weight limits as they have been designated on
state-maintained roads and public highways.
ARTICLE 17A. REGULATION OF THE COMMERCIAL TRANSPORTATION OF COAL.
§17C-17A-1. Legislative findings and creation of program.
(a) The Legislature finds and declares that:
(1) No other economic undertaking in the history of West
Virginia has had a greater impact upon the citizens of this state,
providing such an economic force and affecting the social construct
and day-to-day life and environment of the people and communities
of this state, than the activities associated with the extraction,
transportation and consumption of coal or its by-products. In
areas of this state where the coal industry exists, the economic
benefits of coal production are an indispensable part of the local
community's vitality.
(2) The historic progression of the coal industry has resulted
in an increasing use of the public highways of this state for the
transportation of coal to river ports, power generators or rail-loading facilities. Roads where coal is transported are mainly
two-lane rural roads and highways of varying grades and conditions.
The daily presence of large commercial motor vehicles on these
roads and highways causes significant impact to local communities
and the local transportation infrastructure. Local residents are
exposed on a daily basis to the dangers associated with sharing the
road with a large number of these vehicles.
(3) The increased capacity and ability of coal-hauling
vehicles, tied with increased economic pressures to reduce industry
transportation costs, have created economic incentives for
transporting coal at higher than legal limits and for drivers to
drive long hours and operate these vehicles at higher rates of
speed. Consequently, average vehicle weights have increased and
many coal transport vehicles regularly exceed the lawful limit by
more than one hundred percent. The excessive weights of these
vehicles have also resulted in the rapid deterioration of state
roads and bridges, creating significant costs to the state of
millions of dollars in lost road and bridge use and life.
(4) Advances in truck stability, braking and safety technology
have made modern coal transporters much safer conveyances than
those used by the industry when the state's current weight laws
were enacted. Further advances in technology have made tracking
and recording individual vehicles, their operators and load significantly more efficient.
(5) Enforcement of truck safety and driver safety laws has
been divided between various jurisdictions such as local and state
law enforcement, the division of highways and the public service
commission. As a result, local and state enforcement of those
comprehensive laws has not been uniform, with the result that many
of these laws have not been enforced.
(6) The resulting need for a remedy for hauling these
additional amounts of coal is most severe in a limited and discrete
geographic area of the state where the limited access to rail and
river transportation options and economic conditions require a
regulatory program that allows a greater weight allowance for coal-
hauling vehicles to address the unique economic circumstances of
that region.
(7) That this limited highway system must include additional
safety protections for the public sharing the roads with a large
coal-hauling vehicle fleet and specialized training for operators
of these vehicles, requiring the program be designed to assure that
state weight and safety requirements be effectively administered
and enforced.
(b) A special regulatory program with administrative
enforcement authority over all vehicles hauling coal in West
Virginia is created. This program is designed to address the economic needs of the state coal industry within the confines of
the ability of the transportation infrastructure to accommodate
these needs and in careful consideration for road safety and
maintenance requirements of these vehicles, by providing for
statewide coal truck weight reporting requirements and allowing a
limited statewide increase in weights for commercial vehicles and
an additional, limited increase for vehicles hauling coal where the
greater increase is required.
§17C-17A-2. Definitions.
For purposes of this article:
(a) A "coal resource transportation road" means a road
designated by the department of transportation as safe and
sufficient to allow vehicles hauling coal to carry a greater gross
and axle weight of up to one hundred twenty thousand pounds, with
a five percent variance.
(b) "Coal" or "coal by-products" means the mineral in raw or
clean state and includes synthetic fuel manufactured or produced
for which credit is allowable under 26 U. S. C. §29 of the Internal
Revenue Code (1996).
(c) "Commission" means the public service commission of West
Virginia.
(d) "Division" means the division of highways within the
department of transportation.
(e) "Mining operation" means any activity related to
extraction of coal regulated under the provisions of this code.
(f) "Operator" means the person driving a commercial motor
vehicle transporting coal on any public highway of this state;
(g) "Person" means any individual, partnership, firm, society,
association, trust, corporation, other business entity or any
agency, unit or instrumentality of federal, state or local
government.
(h) "Shipper" means the person who loads coal or causes coal
to be loaded into any commercial motor vehicle that will operate on
any public highway in this state;
(i) "Receiver" means the person who accepts for unloading coal
from any vehicle that has operated on any public highway in this
state;
(j) "Vehicle owner" means the person who as owner of a
commercial motor vehicle employs, contracts or otherwise directs a
driver to operate that vehicle on a public highway of this state
for the purpose of transporting coal.
§17C-17A-3. Authority of the division of highways and public
service commission generally.
(a) The division of highways shall establish all legal vehicle
weight limits for all public highways including roads within the
coal resource transportation road system. Public highways shall be designated as coal resource transportation roads by the
commissioner of the division of highways pursuant to this article.
Only state-maintained roads and public highways found in the
following areas: Boone; Fayette; Lincoln; Logan; McDowell; Mercer;
Mingo; Raleigh; Wayne and Wyoming counties; in Greenbrier County,
routes west of Sam Black Church and southwest to the Summers County
line; in Clay County, routes 4 and 16; in Nicholas County, routes
19, 20, 39, 41 and 55; in Webster County, routes 9, 20 and 82; and
all state-maintained roads and public highways found in Washington,
Malden, Louden and Cabin Creek districts, Kanawha County, are
eligible to qualify as part of the coal resource transportation
road system. The division shall post signs on roads informing the
public of the designation and shall also list a toll-free telephone
line for public reporting of poor driving or law violations by
special permit operators. The division shall provide periodic
reports to the commercial motor vehicle weight and safety
enforcement advisory committee as established in section two,
article one-a, chapter twenty-four-a of this code relating to the
study of coal resource transportation roads. The periodic reports
shall include the following at a minimum: (1) Citations issued for
violations of this chapter; (2) disposition of the violations; (3)
road conditions and maintenance; and (4) the amount of undue road
damage attributable to coal resource transportation road system permit use.
(b) The public service commission shall administer the coal
resource transportation road permitting program and otherwise
enforce the provisions of this article. The commission shall
establish requirements for vehicle operators holding coal resource
transportation road permits pursuant to section five of this
article consistent with federal statutory and regulatory
requirements.
(1) The commission may, during normal business hours, conduct
inspections of all trucking-related records of shippers, vehicle
operators, vehicle owners and receivers engaged in the
transportation of coal. Copies of records shall be provided to
commission employees upon request. This provision may not be
construed to authorize the commission to reveal trade secrets or
other confidential financial information of those persons
inspected; however, the commission may use any weight measurement
records as evidence of a violation of this article.
(2) The commission shall establish and maintain a toll-free
telephone line for public reporting of poor driving or law
violations by special permit operators. In addition, the
commission shall require all vehicles operating under a permit
issued pursuant to the provisions of this article to clearly
display on the vehicle the toll-free telephone number.
(3) The commission shall implement a study of commercial
vehicle safety-related issues, including using higher education
institutions and other research organizations. The commission
shall provide periodic reports to the commercial motor vehicle
weight and safety enforcement advisory committee as established in
section two, article one-a, chapter twenty-four-a of this code
relating to the study of motor vehicle weight and safety
enforcement.
(4) The commission shall establish procedures to use
electronic real-time reporting of coal vehicle weights by shippers
and receivers. The commission may require daily certified reports
from shippers or receivers if electronic reporting methods are not
used. The commission may authorize alternative measures of
reporting that require same-day reporting of weight measurements by
shippers and receivers.
(5) The commission shall impose and collect from shippers of
coal on the coal resource transportation road system through the
use of the special permit, issued pursuant to section five of this
article, for the privilege of loading coal in excess of eighty-
eight thousand pounds for transport on a coal resource
transportation road. The fee shall be assessed in the amount of
five cents per ton of coal hauled over the road. Revenue from the
fees shall be deposited in the coal resource transportation fund created in section five of this article.
(c) Notwithstanding the provisions of section three, article
one, chapter twenty-nine-a of this code, the commission and the
division shall each propose legislative rules for promulgation in
accordance with the provisions of article three, chapter twenty-
nine-a of this code to carry out their duties and responsibilities
pursuant to the provisions of this article.
§17C-17A-4. Special permit issuance; and promulgation of rules.
(a) The commission may issue permits to authorize the hauling
of coal of a greater gross and axle weight than otherwise
authorized by state law on roads designated by the commissioner of
highways as coal resource transportation roads.
(b) Notwithstanding the provisions of section three, article
one, chapter twenty-nine-a of this code, the commission shall
promulgate emergency and legislative rules to effectuate purposes
of this section, which shall provide, at a minimum, the following:
(1) Twenty-four hours' mandatory specialized training
requirements for commercial vehicles operators with less than two
years of commercial driving experience;
(2) Requirements for random drug and alcohol testing; and
(3) Requirements for daily records consistent with the
provisions of any applicable federal statutory or regulatory
requirements.
§17C-17A-5. Operation of coal trucks under special permits; weight
limitations; payment of permit fees.
(a) Any vehicle, when transporting coal over certain public
highways, designated as coal resource transportation roads by the
commissioner of the department of highways, may be operated at the
weights as set forth in this section in excess of the maximum gross
weight prescribed in section nine, article seventeen of this
chapter and any other maximum weight limitations on any public
highway by paying the corresponding special permit fee and
otherwise complying with the provisions of this article.
(b) Special permits shall be issued subject to the following
requirements:
(1) A single unit truck having one steering axle and two axles
in tandem shall be limited to a maximum gross weight of eighty
thousand pounds with a tolerance of five percent and pay a special
permit fee annually of one hundred dollars;
(2) A single unit truck having one steering axle and three
axles in tridem arrangement shall be limited to a maximum gross
weight of ninety thousand pounds with a tolerance of five percent
and pay a special permit fee annually of one hundred sixty dollars;
(3) A tractor-semitrailer combination with five axles shall be
limited to a maximum gross weight of one hundred ten thousand
pounds with a tolerance of five percent and pay a special permit fee annually of three hundred dollars;
(4) A tractor-semitrailer combination with six or more axles
shall be limited to a maximum gross weight of one hundred twenty
thousand pounds with a tolerance of five percent and pay a special
permit fee annually of five hundred dollars.
(c) The axle loads set forth in subsection (b) of this section
may in no event exceed the maximum axle load allowable based upon
the minimum axle spacings as determined by the division of highways
in accordance with generally accepted industry standards and bridge
loading analysis.
(d) In order to qualify for issuance of a special permit, the
applicant shall provide information that demonstrates that the
vehicle, as configured, has a total combined axle rating capacity
equal to or greater than the maximum amount of weight for which a
special permit is sought. The information may include, but not be
limited to, the manufacturer's rated capacity. In the event that
manufacturer's rated capacity is not available, any other
information reasonably determined by the secretary of the
department of transportation to give evidence of adequate combined
axle rating capacity may be submitted.
(e) Special permits authorized by this section shall be issued
by the commission on forms prescribed and furnished by it. The
special permit indicium shall be permanently affixed immediately below the window glass on the top of the door on the driver's side
of the vehicle. Lost, destroyed, stolen or otherwise unusable
special permits indicia shall be replaced in accordance with
legislative rules to be promulgated by the commission. The special
permit indicium shall be issued to a particular vehicle and shall
remain with the vehicle upon transfer of possession or ownership of
the vehicle.
(f) Special permits issued pursuant to the provisions of this
article are valid for a period of one year from the date of
purchase: Provided, That no renewal permits shall be issued to any
permittee who, at the time of the renewal, has any administrative
or criminal actions pending relating to the operation of commercial
motor vehicles in this or other states.
(g) For purposes of this section, the dimensional requirements
of motor vehicles shall conform to all applicable federal laws and
regulations. Nothing in this section may be construed or
administered to jeopardize the receipt of federal funds for highway
purposes.
(h) Any operator of a vehicle with a special permit issued
under the provisions of this article shall submit the vehicle or
combination of vehicles to weighing with portable or stationary
weighing devices as required by section ten, article seventeen of
this chapter. Any driver or owner of a vehicle or combination of vehicles operating under the provisions of this section who fails
or refuses to comply with any requirement of section ten, article
seventeen of this chapter forfeits all privileges granted by the
special permits.
(i) Any vehicle or combination of vehicles transporting coal
pursuant to the provisions of this article shall be securely
covered to prevent the escape of the load on any trip exceeding a
total distance of one mile on any public highway.
(j) As a condition of receipt of a special permit, vehicle
owners and operators shall submit permitted vehicles to safety
checks and other vehicle inspection requirements as required by
legislative rules of the commission. The commission may impose
additional vehicle operation and maintenance requirements by rule
as the commission deems appropriate to assure the safe operation of
vehicles issued a special permit.
(k) The commission shall propose rules in accordance with the
provisions of article three, chapter twenty-nine-a of this code
regarding the implementation of the requirements of this section.
The rules shall be initially promulgated as emergency rules
pursuant to the provisions of article three, chapter twenty-nine-a
of this code by no later than the first day of October, two
thousand three.
(l) The payment of the special permit fee is in addition to any state registration fee, user fee or other decal fee.
(m) All revenues generated pursuant to this section shall be
credited to a special account within the road fund which is created
and shall be designated as the "coal resource transportation road
fund". Moneys of the fund shall be used by the division of
highways for construction, maintenance and repair of public
highways and bridges over which substantial quantities of coal are
transported.
(n) For periods of less than one year, the permit fee imposed
by subsection (b) of this section shall be prorated to the nearest
month.
§17C-17A-6. Reporting requirements for shippers, vehicle owners
and receivers of coal transported on public highways.
(a) Every shipper of coal for transport on a public highway in
this state that loads vehicles to a gross weight in excess of
eighty thousand gross pounds shall be required to report to the
commission weight and other transport-related data as required in
this article. The commission shall by rule establish special
recording and reporting methods for timely and accurate disclosure
of all shipments of coal made upon any public highway of this
state. The rules shall provide for administrative penalties to be
imposed for failure to timely or accurately report weight or other
required data.
(b) Every vehicle owner who transports coal on a public
highway of this state is subject to the provisions of this article
and any rules established by the commission requiring reporting,
monitoring or removal from service of any unsafe vehicle or driver.
(c) Every receiver of coal transported on a public highway in
this state that unloads or causes to be unloaded any shipment of
coal shall report to the commission the weight of the shipment and
other data related to the shipment as required by rules promulgated
by the commission. The rules shall provide for administrative
penalties to be imposed for failure to timely or accurately report
the weight or other data. Compliance with the reporting
requirements shall cause the receiver to be immune from any and all
criminal, civil and administrative liability, damages, costs, fines
and penalties based on, arising out of or resulting from the
receiver's receipt or acceptance of the shipment.
(d) The commission shall by rule establish special recording
and reporting methods for timely and accurate disclosure of all
shipments of coal made by commercial motor vehicles upon a public
highway of this state.
§17C-17A-7. Permit application procedure.
The commission shall propose, in accordance with provisions of
article three, chapter twenty-nine-a of this code, by emergency and
legislative rules, filed no later than the first day of October, two thousand three, a permit application procedure for the issuance
of permits pursuant to the authority contained within this article.
§17C-17A-8. Powers and duties of the commission.
In addition to all other powers, duties, responsibilities and
authority granted and assigned to the commission in this code and
elsewhere prescribed by law, notwithstanding any provision of the
code to the contrary:
(1) The commission shall promulgate rules in accordance with
the provisions of article three, chapter twenty-nine-a of this code
to carry out the provisions of this article, including modifying
any existing rules and establishing permit application fees up to
an amount sufficient to defray the costs of permit review;
(2) The commission or any authorized representative, employee
or agent may, at reasonable times, enter onto any coal shipping or
receiving facility in the state for the purpose of making an
inspection or investigation;
(3) The commission may also perform or require a person, by
order, to perform any and all acts necessary to carry out the
provisions of this article or the rules promulgated under this
article;
(4) The commission, its authorized representative, employee or
agent shall make periodic inspections at coal shipping or receiving
facilities to effectively implement and enforce the requirements of this article or its rules and may conduct at weigh stations or any
other adequate site or facility inspections of coal in transit.
§17C-17A-9. Administrative sanctions.
(a) This section imposes administrative sanctions for
violations occurring on the coal resource transportation road
system. It is the intent of the Legislature to impose
administrative sanctions in addition and separate from any criminal
or civil penalties upon any person violating or assisting in the
violation of the provisions of this article.
(b) For a particular violation, the commission may take
administrative notice of criminal convictions, or a plea of nolo
contendere, for a violation for purposes of imposing the
administrative sanctions in this section in lieu of the procedure
provided in subsection (f) of this section. After providing notice
and an opportunity to show cause why penalties should not be
imposed for the violation of provisions of this article, the
commission shall impose sanctions upon an operator, shipper,
receiver or truck owner when a violation is found to have occurred.
Lack of intent is not a defense to a violation except as it applies
to receivers.
(c) Administrative sanctions for violations shall be imposed
as follows:
(1) Every shipper of coal for transport on the public roads or highways of this state which loads coal in an amount which results
in gross vehicle weight to be in excess of the weight limits
established in this article shall be subject to an administrative
penalty per pound in excess of the lawful weight pursuant to the
penalty schedule established in section ten of this article;
(2) It is unlawful for any person to operate a commercial
motor vehicle engaged in the transportation of coal with a gross
vehicle weight for nonpermitted vehicles in excess of the lawful
maximum weight on a coal resource transportation road without a
permit required by section five of this article. Any person
violating this subsection shall have his or her driver's license
suspended by the commissioner of the division of motor vehicles for
a period of ninety days for the first offense, six months for the
second offense and one year for the third offense: Provided, That
in the case of a permit expired for less than thirty days, the
operator my present a valid permit to the commission within five
days of the date of the offense in order to avoid the penalty;
(3) Any owner of a commercial motor vehicle engaged in the
transportation of coal operating without an excess weight hauling
permit and bearing a gross vehicle weight in excess of the lawful
maximum weight for the public highway for nonpermitted vehicles who
allows the operation of that vehicle upon a coal resource
transportation road of this state shall have any state-issued hauling permit then in force suspended by the commission for a
period of ninety days for the first offense, six months for the
second offense and revoked for the third offense: Provided, That
in the case of a permit expired for less than thirty days, the
operator my present a valid permit to the commission of motor
vehicles within five days of the date of the offense in order to
avoid the penalty: Provided further, That should there be no
state-issued hauling permit then in force, the owner shall have his
or her vehicle registration suspended by the commission of motor
vehicles for a period of ninety days for the first offense, six
months for the second offense and revoked for the third offense;
(4) Any operator who operates a vehicle engaged in the
transportation of coal that has been issued a special permit by the
division upon the coal resource transportation road system and who
operates the vehicle with a gross vehicle weight that is in excess
of the lawful maximum weight allowed pursuant to the permit shall
have his or her driver's license suspended by the commissioner of
the division of motor vehicles for a period of three days for the
first offense, thirty days for the second offense and six months
for the third offense;
(5) Any owner of a vehicle engaged in the transportation of
coal who has been issued a special permit by the commission who
allows the operation of that vehicle upon the coal resource transportation road system with a gross vehicle weight that is in
excess of the lawful maximum weight allowed pursuant to the permit
shall have the special permit suspended by the commission for a
period of three days for the first offense, thirty days for the
second offense and revoked for the third offense;
(6) Any operator who operates a vehicle engaged in the
transportation of coal with a suspended excess weight hauling
permit at a weight in excess of the limits imposed by article
seventeen of this chapter upon the coal resource transportation
road system shall have his or her driver's license suspended by the
commissioner of the division of motor vehicles for a period of six
months for the first offense, twelve months for the second offense
and two years for the third offense: Provided, That if the
operator is also the owner of the vehicle, the owner penalties set
forth in subdivision (5) of this subsection also apply;
(7) Any owner of a vehicle engaged in the transportation of
coal with a suspended excess weight hauling permit who allows the
operation of that vehicle upon the roads or highways of this state
during a period of permit suspension at a weight in excess of the
limits imposed by article seventeen of this chapter shall have all
state-issued hauling permits then in force suspended by the
commission or, if applicable, the commissioner of highways for a
period of twelve months for the first offense, two years for the second offense and revoked for the third offense;
(8) Any operator who operates a vehicle engaged in the
transportation of coal that has been issued a special permit by the
commission under the provisions of section five of this article and
who is charged with a violation of section one, article six of this
chapter upon a road or highway of this state designated by the
commissioner of division of highways as a part of the coal resource
transportation road system shall have his or her driver's license
suspended by the commissioner of the division of motor vehicles for
a period of three days for the first offense, thirty days for the
second offense and revoked for the third offense;
(9) Any person who falsifies information relating to the
acquisition of a hauling permit shall have his or her driver's
license suspended by the commissioner of the division of motor
vehicles for a period of sixty days for the first offense, one
hundred twenty days for the second offense and six months for the
third offense;
(10) Any person regulated pursuant to this article who
falsifies information relating to the acquisition of a hauling
permit shall have its state-issued business license suspended by
the commissioner of the state tax division for a period of six
months for the first offense, one year for the second offense and
two years for the third offense;
(11) Any person who fabricates or displays an altered, forged
or counterfeited permit shall have his or her driver's license
suspended by the commissioner of the division of motor vehicles for
a period of sixty days for the first offense, one hundred twenty
days for the second offense and revoked for the third offense;
(12) Any person who bribes or attempts to bribe an employee of
the state of West Virginia, or who gives an employee of the state
of West Virginia a gift, gratuity, entertainment, loan, favor or
other thing of monetary value, for the purpose of avoiding any
penalties permitted under this article shall have his or her state-
issued hauling permit then in force suspended by the commission for
a period of sixty days for the first offense, one hundred twenty
days for the second offense and revoked for the third offense;
(13) In the case of multiple violations by a permittee,
shipper, operator or receiver, the commission may direct that the
imposed suspension be served concurrently or consecutively, taking
into account the frequency of violations committed during the
inclusive time periods, or in the same course of misconduct if the
commission determines that sufficient mitigating or aggravating
circumstances are present;
(14) Any person who aids or abets another person's attempt to
avoid suspension shall have his or her driver's license suspended
by the commissioner of the division of motor vehicles for a period of sixty days for the first offense, one hundred twenty days for
the second offense and six months for the third offense; and
(15) Any person who aids or abets a person's attempt to avoid
suspension shall have his or her state-issued business license
suspended by the tax commissioner for a period of three months for
the first offense, six months for the second offense and one year
for the third offense.
(d) Without providing a hearing, the commission may
immediately suspend a person from obtaining permits or operating
under permit authority for failure to pay a fee required under this
article until proper payment is received. Upon the completion of
all administrative appeals of any violation that results in a
license suspension, the commission shall notify the division of
motor vehicles which shall act accordingly.
(e) Without providing a hearing, the commission and law-
enforcement personnel may immediately confiscate an altered, forged
or counterfeited permit or a permit used in violation of its terms
and conditions. Upon issuance of a citation alleging a violation
of this subsection, the vehicle and its load shall be impounded by
law-enforcement personnel until such time as a hearing on the
matter is conducted by the division.
(f) Administrative sanctions may be imposed pursuant to the
following procedures:
(1) No administrative sanction may be imposed until after the
person has been notified by certified mail or personal service.
The notice shall include: A reference to the section of statute,
rule, order or permit violated; a concise statement of the facts
alleged to constitute a violation; a statement of the
administrative penalties to be imposed; and a statement of the
person's right to a hearing. The person has twenty days from
receipt of the notice within which to deliver to the commission a
written request for a hearing.
(2) Subsequent to the hearing and upon finding that a
violation has occurred, the commission shall issue a final order.
If no hearing is requested, the notice shall become a final order
upon the expiration of the twenty-day period.
(3) For purposes of the enhanced penalty provisions of this
section, the second and subsequent offenses shall be calculated on
a per-year basis.
(4) In addition to the imposition of an administrative
sanction, the commission or division may, by administrative order
and upon an appropriate finding, assess a violator for the
reasonable costs, as established by rules of any investigation,
inspection or monitoring survey which led to the establishment of
the violation.
§17C-17A-10. Penalties for violation of weight laws; impounding vehicles.
(a) Any owner, lessee or borrower of a commercial motor
vehicle or combination of vehicles transporting coal who operates
or permits to be operated on any highway the vehicle or combination
of vehicles with a total gross weight load imposed upon the highway
by any one group of two or more consecutive axles in excess of that
permitted by section five of this article is guilty of a
misdemeanor and, upon conviction thereof, shall be punished by a
fine based on the number of pounds in excess of the registered
weight, or in excess of allowable weights for single axle, or in
excess of allowable weights for groups of two or more consecutive
axles, in accordance with the following schedule:
Excess Weight Amount of Fine
1 to 4,000 pounds 1 cent per overweight pound
4,001 to 8,000 pounds 3 cents per overweight pound
8,001 to 12,000 pounds 7 cents per overweight pound
12,001 to 16,000 pounds 10 cents per overweight pound
16,001 to 20,000 pounds 15 cents per overweight pound
20,001 to 40,000 pounds 30 cents per overweight pound
40,001 pounds or more 45 cents per overweight pound
(b) Upon a second or subsequent conviction within two years
thereafter, the owner, lessee or borrower shall be punished by a
fine according to the following schedule:
Excess Weight Amount of Fine
1 to 4,000 pounds 1 cent per overweight pound
4,001 to 8,000 pounds 5 cents per overweight pound
8,001 to 12,000 pounds 10 cents per overweight pound
12,001 to 16,000 pounds 15 cents per overweight pound
16,001 to 20,000 pounds 20 cents per overweight pound
20,001 to 40,000 pounds 40 cents per overweight pound
40,001 pounds or more 80 cents per overweight pound
(c) The fines specified in subsections (a) and (b) of this
section are mandatory and may not be waived or reduced by any
judicial officer.
(d) In the event any owner, lessee or borrower of a vehicle is
charged with violating this section, the vehicle charged to have
been overloaded shall be impounded by the arresting officer. The
vehicle shall not be released to the alleged offender or the owner
unless and until he or she either has: (1) Been acquitted of the
charge; (2) been found guilty of the charge and paid any fine
assessed under subsection (a) or (b) of this section; or (3)
furnished cash or surety bond in at least double the amount of the
fine which may be assessed the offender under said subsections
conditioned upon the payment of any fine and costs assessed for the
violation. The offender is liable for any reasonable storage costs
incurred in storing impounded vehicles: Provided, That if the owner of the vehicle is a resident of or has a principal place of
business located in this state, and the vehicle has been duly
licensed in the state, then the vehicle may not be impounded by the
arresting officer who shall deliver to the operator a written
notice of the violation; the place, date and time of violation; the
license number of the vehicle; the title number and name and
address of the owner; the driver's name, address and the number of
his or her commercial driver's license; and the court, place, date
and time for hearing, which shall be within ten days of the
violation, Saturdays, Sundays and holidays excluded. A copy of the
notice shall be mailed to the owner of the vehicle within forty-
eight hours. If the owner or his, her or its agent fails to appear
at the designated place and time or, if convicted, fails to pay the
fine and costs assessed for the violation, the court shall order
the owner to post a bond or the impounding of the vehicle as
provided in this section.
(e) Any shipper or receiver who directs or knowingly permits
a commercial motor vehicle to be loaded in excess of registered
weight, allowable weights for single axle or allowable weights for
groups of two or more consecutive axles is also guilty of a
misdemeanor and, upon conviction, shall be punished by a fine equal
to that which may be imposed on the owner, lessee or borrower of a
commercial motor vehicle under subsection (a) of this section.
(f) The penalties and fees specified in this section are in
addition to any other liability that may be legally fixed against
the owner, operator or other person charged with a weight
violation.
§17C-17A-11. Effective date.
Criminal and administrative penalties imposed by this article
take effect on the first day of October, two thousand three.
§17C-17A-12. Designating special coal resource transportation
roads, highways and bridges.
(a) From those counties and districts described in subdivision
(a), section two of this article, the commissioner of the division
of highways shall identify those public roads, highways and bridges
used during the previous twelve-month period for transportation of
quantities of coal in excess of fifty thousand tons or projected to
be used for transporting quantities of coal in excess of fifty
thousand tons during the ensuing year. The identification process
shall include the following as to each discretely identifiable
section of the public highway:
(1) The current condition of the public roads, highways and
bridges;
(2) The estimated quantities of coal transported;
(3) Any planned or necessary maintenance or improvement;
(4) The number of truckloads of coal transported in an average day;
(5) Any anticipated increase or decrease in the quantity of
coal being transported; and
(6) Other information determined by the commissioner to be
relevant.
(b) Upon completion of the identification process, but in no
event later than the first day of July, two thousand three, the
commissioner shall designate, by order, an interim coal resource
transportation road system consisting of those public roads,
highways, bridges or segments thereof which may be used as special
coal haulage roads consistent with the authority contained in this
article. The commissioner shall establish a process for the
receipt and evaluation of public comment on the designations
contained within the interim coal resource transportation road
system and designate weight limits and other conditions for use of
the coal resource transportation road system as public interest so
provides. The commissioner shall publish a directory, including
supporting maps and other documents, of the interim coal resource
transportation road system.
(c) By no later than the first day of January, two thousand
four, the commissioner shall designate by order the coal resource
transportation road system and shall publish a directory, including
supporting maps and other documents, of that road system.
(d) The commissioner shall establish a process for periodic
evaluation of the designations contained in the coal resource
transportation road system in order to add to or delete from the
road system certain additional sections of public highways:
Provided, That the evaluations and modifications of the road system
shall be completed, at a minimum, on an annual basis.
§17C-17A-13. Authority of the commissioner of the division of
highways relating to road and bridge repair on designated coal
resource transportation roads.
(a) In addition to all other powers provided by law to the
commissioner of highways, he or she may enter into agreements with
coal shippers, motor vehicle operators or owners holding or
applying for permits issued pursuant to this article, or with any
other persons, for the purpose of replacing, repairing, widening,
reconstructing, altering, improving or maintaining public highways
used for coal resource transportation. These agreements shall
contain necessary criteria to assure any damages associated with
the transport of coal upon the respective public highways are
ameliorated.
(b) All moneys collected by the commissioner shall be
deposited in a special account created within the state road fund,
known as the coal resource transportation fund, to be expended for
the purposes set forth in subsection (a) of this section.
§17C-17A-14. Exclusion of off-road vehicles.
Notwithstanding any other provisions of state law to the
contrary, the provisions of this article shall not apply to coal-
hauling vehicles operating off-road or vehicles designed for off-
road.
§17C-17A-15. Exclusion of interstate highways.
Notwithstanding any other provisions of this code to the
contrary, the provisions of this article shall not apply to the
interstate highways in this state.
§17C-17A-16. Spotting unlawful; penalties.
It is unlawful for any person to intentionally assist an owner
or operator of a commercial motor vehicle engaged in the
transportation of coal to avoid a road, safety or other lawful
inspection or enforcement activity by any law- or weight-
enforcement officer through electronic communications or other
means intended to give the commercial vehicle driver knowledge of
the location of the officers. Any person who violates this section
is guilty of a misdemeanor and shall, upon conviction, be fined not
less than one thousand dollars and upon a second or subsequent
conviction, be fined not less than two thousand dollars.
ARTICLE 17B. TRANSFER OF CERTAIN JURISDICTION AND EMPLOYEES TO
PUBLIC SERVICE COMMISSION.
§17C-17B-1. Legislative findings and purposes.
(a) The Legislature finds that:
(1) Enforcement officers of the public service commission of
West Virginia are, as part of their enforcement of chapters twenty-
four and twenty-four-a of this code with respect to common and
contract carriers by motor vehicle, other for-hire carriers and
private commercial carriers, currently inspecting for safety many
of the same vehicles and loads that are inspected for size and
weight by employees of the department of transportation;
(2) To effectuate the legislative findings and declarations
set forth in section one, article one, chapter five-f of this code,
the jurisdiction over the administration and enforcement of state
statutes and rules relating to vehicular weight and the
jurisdiction over the issuance of permits for excess vehicular
weight should be transferred to the public service commission;
(3) To preserve continuity and to maximize efficiency, those
employees of the department of transportation who are employed
primarily in the performance of the governmental duties described
in this section should be transferred to the public service
commission; and
(4) The enforcement of state statutes and rules relating to
coal truck weight, including costs of inspections of the vehicles
and loads, training of enforcement officers, program oversight,
administrative proceedings, personal services, employee benefits and all other costs associated with enforcement matters, falls
within the scope of maintenance of state roads and public highways
as described in section fifty-two, article VI of the constitution
of this state and in section one, article three, chapter seventeen
of this code.
(b) The purposes of this article are to transfer:
(1) Jurisdiction over the enforcement of state statutes and
rules, including, but not limited to, the provisions of article
seventeen-a of this chapter, relating to coal truck weight, from
the department of transportation to the public service commission
of West Virginia;
(2) Jurisdiction over the issuance of permits for excess
vehicular weight under section eleven, article seventeen of this
chapter, from the department of transportation to the public
service commission of West Virginia; and
(3) To the public service commission of West Virginia those
employees of the department of transportation whose primary
governmental duties include the administration and enforcement of
statutes and rules relating to vehicular weight.
§17C-17B-2. Transfer of jurisdiction over vehicle weight
enforcement and excess weight permit issuances to public
service commission.
(a) Effective the first day of July, two thousand three, the jurisdiction over the enforcement of state statutes and rules,
including, but not limited to, applicable provisions of article
seventeen of this chapter, relating to vehicular weight, shall be
transferred from the department of transportation to the public
service commission of West Virginia.
(b) Effective the first day of July, two thousand three, the
jurisdiction over the issuance of permits for excess vehicular
weight shall be transferred from the department of transportation
to the public service commission of West Virginia.
§17C-17B-3. Transfer of certain employees from department of
transportation to public service commission.
(a) Effective the first day of July, two thousand three,
employees of the department of transportation whose primary
governmental duties as of the thirtieth day of June, two thousand
three, included the administration and enforcement of this code and
rules promulgated under this code, relating to vehicular weight or
the issuance of permits for excess vehicular weight shall be
transferred from the department of transportation to the public
service commission of West Virginia.
(b) Upon the transfer of employees as provided in subsection
(a) of this section, the department of transportation shall pay to
the public service commission the costs of personal services,
employees benefits and other associated costs of the transferred employees.
§17C-17B-4. Costs of enforcement to be funded from revenues in
state road fund.
(a) On and after the first day of July, two thousand three,
the cost of enforcement of this code and rules promulgated under
this code, relating to vehicular weight, including inspections of
vehicles and loads, training of enforcement officers,
administrative proceedings, personal services, employees benefits
and all other costs associated with enforcement matters, shall be
funded by revenues in the state road fund, established pursuant to
the provisions of section one, article three, chapter seventeen of
this code.
(b) The secretary of transportation and the treasurer shall
take all actions necessary to implement the transfer of funding to
effectuate the purposes of this article.
(c) For fiscal years beginning on and after the first day of
July, two thousand four, the commission shall include in its budget
to the Legislature the costs of implementation and continuing
enforcement of this article for payment and appropriation from the
state road fund, or other sources as deemed appropriated, into the
public service commission fund
§17C-17B-5. Exceptions.
(a) Nothing in this article reduces or eliminates the authority of any police officer to enforce the provisions of
article seventeen of this chapter.
(b) Nothing in this article reduces or eliminates the
jurisdiction of the department of transportation to administer and
enforce sections eleven-a, eleven-b, eleven-c and twelve, article
seventeen of this chapter.
(c) Nothing in this article expands, reduces or eliminates any
remedies otherwise available by law.
CHAPTER 17E. UNIFORM COMMERCIAL DRIVER'S LICENSE ACT.
ARTICLE 1. COMMERCIAL DRIVER'S LICENSE.
§17E-1-3. Definitions.
Notwithstanding any other provision of this code, the
following definitions apply to this article:
"Alcohol" means:
(a) Any substance containing any form of alcohol, including,
but not limited to, ethanol, methanol, propanol and isopropanol;
(b) Beer, ale, port or stout and other similar fermented
beverages (including sake or similar products) of any name or
description containing one half of one percent or more of alcohol
by volume, brewed or produced from malt, wholly or in part, or from
any substitute therefor for malt;
(c) Distilled spirits or that substance known as ethyl
alcohol, ethanol, or spirits of wine in any form (including all dilutions and mixtures thereof from whatever source or by whatever
process produced); or
(d) Wine of not less than one half of one percent of alcohol
by volume.
"Alcohol concentration" means:
(a) The number of grams of alcohol per one hundred milliliters
of blood; or
(b) The number of grams of alcohol per two hundred ten liters
of breath; or
(c) The number of grams of alcohol per sixty-seven milliliters
of urine.
"Commercial driver license" means a license issued in
accordance with the requirements of this article to an individual
which authorizes the individual to drive a class of commercial
motor vehicle.
"Commercial driver license information system" is the
information system established pursuant to the federal commercial
motor vehicle safety act to serve as a clearinghouse for locating
information related to the licensing and identification of
commercial motor vehicle drivers.
"Commercial driver instruction permit" means a permit issued
pursuant to subsection (d), section nine of this article.
"Commercial motor vehicle" means a motor vehicle designed or used to transport passengers or property:
(a) If the vehicle has a gross vehicle weight rating as
determined by federal regulation;
(b) If the vehicle is designed to transport sixteen or more
passengers, including the driver; or
(c) If the vehicle is transporting hazardous materials and is
required to be placarded in accordance with 49 C. F. R. Part 172,
Subpart F.
"Commissioner" means the commissioner of motor vehicles of
this state.
"Controlled substance" means any substance so classified under
the provisions of chapter sixty-a of this code (uniform controlled
substances act) and includes all substances listed on Schedules I
through V, inclusive, article two of said chapter, as they may be
are revised from time to time.
"Conviction" means the final judgment in a judicial or
administrative proceeding or a verdict or finding of guilty, a plea
of guilty, a plea of nolo contendere or a forfeiture of bond or
collateral upon a charge of a disqualifying offense, as a result of
proceedings upon any violation of the requirement of this article.
"Division" means the division of motor vehicles.
"Disqualification" means a prohibition against driving a
commercial motor vehicle.
"Drive" means to drive, operate or be in physical control of
a motor vehicle in any place open to the general public for
purposes of vehicular traffic. For the purposes of sections
twelve, thirteen and fourteen of this article, "drive" includes
operation or physical control of a motor vehicle anywhere in this
state.
"Driver" means any person who drives, operates or is in
physical control of a commercial motor vehicle, in any place open
to the general public for purposes of vehicular traffic, or who is
required to hold a commercial driver license.
"Driver license" means a license issued by a state to an
individual which authorizes the individual to drive a motor vehicle
of a specific class.
"Employee" means a person who is employed by an employer to
drive a commercial motor vehicle, including independent
contractors. An employee who is self-employed as a commercial
motor vehicle driver must shall comply with both the requirements
of this article pertaining to both employees and employers.
"Employer" means any person, including the United States, a
state, or a political subdivision of a state, who owns or leases a
commercial motor vehicle, or assigns a person to drive a commercial
motor vehicle.
"Farm vehicle" includes a motor vehicle or combination vehicle registered to the farm owner or entity operating the farm and used
exclusively in the transportation of agricultural or horticultural
products, livestock, poultry and dairy products from the farm or
orchard on which they are raised or produced to markets, processing
plants, packing houses, canneries, railway shipping points and cold
storage plants and in the transportation of agricultural or
horticultural supplies and machinery to such the farms or orchards
to be used thereon on the farms or orchards.
"Farmer" includes an owner, tenant, lessee, occupant or person
in control of the premises used substantially for agricultural or
horticultural pursuits, who is at least eighteen years of age with
two years' licensed driving experience.
"Farmer vehicle driver" means the person employed and
designated by the "farmer" to drive a "farm vehicle" as long as
driving is not his or her sole or principal function on the farm,
who is at least eighteen years of age with two years' licensed
driving experience.
"Gross combination weight rating (GCWR)" means the value
specified by the manufacturer as the loaded weight of a combination
(articulated) vehicle. In the absence of a value specified by the
manufacturer, GCWR will be determined by adding the GVWR of the
power unit and the total weight of the towed unit and any load
thereon.
"Gross vehicle weight rating (GVWR)" means the value specified
by the manufacturer as the loaded weight of a single vehicle. In
the absence of a value specified by the manufacturer the GVWR will
be determined by the total weight of the vehicle and any load
thereon.
"Hazardous materials" has the meaning as that found in the
Hazardous Materials Transportation Act (§49 U. S. C. 5101 et seq.
(1998)).
"Motor vehicle" means every vehicle which is self-propelled,
and every vehicle which is propelled by electric power obtained
from overhead trolley wires but not operated upon rails.
"Out-of-service order" means a temporary prohibition against
driving a commercial motor vehicle as a result of a determination
by a federal agency or the public service commission, pursuant to
chapter twenty-four-a of this code, that: (a) The continued use of
a commercial motor vehicle may result in death, serious injury or
severe personal injury; or (b) the continued actions by the driver
of a commercial motor vehicle poses an imminent hazard to public
safety.
"Violation of an out-of-service order" means: (a) The
operation of a commercial motor vehicle during the period the
driver was placed out of service; or (b) the operation of a
commercial motor vehicle by a driver after the vehicle was placed out of service and before the required repairs are made.
"Serious traffic violation" means:
(a) Excessive speeding which is defined as fifteen miles per
hour in excess of all posted limits;
(b) Reckless driving as defined in section three, article
five, chapter seventeen-c of this code, including erratic lane
changes and following the vehicle ahead too closely;
(c) A violation of state or local law relating to motor
vehicle traffic control, other than a parking violation, arising in
connection with a fatal traffic accident. Vehicle weight and
vehicle defects are excluded as serious traffic violations, except
as to violations committed by a special permittee on the coal
resource transportation road system; or
(d) Any other serious violations as may be determined by the
U. S. United States secretary of transportation.
"State" means a state of the United States and the District of
Columbia.
"Tank vehicle" means any commercial motor vehicle that is
designed to transport any liquid or gaseous materials within a tank
that is either permanently or temporarily attached to the vehicle
or the chassis. Such These vehicles include, but are not limited
to, cargo tanks and portable tanks, as defined in 49 C. F. R. Part
171 (1998). However, this definition does not include portable tanks having a rated capacity under one thousand gallons.
"At fault traffic accident" means for the purposes of waiving
the road test, a determination, by the official filing the accident
report, of fault as evidenced by an indication of contributing
circumstances in the accident report.
CHAPTER 24A. COMMERCIAL MOTOR CARRIERS.
ARTICLE 1A. COMMERCIAL VEHICLE REGULATION.
§24A-1A-1. Regulation of commercial vehicle weights.
(a) Effective the first day of July, two thousand three, the
commission has jurisdiction over the enforcement of this code and
rules promulgated under this code, including, but not limited to,
applicable provisions of article seventeen-a, chapter seventeen-c
of this code relating to vehicular weight.
(b) Effective the first day of January, two thousand three,
the commission has jurisdiction over the issuance of permits for
excess vehicular weight.
(c) Effective the first day of January, two thousand three,
employees of the division of highways, department of
transportation, whose primary governmental duties as of the
thirtieth day of June, two thousand two, included the
administration and enforcement of state statutes and rules relating
to vehicular weight or the issuance of permits for excess vehicular
weight shall be transferred from the division of highways and department of transportation to the commission.
(d) The commission shall implement and administer the
provisions of this section and of articles six, six-a and six-b of
this chapter.
§24A-1A-2. Creation of advisory committee; purpose; members;
terms.
(a) There is created the commercial motor vehicle weight and
safety enforcement advisory committee, the purpose of which is to
study the implementation of the commercial motor vehicle weight and
safety enforcement program set forth in this article.
(b) The committee consists of the following members:
(1) One member who is an employee of the division of highways
to be appointed by the commissioner of highways;
(2) One member who is an employee of the public service
commission to be appointed by the chairman of the public service
commission;
(3) One member who is a state police officer to be appointed
by the superintendent of the state police;
(4) One member who is an employee of the division of motor
vehicles to be appointed by the commissioner of motor vehicles;
(5) One member who is an employee of the development office to
be appointed by the governor;
(6) One member who is representative of the coal industry to be appointed by the governor;
(7) One member of the Senate to be appointed by the president
of the Senate;
(8) One member of the House of Delegates to be appointed by
the speaker of the House of Delegates;
(9) One citizen member to be appointed by the governor; and
(10) One member of the largest organization representing coal
miners to be appointed by the governor.
(c) Members shall serve for terms of three years. No member
may be appointed to serve more than two consecutive terms.
(d) The committee shall annually nominate from its members a
chair, who shall hold office for one year.
(e) The committee shall hold at least four meetings each year
or more often as, in the discretion of the chair, may be necessary
to effectuate the purposes of this article.
(f) The public members of the committee may receive
compensation for attendance at official meetings, not to exceed the
amount paid to members of the Legislature for their interim duties
as recommended by the citizens legislative compensation commission
and authorized by law.
(g) Committee members may be reimbursed for actual and
necessary expenses incurred for each day or portion of a day
engaged in the discharge of committee duties in a manner consistent with guidelines of the travel management office of the department
of administration.
(h) On or before the first day of January, two thousand four,
and each subsequent year thereafter, the committee shall submit to
the governor and to the Legislature a report of its recommendations
for improving the effectiveness of the commercial vehicle weight
and safety enforcement program.
(i) The commercial vehicle weight and safety enforcement
advisory committee shall continue to exist until the first day of
July, two thousand seven, pursuant to the provisions of article
ten, chapter four of this code, unless sooner terminated, continued
or reestablished pursuant to the provisions of that article.
§24A-7-7. Authority of motor carrier inspectors to enforce all
traffic rules as to commercial vehicles; use of radar as
evidence.
(a) The employees of the commission designated as motor
carrier inspectors have the same authority as law-enforcement
officers generally to enforce the provisions of chapter seventeen-c
of this code with respect to commercial motor vehicles owned or
operated by motor carriers, exempt carriers or private commercial
carriers, where vehicles have a gross vehicle weight rating of ten
thousand pounds or more.
(b) The speed of a commercial motor vehicle owned or operated by a motor carrier, exempt carrier or private commercial carrier
may be proved by evidence obtained by use of any device designed to
measure and indicate or record the speed of a moving object by
means of microwaves, when the evidence is obtained by employees of
the commission designated as motor carrier inspectors. The
evidence so obtained is prima facie evidence of the speed of the
vehicle.
(c) Motor carrier inspectors shall also perform a North
American standard safety inspection of each commercial motor
vehicle stopped for enforcement purposes pursuant to this section.
(d) Before exercising the provisions of this section, the
motor carrier inspectors shall receive adequate training.
(e) Nothing in this section affects the existing authority of
law-enforcement officers not employed by the commission to enforce
the provisions of chapter seventeen-c of this code.;
And,
On pages one through four, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 583--A Bill
to amend and reenact section one, article six, chapter seventeen-c
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 ten; to amend and reenact sections ten and eleven, article seventeen of said chapter; to further amend
said article by adding thereto a new section, designated section
eleven-d; to further amend said chapter by adding thereto two new
articles, designated articles seventeen-a and seventeen-b; to amend
and reenact sections three and seven, article one, chapter
seventeen-e of said code; to amend chapter twenty-four-a of said
code by adding thereto a new article, designated article one-a; and
to amend article seven of said chapter by adding thereto a new
section, designated section seven, all relating to the regulation
of commercial vehicles; increasing speeding fines for certain
commercial vehicles transporting coal; authorizing public service
commission to enforce laws of the road for commercial vehicles;
authorizing pubic service commission to issue special permits;
authorizing weight enforcement for commercial vehicles moving or
parked on or within one hundred feet of a public highway or right-
of-way; establishing administrative enforcement process and
penalties for vehicles transporting coal; issuance of special
permits for designated roads; setting maximum highway weights;
providing legislative findings for special regulation of coal
transportation on the coal resource transportation road system;
defining terms; designating eligible counties; directing public
service commission to administer commercial vehicle weights and
measures; providing that division of highways and public service commission administer all aspects of weight and safety
requirements; providing that division of highways coordinate
establishment of coal resource transportation roads with the public
service commission; establishing a permitting program for vehicles
transporting coal which allows higher weight limits upon meeting
certain requirements; authorizing public service commission to
promulgate emergency and legislative rules; providing special
operator and vehicle permit and safety requirements; providing for
fees to be assessed for permits; providing reporting requirements
for vehicle owners, coal shippers and coal receivers; authorizing
commission employees to inspect certain weight transportation
records; establishing administrative sanctions for coal vehicle
weight violations; establishing new penalties for weight
violations; establishing procedure and criteria for commissioner of
division of highways to designate special coal resource
transportation roads; setting an effective date; authorizing
commissioner of division of highways to enter into agreements with
persons responsible for coal transport to undertake road and bridge
improvements; excluding off-road vehicles and interstate highways;
providing penalties for spotting; providing for transfer of certain
duties, authority and employees of the division of highways to the
public service commission; providing dates for transfer of these
duties; providing that state road funds for these costs be transferred to public service commission; providing that transfer
of these duties does not alter other law-enforcement agencies'
authority; costs of enforcement; removing weight from the list of
nonserious traffic violations; creating commercial motor vehicle
weight and safety enforcement advisory committee; providing for its
membership, organization, compensation, expense reimbursements,
duties and termination of committee; and providing that certain
employees of the public service commission are authorized to
enforce certain traffic offenses and use radar.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 583, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Edgell, Facemyer, Fanning, Guills,
Helmick, Kessler, Love, McCabe, McKenzie, Minard, Minear, Plymale,
Prezioso, Ross, Sharpe, Snyder, Sprouse, Weeks and Tomblin (Mr.
President)--25.
The nays were: Dempsey, Harrison, Hunter, Jenkins, Oliverio,
Rowe, Smith, Unger and White--9.
Absent: None.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 583) passed with its House of
Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Edgell, Facemyer, Fanning, Guills, Helmick,
Kessler, Love, McCabe, McKenzie, Minard, Minear, Plymale, Prezioso,
Ross, Sharpe, Snyder, Sprouse, Weeks and Tomblin (Mr.
President)--25.
The nays were: Dempsey, Harrison, Hunter, Jenkins, Oliverio,
Rowe, Smith, Unger and White--9.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 583) takes effect from
passage.
Thereafter, on motion of Senator Prezioso, the Senate
reconsidered the vote as to the effective date and passage of
Eng. Com. Sub. for Com. Sub. for S. B. No. 583, Creating coal
resource transportation road system.
The vote thereon having been reconsidered,
The question again being on the passage of the bill, the yeas
were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Edgell, Facemyer, Fanning, Guills, Helmick, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Plymale, Ross, Sharpe, Snyder, Sprouse,
Weeks and Tomblin (Mr. President)--24.
The nays were: Dempsey, Harrison, Hunter, Jenkins, Oliverio,
Prezioso, Rowe, Smith, Unger and White--10.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 583) passed with its House of
Delegates amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Edgell, Facemyer, Fanning, Guills, Helmick,
Kessler, Love, McCabe, McKenzie, Minard, Minear, Plymale, Ross,
Sharpe, Snyder, Sprouse, Weeks and Tomblin (Mr. President)--24.
The nays were: Dempsey, Harrison, Hunter, Jenkins, Oliverio,
Prezioso, Rowe, Smith, Unger and White--10.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 583) takes effect from
passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced
that that body had acceded to the return of
Eng. House Bill No. 2363, Authorizing the tax commissioner to
suspend a business registration certificate if any business
neglects to pay real property taxes thirty days after the
delinquent tax list is published.
Passed by the Senate on yesterday, Friday, March 7, 2003,
The bill now being in the possession of the Senate,
On motion of Senator Plymale, the Senate reconsidered the vote
as to the passage of the bill,
The vote thereon having been reconsidered,
On motion of Senator Plymale, the Senate reconsidered its
action by which on yesterday, Friday, March 7, 2003, it adopted the
Judiciary committee amendment to the bill, as amended (shown in the
Senate Journal of that day, pages 238 to 245, inclusive).
The vote thereon having been reconsidered,
On further motion of Senator Plymale, the Senate reconsidered
the vote by which on yesterday, Friday, March 7, 2003, it adopted
the Finance committee amendment to the Judiciary committee
amendment to the bill (shown in the Senate Journal of that day,
pages 243 to 245, inclusive).
The vote thereon having been reconsidered,
The question again being on the adoption of the Finance
committee amendment to the Judiciary committee amendment to the
bill.
Thereafter, at the request of Senator Helmick, as chair of the
Committee on Finance, and by unanimous consent, the Finance
committee amendment to the Judiciary committee amendment to the
bill was withdrawn.
The question now being on the adoption of the Judiciary
committee amendment to the bill.
Thereafter, at the request of Senator Kessler, as chair of the
Committee on the Judiciary, and by unanimous consent, the Judiciary
committee amendment to the bill was withdrawn.
On motions of Senators Plymale and Jenkins, the following
amendment to the bill (Eng. H. B. No. 2363) was reported by the
Clerk and adopted:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That section five, article twelve, chapter eleven of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; that section seven, article one, chapter
eleven-a of said code be amended and reenacted; that section
eleven, article two of said chapter be amended and reenacted; and
that section twenty, article three of said chapter be amended and reenacted, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 12. BUSINESS REGISTRATION TAX.
§11-12-5. Time for which registration certificate granted; power
of tax commissioner to suspend or cancel certificate; refusal
to renew.
(a) Registration period. -- All business registration
certificates issued under the provisions of section four of this
article shall be are for the period of one year beginning the first
day of July and ending the thirtieth day of the following June:
Provided, That beginning on or after the first day of July, one
thousand nine hundred ninety-nine, all business registration
certificates issued under the provisions of section four of this
article shall be issued for two fiscal years of this state, subject
to the following transition rule. If the first year for which a
business was issued a business registration certificate under this
article began on the first day of July of an even-numbered calendar
year, then the tax commissioner may issue a renewal certificate to
that business for the period beginning the first day of July, one
thousand nine hundred ninety-nine, and ending the thirtieth day of
June, two thousand, upon receipt of fifteen dollars for each such
one-year certificate. Thereafter, only certificates covering two
fiscal years of this state shall be issued.
(b) Revocation or suspension of certificate. --
(1) The tax commissioner may cancel or suspend a business
registration certificate at any time during a registration period
if:
(A) The registrant filed an application for a business
registration certificate, or an application for renewal thereof,
for the registration period that was false or fraudulent.
(B) The registrant willfully refused or neglected to file a
tax return or to report information required by the tax
commissioner for any tax imposed by or pursuant to this chapter.
(C) The registrant willfully refused or neglected to pay any
tax, additions to tax, penalties or interest, or any part thereof,
when they became due and payable under this chapter, determined
with regard to any authorized extension of time for payment.
(D) The registrant neglected to pay over to the tax
commissioner on or before its due date, determined with regard to
any authorized extension of time for payment, any tax imposed by
this chapter which the registrant collects from any person and
holds in trust for this state.
(E) The registrant abused the privilege afforded to it by
article fifteen or fifteen-a of this chapter to be exempt from
payment of the taxes imposed by such articles on some or all of the
registrant's purchases for use in business upon issuing to the vendor a properly executed exemption certificate, by failing to
timely pay use tax on taxable purchase for use in business, or by
failing to either pay the tax or give a properly executed exemption
certificate to the vendor.
(F) The registrant has failed to pay in full delinquent
personal property taxes owing.
(2) Before canceling or suspending any such business
registration certificate, the tax commissioner shall give written
notice of his or her intent to suspend or cancel the business
registration certificate of the taxpayer, the reason for the
suspension or cancellation, the effective date of the cancellation
or suspension and the date, time and place where the taxpayer may
appear and show cause why such business registration certificate
should not be canceled or suspended. This written notice shall be
served on the taxpayer in the same manner as a notice of assessment
is served under article ten of this chapter, not less than twenty
days prior to the date of such the show cause informal hearing.
The taxpayer may appeal cancellation or suspension of its business
registration certificate in the same manner as a notice of
assessment is appealed under article ten ten-a of this chapter:
Provided, That the filing of a petition for appeal shall does not
stay the effective date of the suspension or cancellation. A stay
may be granted only after a hearing is held on a motion to stay filed by the registrant, upon finding that state revenues will not
be jeopardized by the granting of the stay. The tax commissioner
may, in his or her discretion and upon such terms as he or she may
specify, agree to stay the effective date of the cancellation or
suspension until another date certain.
(3) On or before the first day of August, two thousand three,
the tax commissioner shall propose for promulgation legislative
rules through which ancillary procedures may be provided, pursuant
to authorization by the Legislature, to streamline the tax
commissioner's suspension of business registration certificates for
failure to pay delinquent personal property taxes pursuant to
paragraph (F), subdivision (1), subsection (b) of this section. If
the rules proposed for promulgation are authorized by the
Legislature and include requirements that county sheriffs provide
the tax commissioner or the registrant with information or notice,
then those requirements shall have the same force and effect as if
set forth herein. No provision of this subdivision may be
construed to restrict in any manner the authority of the tax
commissioner to suspend such certificates for failure to pay
delinquent personal property taxes under paragraph (C) or (F),
subdivision (1), subsection (b) of this section or under any other
provision of this code prior to the authorization of the rules.
(c) Refusal to renew. -- The tax commissioner may refuse to issue or renew a business registration certificate if the
registrant is delinquent in the payment of any tax administered by
the tax commissioner under article ten of this chapter or the
corporate license tax imposed by article twelve-c of this chapter,
until the registrant pays in full all such the delinquent taxes
including interest and applicable additions to tax and penalties.
In his or her discretion and upon such terms as he or she may
specify, the tax commissioner may enter into an installment payment
agreement with such the taxpayer in lieu of the complete payment.
Failure of the taxpayer to fully comply with the terms of the
installment payment agreement shall render the amount remaining due
thereunder immediately due and payable and the tax commissioner may
suspend or cancel the business registration certificate in the
manner hereinbefore provided in this section.
(d) Refusal to renew due to delinquent personal property tax.
-- The tax commissioner shall refuse to issue or renew a business
registration certificate when informed in writing, signed by the
county sheriff, that personal property owned by the applicant and
used in conjunction with the business activity of the applicant is
subject to delinquent property taxes: Provided, That the tax
commissioner may prescribe alternative means for electronic
transmission and handling of the notice from county sheriffs that
personal property owned by the applicant and used in conjunction with the business activity of the applicant is subject to
delinquent property taxes. The tax commissioner shall forthwith
notify the applicant that the commissioner will not act upon the
application until information is provided evidencing that the taxes
due are either exonerated or paid.
__(e) Fund created, fees for suspension, cancellation,
nonrenewal or nonissuance of business registration certificate,
fund deposits and expenditures. -
__(1) Local tax compliance account. -- There is hereby
established in the state treasury a special revenue revolving
account to be known as the "Local Tax Compliance Account". The
local tax compliance account shall be a revolving fund. Deposits
and appropriations made to the account shall not be deemed to have
expired at the end of any fiscal period. Expenditures from the
account shall be used for general tax administration by the tax
division of the department of tax and revenue and for operation of
the tax division.
__(2) Fees, penalty, information exchange. -
__(A) The county shall pay to the tax commissioner a fee in the
amount of fifteen percent of all amounts of delinquent property
tax, interest, additions to tax and penalties (other than the
penalty imposed under this subsection) collected from each taxpayer
for which the tax commissioner has suspended or canceled the business registration certificate by reason of a property tax
delinquency, pursuant to a request of the sheriff or other county
official. The fee shall be calculated based on the amount of tax,
interest, additions to tax and penalties collected by the county
from the taxpayer out of the total liability for tax, interest,
additions to tax and penalties that was due and owing at the time
the business registration certificate suspension or cancellation
was issued by the tax commissioner.
__(B) The county shall pay to the tax commissioner a fee in the
amount of fifteen percent of all amounts of delinquent property
tax, interest, additions to tax and penalties (other than the
penalty imposed under this subsection) collected from each taxpayer
for which the tax commissioner has refused to issue or renew the
business registration certificate pursuant to notice sent by the
county sheriff of a property tax delinquency under subsection (d)
of this section. The fee shall be calculated based on the amount
of tax, interest, additions to tax and penalties collected by the
county from the taxpayer out of the total liability for tax,
interest, additions to tax and penalties that was due and owing at
the time the refusal to issue or renew the business registration
certificate was asserted by the tax commissioner.
__(C) The amount of the fifteen percent fee imposed under this
subsection shall be added by the sheriff to the delinquent taxpayer's tax payable as an additional penalty and shall be
payable to the county in the same manner as property tax due.
__(D) Notwithstanding the provisions of section five-d, article
ten of this chapter and notwithstanding any other provision of this
code to the contrary, the tax commissioner and county employees and
officials are hereby authorized to exchange such tax information as
may be necessary to efficiently administer a property tax
compliance program for suspension, revocation, nonrenewal or
nonissuance or business registration certificates of taxpayers
having property tax delinquencies pursuant to this section.
__(3) Deposits, expenditures. -
__(A) All fees established in this subsection shall be remitted
by the county to the tax commissioner not later than thirty days
after collection or partial collection of the tax, interest,
additions to tax and penalties, or any part or component thereof,
on which the fee is based.
__(B) All fees established by this subsection and received by
the tax commissioner shall be deposited by the tax commissioner
into the local tax compliance account created in this section. The
tax commissioner is authorized to use moneys in the local tax
compliance account for operation of the tax division and for
general tax administration.
CHAPTER 11A. COLLECTION AND ENFORCEMENT OF PROPERTY TAXES.
ARTICLE 1. ACCRUAL AND COLLECTION OF TAXES.
§11A-1-7. No collection of current taxes until delinquent taxes
are paid.
The sheriff, in preparing his or her tax receipts for any
current year, shall examine and compare them with the delinquent
list for the preceding year in his or her hands, and if any tract
or personal property is found to be delinquent for the preceding
year, he or she shall note the fact on his or her current receipts
and shall decline to receive current taxes on any land or personal
property where it appears to his or her office that a prior year's
taxes are unpaid. Acceptance of current taxes through oversight
shall not relieve the owner of any land or personal property of the
liability to pay prior taxes and penalties imposed for nonpayment.
ARTICLE 2. DELINQUENCY AND METHODS OF ENFORCING PAYMENT.
§11A-2-11. Delinquent lists; oath.
The sheriff, after ascertaining which of the taxes assessed in
his or her county are delinquent, shall, on or before the first day
of May next succeeding the year for which the taxes were assessed,
prepare the following delinquent lists, arranged by districts and
alphabetically by name of the person charged, and showing in
respect to each the amount of taxes remaining delinquent on the
thirtieth day of April: (1) A list of property in the landbook
improperly entered or not ascertainable; (2) a list of other delinquent real estate; and (3) a list of all other delinquent
taxes: Provided, That the list shall conclude with a notice,
substantially as follows: "Any person holding a West Virginia
business registration certificate under the authority of article
twelve, chapter eleven of this code who does not pay all delinquent
personal property taxes may have his or her license to do business
in this state suspended until the delinquency is cured."
The sheriff on returning each list shall, at the foot thereof,
subscribe an oath, which shall be subscribed before and certified
by some person duly authorized to administer oaths, in from form or
effect as follows:
I, ________, sheriff (or deputy sheriff or collector) of the
County of _________, do swear that the foregoing list is, to the
best of my knowledge and belief, complete and accurate, and that I
have received none of the taxes listed therein.
Except for the oath, the tax commissioner state auditor shall
prescribe the form of the delinquent lists.
ARTICLE 3. SALE OF TAX LIENS AND NONENTERED, ESCHEATED AND WASTE
AND UNAPPROPRIATED LANDS.
§11A-3-20. Refund to purchaser of payment made at sheriff's sale
where property is subject of an erroneous assessment or is
otherwise nonexistent.
If, after by the thirty-first day of December of the year following payment of the amount bid at a sheriff's sale, the
purchaser discovers that the lien purchased at such that sale is
the subject of an erroneous assessment or is otherwise nonexistent,
such the purchaser shall submit the abstract or certificate of an
attorney-at-law that the property is the subject of an erroneous
assessment or is otherwise nonexistent. Upon receipt thereof, of
the abstract or certificate, the sheriff shall cause the moneys so
paid to be refunded. Upon refund, the sheriff shall inform the
assessor of the erroneous assessment for the purpose of having the
assessor correct said the error. For failure to meet this
requirement, the purchaser shall lose all benefits of his or her
purchase.
The bill, as just amended, was again ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 2363) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Fanning, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Snyder,
Unger, Weeks, White and Tomblin (Mr. President)--29.
The nays were: Boley, Facemyer, Guills, Smith and Sprouse--5.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2363) passed.
On motions of Senators Plymale and Jenkins, the following
amendment to the title of the bill was reported by the Clerk and
adopted:
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. House Bill No. 2363--A Bill to amend and reenact section
five, article twelve, chapter eleven of the code of West Virginia,
one thousand nine hundred thirty-one, as amended; to amend and
reenact section seven, article one, chapter eleven-a of said code;
to amend and reenact section eleven, article two of said chapter;
and to amend and reenact section twenty, article three of said
chapter, all relating to real and personal property taxes;
requiring payment of personal property taxes as a condition
precedent to receiving or maintaining a business registration
certificate; allowing the tax commissioner to suspend a business
registration certificate for failure to pay delinquent personal
property taxes; requiring collection of delinquent personal
property taxes prior to collection for current personal property
taxes; requiring the tax commissioner to suspend or refuse to issue
a business registration certificate upon notice from the sheriff
that the registrant has not paid delinquent personal property taxes; requiring the tax commissioner to propose legislative rules;
requiring fees; establishing fund; permitting abstract in lieu of
certificate of attorney-at-law for refund; and requiring compliance
to enjoy benefits of purchase.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate again proceeded to the sixth order of business,
which agenda includes the making of main motion.
On motion of Senator Plymale, the Senate requested the return
from the House of Delegates of
Eng. Senate Bill No. 646, Authorizing centers for economic
development and technology advancement.
Passed by the Senate in prior proceedings today,
The bill still being in the possession of the Senate,
On motion of Senator Plymale, the Senate reconsidered the vote
as to the effective date and passage.
The vote thereon having been reconsidered,
On motion of Senator Plymale, the Senate reconsidered the
action by which in prior proceedings today it concurred in the
House of Delegates amendments, as amended (shown in the Senate
Journal of today, pages 464 to 481, inclusive).
The vote thereon having been reconsidered,
The question again being on the adoption of Senator Chafin's motion that the Senate concur in the House of Delegates amendments,
as amended.
At the request of Senator Chafin, and by unanimous consent,
his foregoing motion was withdrawn.
On motion of Senator Plymale, the Senate reconsidered its
action by which in prior proceedings today it adopted Senator
Plymale's amendments to the House of Delegates amendments to the
bill (shown in the Senate Journal of today, pages 479 to 481,
inclusive).
The vote thereon having been reconsidered,
The question again being on the adoption of Senator Plymale's
amendments to the House of Delegates amendments to the bill (Eng.
S. B. No. 646).
At the request of Senator Plymale, and by unanimous consent,
Senator Plymale's amendments to the House of Delegates amendments
to the bill were withdrawn.
On motion of Senator Plymale, the following substitute
amendments to the House of Delegates amendments to the bill were
reported by the Clerk, considered simultaneously, and adopted:
On pages ten and eleven, by striking out all of section
eleven;
On page eleven, by striking out all of section five;
On pages eleven and twelve, by striking out all of section two, and inserting in lieu thereof a new section two, to read as
follows:
§18C-5-2. Definitions.
(a) "Approved institution of higher education" means:
(1) A state institution of higher education as defined in
section two, article one, chapter eighteen-b of this code; and
Alderson-Broaddus college, Appalachian Bible college, Bethany
college, the college of West Virginia, Davis and Elkins college,
Ohio Valley college, Salem-Teikyo college, the university of
Charleston, West Virginia Wesleyan college and Wheeling Jesuit
college, all in West Virginia; and
(2) Any other regionally or nationally accredited institution
of higher education in this state, public or private, approved by
the senior administrator vice chancellor for administration if the
institution has been licensed for a minimum of fifteen years
subject to the provisions of section five, article three of this
chapter and section four, article one-b of this chapter.
(b) "Grant" or "grant program" means a grant or the grant
program authorized and established by the provisions of this
article.
(c) "Senior administrator" means the senior administrator
defined vice chancellor for administration, as provided in section
two, article one, chapter eighteen-b of this code.;
On page twelve, by striking out the article heading;
On pages twelve through fourteen, by striking out all of
sections three and three-a;
On page two, by striking out the enacting section and
inserting in lieu thereof a new enacting section, to read as
follows:
That chapter eighteen-b of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article twelve-a; and that
section two, article five of said chapter be amended and reenacted,
all to read as follows:;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 646--A Bill to amend chapter eighteen-b
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, by adding thereto a new article, designated article
twelve-a; and to amend and reenact section two, article five of
said chapter, all relating to higher education; centers for
economic development and technology advancement generally; findings
and purpose; definitions; authorizing doctoral institutions to
enter into agreements with centers; setting forth requirements for
governing bodies; powers and duties of governing bodies; providing for appointment of president; qualifications; powers and duties of
president; authorizing agreements; terms and conditions;
authorizing audit of center operations; clarifying issues of
conflicts of interest; prohibiting waiver of sovereign immunity;
and clarifying issues of debt obligations of centers; student
financial aid; and expanding definition of "eligible institution"
for purposes of higher education grant program.
On motion of Senator Plymale, the Senate concurred in the
House of Delegates amendments, as amended.
Engrossed Senate Bill No. 646, as amended, was then 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, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
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. 646) passed with its Senate amended 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, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
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. 646) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
On motion of Senator Chafin, the Senate recessed for ten
minutes.