Upon expiration of the recess, the Senate reconvened and,
without objection, returned to the third order of business.
A message from The Clerk of the House of Delegates announced
the passage by that body, to take effect from passage, and
requested the concurrence of the Senate in the passage of
Eng. House Bill No. 3212--A Bill expiring funds to the
department of military affairs and public safety - West Virginia
state police - surplus real property proceeds fund, fund 6516,
fiscal year 2003, organization 0612, for the fiscal year ending the
thirtieth day of June, two thousand three, in the amount of one
million two hundred thousand dollars from the department of
military affairs and public safety - West Virginia state police -
surplus transfer account, fund 6519, fiscal year 2003, organization
0612, and making a supplementary appropriation from the balance of
moneys remaining unappropriated for the fiscal year ending the
thirtieth day of June, two thousand three, to the West Virginia
state police - surplus real property proceeds fund, fund 6516,
fiscal year 2003, organization 0612, all supplementing and amending
the appropriation for the fiscal year ending the thirtieth day of
June, two thousand three.
At the request of Senator Chafin, and by unanimous consent,
reference of the bill to a committee was dispensed with, and it was
taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, 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.
The bill was read a second time and ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 3212) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, 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. H.
B. No. 3212) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, 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. H.
B. No. 3212) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
On motion of Senator White, the Senate reconsidered the vote
by which in earlier proceedings today it rejected Senator Chafin's
motion to suspend the constitutional rule requiring a bill to be
read on three separate days, as to
Eng. House Bill No. 2921, Providing an exemption for sales and
services provided by licensed mortgage brokers from the consumer sales and service tax.
The vote thereon having been reconsidered,
The question again being on the adoption of Senator Chafin's
motion to suspend the constitutional rule requiring a bill to be
read on three separate days.
The roll being taken, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Helmick, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear,
Oliverio, Plymale, Prezioso, Ross, Sharpe, Smith, Snyder, Sprouse,
Weeks, White and Tomblin (Mr. President)--29.
The nays were: Guills, Harrison, Hunter, Rowe and Unger--5.
Absent: None.
So, four fifths of the members present and voting having voted
in the affirmative, the President declared the motion to suspend
the constitutional rule adopted.
Having been engrossed, the bill (Eng. H. B. No. 2921) 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, Facemyer, Fanning,
Helmick, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio,
Plymale, Prezioso, Ross, Sharpe, Smith, Snyder, Weeks and Tomblin
(Mr. President)--25.
The nays were: Boley, Guills, Harrison, Hunter, Jenkins, Rowe, Sprouse, Unger and White--9.
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. 2921) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2003.
On this question, the yeas were: Bailey, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Helmick, Kessler,
Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Ross, Sharpe, Smith, Snyder, Weeks and Tomblin (Mr.
President)--25.
The nays were: Boley, Guills, Harrison, Hunter, Jenkins,
Rowe, Sprouse, 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. H.
B. No. 2921) takes effect July 1, 2003.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate then resumed business under the third order.
A message from The Clerk of the House of Delegates announced
the passage by that body, to take effect from passage, and
requested the concurrence of the Senate in the passage of
Eng. House Bill No. 3211--A Bill expiring funds to the
unappropriated surplus balance in the state fund, general revenue,
for the fiscal year ending the thirtieth day of June, two thousand
three, in the amount of five hundred seventy-seven thousand nine
hundred nine dollars from the office of emergency services - flood
disaster, January, 1996, fund 6258, fiscal year 2003, organization
0606; in the amount of one hundred sixteen thousand three hundred
eighteen dollars from the office of emergency services - flood
disaster, May, 1996, fund 6260, fiscal year 2003, organization
0606; in the amount of two hundred thirty-one thousand eight
hundred twenty-one dollars from the office of emergency services -
flood disaster, July, 1996, fund 6261, fiscal year 2003,
organization 0606; in the amount of fifty-seven thousand one
hundred twenty-two dollars from the office of emergency services -
flood disaster, September, 1996, fund 6262, fiscal year 2003,
organization 0606; in the amount of one hundred twenty-three
thousand four hundred eighty-eight dollars from the office of
emergency services - flood disaster, June, 1998, fund 6264, fiscal
year 2003, organization 0606; in the amount of thirteen thousand
three hundred fifty-eight dollars from the office of emergency
services - flood disaster, February, 2000, governor's civil
contingent fund, fund 6266, fiscal year 2003, organization 0606; in
the amount of seventy-seven thousand nine hundred seventy-seven dollars from the governor's office - flood disaster, January, 1996,
fund 1021, fiscal year 2003, organization 0100; in the amount of
ten thousand six hundred forty-one dollars from the division of
health - flood disaster, January, 1996, fund 5194, fiscal year
2003, organization 0506; in the amount of three thousand seven
hundred nineteen dollars from the division of human services -
flood disaster, January, 1996, fund 5095, fiscal year 2003,
organization 0511; in the amount of six thousand three hundred
eighty-nine dollars from the division of health - flood disaster,
June, 1998, fund 5206, fiscal year 2003, organization 0506; and in
the amount of one hundred fifty-one thousand two hundred seventy-
four dollars from the West Virginia state police, central abuse
registry fund, fund 6527, fiscal year 2003, organization 0612; and
making a supplementary appropriation of public moneys out of the
treasury from the unappropriated surplus balance for the fiscal
year ending the thirtieth day of June, two thousand three, to the
department of administration - public defender services, fund 0226,
fiscal year 2003, organization 0221, and to the department of
military affairs and public safety - division of corrections -
correctional units, fund 0450, fiscal year 2003, organization 0608.
At the request of Senator Chafin, and by unanimous consent,
reference of the bill to a committee was dispensed with, and it was
taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, 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.
The bill was read a second time and ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 3211) was
then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, 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. H.
B. No. 3211) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, 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. H.
B. No. 3211) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Executive Communications
Senator Tomblin (Mr. President) laid before the Senate the
following communication from His Excellency, the Governor, which
was read by the Clerk:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON
March 8, 2003
The Honorable Joe Manchin III
Secretary of State
State Capitol
Charleston, West Virginia
Dear Mr. Secretary:
Pursuant to the provisions of Section 14, Article VII of the
Constitution of West Virginia, I hereby disapprove and return to
your office Enrolled Committee Substitute for House Bill No. 2122.
Enrolled Committee Substitute for House Bill No. 2122 provides
for a substantial reformation of the law relating to medical
professional liability and insurance. While I strongly advocated
for this reform, I must nevertheless object to this bill for the
following reasons:
First, the title of the bill is flawed because it erroneously
refers to a credit against personal income tax, which is not
contained in the bill, and fails to refer to the credit against
health care provider taxes, which is contained in the bill.
Secondly, §33-3-14, §33-3-14a, §33-3-14d and §33-3-33 of the
bill divert certain net proceeds collected from the additional fire
and casualty insurance premiums taxes, which are currently
deposited into certain other funds, and provide for these diverted proceeds to be used to replenish those moneys appropriated from the
tobacco settlement medical trust fund account under §4-11A-2(c) of
the bill. While I recognize the need to replenish the Tobacco
Settlement Medical Trust Fund account, I object to the plan
envisioned to effect that goal. I urge the Legislature to
reconsider the plan and reenact a correct version.
Finally, there is a typographical error in §33-20F-5(a)(2),
the effect of which causes serious operational difficulties for the
Physicians' Mutual Insurance Company created in article twenty-f.
Concisely stated, that section provides for the creation of a
provisional board of directors to oversee the Physicians' Mutual
Insurance Company commencing June 1, 2003. However, that board of
directors should continue in existence until June 30, 2004, instead
of 2003 as stated in the bill.
I wholeheartedly support the work of the Legislature on the
serious reform contained in this bill and urge that, at its
earliest opportunity, the Legislature again take up this matter and
return a corrected bill for approval.
Very truly yours,
Bob Wise,
Governor.
cc: The Honorable Earl Ray Tomblin
The Honorable Robert S. Kiss
A message from The Clerk of the House of Delegates announced
the reconsideration, amendment and passage as amended, of a bill
disapproved and returned by the Governor with his objections, and
requested the concurrence of the Senate in the passage, of
Enr. Com. Sub. for House Bill No. 2122, Relating to medical
professional liability generally.
On motion of Senator Kessler, the message was taken up for
immediate consideration.
Senator Kessler then moved that in accordance with Section 14,
Article VII of the Constitution of the State of West Virginia, the
Senate reconsider the bill (Enr. Com. Sub. for H. B. No. 2122),
heretofore disapproved and returned by His Excellency, the
Governor, with his objections.
The question being on the adoption of Senator Kessler's motion
that the Senate reconsider Enrolled Committee Substitute for House
Bill No. 2122, the same was put and prevailed.
On motion of Senator Kessler, the Senate concurred in the
following House of Delegates amendments to the bill:
On page fifty-four, section fourteen, line twenty-five, after
the word "That" by inserting the words "each year, the first one
million six hundred sixty-seven thousand dollars of";
On page fifty-six, section fourteen-a, line thirteen, after
the word "That" by inserting the words "each year, the first eight hundred thirty-three thousand dollars of";
On pages fifty-six through fifty-nine, by striking out all of
section fourteen-d;
On pages fifty-nine through sixty-two, by striking out all of
section thirty-three;
On page seventy-seven, section four, line thirty-two, by
striking out the words "fourteen, fourteen-a, fourteen-d and
thirty-three" and inserting in lieu thereof the words "fourteen and
fourteen-a";
On page seventy-eight, section four, line forty-two, by
striking out the words "fourteen, fourteen-a, fourteen-d and
thirty-three" and inserting in lieu thereof the words "fourteen and
fourteen-a";
On page seventy-eight, section four, line fifty-four, by
striking out the words "fourteen, fourteen-a, fourteen-d and
thirty-three" and inserting in lieu thereof the words "fourteen and
fourteen-a";
On page seventy-eight, section four, lines sixty-eight and
sixty-nine, by striking out the words "fourteen, fourteen-a,
fourteen-d and thirty-three" and inserting in lieu thereof the
words "fourteen and fourteen-a";
On page seventy-nine, section five, line five, by striking out
the word "three" and inserting in lieu thereof the word "four";
On page one hundred six, section six, line seventy-five, by
striking out the word "service" and inserting in lieu thereof the
word "mail";
On page five, by striking out the enacting section and
inserting in lieu thereof a new enacting section, to read as
follows:
That section two, article eleven-a, chapter four of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; that chapter eleven of said code be
amended by adding thereto a new article, designated article
thirteen-t; that section five, article twelve, chapter twenty-nine
of said code be amended and reenacted; that sections six and
fourteen, article twelve-b of said chapter be amended and
reenacted; that said chapter be further amended by adding thereto
a new article, designated article twelve-c; that section fourteen,
article three, chapter thirty of said code be amended and
reenacted; that section twelve-a, article fourteen of said chapter
be amended and reenacted; that article two, chapter thirty-three of
said code be amended by adding thereto a new section, designated
section nine-a; that sections fourteen and fourteen-a, article
three of said chapter be amended and reenacted; that section
fifteen-a, article four of said chapter be amended and reenacted;
that section two, article twenty-b of said chapter be amended and reenacted; that said article be further amended by adding thereto
a new section, designated section three-a; that sections two
through eleven, inclusive, article twenty-f of said chapter be
amended and reenacted; that said article be further amended by
adding thereto a new section, designated section one-a; that
section twenty-four, article twenty-five-a of said chapter be
amended and reenacted; that section twenty-six, article twenty-
five-d of said chapter be amended and reenacted; that section four,
article ten, chapter thirty-eight of said code be amended and
reenacted; that sections one, two, three, six, seven, eight, nine
and ten, article seven-b, chapter fifty-five of said code be
amended and reenacted; and that said article be further amended by
adding thereto three new sections, designated sections nine-a,
nine-b and nine-c, all to read as follows:;
And,
On pages one through four, by striking out the title and
substituting therefor a new title, to read as follows:
Enr. Com. Sub. for House Bill No. 2122--An Act to amend and
reenact section two, article eleven-a, chapter four of the code of
West Virginia, one thousand nine hundred thirty-one, as amended; to
amend chapter eleven of said code by adding thereto a new article,
designated article thirteen-t; to amend and reenact section five,
article twelve, chapter twenty-nine of said code; to amend and reenact sections six and fourteen, article twelve-b of said
chapter; to further amend said chapter by adding thereto a new
article, designated article twelve-c; to amend and reenact section
fourteen, article three, chapter thirty of said code; to amend and
reenact section twelve-a, article fourteen of said chapter; to
amend article two, chapter thirty-three of said code by adding
thereto a new section, designated section nine-a; to amend and
reenact sections fourteen and fourteen-a, article three of said
chapter; to amend and reenact section fifteen-a, article four of
said chapter; to amend and reenact sections two and three, article
twenty-b of said chapter; to further amend said article by adding
thereto a new section, designated section three-a; to amend and
reenact sections two through eleven, inclusive, article twenty-f of
said chapter; to further amend said article by adding thereto a new
section, designated section one-a; to amend and reenact section
twenty-four, article twenty-five-a of said chapter; to amend and
reenact section twenty-six, article twenty-five-d of said chapter;
to amend and reenact section four, article ten, chapter thirty-
eight of said code; to amend and reenact sections one, two, three,
six, seven, eight, nine and ten, article seven-b, chapter fifty-
five of said code; and to further amend said article by adding
thereto three new sections, designated sections nine-a, nine-b and
nine-c, all relating to medical professional liability generally;
transferring funds from board of risk and insurance management and
from tobacco settlement medical trust fund; providing a health care
provider tax credit for physicians based upon payment of certain
medical malpractice liability insurance premiums paid; setting
forth legislative findings and purpose; defining terms; creating
tax credit and providing eligibility; establishing amount and time
period for credit; allowing unused credit to carry forward;
providing for the application of the credit; providing for the
computation and application of credit; authorizing tax commissioner
to promulgate legislative rules relating to the credit;
establishing burden of proof relating to claiming the credit;
allowing the board of risk and insurance management to include
critical access hospitals as charitable or public service
organizations eligible for receiving insurance coverage;
authorizing the board of risk and insurance management to issue
certain coverage to nontransferred health care providers;
terminating authority of board of risk and insurance management to
issue certain medical professional liability insurance upon
transfer of assets to the physicians' mutual insurance company;
creating board to study the feasibility of and propose a mechanism
for funding the patient injury compensation fund
; establishing
term, authority and directives of the board; granting certain
duties and conditionally authorizing the board of risk and insurance management to promulgate legislative and emergency rules;
requiring the board of medicine and the board of osteopathy to take
certain disciplinary actions against physicians in certain
circumstances; providing for a limited diversion of premium taxes
on certain insurance policies; providing a one-time assessment on
all insurance carriers; prohibiting predatory rates and reduced
rates designed to gain market share; requiring additional reporting
requirements for insurance carriers providing medical malpractice
coverage; providing for the creation of a physicians' mutual
insurance company and the concomitant novation of certain board of
risk and insurance management medical professional liability
insurance programs;
setting forth additional legislative findings
and purpose; providing terms and conditions for transfer of
specified assets and moneys to the physicians' mutual; defining
terms;
prohibiting company from taking certain actions; requiring
certain premium taxes to be applied toward restoring West Virginia
tobacco medical trust fund; returning premium taxes to originally
allocated sources after moneys have been restored to the tobacco
settlement medical trust fund; waiver of taxes under certain
circumstances; providing for governance and organization of the
company; specifying composition of company's board of directors;
creating a special account to receive funds transferred from the
tobacco settlement medical trust fund; imposing a one-time assessment on certain licensed physicians for the privilege of
practicing in West Virginia; exempting certain physicians from
assessment; requiring competitive bidding in certain circumstances;
exempting company from certain requirements imposed on other mutual
insurance companies by the insurance commission; providing for
additional reporting requirements and actuarial studies for the
company; authorizing transfer of funds from special account and of
certain assets, obligations and liabilities of the board of risk
and insurance management to the company on a certain date and
establishing other terms and conditions associated with the
transfer; increasing exemption available to certain physician and
surgeon debtors in bankruptcy proceedings; providing additional
legislative findings and purposes relating to medical professional
liability; defining terms; adding an element of proof in certain
malpractice claims; altering notice requirements for malpractice
claims; modifying the qualifications for experts who testify in
medical professional liability actions; limiting liability for
certain noneconomic losses; providing a reversion provision;
creating conditional limitations and cap on certain damages;
providing for limited severability; eliminating joint, but not
several, liability among multiple defendants in medical
professional liability actions; prohibiting consideration of
certain third parties in malpractice cases; eliminating a cause of action based on ostensible agency in certain circumstances;
allowing for reduction in damage awards for certain collateral
source payments to plaintiffs; providing mechanism for determining
collateral source payments and damages distribution; providing for
calculation methodology for determining award payments; altering
collection of economic damages upon implementation of patient
compensation fund; barring actions against health care providers
for certain third-party claims; limiting civil liability for
designated trauma center care; directing the office of emergency
medical services to designate hospitals as trauma centers and
provisional trauma centers; placing limitations on eligibility for
trauma care caps; requiring the office of emergency medical
services to develop a written protocol containing recognized and
accepted standards for triage and emergency health procedures;
authorizing the secretary of the department of health and human
resources to promulgate legislative and emergency rules; and
establishing effective date, applicable to all causes of action
alleging medical professional liability.
The question now being on the passage of the bill, disapproved
by the Governor and amended by the House of Delegates.
On the passage of the bill,
the yeas were: Bailey, Boley,
Bowman, Caldwell, 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)--33.
The nays were: Chafin--1.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Enr.
Com. Sub. for H. B. No. 2122) passed with its title, as amended, as
a result of the objections of the Governor.
Senator Kessler moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, 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)--33.
The nays were: Chafin--1.
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 H. B. No. 2122) 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
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 95, Increasing length and width for
certain vehicles.
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, section four, lines twenty-seven and twenty-
eight, by striking out the word "provided" and inserting in lieu
thereof the word "if";
On page five, section four, line thirty-one, by striking out
the word "sixty-five" and inserting in lieu thereof the word
"seventy-five";
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 95--A Bill to amend and reenact sections
two, three and four, article seventeen, chapter seventeen-c of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, all relating to the size, weight and load of vehicles; increasing the maximum length and width of certain vehicles;
increasing the maximum length of the combination of certain
vehicles coupled together; allowing commissioner to increase
combination vehicle length; and mandating that the commissioner
annually publish a map designating state highways and various
maximum vehicle lengths pertinent thereto.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 95, 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, 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. 95) passed with its House of Delegates amended title.
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
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 178, Relating to subject
matter jurisdiction in family courts.
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 two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 25. CHANGE OF NAME.
§48-25-101. Petition to circuit court or family court for change of
name; contents thereof; notice of application.
(a) Any person desiring a change of his or her own name, or
that of his or her child or ward, may apply therefor to the circuit
court or any other court of record having jurisdiction family court
of the county in which he or she resides, or the judge thereof in
vacation, by petition setting forth:
_____(1) that That he or she has been a bona fide resident of such
the county for at least one year prior to the filing of the petition,;
_____(2) the The cause for which the change of name is sought; and
(3) the The new name desired. and
(b) previous Previous to the filing of such the petition such
the person shall cause to be published a notice of the time and
place that such the application will be made, which notice shall to
be published as a Class I legal advertisement in compliance with
the provisions of article three, chapter fifty-nine of this code.
and the The publication area for such the publication shall be is
the county.
CHAPTER 51. COURTS AND THEIR OFFICERS.
ARTICLE 2A. FAMILY COURTS.
§51-2A-2. Family court jurisdiction; exceptions; limitations.
(a) The family court shall exercise jurisdiction over the
following matters:
(1) All actions for divorce, annulment or separate maintenance
brought under the provisions of article three, four or five,
chapter forty-eight of this code except as provided in subsections
(b) and (c) of this section;
(2) All actions to obtain orders of child support brought
under the provisions of part one, article fourteen, chapter
forty-eight of this code articles eleven, twelve and fourteen,
chapter forty-eight of this code;
(3) All actions to establish paternity brought under the
provisions of article twenty-four, chapter forty-eight of this code
and any dependent claims related to such actions regarding child
support, parenting plans or other allocation of custodial
responsibility or decision-making responsibility for a child;
(4) All actions for grandparent visitation brought under the
provisions of article ten, chapter forty-eight of this code;
(5) All actions for the interstate enforcement of family
support brought under article sixteen, chapter forty-eight of this
code and for the interstate enforcement of child custody brought
under the provisions of article twenty of said chapter;
(6) All actions for the establishment of a parenting plan or
other allocation of custodial responsibility or decision-making
responsibility for a child, including actions brought under the
uniform child custody jurisdiction and enforcement act, as provided
in article twenty, chapter forty-eight of this code;
(7) All petitions for writs of habeas corpus wherein the issue
contested is custodial responsibility for a child;
(8) All motions for temporary relief affecting parenting plans
or other allocation of custodial responsibility or decision-making
responsibility for a child, child support, spousal support or
domestic violence;
(9) All motions for modification of an order providing for a parenting plan or other allocation of custodial responsibility or
decision-making responsibility for a child or for child support or
spousal support;
(10) All actions brought, including civil contempt
proceedings, to enforce an order of spousal or child support or to
enforce an order for a parenting plan or other allocation of
custodial responsibility or decision-making responsibility for a
child;
(11) All actions brought by an obligor to contest the
enforcement of an order of support through the withholding from
income of amounts payable as support or to contest an affidavit of
accrued support, filed with the circuit clerk, which seeks to
collect an arrearage; and
(12) All final hearings in domestic violence proceedings;
(13) Petitions for a change of name, exercising concurrent
jurisdiction with the circuit court;
_____(14) All proceedings for payment of attorney fees if the
family court judge has jurisdiction of the underlying action;
_____(15) All proceedings for property distribution brought under
article seven, chapter forty-eight of this code; and
_____(16) All proceedings to obtain spousal support brought under
article eight, chapter forty-eight of this code.
(b) If an action for divorce, annulment or separate maintenance does not require the establishment of a parenting plan
or other allocation of custodial responsibility or decision-making
responsibility for a child and does not require an award or any
payment of child support, the circuit court has concurrent
jurisdiction with the family court over the action if, at the time
of the filing of the action, the parties also file a written
property settlement agreement executed by both parties.
(c) If an action for divorce, annulment or separate
maintenance is pending and a petition is filed pursuant to the
provisions of article six, chapter forty-nine of this code alleging
abuse or neglect of a child by either of the parties to the
divorce, annulment or separate maintenance action, the orders of
the circuit court in which the abuse or neglect petition is filed
shall supercede and take precedence over an order of the family
court respecting the allocation of custodial and decision-making
responsibility for the child between the parents. If no order for
the allocation of custodial and decision-making responsibility for
the child between the parents has been entered by the family court
in the pending action for divorce, annulment or separate
maintenance, the family court shall stay any further proceedings
concerning the allocation of custodial and decision-making
responsibility for the child between the parents and defer to the
orders of the circuit court in the abuse or neglect proceedings.
(d) A family court is a court of limited jurisdiction. A
family court is a court of record only for the purpose of
exercising jurisdiction in the matters for which the jurisdiction
of the family court is specifically authorized in this section and
in chapter forty-eight of this code. A family court may not
exercise the powers given courts of record in section one, article
five, chapter fifty-one of this code or exercise any other powers
provided for courts of record in this code unless specifically
authorized by the Legislature. A family court judge is not a
"judge of any court of record" or a "judge of a court of record" as
the terms are defined and used in article nine of this chapter.
;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 178--
A Bill to amend and
reenact section one hundred one, article twenty-five, chapter
forty-eight of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; and to amend and reenact section two,
article two-a, chapter fifty-one of said code, all relating to
defining and clarifying the family court's jurisdiction over
petitions for a change of name; proceedings for the payment of
attorney fees; proceedings for property distribution; and actions
or proceedings to obtain spousal support.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 178, 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, 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.
Com. Sub. for S. B. No. 178) passed with its House of Delegates
amended title.
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
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 341, Creating Uniform Interstate Enforcement of Domestic Violence Protection Orders Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
§48-27-310. Full faith and credit.
Any protective order issued pursuant to this article shall be
effective throughout the state in every county. Any protective
protection order issued by any other state territory or possession
of the United States, Puerto Rico, the District of Columbia or
Indian tribe of the United States, the District of Columbia, Puerto
Rico, the United States Virgin Islands or any territory or insular
possession subject to the jurisdiction of the United States or any
Indian tribe or band that has jurisdiction to issue protection
orders shall be accorded full faith and credit and enforced as if
it were an order of this state whether or not such relief is
available in this state. A protective order from another
jurisdiction is presumed to be valid if the order appears authentic
on its face and shall be enforced in this state. If the validity
of the order is contested, the court or law enforcement to which the order is presented shall, prior to the final hearing, determine
the existence, validity and terms of such order in the issuing
jurisdiction. A protective order from another jurisdiction may be
enforced even if the order is not entered into the state
law-enforcement information system described by 27-802 in
accordance with the provisions of section five, article
twenty-eight of this chapter.
§48-27-802. Maintenance of registry by state police.
(a) The West Virginia state police shall maintain a registry
in which it shall enter certified copies of protective orders
entered by courts from every county in this state pursuant to the
provisions of this article or from other jurisdictions and of
protection orders issued by another jurisdiction pursuant to their
laws its law: Provided, That the provisions of this subsection are
not effective until a central automated record state law-
enforcement information system is developed.
(b) A petitioner who obtains a protective order pursuant to
this article, or a protection order from another jurisdiction
pursuant to its law, may register that order in any county within
this state where the petitioner believes enforcement may be
necessary.
(c) A protective order may be registered by the petitioner in
a county other than the issuing county by obtaining a copy of the order of the issuing court, certified by the clerk of that court,
and presenting that certified order to the local office of the West
Virginia state police where the order is to be registered.
(d) Upon receipt of a certified order for registration, the
local office of the West Virginia state police shall provide
certified copies to any law-enforcement agency within its
jurisdiction, including the city any municipal police office and
the county sheriff's office of the sheriff.
(e) Nothing in this section precludes the enforcement of an
order in a county other than the county or jurisdiction in which
the order was issued if the petitioner has not registered the order
in the county in which an alleged violation of the order occurs.
§48-27-903. Misdemeanor offenses for violation of protective
order, repeat offenses, penalties.
(a) A respondent who abuses the petitioner or minor children
or who is physically present at any location in knowing and willful
violation of the terms of an: (1) An emergency or final protective
order issued under the provisions of this article; or (2) an order
for relief pending a divorce action issued pursuant to section
5-509 five hundred nine, article five of this chapter; granting the
relief pursuant to the provisions of this article (3) a condition
of bail pursuant to the provisions of section seventeen-c, article
one-c, chapter sixty-two of this code; or (4) a condition of parole or probation which restricts contact between the parolee or
probationer and a member of the parolee's or probationer's family
pursuant to the provisions of subsection (4), section nine, article
twelve, chapter sixty-two of this code or subsection (4), section
seventeen of said article or any arrest or conviction related to
violence against a family member or arrest or conviction related to
the crime of stalking as defined in section nine-a, article two of
said chapter is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in the county or regional jail for a
period of not less than one day nor more than one year, which jail
term shall include actual confinement of not less than twenty-four
hours, and shall be fined not less than two hundred fifty dollars
nor more than two thousand dollars.
(b) When a A respondent previously convicted of the offense
described in who is convicted of a second or subsequent offense
under subsection (a) of this section abuses the petitioner or minor
children or is physically present at any location in knowing and
willful violation of the terms of a temporary or final protective
order issued under the provisions of this article, the respondent
is guilty of a misdemeanor and, upon conviction thereof, shall be
confined in the county or regional jail for not less than three
months nor more than one year, which jail term shall include actual
confinement of not less than twenty-four hours, and fined not less than five hundred dollars nor more than three thousand dollars. or
both
ARTICLE 28. UNIFORM INTERSTATE ENFORCEMENT OF DOMESTIC VIOLENCE
PROTECTION ORDERS ACT.
§48-28-1. Title.
This article may be cited as the "Uniform Interstate
Enforcement of Domestic Violence Protection Orders Act".
§48-28-2. Definitions.
In this article:
(1) "Court" means a circuit court, family court or magistrate
court which has jurisdiction over domestic violence proceedings
pursuant to article twenty-seven of this chapter.
(2) "Foreign protection order" means a protection order issued
by a tribunal of another state.
(3) "Issuing state" means the state whose tribunal issues a
protection order.
(4) "Mutual foreign protection order" means a foreign
protection order that includes provisions in favor of both the
protected individual seeking enforcement of the order and the
respondent.
(5) "Protected individual" means an individual protected by a
protection order.
(6) "Protection order" means an injunction or other order, issued by a tribunal under the domestic violence, family violence
or antistalking laws of the issuing state, to prevent an individual
from engaging in violent or threatening acts against, harassment
of, contact or communication with, or physical proximity to,
another individual.
(7) "Protective order" means an order issued pursuant to
article twenty-seven of this chapter or to section five hundred
nine, article five of this chapter.
(8) "Respondent" means the individual against whom enforcement
of a protection order is sought.
(9) "State" means a state of the United States, the District
of Columbia, Puerto Rico, the United States Virgin Islands or any
territory or insular possession subject to the jurisdiction of the
United States. The term includes an Indian tribe or band that has
jurisdiction to issue protection orders.
(10) "Tribunal" means a court, agency or other entity
authorized by law to issue or modify a protection order.
§48-28-3. Judicial enforcement of order.
(a) A person authorized by the law of this state to seek
enforcement of a protective order may seek enforcement of a valid
foreign protection order in a court of this state. The court shall
enforce the terms of the order, including terms that provide relief
that a court of this state would lack power to provide but for this section. The court shall enforce the order, whether the order was
obtained by independent action or in another proceeding, if it is
an order issued in response to a complaint, petition or motion
filed by or on behalf of an individual seeking protection. In a
proceeding to enforce a foreign protection order, the court shall
follow the procedures of this state for the enforcement of
protective orders.
(b) A court of this state may not enforce a foreign protection
order issued by a tribunal of a state that does not recognize the
standing of a protected individual to seek enforcement of the
order.
(c) A court of this state shall enforce the provisions of a
valid foreign protection order which govern custody and visitation
if the order was issued in accordance with the jurisdictional
requirements governing the issuance of custody and visitation
orders in the issuing state or under federal law and with the
requirements set out in subsection (d) of this section.
(d) A foreign protection order is valid if it:
(1) Identifies the protected individual and the respondent;
(2) Is currently in effect;
(3) Was issued by a tribunal that had jurisdiction over the
parties and subject matter under the law of the issuing state; and
(4) Was issued after the respondent was given reasonable notice and had an opportunity to be heard before the tribunal
issued the order or, in the case of an order ex parte, the
respondent was given notice and has had or will have an opportunity
to be heard within a reasonable time after the order was issued, in
a manner consistent with the respondent's rights to due process of
law.
(e) A foreign protection order which appears authentic on its
face is presumed to be valid.
(f) Absence of any of the criteria for validity of a foreign
protection order is an affirmative defense in an action seeking
enforcement of the order.
(g) A court of this state may enforce provisions of a mutual
foreign protection order which favor a respondent only if:
(1) The respondent filed a written pleading seeking a
protection order from the tribunal of the issuing state; and
(2) The tribunal of the issuing state made specific findings
in favor of the respondent.
§48-28-4. Nonjudicial enforcement of order.
(a) A law-enforcement officer of this state, upon determining
that there is probable cause to believe that a valid foreign
protection order exists and that the order has been violated, shall
enforce the order as if it were a protective order of a court of
this state. Presentation of a foreign protective order that identifies both the protected individual and the respondent and
that appears, on its face, to be authentic and currently in effect
constitutes probable cause to believe that a valid foreign
protection order exists. For the purposes of this section, the
protection order may be inscribed on a tangible medium or may have
been stored in an electronic or other medium if it is retrievable
in perceivable form. Presentation of a certified copy of a
protection order is not required for enforcement.
(b) If a foreign protection order is not presented, a
law-enforcement officer of this state may consider other credible
information in determining whether there is probable cause to
believe that a valid foreign protection order exists.
(c) If a law-enforcement officer of this state determines that
an otherwise valid foreign protection order cannot be enforced
because the respondent has not been notified or served with the
order, the officer shall inform the respondent of the order, make
a reasonable effort to serve the order upon the respondent and
allow the respondent a reasonable opportunity to comply with the
order before enforcing the order.
(d) Registration or filing of an order in this state is not
required for the enforcement of a valid foreign protection order
pursuant to this article.
§48-28-5. Registration of order.
(a) Any individual may register a foreign protection order in
this state by:
(1) Presenting a certified copy of the order to a local office
of the West Virginia state police for registration in accordance
with the provisions of section eight hundred two, article twenty-
seven of this chapter; or
(2) Presenting a certified copy of the order to the clerk of
the court in which enforcement may be sought and request that the
order be forwarded to the West Virginia state police for
registration in accordance with the provisions of section eight
hundred two, article twenty-seven of this chapter.
(b) An individual registering a foreign protection order shall
file an affidavit by the protected individual stating that, to the
best of the protected individual's knowledge, the order is
currently in effect.
(c) Upon receipt of a foreign protection order for
registration, the local office of the West Virginia state police
shall:
(1) Provide certified copies of the order to any law-
enforcement agency within its jurisdiction, including any municipal
police office and the office of the sheriff;
(2) Register the order in accordance with the provisions of
this section and of section eight hundred two, article twenty-seven of this chapter;
(3) Furnish to the individual registering the order a
certified copy of the registered order.
(d) A registered foreign protection order that is shown to be
inaccurate or not currently in effect must be corrected or removed
from the registry.
(e) A foreign protection order registered under this article
may be entered in any existing state or federal registry of
protection orders in accordance with applicable law.
(f) A fee may not be charged for the registration of a foreign
protection order.
§48-28-6. Immunity.
This state or a local governmental agency, or a
law-enforcement officer, prosecuting attorney, clerk of court or
any state or local governmental official acting in an official
capacity, is immune from civil and criminal liability for an act or
omission arising out of the registration or enforcement of a
foreign protection order or the detention or arrest of an alleged
violator of a foreign protection order if the act or omission was
done in good faith in an effort to comply with this article.
§48-28-7. Criminal offenses and penalties.
(a) A respondent who abuses, as that term is defined in
section two hundred two, article twenty-seven of this chapter, a protected individual or who is physically present at any location
in knowing and willful violation of the terms of: (1) A valid
foreign protection order; (2) a protective order entered in any
pending foreign divorce action which enjoins the offending party
from molesting or interfering with another party, or interfering
with the custodial or visitation rights of the other person; or (3)
a condition of bail, parole or probation imposed in any state with
regard to cases of crimes against family or household members or in
regard to the crime of stalking, when such condition restricts
contact between the offender and the victim or between the offender
and members of the victim's family or the offender's family is
guilty of a misdemeanor and, upon conviction thereof, shall be
confined in the county or regional jail for a period of not less
than one day nor more than one year, which jail term shall include
actual confinement of not less than twenty-four hours, and shall be
fined not less than two hundred fifty dollars nor more than two
thousand dollars.
(b) A respondent who is convicted of a second or subsequent
offense under subsection (a) of this section is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in the
county or regional jail for not less than three months nor more
than one year, which jail term shall include actual confinement of
not less than twenty-four hours, and fined not less than five hundred dollars nor more than three thousand dollars.
§48-28-8. Other remedies.
A protected individual who pursues remedies under this article
is not precluded from pursuing other legal or equitable remedies
against the respondent.
§48-28-9. Uniformity of application and construction.
In applying and construing this act, consideration must be
given to the need to promote uniformity of the law with respect to
its subject matter among states that enact it.
§48-28-10. Transitional provision.
This article applies to:
(a) Foreign protection orders issued before the effective date
of this article; and
(b) Continuing actions for enforcement of foreign protection
orders commenced before the effective date of this article. A
request for enforcement, made on or after the effective date of
this article, of a foreign protective order based on violations
which occurred before the effective date of this article is
governed by this article.
On motion of Senator Kessler, the following amendment to the
House of Delegates amendment to the bill was reported by the Clerk
and adopted:
On page four, section nine hundred three, subsection (b), lines five through seven, by striking out the words "or minor
children or is physically present at any location in knowing and
willful violation of the terms of a temporary or final protective
order issued under the provisions of this article, the respondent".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment, as amended.
Engrossed Senate Bill No. 341, 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. 341) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 357, Relating to standard nonforfeiture
law for individual deferred annuities.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 13. LIFE INSURANCE.
§33-13-30a. Standard nonforfeiture law for individual deferred
annuities.
(1) (a) This section shall be known as the "Standard
Nonforfeiture Law for Individual Deferred Annuities".
(2) (b) This section shall may not apply to any reinsurance,
group annuity purchased under a retirement plan or plan of deferred
compensation established or maintained by an employer (including a
partnership or sole proprietorship) or by an employee organization,
or by both, other than a plan providing individual retirement
accounts or individual retirement annuities under Section 408 of
the Internal Revenue Code, as now or hereafter amended, premium
deposit fund, variable annuity, investment annuity, immediate annuity, any deferred annuity contract after annuity payments have
commenced or reversionary annuity, nor to any contract which shall
be delivered outside this state through an agent or other
representative of the company issuing the contract.
(3) (c) In the case of contracts issued on or after the
operative date of this section as defined in subsection (12) (l) of
this section, no contract of annuity, except as stated in
subsection (2) (b) of this section, shall be delivered or issued
for delivery in this state unless it contains in substance the
following provisions, or corresponding provisions which, in the
opinion of the commissioner, are at least as favorable to the
contract holder, upon cessation of payment of considerations under
the contract:
(a) (1) That upon cessation of payment of considerations under
a contract, the company will grant a paid-up annuity benefit on a
plan stipulated in the contract of such the value as is specified
in subsections (5), (6), (7), (8) and (10) (e), (f), (g), (h) and
(j) of this section;
(b) (2) If a contract provides for a lump sum settlement at
maturity or at any other time, that, upon surrender of the contract
at or prior to the commencement of any annuity payments, the
company will pay in lieu of any paid-up annuity benefit a cash
surrender benefit of such the amount as is specified in subsections (5), (6), (8) and (10) (e), (f), (h) and (j) of this section. The
company shall reserve the right to defer the payment of such the
cash surrender benefit for a period of six months after demand
therefor with surrender of the contract;
(c) (3) A statement of the mortality table, if any, and
interest rates used in calculating any minimum paid-up annuity,
cash surrender or death benefits that are guaranteed under the
contract, together with sufficient information to determine the
amounts of such the benefits; and
(d) (4) A statement that any paid-up annuity, cash surrender
or death benefits that may be available under the contract are not
less than the minimum benefits required by any statute of the state
in which the contract is delivered and an explanation of the manner
in which such the benefits are altered by the existence of any
additional amounts credited by the company to the contract, any
indebtedness to the company on the contract or any prior
withdrawals from or partial surrenders of the contract.
Notwithstanding the requirements of this subsection, any
deferred annuity contract may provide that if no considerations
have been received under a contract for a period of two full years
and the portion of the paid-up annuity benefit at maturity on the
plan stipulated in the contract arising from considerations paid
prior to such the period would be less than twenty dollars monthly, the company may at its option terminate such the contract by
payment in cash of the then present value of such the portion of
the paid-up annuity benefit, calculated on the basis of the
mortality table, if any, and interest rate specified in the
contract for determining the paid-up annuity benefit and by such
the payment shall be relieved of any further obligation under such
the contract.
(4) (d) The minimum values as specified in subsections (5),
(6), (7), (8) and (10) (e), (f), (g), (h) and (j) of this section
of any paid-up annuity, cash surrender or death benefits available
under an annuity contract shall be based upon minimum nonforfeiture
amounts as defined in this section:
(a) (1) With respect to contracts providing for flexible
considerations, the minimum nonforfeiture amount at any time at or
prior to the commencement of any annuity payments shall be equal to
an accumulation up to such the time at a rate of interest of three
percent per annum of percentages of the net considerations (as
hereinafter defined) paid prior to such the time, decreased by the
sum of:
(i) (A) Any prior withdrawals from or partial surrenders of
the contract accumulated at a rate of interest of three percent per
annum; and
(ii) (B) The amount of any indebtedness to the company on the contract, including interest due and accrued; and increased by any
existing additional amounts credited by the company to the
contract.
The net considerations for a given contract year used to
define the minimum nonforfeiture amount shall be an amount not less
than zero and shall be equal to the corresponding gross
considerations credited to the contract during that contract year
less than an annual contract charge of thirty dollars and less a
collection charge of one dollar and twenty-five cents per
consideration credited to the contract during that contract year.
The percentages of net considerations shall be sixty-five percent
of the net consideration for the first contract year and
eighty-seven and one-half percent of the net considerations for the
second and later contract years. Notwithstanding the provisions of
the preceding sentence, the percentage shall be sixty-five percent
of the portion of the total net consideration for any renewal
contract year which exceeds by not more than two times the sum of
those portions of the net considerations in all prior contract
years for which the percentage was sixty-five percent.
Notwithstanding any other provision of this section, any
contract issued on or after the first day of July, two thousand
three, and before the first day of July, two thousand five, the
interest rate at which net considerations, prior withdrawals and partial surrenders shall be accumulated for the purpose of
determining nonforfeiture amounts may not be less than one and one-
half percent per annum.
_____(b) (2) With respect to contracts providing for fixed
scheduled considerations, minimum nonforfeiture amounts shall be
calculated on the assumption that considerations are paid annually
in advance and shall be defined as for contracts with flexible
considerations which are paid annually with two exceptions:
(1) (A) The portion of the net consideration for the first
contract year to be accumulated shall be the sum of sixty-five
percent of the net consideration for the first contract year plus
twenty-two and one-half percent of the excess of the net
consideration for the first contract year over the lesser of the
net considerations for the second and third contract years.
(2) (B) The annual contract charge shall be the lesser of: (i)
Thirty dollars; or (ii) ten percent of the gross annual
consideration.
(c) (3) With respect to contracts providing for a single
consideration, minimum nonforfeiture amounts shall be defined as
for contracts with flexible considerations except that the
percentage of net consideration used to determine the minimum
nonforfeiture amount shall be equal to ninety percent and the net
consideration shall be the gross consideration less a contract charge of seventy-five dollars.
(5) (e) Any paid-up annuity benefit available under a contract
shall be such that its present value on the date annuity payments
are to commence is at least equal to the minimum nonforfeiture
amount on that date. Such The present value shall be computed
using the mortality table, if any, and the interest rate specified
in the contract for determining the minimum paid-up annuity
benefits guaranteed in the contract.
(6) (f) For contracts which provide cash surrender benefits,
such the cash surrender benefits available prior to maturity shall
not be less than the present value as of the date of surrender of
that portion of the maturity value of the paid-up annuity benefit
which would be provided under the contract at maturity arising from
consideration paid prior to the time of cash surrender reduced by
the amount appropriate to reflect any prior withdrawals from or
partial surrenders of the contract, such the present value being
calculated on the basis of an interest rate not more than one
percent higher than the interest rate specified in the contract for
accumulating the net considerations to determine such the maturity
value, decreased by the amount of any indebtedness to the company
on the contract, including interest due and accrued, and increased
by any existing additional amounts credited by the company to the
contract. In no event shall any cash surrender benefit be less than the minimum nonforfeiture amount at that time. The death
benefit under such the contracts shall be at least equal to the
cash surrender benefit.
(7) (g) For contracts which do not provide cash surrender
benefits, the present value of any paid-up annuity benefit
available as a nonforfeiture option at any time prior to maturity
shall not be less than the present value of that portion of the
maturity value of the paid-up annuity benefit provided under the
contract arising from considerations paid prior to the time the
contract is surrendered in exchange for, or changed to, a deferred
paid-up annuity, such the present value being calculated for the
period prior to the maturity date on the basis of the interest rate
specified in the contract for accumulating the net considerations
to determine such the maturity value and increased by any existing
additional amounts credited by the company to the contract. For
contracts which do not provide any death benefits prior to the
commencement of any annuity payments, such the present values shall
be calculated on a basis of such the interest rate and the
mortality table specified in the contract for determining the
maturity value of the paid-up annuity benefit. However, in no
event shall the present value of a paid-up annuity benefit be less
than the minimum nonforfeiture amount at that time.
(8) (h) For the purpose of determining the benefits calculated under subsections (6) (f) and (7) (g) of this section, in the case
of annuity contracts under which an election may be made to have
annuity payments commence at optional maturity dates, the maturity
date shall be deemed to be the latest date for which election shall
be permitted by the contract, but shall not be deemed to be later
than the anniversary of the contract next following the annuitant's
seventieth birthday or the tenth anniversary of the contract,
whichever is later.
(9) (i) Any contract which does not provide cash surrender
benefits or does not provide death benefits at least equal to the
minimum nonforfeiture amount prior to the commencement of any
annuity payments shall include a statement in a prominent place in
the contract that such the benefits are not provided.
(10) (j) Any paid-up annuity, cash surrender or death benefits
available at any time, other than on the contract anniversary under
any contract with fixed scheduled considerations, shall be
calculated with allowance for the lapse of time and the payment of
any scheduled considerations beyond the beginning of the contract
year in which cessation of payment of considerations under the
contract occurs.
(11) (k) For any contract which provides, within the same
contract by rider or supplemental contract provision, both annuity
benefits and life insurance benefits that are in excess of the greater of cash surrender benefits or a return of the gross
considerations with interest, the minimum nonforfeiture benefits
shall be equal to the sum of the minimum nonforfeiture benefits for
the annuity portion and the minimum nonforfeiture benefits, if any,
for the life insurance portion computed as if each portion were a
separate contract. Notwithstanding the provisions of subsections
(5), (6), (7), (8) and (10) (e), (f), (g), (h) and (j) of this
section, additional benefits payable: (a) (1) In the event of
total and permanent disability; (b) (2) as reversionary annuity or
deferred reversionary annuity benefits; or (c) (3) as other policy
benefits additional to life insurance, endowment and annuity
benefits and considerations for all such the additional benefits
shall be disregarded in ascertaining the minimum nonforfeiture
amounts, paid-up annuity, cash surrender and death benefits that
may be required by this section. The inclusion of such the
additional benefits shall not be required in any paid-up benefits
unless such the additional benefits separately would require
minimum nonforfeiture amounts, paid-up annuity, cash surrender and
death benefits.
(12) (l) After the effective date of this section, any company
may file with the commissioner a written notice of its election to
comply with the provisions of this section after a specified date
before the second anniversary of the effective date of this section. After the filing of such the notice, then upon such the
specified date which shall be the operative date of this section
for such the company, this section shall become operative with
respect to annuity contracts thereafter issued by such the company.
If a company makes no such election, the operative date of this
section for such the company shall be the second anniversary of the
effective date of this section.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 357, 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, 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. 357) passed with its title.
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
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 422, Allowing public
service commission to change certain rates for municipalities or
cooperative utilities.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page seven, section four-b, lines one hundred fifteen
through one hundred twenty-two, by striking out the words "future
modification, if it is determined that the interim or emergency
rate is necessary to protect the municipality from financial
hardship, including, but not limited to, financial hardship
attributable to the purchase of the utility commodity sold or
financial hardship attributable to the direct or indirect ownership
or operation of the utility" and inserting in lieu thereof the
words "refund or future modification, if it is determined that the
interim or emergency rate is necessary to protect the municipality
from financial hardship attributable to the purchase of the utility commodity sold, or the commission determines that a temporary or
interim rate increase is necessary for the utility to avoid
financial distress".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 422, 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, 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.
Com. Sub. for S. B. No. 422) passed with its title.
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
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 437, Requiring joint
committee on government and finance approve certain acquisitions,
construction and long-term agreements.
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 nine, section four, line one hundred forty-four, by
striking the word "five" and inserting in lieu thereof the word
"one";
On page nine, section four, lines one hundred forty-seven
through one hundred fifty, by striking out the words "and approval:
Provided, That any sale-leaseback or like kind exchange undertaken
by the state shall not be subject to the requirements of this
subsection." and inserting in lieu thereof the following:
The
secretary of administration shall provide to the joint committee on
government and finance a copy of the contract or agreement to be
entered and a report setting forth a detailed summary of the terms
of the contract or agreement.
;
On page twelve, section forty, line forty-nine, by striking
out the word "five" and inserting in lieu thereof the word "one";
On page twelve, section forty, line fifty-two, by striking out the words "and approval." and inserting in lieu thereof the
following:
The secretary of administration shall provide to the
joint committee on government and finance a copy of the contract or
agreement to be entered and a report setting forth a detailed
summary of the terms of the contract or agreement.;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 437--A Bill to amend and
reenact section four, article six, chapter five of the code of West
Virginia, one thousand nine hundred thirty-one, as amended; and to
amend and reenact section forty, article three, chapter five-a of
said code, all relating to state interest in real property;
requiring presentation of certain information to the joint
committee on government and finance; tax exemption not affected by
leasebacks; exemptions available to private entity who is a party
to the leaseback; leasebacks to be considered public improvements;
and personal liability of a private entity who is a party to a
leaseback.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 437, 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, 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.
Com. Sub. for S. B. No. 437) passed with its House of Delegates
amended title.
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
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 485, Authorizing insurance commissioner
to enter into certain agreements and compromises.
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 two, by striking out by striking out everything after
the enacting section and inserting in lieu thereof the following:
ARTICLE 43. INSURANCE TAX PROCEDURES ACT.
§33-43-4a. Agreements and compromises.
(a) Prior to commencing any civil action, the commissioner may
compromise any claim relating to the liability of a person with
respect to any tax, including any surcharge, interest, additional
tax, fee, fine or penalty, administered by the commissioner under
this chapter for any taxable period. The following conditions
apply to any agreement entered into under this subsection:
- The agreement must be in writing;
(2) In the absence of a showing of fraud, malfeasance or
misrepresentation of a material fact, then:
(A)
The agreement shall be final and conclusive;
(B) The agreement and the matters so agreed upon shall not be
reopened or the agreement modified by any officer, employee or
agent of this state; and
(C) In any civil action or administrative proceeding, the
compromise agreement or any determination, assessment, collection,
payment, abatement, refund or credit made in accordance therewith
may not be annulled, modified, set aside or disregarded.
(b) The commissioner may compromise all or part of any civil case arising under the provisions of this article.
The following
conditions apply to any agreement entered into under this
subsection:
(1) Any liability for tax, including any surcharge, interest,
additional tax, fee, fine or penalty, may be compromised upon
consideration of the terms and conditions of the compromise
agreement in light of any or all of the following:
(A) Doubt as to liability;
(B) Doubt as to the ability to collect;
(C) Strength of the taxpayer's defenses to the assessment of
the tax, surcharge, interest, additional tax, fee, fine or penalty;
(D) Age of the dispute;
(E) The anticipated time and resources which will be required
to develop the civil action for adjudication; and
(F) Any other factors relevant to the determination of whether
citizens of the state of West Virginia are best served by entering
into a compromise agreement.
(2) In all matters involving issues in respect of a tax
liability in controversy of fifteen thousand dollars or more for
one or all of the years involved in claim or case, the commissioner
shall seek the written recommendation of the attorney general
before entering into the compromise agreement. The written
recommendation of the attorney general shall be placed in the commissioner's file.
(c) Whenever a compromise agreement is made by the
commissioner under subsection (a) or (b) of this section, there
shall be placed on file in the commissioner's office an opinion
from the commissioner's legal counsel. The opinion must include
the following:
(1) The amount of tax, surcharge, additional tax, fee and
interest assessed;
(2) The anticipated fine or penalty imposed by law on the
person against whom the tax, surcharge, additional tax, fee and
interest was assessed;
(3) The amount actually paid in accordance with the terms of
the compromise agreement; and
(4) The reasons underlying the decision to enter into a
compromise agreement: Provided, That the requirements of this
subsection do not apply with respect to any agreement in which the
amount of the tax assessed, including any surcharge, interest,
additional tax, fee, fine or penalty, is less than one thousand
dollars.
(d) Report to Legislature. -- The commissioner shall submit to
the speaker of the House of Delegates, the president of the Senate
and the legislative auditor a quarterly report summarizing the
issues and amounts of liabilities contained in the agreements and compromises into which he or she has entered pursuant to this
section. The report shall be in a form which preserves the
confidentiality of the identity of the taxpayers involved in the
agreements and compromises. Notwithstanding any other provision of
law to the contrary, the agreements and compromises entered into
pursuant to this section shall be subject to audit, in their
entirety, by the legislative auditor.
;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 485--A Bill to amend article forty-three,
chapter thirty-three of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, by adding thereto a new
section, designated section four-a, relating to the granting of
authority to the insurance commissioner to enter into agreements
and compromises relating to taxes, interest, penalties and other
charges; and imposing conditions upon such authority.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 485, 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, 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. 485) passed with its House of Delegates amended title.
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
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Com. Sub. for Senate Bill No. 494, Regulating fees
between cemeteries, certain companies and veterans for setting
grave markers.
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 three, section one, line eleven, by striking out the words "to be" and inserting in lieu thereof the word "as";
On page three, section two, line twelve, by striking out the
words "regional perpetual care fees" and inserting in lieu thereof
the words "permanent endowment care fund";
On page three, section two, line thirteen, by striking out the
word "initial" and inserting in lieu thereof the word "perpetual";
And,
On page three, section two, line sixteen, after the word "the"
by inserting the word "veteran".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 494, 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, 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. Com. Sub. for S. B. No. 494) passed with its title.
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
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 534, Creating Third-Party
Administrator Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 46. THIRD-PARTY ADMINISTRATOR ACT.
§33-46-1. Short title.
This article may be cited as the "Third-Party Administrator
Act".
§33-46-2. Definitions.
(a) "Administrator" or "third-party administrator" means a
person who directly or indirectly underwrites or collects charges
or premiums from, or adjusts or settles claims on residents of this state, in connection with life, annuity or accident and sickness
coverage offered or provided by an insurer, except any of the
following:
(1) An employer, or a wholly owned direct or indirect
subsidiary of an employer, on behalf of its employees or the
employees of one or more subsidiaries or affiliated corporations of
the employer;
(2) A union on behalf of its members;
(3) An insurer that is licensed to transact insurance in this
state with respect to a policy lawfully issued and delivered in and
pursuant to the laws of this state or another state including:
(A) A health service corporation licensed under article
twenty-four of this chapter;
(B) A health care corporation licensed under article twenty-
five of this chapter;
(C) A health maintenance organization licensed under article
twenty-five-a of this chapter; and
(D) A prepaid limited health service organization licensed
under article twenty-five-d of this chapter;
(4) An insurance producer licensed to sell life, annuities or
health coverage in this state whose activities are limited
exclusively to the sale of insurance;
(5) A creditor on behalf of its debtors with respect to insurance covering a debt between the creditor and its debtors;
(6) A trust and its trustees, agents and employees acting
pursuant to the trust established in conformity with 29 U. S. C.
Section 186;
(7) A trust exempt from taxation under Section 501(a) of the
Internal Revenue Code, its trustees and employees acting pursuant
to the trust, or a custodian and the custodian's agents or
employees acting pursuant to a custodian account which meets the
requirements of Section 401(f) of the Internal Revenue Code;
(8) A credit union or a financial institution that is subject
to supervision or examination by federal or state banking
authorities, or a mortgage lender, to the extent they collect and
remit premiums to licensed insurance producers or to limited lines
producers or authorized insurers in connection with loan payments;
(9) A credit card issuing company that advances for and
collects insurance premiums or charges from its credit card holders
who have authorized collection;
(10) A person who adjusts or settles claims in the normal
course of that person's practice or employment as an attorney at
law and who does not collect charges or premiums in connection with
life, annuity or accident and sickness coverage;
(11) An adjuster licensed by this state whose activities are
limited to adjustment of claims;
(12) A person licensed as a managing general agent in this
state, whose activities are limited exclusively to the scope of
activities conveyed under that license; or
(13) An administrator who is affiliated with an insurer and
who only performs the contractual duties, between the administrator
and the insurer, of an administrator for the direct and assumed
business of the affiliated insurer. The insurer is responsible for
the acts of the administrator and is responsible for providing all
of the administrator's books and records to the insurance
commissioner, upon a request from the insurance commissioner. For
purposes of this subdivision, "insurer" means a licensed insurance
company, prepaid hospital or medical care plan, health maintenance
organization or a health care corporation.
(b) "Affiliate or affiliated" means an entity or person who
directly or indirectly through one or more intermediaries, controls
or is controlled by, or is under common control with, a specified
entity or person.
(c) "Commissioner" means the insurance commissioner of this
state.
(d) "Control", "controlling", "controlled by" and "under
common control with" mean the possession, direct or indirect, of
the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting securities, by contract other than a commercial contract for goods
or nonmanagement services, or otherwise, unless the power is the
result of an official position with or corporate office held by the
person. Control shall be presumed to exist if any person, directly
or indirectly, owns, controls, holds with the power to vote or
holds proxies representing ten percent or more of the voting
securities of any other person. This presumption may be rebutted
by a showing made in the manner provided by the West Virginia
insurance holding company systems act that control does not exist
in fact. The commissioner may determine, after furnishing all
persons in interest notice and opportunity to be heard and making
specific findings of fact to support the determination that control
exists in fact, notwithstanding the absence of a presumption to
that effect.
(e) "GAAP" means United States generally accepted accounting
principles consistently applied.
(f) "Home state" means the District of Columbia and any state
or territory of the United States in which an administrator is
incorporated or maintains its principal place of business. If
neither the state in which the administrator is incorporated, nor
the state in which it maintains its principal place of business has
adopted the national association of insurance commissioners' model
third-party administrator act or a substantially similar law governing administrators, the administrator may declare another
state, in which it conducts business, to be its "home state".
(g) "Insurance producer" means a person who sells, solicits or
negotiates a contract of insurance as those terms are defined in
this article.
(h) "Insurer" means a person undertaking to provide life,
annuity or accident and sickness coverage or self-funded coverage
under a governmental plan or church plan in this state. For the
purposes of this article, insurer includes an employer, a licensed
insurance company, a prepaid hospital or medical care plan, health
maintenance organization or a health care corporation.
(i) "Negotiate" means the act of conferring directly with or
offering advice directly to a purchaser or prospective purchaser of
a particular contract of insurance concerning any of the
substantive benefits, terms or conditions of the contract, provided
that the person engaged in that act either sells insurance or
obtains insurance from insurers for purchasers.
(j) "Nonresident administrator" means a person who is applying
for licensure or is licensed in any state other than the
administrator's home state.
(k) "Person" means an individual or a business entity.
(l) "Sell" means to exchange a contract of insurance by any
means, for money or its equivalent, on behalf of an insurance company.
(m) "Solicit" means attempting to sell insurance or asking or
urging a person to apply for a particular kind of insurance from a
particular company.
(n) "Underwrites" or "underwriting" means, but is not limited
to, the acceptance of employer or individual applications for
coverage of individuals in accordance with the written rules of the
insurer or self-funded plan; and the overall planning and
coordinating of a benefits program.
(o) "Uniform application" means the current version of the
national association of insurance commissioners' uniform
application for third-party administrators.
§33-46-3. Written agreement necessary.
(a) No administrator may act as such without a written
agreement between the administrator and the insurer, and the
written agreement shall be retained as part of the official records
of both the insurer and the administrator for the duration of the
agreement and for ten years thereafter. The agreement shall
contain all provisions required by this statute, except insofar as
those requirements do not apply to the functions performed by the
administrator.
(b) The written agreement shall include a statement of duties
that the administrator is expected to perform on behalf of the insurer and the lines, classes or types of insurance which the
administrator is to be authorized to administer. The agreement
shall make provision with respect to underwriting or other
standards pertaining to the business underwritten by the insurer.
(c) The insurer or administrator may, with written notice,
terminate the written agreement for cause as provided in the
agreement. The insurer may suspend the underwriting authority of
the administrator during the pendency of any dispute regarding the
cause for termination of the written agreement. The insurer shall
fulfill any lawful obligations with respect to policies affected by
the written agreement, regardless of any dispute between the
insurer and the administrator.
§33-46-4. Payment to administrator.
If an insurer uses the services of an administrator, the
payment to the administrator of any premiums or charges for
insurance by or on behalf of the insured party shall be considered
to have been received by the insurer, and the payment of return
premiums or claim payments forwarded by the insurer to the
administrator shall not be considered to have been paid to the
insured party or claimant until the payments are received by the
insured party or claimant. Nothing in this section limits any
right of the insurer against the administrator resulting from the
failure of the administrator to make payments to the insurer, insured parties or claimants.
§33-46-5. Maintenance of information.
(a) An administrator shall maintain and make available to the
insurer complete books and records of all transactions performed on
behalf of the insurer. The books and records shall be maintained
in accordance with prudent standards of insurance recordkeeping and
shall be maintained for a period of not less than ten years from
the date of their creation.
(b) The commissioner shall have access to books and records
maintained by an administrator for the purposes of examination,
audit and inspection. Any documents, materials or other
information in the possession or control of the commissioner that
is furnished by an administrator, insurer, insurance producer or an
employee or agent thereof acting on behalf of the administrator,
insurer or insurance producer, or obtained by the commissioner in
an investigation is confidential by law and privileged, is not
subject to chapter twenty-nine-b of this code, is not subject to
subpoena and is not subject to discovery or admissible as evidence
in any private civil action. However, the commissioner may use the
documents, materials or other information in the furtherance of any
regulatory or legal action brought as a part of the commissioner's
official duties.
(c) Neither the commissioner nor any person who received documents, materials or other information while acting under the
authority of the commissioner shall be permitted or required to
testify in any private civil action concerning any confidential
documents, materials or information subject to subsection (b) of
this section.
(d) In order to assist in the performance of his or her
duties, the commissioner may:
(1) Share documents, materials or other information, including
the confidential and privileged documents, materials or information
subject to subsection (b) of this section, with other state,
federal and international regulatory agencies, with the national
association of insurance commissioners, its affiliates or
subsidiaries and with state, federal and international
law-enforcement authorities, provided that the recipient agrees to
maintain the confidentiality and privileged status of the document,
material or other information;
(2) Receive documents, materials or information, including
otherwise confidential and privileged documents, materials or
information, from the national association of insurance
commissioners, its affiliates or subsidiaries and from regulatory
and law-enforcement officials of other foreign or domestic
jurisdictions and shall maintain as confidential or privileged any
document, material or information received with notice or the understanding that it is confidential or privileged under the laws
of the jurisdiction that is the source of the document, material or
information; and
(3) Enter into agreements governing the sharing and use of
information consistent with this subsection.
(e) No waiver of any applicable privilege or claim of
confidentiality in the documents, materials or information shall
occur as a result of disclosure to the commissioner under this
section or as a result of sharing as authorized in subsection (d)
of this section.
(f) Nothing in this article prohibits the commissioner from
releasing final, adjudicated actions, including for cause
terminations, that are open to public inspection pursuant to
chapter twenty-nine-b of this code to a database or other
clearinghouse service maintained by the national association of
insurance commissioners, its affiliates or subsidiaries.
(g) The insurer owns the records generated by the
administrator pertaining to the insurer; however, the administrator
shall retain the right to continuing access to books and records to
permit the administrator to fulfill all of its contractual
obligations to insured parties, claimants and the insurer.
(h) In the event the insurer and the administrator cancel
their agreement; the administrator may, by written agreement with the insurer, transfer all records to a new administrator rather
than retain them for ten years not withstanding the provisions of
subsection (a) of this section. In those cases, the new
administrator shall acknowledge, in writing, that it is responsible
for retaining the records of the prior administrator as required in
subsection (a) of this section.
§33-46-6. Approval of advertising.
An administrator may use only advertising pertaining to the
business underwritten by an insurer that has been approved in
writing by the insurer in advance of its use.
§33-46-7. Responsibilities of the insurer.
(a) If an insurer uses the services of an administrator, the
insurer is responsible for determining the benefits, premium rates,
underwriting criteria and claims payment procedures applicable to
the coverage and for securing reinsurance, if any. The rules
pertaining to these matters shall be provided, in writing, by the
insurer to the administrator. The responsibilities of the
administrator as to any of these matters shall be set forth in the
written agreement between the administrator and the insurer.
(b) It is the sole responsibility of the insurer to provide
for competent administration of its programs.
(c) In cases where an administrator administers benefits for
more than one hundred certificate holders on behalf of an insurer, the insurer shall, at least semiannually, conduct a review of the
operations of the administrator. At least one review shall be an
on-site audit of the operations of the administrator.
(d) For purposes of this section, "insurer" means a licensed
insurance company, prepaid hospital or medical care plan, health
maintenance organization or a health care corporation.
§33-46-8. Premium collection and payment of claims.
(a) All insurance charges or premiums collected by an
administrator on behalf of or for an insurer, and the return of
premiums received from that insurer, shall be held by the
administrator in a fiduciary capacity. The funds shall be
immediately remitted to the person entitled to them or shall be
deposited promptly in a fiduciary account established and
maintained by the administrator in a federally or state-insured
financial institution. The written agreement between the
administrator and the insurer shall provide for the administrator
to periodically render an accounting to the insurer detailing all
transactions performed by the administrator pertaining to the
business underwritten by the insurer.
(b) If charges or premiums deposited in a fiduciary account
have been collected on behalf of or for one or more insurers, the
administrator shall keep records clearly recording the deposits in
and withdrawals from the account on behalf of each insurer. The administrator shall keep copies of all the records and, upon
request of an insurer, shall furnish the insurer with copies of the
records pertaining to the deposits and withdrawals.
(c) The administrator shall not pay any claim by withdrawals
from a fiduciary account in which premiums or charges are
deposited. Withdrawals from the account shall be made as provided
in the written agreement between the administrator and the insurer.
The written agreement shall address, but not be limited to, the
following:
(1) Remittance to an insurer entitled to remittance;
(2) Deposit in an account maintained in the name of the
insurer;
(3) Transfer to and deposit in a claims-paying account, with
claims to be paid as provided for in subsection (d) of this
section;
(4) Payment to a group policyholder for remittance to the
insurer entitled to the remittance;
(5) Payment to the administrator of its commissions, fees or
charges; and
(6) Remittance of return premium to the person or persons
entitled to the return premium.
(d) All claims paid by the administrator from funds collected
on behalf of or for an insurer shall be paid only on drafts or checks of and as authorized by the insurer.
§33-46-9. Compensation to the administrator.
(a) An administrator may not enter into an agreement or
understanding with an insurer in which the effect is to make the
amount of the administrator's commissions, fees or charges
contingent upon savings effected in the adjustment, settlement and
payment of losses covered by the insurer's obligations. This
provision shall not prohibit an administrator from receiving
performance-based compensation for providing hospital or other
auditing services.
(b) This section shall not prevent the compensation of an
administrator from being based on premiums or charges collected or
the number of claims paid or processed.
§33-46-10. Notice to covered individuals; disclosure of charges
and fees.
(a) When the services of an administrator are used, the
administrator shall provide a written notice approved by the
insurer to covered individuals advising them of the identity of,
and relationship among, the administrator, the policyholder and the
insurer.
(b) When an administrator collects funds, the reason for
collection of each item shall be identified to the insured party
and each item shall be shown separately from any premium. Additional charges may not be made for services to the extent the
services have been paid for by the insurer.
(c) The administrator shall disclose to the insurer all
charges, fees and commissions received from all services in
connection with the provision of administrative services for the
insurer, including any fees or commissions paid by insurers
providing reinsurance.
§33-46-11. Delivery of materials to covered individuals.
Any policies, certificates, booklets, termination notices or
other written communications delivered by the insurer to the
administrator for delivery to insured parties or covered
individuals shall be delivered by the administrator promptly after
receipt of instructions from the insurer to deliver them.
§33-46-12. Home state certificate of authority or license.
(a) Prior to conducting business in West Virginia, an
administrator or third-party administrator must be licensed in
accordance with the requirements of this article.
(b) If West Virginia is a person's home state, then the person
may apply for licensure in this state by filing a uniform
application with the insurance commissioner. The application shall
include or be accompanied by the following information and
documents:
(1) All basic organizational documents of the applicant, including any articles of incorporation, articles of association,
partnership agreement, trade name certificate, trust agreement,
shareholder agreement and other applicable documents and all
amendments to the documents;
(2) The bylaws, rules, regulations or similar documents
regulating the internal affairs of the applicant;
(3) National association of insurance commissioners'
biographical affidavits for the individuals who are responsible for
the conduct of affairs of the applicant, including all members of
the board of directors, board of trustees, executive committee or
other governing board or committee; the principal officers in the
case of a corporation or the partners or members in the case of a
partnership, association or limited liability company; any
shareholders or member holding directly or indirectly ten percent
or more of the voting stock, voting securities or voting interest
of the applicant; and any other person who exercises control or
influence over the affairs of the applicant;
(4) Audited annual financial statements or reports for the two
most recent fiscal years that prove that the applicant has a
positive net worth. If the applicant has been in existence for
less than two fiscal years, the application shall include financial
statements or reports, certified by an officer of the applicant and
prepared in accordance with GAAP, for any completed fiscal years and for any month during the current fiscal year for which the
financial statements or reports have been completed. An audited
financial/annual report prepared on a consolidated basis shall
include a columnar consolidating or combining worksheet that shall
be filed with the report and include the following:
(A) Amounts shown on the consolidated audited financial
report;
(B) Amounts for each entity stated separately; and
(C) Explanations of consolidating and eliminating entries.
The applicant shall also include any other information
required by the commissioner in order to review the current
financial condition of the applicant;
(5) A statement describing the business plan including
information on staffing levels and activities proposed in this
state and nationwide. The plan shall provide details setting forth
the applicant's capability for providing a sufficient number of
experienced and qualified personnel in the areas of claims
processing, recordkeeping and underwriting; and
(6) Any other pertinent information required by the
commissioner.
(c) An administrator licensed or applying for licensure under
this section shall make available for inspection by the
commissioner copies of all contracts with insurers or other persons using the services of the administrator.
(d) An administrator licensed or applying for licensure under
this section shall produce its accounts, records and files for
examination and make its officers available to give information
with respect to its affairs as often as reasonably required by the
commissioner.
(e) The commissioner may refuse to issue a certificate of
authority or license if the commissioner determines that the
administrator, or any individual responsible for the conduct of
affairs of the administrator, is not competent, trustworthy,
financially responsible or of good personal and business reputation
or has had an insurance or an administrator certificate of
authority or license denied or revoked for cause by any
jurisdiction, or if the commissioner determines that any of the
grounds set forth in section seventeen of this article exists with
respect to the administrator.
(f) A certificate of authority or license issued under this
section shall remain valid, unless surrendered, suspended or
revoked by the commissioner, for as long as the administrator
continues in business in this state and remains in compliance with
this article.
(g) An administrator licensed or applying for licensure under
this section shall immediately notify the commissioner of any material change in its ownership, control or other fact or
circumstance affecting its qualification for a certificate of
authority or license in this state.
(h) An administrator licensed or applying for a home state
certificate of authority/license that administers or will
administer governmental or church self-insured plans in its home
state or any other state shall maintain a surety bond for the use
and benefit of the home state commissioner and the insurance
regulatory authority of any additional state in which the
administrator is authorized to conduct business and cover
individuals and persons who have remitted premiums or insurance
charges or other moneys to the administrator in the course of the
administrator's business in the lessor of the following amounts:
(1) One hundred thousand dollars; or
(2) Ten percent of the aggregate total amount of self-funded
coverage under church plans or governmental plans handled in the
administrator's home state and all additional states in which the
administrator is authorized to conduct business.
§33-46-13. Registration requirement.
A person who directly or indirectly underwrites, collects
charges or premiums from, or adjusts or settles claims on,
residents of this state, in connection with life, annuity or
accident and sickness coverage provided by a self-funded plan other than a governmental or church plan, shall register with the
commissioner annually, verifying its status as in this article
described.
§33-46-14. Nonresident administrator.
(a) Unless an administrator has obtained a home state license
in this state under section twelve of this article, any
administrator who performs administrator duties in this state shall
obtain a nonresident administrator license in accordance with this
section by filing with the commissioner the uniform application,
accompanied by a letter of certification. In lieu of requiring an
administrator to file a letter of certification with the uniform
application, the commissioner may verify the nonresident
administrator's home state certificate of authority or license
status through an electronic database maintained by the national
association of insurance commissioners, its affiliates or
subsidiaries.
(b) An administrator is not eligible for a nonresident
administrator license under this section if it does not hold a
certificate of authority or license as a resident in a home state
that has adopted the national association of insurance
commissioners' model third-party administrator act or a
substantially similar law governing administrators.
(c) Except as provided in subsections (b) and (h) of this section, the commissioner shall issue to the administrator a
nonresident administrator license promptly upon receipt of a
complete application and the application fee.
(d) Unless notified by the commissioner that the commissioner
is able to verify the nonresident administrator's home state
certificate of authority or license status through an electronic
database maintained by the national association of insurance
commissioners, its affiliates or subsidiaries, each nonresident
administrator shall annually file a statement that its home state
administrator certificate of authority or license remains in force
and has not been revoked or suspended by its home state during the
preceding year.
(e) At the time of filing the statement required under
subsection (d) of this section or, if the commissioner has notified
the nonresident administrator that the commissioner is able to
verify the nonresident administrator's home state certificate of
authority or license status through an electronic database, on or
before the first day of October, the nonresident administrator
shall pay the fee set forth in section fifteen of this article.
(f) An administrator licensed or applying for licensure under
this section shall produce its accounts, records and files for
examination and make its officers available to give information
with respect to its affairs as often as reasonably required by the commissioner.
(g) A nonresident administrator is not required to hold a
nonresident administrator license in this state if the
administrator's duties in this state are limited to the
administration of a group policy or plan of insurance and no more
than a total of one hundred lives for all plans reside in this
state. This subsection applies only to multistate administrators.
The administrator must be licensed in its home state regardless of
the number of lives under a group policy or plan.
(h) The commissioner may refuse to issue a nonresident
administrator license, or may delay the issuance of a nonresident
administrator license, if the commissioner determines that, due to
events or information obtained subsequent to the home state's
licensure of the administrator, the nonresident administrator
cannot satisfy the requirements of this article or that grounds
exist for the home state's revocation or suspension of the
administrator's home state certificate of authority or license. In
that event, the commissioner shall give written notice of its
determination to the commissioner of the home state, and the
commissioner may delay the issuance of a nonresident administrator
license to the nonresident administrator until such time, if at
all, that the commissioner determines that the administrator can
satisfy the requirements of this article and that no grounds exist for the home state's revocation or suspension of the
administrator's home state certificate of authority or license.
§33-46-15. Fees and charges.
Except where it is otherwise specially provided, the
commissioner shall assess third-party administrators the following
fees: For annual fee for each license, two hundred dollars; for
receiving and filing annual reports, one hundred dollars; for
filing a certified copy of articles of incorporation, fifty
dollars; for filing a copy of its charter, fifty dollars; for
filing statements preliminary to admission, one hundred dollars;
for filing any additional paper required by law or furnishing
copies of the additional paper, one dollar; and for every copy of
a report or certificate of condition of administrator to be filed
in any other state, twenty-five dollars. The commissioner may by
rule set reasonable charges for printed forms for the annual
statements required by law. He or she may sell at cost
publications purchased by, or printed on behalf of, the
commissioner. All fees and moneys collected shall be used for the
purposes set forth in section thirteen, article three of this
chapter.
§33-46-16. Annual report and filing fee.
(a) Each administrator licensed under section twelve of this
article shall file an annual report for the preceding calendar year with the commissioner on or before the first day of July of each
year or within an extension of time granted by the commissioner for
good cause. The annual report shall include an audited financial
statement performed by an independent certified public accountant.
An audited financial/annual report prepared on a consolidated basis
shall include a columnar consolidating or combining worksheet that
shall be filed with the report and include the following:
(1) Amounts shown on the consolidated audited financial
report;
(2) Amounts for each entity stated separately; and
(3) Explanations of consolidating and eliminating entries.
The report shall be in the form and contain any matters
prescribed by the commissioner and shall be verified by at least
two officers of the administrator.
(b) The annual report shall include the complete names and
addresses of all insurers with which the administrator had
agreements during the preceding fiscal year.
(c) At the time of filing its annual report, the administrator
shall pay the filing fee provided in section fifteen of this
article.
(d) The commissioner shall review the most recently filed
annual report of each administrator on or before the first day of
September of each year. Upon completion of its review, the commissioner shall either:
(1) Issue a certification to the administrator that the annual
report shows that the administrator has a positive net worth as
evidenced by audited financial statements and is currently licensed
and in good standing, or noting any deficiencies found in that
annual report and financial statements; or
(2) Update any electronic database maintained by the national
association of insurance commissioners, its affiliates or
subsidiaries, indicating the annual report shows that the
administrator has a positive net worth as evidenced by audited
financial statements and is in compliance with existing law, or
noting any deficiencies found in the annual report.
§33-46-17. Grounds for denial, suspension or revocation of
license.
(a) The license of an administrator shall be denied, suspended
or revoked if the commissioner finds that the administrator:
(1) Is in an unsound financial condition;
(2) Is using methods or practices in the conduct of its
business that render its further transaction of business in this
state hazardous or injurious to insured persons or the public; or
(3) Has failed to pay any judgment rendered against it in this
state within sixty days after the judgment has become final.
(b) The commissioner may deny, suspend or revoke the license of an administrator if the commissioner finds that the
administrator:
(1) Has violated any lawful rule or order of the commissioner
or any provision of the insurance laws of this state;
(2) Has refused to be examined or to produce its accounts,
records and files for examination, or if any individual responsible
for the conduct of affairs of the administrator, including members
of the board of directors, board of trustees, executive committee
or other governing board or committee; the principal officers in
the case of a corporation or the partners or members in the case of
a partnership, association or limited liability company; any
shareholder or member holding directly or indirectly ten percent or
more of the voting stock, voting securities or voting interest of
the administrator; and any other person who exercises control or
influence over the affairs of the administrator; has refused to
give information with respect to its affairs; or has refused to
perform any other legal obligation as to an examination, when
required by the commissioner;
(3) Has, without just cause, refused to pay proper claims or
perform services arising under its contracts or has, without just
cause, caused covered individuals to accept less than the amount
due them or caused covered individuals to employ attorneys or bring
suit against the administrator to secure full payment or settlement of their claims;
(4) At any time fails to meet any qualification for which
issuance of the license could have been refused had the failure
then existed and been known to the commissioner;
(5) Or any of the individuals responsible for the conduct of
its affairs, including members of the board of directors, board of
trustees, executive committee or other governing board or
committee; the principal officers in the case of a corporation or
the partners or members in the case of a partnership, association
or limited liability company; any shareholder or member holding
directly or indirectly ten percent or more of its voting stock,
voting securities or voting interest; and any other person who
exercises control or influence over its affairs has been convicted
of, or has entered a plea of guilty or nolo contendere to, a felony
without regard to whether the adjudication was withheld;
(6) Is under suspension or revocation in another state; or
(7) Has failed to timely file its annual report pursuant to
section sixteen of this article, if a resident administrator, or
its statement and filing fee, as applicable, pursuant to
subsections (d) and (e), section fourteen of this article, if a
nonresident administrator.
(c) The commissioner may, in his or her discretion and without
advance notice or hearing, immediately suspend the license of an administrator if the commissioner finds that one or more of the
following circumstances exist:
(1) The administrator is insolvent or impaired;
(2) A proceeding for receivership, conservatorship,
rehabilitation or other delinquency proceeding regarding the
administrator has been commenced in any state; or
(3) The financial condition or business practices of the
administrator otherwise pose an imminent threat to the public
health, safety or welfare of the residents of this state.
(d) If the commissioner finds that one or more grounds exist
for the suspension or revocation of a license issued under this
article, in any case except where that action is not mandatory, the
commissioner may, in lieu of suspension or revocation, by order
require the administrator to pay to the state of West Virginia a
penalty in a sum not exceeding ten thousand dollars and upon the
failure of the administrator to pay the penalty within thirty days
after notice of the penalty, the commissioner may revoke or suspend
the license of the administrator.
(e) When any license has been revoked or suspended or renewal
of the license refused, the commissioner may reissue, terminate the
suspension or renew the license when he or she is satisfied that
the conditions causing the revocation, suspension or refusal to
renew have ceased to exist and are unlikely to recur.
§33-46-18. Exemption for administrators of public health programs.
Programs supervised by the department of health and human
resources, pursuant to chapter nine of this code; the public
employees insurance agency, pursuant to articles sixteen and
sixteen-c, chapter five of this code; and the department of
administration, pursuant to article sixteen-b, chapter five of this
code, are exempted from the provisions of this article. Third-
party administrators who administer the above-referenced programs
are exempt from the provisions of this article with respect to
these specific programs only.
§33-46-19. Unauthorized business.
The unauthorized conduct of the business of an administrator
shall be treated as unauthorized insurance business and shall be
subject to the same criminal and civil penalties as provided in
article forty-four of this chapter for violation of the
unauthorized insurers act.
§33-46-20. Commissioner authorized to propose rules.
The insurance commissioner may propose rules for legislative
approval in accordance with the provisions of article three,
chapter twenty-nine-a of this code that are necessary to effectuate
this article.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 534, 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, 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.
Com. Sub. for S. B. No. 534) passed with its title.
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
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 Senate Bill No. 558, Establishing County
and Municipal Economic Opportunity Development District Act.
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 six, section five, line eighteen, by striking out the
word "eighteen" and inserting in lieu thereof the word "twenty";
On page fifty-one, section five, line eighteen, by striking
out the word "eighteen" and inserting in lieu thereof the word
"twenty";
On page sixty-one, section nine, by striking out all of lines
eighteen through twenty-one;
On page ninety-two, section eleven-a, line one, after the word
"Any" by inserting the words "municipality or";
On page ninety-two, section eleven-a, line three, after the
word "code," by inserting the words "section eleven, article
thirteen-b, chapter eight of this code or section twelve, article
thirty-eight, chapter eight of this code";
On page ninety-six, section nine-f, line five, after the word
"code," by inserting the words "
section
eleven, article thirteen-b,
chapter eight of this code or section twelve, article thirty-eight,
chapter eight of this code
";
On page ninety-six, section nine-f, line six
, after the word
"article" by changing the period to a colon and inserting the
following proviso: Provided, That the special district excise tax does not apply to sales of gasoline and special fuel.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 558--A Bill to amend
chapter seven of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, by adding thereto a new article,
designated article twenty-two; to amend chapter eight of said code
by adding thereto a new article, designated article thirty-eight;
to amend and reenact section eleven-a, article ten, chapter eleven
of said code; and to amend and reenact section nine-f, article
fifteen of said chapter, all relating generally to economic
development for public purposes; authorizing counties and certain
municipalities to create economic opportunity development districts
and to use as special district excise tax to finance economic
development within the districts; describing purposes for
expenditures; providing for notice and hearing; providing for
approval by council for community and economic development;
establishing a special revenue account; providing for the
Legislature's authorization to levy a special district excise tax;
describing order or ordinance required to establish district;
creating a district board to administer district; authorizing
imposition of special district excise tax by order or ordinance; modifying district boundaries; procedures for abolition and
dissolution of district; authorizing issuance of bonds or notes to
finance development expenditures; providing for administration of
special district excise tax by tax commissioner; and exempting
certain sales and services in district from consumers sales and
service tax.
On motion of Senator McCabe, the following amendment to the
House of Delegates amendments to 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. Com. Sub. for Senate Bill No. 558--A Bill to amend
chapter seven of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, by adding thereto a new article,
designated article twenty-two; to amend chapter eight of said code
by adding thereto a new article, designated article thirty-eight;
to amend and reenact section eleven-a, article ten, chapter eleven
of said code; and to amend and reenact section nine-f, article
fifteen of said chapter, all relating generally to economic
development for public purposes; authorizing counties and certain
municipalities to create economic opportunity development districts
and to use as special district excise tax to finance economic
development within the districts; describing purposes for expenditures; providing for notice and hearing; providing for
approval by council for community and economic development;
establishing a special revenue account; providing for the
Legislature's authorization to levy a special district excise tax;
describing order or ordinance required to establish district;
creating a district board to administer district; authorizing
imposition of special district excise tax by order or ordinance;
modifying district boundaries; procedures for abolition and
dissolution of district; authorizing issuance of bonds or notes to
finance development expenditures; providing for administration of
special district excise tax by tax commissioner; and exempting
certain sales and services in district from consumers sales and
service tax.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as amended.
Engrossed Committee Substitute for Senate Bill No. 558, 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, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie,
Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe,
Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--32.
The nays were: Harrison and Smith--2.
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 S. B. No. 558) 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,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Snyder,
Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--32.
The nays were: Harrison and Smith--2.
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 S. B. No. 558) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
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, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 605, Establishing Community Improvement Act.
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 two,
by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That article twenty-four, chapter eight of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a two new sections, designated sections
eighty-six and eighty-seven; and that chapter sixteen of said code
be amended by adding thereto a new article, designated article
thirteen-e, all to read as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 24. PLANNING AND ZONING.
Part XXI. Voluntary Proffering.
§8-24-86. Conditions as part of final plat approval.
(a) A zoning ordinance may provide for the voluntary
proffering by a landowner as a requirement of final plat approval
for a development project.
(b) For purposes of this article, a "voluntary proffer" is a
written offer by a landowner to the planning commission whereby the
landowner offers to satisfy certain reasonable conditions as a requirement of the final plat approval for a development project.
A voluntary proffer made to a county shall be in lieu of payment of
an impact fee as authorized by section four, article twenty,
chapter seven of this code.
(c) For purposes of this section, a condition contained in a
voluntary proffer is considered reasonable if: (1) The development
project results in the need for the conditions; (2) the conditions
have a reasonable relation to the development project; and (3) all
conditions are in conformity with the comprehensive plan adopted
pursuant to this article.
(d) No proffer may be accepted by a county or municipality
unless it has approved a list detailing any proposed capital
improvements from all areas within the county or municipality, to
which the proffer is made, and containing descriptions of any
proposed capital improvements, cost estimates, projected time
frames for constructing the improvements and proposed or
anticipated funding sources: Provided, That the approval of the
list does not limit the county or municipality from accepting
proffers relating to items not contained on the list. For purposes
of this subsection, "capital improvement" has the same definition
as found in section three, article twenty, chapter seven of this
code.
(e) If a voluntary proffer includes the dedication of real property or the payment of cash, the proffer shall provide for the
alternate disposition of the property or cash payment in the event
the property or cash payment is not to be used for the purpose for
which it was proffered.
(f) Notwithstanding any provision of this code to the
contrary, a municipality may transfer the portion of the proceeds
of a voluntary proffer intended by the terms of the proffer to be
used by the board of education of a county in which the
municipality is located upon the condition that the portion so
transferred may only be used by the board for capital improvements.
§8-24-87. Enforcement and guarantees.
(a) The planning commission is vested with all the necessary
authority to administer and enforce conditions attached to the
final plat approved for a development project, including the
authority to: (1) Order in writing of the remedy of any
noncompliance with the conditions; (2) bring legal action to ensure
compliance with the conditions, including injunction, abatement or
other appropriate action or proceeding; and (3) require a
guarantee, satisfactory to the planning commission in an amount
sufficient for and conditioned upon the construction of any
physical improvements required by the conditions, or a contract for
the construction of the improvements and the contractor's
guarantee, in like amount and so conditioned, which guarantee shall be reduced or released by the planning commission upon the
submission of satisfactory evidence that construction of the
improvements has been completed, in whole or in part.
(b) Failure to meet all conditions attached to the final plat
approved for a development project shall constitute cause to deny
the issuance of any of the required use, occupancy, or building
permits, as may be appropriate.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 13E. COMMUNITY ENHANCEMENT ACT.
§16-13E-1. Short title.
This article shall be known and may be cited as the "West
Virginia Community Enhancement Act".
§16-13E-2. Definitions.
For purposes of this article:
(a) "Assessment bonds" means special obligation bonds or notes
issued by a community enhancement district which are payable from
the proceeds of assessments.
(b) "Assessment" means the fee, including interest, paid by
the owner of real property located within a community enhancement
district to pay for the cost of a project or projects constructed
upon or benefitting or protecting such property and administrative
expenses related thereto, which fee is in addition to all taxes and
other fees levied on the property.
(c) "Board" means a community enhancement board created
pursuant to this article.
(d) "Code" means the code of West Virginia, one thousand nine
hundred thirty-one, as amended.
(e) "Community enhancement district" or "district" means a
community enhancement district created pursuant to this article.
(f) "Cost" means the cost of: (1) Construction,
reconstruction, renovation and acquisition of all lands,
structures, real or personal property, rights, rights-of-way,
franchises, easements and interests acquired or to be acquired by
the district; (2) all machinery and equipment, including machinery
and equipment needed to expand or enhance county or city services
to the district; (3) financing charges and interest prior to and
during construction and, if deemed advisable by the district or
governing body, for a limited period after completion of the
construction; (4) interest and reserves for principal and interest,
including costs of municipal bond insurance and any other type of
financial guaranty; (5) costs of issuance in connection with the
issuance of assessment bonds; (6) the design of extensions,
enlargements, additions and improvements to the facilities of any
district; (7) architectural, engineering, financial and legal
services; (8) plans, specifications, studies, surveys and estimates
of costs and revenues; (9) administrative expenses necessary or incident to determining to proceed with any project; and (10) other
expenses as may be necessary or incident to the construction,
acquisition and financing of a project.
(g) "County commission" means the governing body of a county
as defined in section one, article one, chapter seven of this code.
(h) "Governing body" means, in the case of a county, the
county commission and in the case of a municipality, the mayor and
council together, the council or the board of directors, as charged
with the responsibility of enacting ordinances and determining the
public policy of such municipality.
(i) "Governmental agency" means the state government or any
agency, department, division or unit thereof; counties;
municipalities; any watershed enhancement districts, soil
conservation districts, sanitary districts, public service
districts, drainage districts, school districts, urban renewal
authorities or regional governmental authorities established
pursuant to this code.
(j) "Municipality" means a municipality as defined in section
two, article one, chapter eight of this code.
(k) "Person" means an individual, firm, partnership,
corporation, voluntary association or any other type of entity.
(l) "Project" means the design, construction, reconstruction,
establishment, acquisition, improvement, renovation, extension, enlargement, equipping, maintenance, repair (including
replacements) and start-up operation of water transmission and
distribution facilities, sewage collection and transmission
facilities, stormwater systems, police stations, fire stations,
libraries, museums, schools, other public buildings, hospitals,
piers, docks, terminals, drainage systems, culverts, streets,
roads, bridges (including approaches, causeways, viaducts,
underpasses and connecting roadways), motor vehicle parking
facilities (including parking lots, buildings, ramps, curb-line
parking, meters and other facilities deemed necessary, appropriate,
useful, convenient or incidental to the regulation, control and
parking of motor vehicles), public transportation, public
recreation centers, public recreation parks, swimming pools, tennis
courts, golf courses, equine facilities, motor vehicle competition
and recreational facilities, flood protection or relief projects,
or the grading, regrading, paving, repaving, surfacing,
resurfacing, curbing, recurbing, widening, lighting or otherwise
improving any street, avenue, road, highway, alley or way, or the
building or renewing of sidewalks and flood protection; and the
terms shall mean and include any project as a whole, and all
integral parts thereof, including all necessary, appropriate,
useful, convenient or incidental appurtenances and equipment in
connection with any one or more of the above.
§16-13E-3. Power and authority of counties and municipalities to
create and establish community enhancement districts.
(a) Every county and municipality is hereby empowered and
authorized, in addition to any other rights, powers and authority
conferred upon it elsewhere in this code, to create, modify and
expand community enhancement districts in the manner hereinafter
set forth in such county or municipality and to assist in the
development, construction, acquisition, extension or improvement of
a project or projects located in such county or municipality.
(b) Unless agreed to by a municipality, the power and
authority hereby conferred on a county shall not extend into
territory within the boundaries of any municipality: Provided,
That notwithstanding any provision in this code to the contrary,
the power and authority hereby conferred on counties may extend
within the territory of a public service district created under
section two, article thirteen-a of this chapter.
§16-13E-4. Petition for creation or expansion of community
enhancement district; petition requirements.
(a) The owners of at least sixty-one percent of the real
property, determined by acreage, located within the boundaries of
the area described in the petition, by metes and bounds or
otherwise in a manner sufficient to describe the area, may petition
a governing body to create or expand a community enhancement district.
(b) The petition for the creation or expansion of a community
enhancement district shall include, where applicable, the
following:
(1) The proposed name and proposed boundaries of such district
and a list of the names and addresses of all owners of real
property within the proposed district;
(2) A detailed project description;
(3) A map showing the proposed project, including all proposed
improvements;
(4) A list of estimated project costs and the preliminary
plans and specifications for such improvements, if available;
(5) A list of nonproject costs and how they will be financed;
(6) A consultant study outlining the projected assessments,
setting forth the methodology for determining the assessments and
the methodology for allocating portions of an initial assessment
against a parcel expected to be subdivided in the future to the
various lots into which the parcel will be subdivided and
demonstrating that such assessments will adequately cover any debt
service on bonds issued to finance the project and ongoing
administrative costs;
(7) A development schedule;
(8) A list of recommended members for the board;
(9) If the project includes water, wastewater or sewer
improvements, written evidence from the utility or utilities that
will provide service to the district that said utility or
utilities:
(A) Currently has adequate capacity to provide service without
significant upgrades or modifications to its treatment, storage or
source of supply facilities;
(B) Will review and approve all plans and specifications for
the improvements to determine that the improvements conform to the
utility's reasonable requirements and, if the improvement consists
of water transmission or distribution facilities, that the
improvements provide for adequate fire protection for the district;
and
(C) If built in conformance with said plans and
specifications, will accept the improvements following their
completion, unless such projects are to be owned by the district;
(10) If the project includes improvements other than as
set forth in subdivision (9) of this subsection that will be
transferred to another governmental agency, written evidence that
such agency will accept such transfer, unless such projects are to
be owned by the district;
(11) The benefits that can be expected from the creation of
the district and the project; and
(12) A certification from each owner of real property within
the proposed district who joins in the petition that he or she is
granting an assessment against his or her property in such an
amount as to pay for the costs of the project and granting a lien
for said amount upon said property enforceable in accordance with
the provision of this article.
(c) After reviewing the petition presented pursuant to this
section, the governing body may by order or ordinance determine the
necessity and economic feasibility of creating a community
enhancement district and developing, constructing, acquiring,
improving or extending a project therein. If the governing body
determines that the creation of a community enhancement district
and construction of the project is necessary and economically
feasible, it shall set a date for the public meeting required under
section five of this article and shall cause the petition to be
filed with the clerk of the county commission or the clerk or
recorder of the municipality, as the case may be, and be made
available for inspection by interested persons before the meeting.
(d) Notwithstanding any other provision of this article to the
contrary, nothing in this article shall modify:
(1) The jurisdiction of the public service commission to
determine the convenience and necessity of the construction of
utility facilities, to resolve disputes between utilities relating to which utility should provide service to a district or otherwise
to regulate the orderly development of utility infrastructure in
the state; or
(2) The authority of the infrastructure and jobs development
council as to the funding of utility facilities to the extent that
loans, loan guarantees, grants or other funding assistance from a
state infrastructure agency are involved.
§16-13E-5. Notice to property owners before creation or expansion
of community enhancement district and construction or
acquisition of project; form of notice; affidavit of
publication.
(a) Before the adoption or enactment of an order or ordinance
creating a community enhancement district, the governing body shall
cause notice to be given to the owners of real property located
within the proposed community enhancement district that such
ordinance or order will be considered for adoption or enactment, as
the case may be, at a public meeting of the governing body at a
date, time and place named in the notice and that all persons at
that meeting, or any adjournment thereof, shall be given an
opportunity to protest or be heard concerning the adoption,
enactment or rejection of the order or ordinance. At or after the
meeting the governing body may amend, revise or otherwise modify
the information in the petition for the community enhancement district or project as it may deem appropriate after taking into
account any comments received at such meeting.
(b) The notice required in this section shall be published at
least thirty days prior to the date of the meeting as a Class II-0
legal advertisement in compliance with the provisions of article
three, chapter fifty-nine of this code and the publication area for
such publication shall be the county or municipality in which the
proposed community enhancement district is located. The notice
shall be in the form of, or substantially in the form of, the
following notice:
"NOTICE TO ALL PERSONS OWNING PROPERTY LOCATED WITHIN
_____________________ (here describe the boundaries of the proposed
community enhancement district) IN THE _____________________
(county or municipality) OF _____________________ (name of county
or municipality):
A petition has been presented to the _______________________
(county commission, city council or other governing body) of the
__________________ (county or municipality) of _____________ (name
of county or municipality) requesting establishment of a community
enhancement district under chapter sixteen, article thirteen-b of
the code of West Virginia to _______________ (here describe the
project both within and outside of the proposed community
enhancement district to be financed, developed, constructed, acquired, extended or improved, or the lots or parcels of land
which may be protected, in the case of a flood relief project) in
________________ (name of county or municipality) by
________________ (here provide general description of the project)
as the ____________ (county commission, city council or other
governing body) may deem proper and to assess the total cost (or,
if the assessments are only necessary to pay for part of the total
cost, the approximate percentage of the total cost) of such
improvement on the property. A copy of the petition is available
in the office of the ___________ (name of clerk or recorder) for
review by the public during regular office hours.
The petition to create a community enhancement district and to make
such improvements, and estimates therefor, will be considered by
the _____________________ (county commission, city council or other
governing body) at a public meeting to be held on the _______ day
of _________________, _________________, at _____.m. at
_____________________________. Any owner of property whose
property may be affected by the creation of the above-described
community enhancement district, and any person whose property is
not located within said community enhancement district but wishes
his or her property to be included, will be given an opportunity,
under oath, to protest or be heard at said meeting or any
adjournment thereof:
________________________________ (name of clerk or recorder)
________________________________ (official position)."
(c) An affidavit of publication of the notice made by the
newspaper publisher, or a person authorized to do so on behalf of
such publisher, and a copy of the notice shall be made part of the
minutes of the governing body and spread on its records of the
meeting described in the notice. The service of said notice upon
all persons owning any interest in any property located within the
proposed community enhancement district shall conclusively be
deemed to have been given upon the completion of such newspaper
publication.
(d) The petitioners shall bear the expense of publication of
the notice and the meeting as requested by subsection (e) of this
section.
(e) After the public meeting and before the governing body may
adopt or enact an order or ordinance creating a community
enhancement district, the governing body shall mail a true copy of
the proposed order or ordinance creating the community enhancement
district to the owners of real property in said district. Unless
waived in writing, any petitioning owner of real property shall
have thirty days from mailing of the proposed ordinance or order in
which to withdraw his or her signature from the petition in writing
prior to the vote of the governing body on such ordinance or order. If any signatures on the petition are so withdrawn, the governing
body may pass the proposed ordinance or order only upon
certification by the petitioners that the petition otherwise
continues to meet the requirements of this article. If all
petitioning owners of real property waive the right to withdraw
their signatures from the petition, then the governing body may
immediately adopt or enact the ordinance or order.
§16-13E-6. Creation of community enhancement district; community
enhancement district to be a public corporation and political
subdivision; powers thereof; community enhancement boards.
(a) Each community enhancement district shall be created by
adoption or enactment of an order or ordinance.
(b) From and after the date of the adoption or enactment of
the order or ordinance creating a community enhancement district,
it shall thereafter be a public corporation and political
subdivision of this state, but without any power to levy or collect
ad valorem taxes. Each community enhancement district is hereby
empowered and authorized, in addition to any other rights, powers
and authorities conferred upon it in this article or elsewhere in
this code, to:
(1) Acquire, own and hold, in its corporate name, by purchase,
lease, right of eminent domain, gift or otherwise, such property,
both real and personal and other interests in real estate, or any other property, whether tangible or intangible, as may be necessary
or incident to the planning, financing, development, construction,
acquisition, extension, improvement and completion of a project;
(2) Design, plan, finance, develop, construct, acquire,
extend, improve and complete one or more projects and assess the
cost of all or any portion of a project on real property located
within the community enhancement district;
(3) Sue or be sued;
(4) Establish a bank account or accounts in its name;
(5) Enter into agreements or other transactions with any
person or governmental agency necessary or incident to the
development, planning, construction, acquisition or improvement of
a project or for the operation, maintenance or disposition of a
project or for any other services required by a project;
(6) Annually, on or before the seventh day of June, certify to
the sheriff of the county in which the property is located the
assessments granted against all property in the district for
inclusion in the tax ticket;
(7) Expend funds to acquire, or construct part of a project on
property located outside of a community enhancement district, and
for any work undertaken thereon, as may be necessary or incident to
the completion of a project;
(8) Enter into agreements with one or more counties, municipalities, public service districts or community enhancement
districts to plan, develop, construct, acquire or improve a project
jointly;
(9) Accept appropriations, gifts, grants, bequests and devises
and use or dispose of the same to carry out its corporate purpose;
(10) Make and execute contracts, releases, assignments,
compromises and other instruments necessary or convenient for the
exercise of its powers, or to carry out its corporate purpose;
(11) Have a seal and alter the same;
(12) Raise funds by the issuance and sale of assessment bonds;
(13) Obtain options to acquire real property, or any interest
therein, by purchase, lease or otherwise, which is found by the
board to be suitable as a site, or part of a site, for the
construction of a project;
(14) Pledge funds generated by assessments in a district or
proceeds from the sale of assessment bonds payment of debt service
on tax increment financing obligations issued under article eleven-
b, chapter seven of this code, for the period of time determined by
the community enhancement board; and
(15) Take any and all other actions consistent with the
purpose of this article and not in violation of the constitution of
this state as may be necessary or incident to the construction and
completion of a project.
(c)
Notwithstanding the powers granted to community
enhancement districts in subsection (b) of this section or as
otherwise provided in this code, no community enhancement district
may expend funds to assist any utility to upgrade, improve, modify,
repair or replace the utility's existing storage, treatment or
source of supply facilities, whether such existing facilities are
located within or outside of the district.
(d) The powers of each community enhancement district shall be
vested in and exercised by a community enhancement board which
shall be composed of five members, four of whom shall be appointed
by the governing body of the county or municipality in which the
community enhancement district is located and one of whom shall be
the sheriff or his or her designee of the county or the treasurer
or his or her designee of the municipality (or such other person
serving in an equivalent capacity if there is no treasurer), as the
case may be, in which the community enhancement district is
located. At least three members of the board shall be residents of
the assessment district: Provided, That should less than three
persons reside within the boundaries of the community enhancement
district, then at least three members of the board shall be
residents of the county or municipality, as the case may be:
Provided, however, That if no persons reside within the boundaries
of the community enhancement district, then at least three members must be approved by the owner or owners of the land. No more than
three initial members of the board may be from the same political
party.
(e) The four members appointed by the governing body shall be
appointed for overlapping terms of four years each and thereafter
until their respective successors have been appointed and have
qualified. For the purpose of initial appointments, one member
shall be appointed for a term of four years; one member shall be
appointed for a term of three years; one member shall be appointed
for a term of two years; and one member shall be appointed for a
term of one year. Members may be reappointed for any number of
terms. Before entering upon the performance of his or her duties,
each member shall take and subscribe to the oath required by
section five, article IV of the constitution of this state.
Vacancies shall be filled by appointment by the governing body of
the county or municipality creating the assessment district for the
unexpired term of the member whose office shall be vacant and such
appointment shall be made within thirty days of the occurrence of
such vacancy. Any such member may be removed by the governing body
which appointed such member in case of incompetency, neglect of
duty, gross immorality or malfeasance in office. Members shall be
entitled no more than fifty dollars per meeting and reasonable
expenses associated with their services.
(f) The board shall organize within thirty days following the
first appointments and annually thereafter at its first meeting
after the first day of January of each year by selecting one of its
members to serve as chairman, one to serve as treasurer and one to
serve as secretary. The secretary or his or her designee shall
keep a record of all proceedings of the board which shall be
available for inspection as other public records, and the treasurer
or his or her designee shall maintain records of all financial
matters relating to the community enhancement district, which shall
also be available for inspection as other public records.
Duplicate records shall be filed with the clerk or recorder, as the
case may be, of the county or municipality which created the
community enhancement district and shall include the minutes of all
board meetings. The secretary and treasurer shall perform such
other duties pertaining to the affairs of the community enhancement
district as shall be prescribed by the board.
(g) The members of the board, and the chairman, secretary and
treasurer thereof, shall make available to the governing body
responsible for appointing the board, at all times, all of its
books and records pertaining to the community enhancement
district's operation, finances and affairs for inspection and
audit. The board shall meet at least semiannually.
(h) A majority of the members of the board constitutes a quorum and meetings shall be held at the call of the chairman.
(i) Staff, office facilities and costs of operation of the
board may be provided by the county or municipality which created
the community enhancement district or by contract and said costs of
operations shall be funded from assessments collected within the
district.
(j) The chairman shall preside at all meetings of the board
and shall vote as any other members of the board, but if he or she
should be absent from any meeting, the remaining members may select
a temporary chairman, and if the member selected as chairman
resigns as such or ceases for any reason to be a member of the
board, the board shall select one of its members as chairman to
serve until the next annual organizational meeting.
(k) The board shall, by resolution, determine its own rules of
procedure, fix the time and place of its meetings and the manner in
which special meetings may be called. The members of the board
shall not be personally liable or responsible for any obligations
of the assessment district or the board but are answerable only for
willful misconduct in the performance of their duties.
(l) The official name of a community enhancement district
created under the provisions of this article may contain the name
of the county or municipality, as the case may be, in which it is
located.
(m) Notwithstanding any provision in this code to the
contrary, the power and authority hereby conferred on community
enhancement districts may extend within the territory of a public
service district created under section two, article thirteen-a of
this chapter.
§16-13E-7. Provisions for construction of a project.
(a) After the creation of a community enhancement district and
the appointment of the board thereof, the board shall provide by
resolution for the construction of the project and shall also
provide in the same or subsequent resolutions for the supervision
of such work by a professional engineer, governmental agency or any
other person designated by the board. The board may provide for
the construction of the project by one of the two following methods
or any combination thereof:
(1) If there exists a governmental agency with the experience,
knowledge and authority to construct the project, the board may
elect to enter into a contract with such agency for the
construction of all or part of the project or for any other service
necessary or incident to the construction of the project, in which
case such governmental agency shall be responsible for entering
into contracts, subject to the board's approval, with such other
persons as may be necessary or incident to the construction of the
project; or
(2) The board may elect to enter into one or more contracts
with such contractors and other persons as may be necessary or
incident to the construction of the project, in which case it shall
solicit competitive bids. All contracts for work on any project,
the expense of which will exceed fifty thousand dollars, shall be
awarded to the lowest qualified responsible bidder who shall
furnish a sufficient performance and payment bond. The board may
reject any and all bids and if it rejects all bids, notices shall
be published as originally required before any other bids may be
received. The board may let portions of the work necessary to
complete a project under different contracts.
(b) The resolution described in subsection (a) of this section
shall also provide for payment of the cost of the project.
(c) Prior to the construction of the project, the board shall
obtain such permits and licenses required by law for the
construction and operation of the project.
(d) Prior to bidding a water, wastewater or stormwater
component of a project, the board shall submit the final plans and
specifications to the utility or utilities who will provide the
water, wastewater or stormwater service for review and written
approval.
§16-13E-8. Notice to property owners of assessments; correcting
and laying assessments; report on project completion; credits.
(a) Prior to the issuance of assessment bonds or pledging any
amounts to payment of tax increment financing obligation debt
service, the board shall cause a report to be prepared describing
each lot or parcel of land located within the community enhancement
district and setting forth the total cost of the project based on
the contract with the governmental agency, the accepted bid or
bids, or a cost estimate certified by a professional engineer, and
all other costs incurred prior to the commencement of construction
and the future administrative costs, and the respective amounts
chargeable upon each lot or parcel of land and the proper amount to
be assessed against the respective lots or parcels of land with a
description of the lots and parcels of land as to ownership and
location. If two or more different kinds of projects are involved,
the report shall set forth the portion of the assessment
attributable to each respective project. The board shall thereupon
give notice to the owners of real property to be assessed that on
or after a date specified in the notice an assessment will be
deemed granted against the property. The notice shall state that
the owner of assessed property, or other interested party, may on
said date appear before the board to move the revision or
correction of the proposed assessment and shall show the total cost
of the project, whether the assessments will pay for all or part of
the total cost of the project and the lots or parcels of property to be assessed and the respective amounts to be assessed against
such lots or parcels, with a description of the respective lots and
parcels of land as to ownership and location. The notice shall
also be published as a Class II-0 legal advertisement in compliance
with the provisions of article three, chapter fifty-nine of this
code, and the publication area for such publication is the
assessment district. On or after the date so advertised, the board
may revise, amend, correct and verify the report and proceed by
resolution to establish the assessments as corrected and verified
and shall certify the same to the governing body which created the
district.
(b) Upon completion of a project, the board shall prepare a
final report certifying the completion of the project and showing
the total cost of the project and whether the cost is greater or
less than the cost originally estimated. If the total cost of the
project is less or greater than the cost shown in the report
prepared prior to construction, the board may revise the assessment
charged on each lot or parcel of land pursuant to subsection (a) of
this section to reflect the total cost of the project as completed,
and in so doing shall, in the case of an assessment increase only,
follow the same procedure with regard to notice and providing each
owner of assessed property the right to appear before the board to
move for the revision or correction of such proposed reassessment as required for the original assessment. If an assessment is
decreased, the board shall, by resolution and written notice to the
sheriff of the county in which the community enhancement district
is located, cause the next installment or installments of
assessments then due and payable by each affected property owner to
be reduced pro rata, and shall provide written notice to such
property owners of the amount of such decrease by the deposit of
such notice in the United States mail, postage prepaid.
(c) The value of the projects financed with the assessments
shall be treated as a credit toward any impact fees related to the
service or services provided levied under chapter seven, article
twenty of this code.
§16-13E-9. Exemption of public property from assessments.
No lots or parcels of land owned or controlled by the United
States, this state, any municipality, county, board of education or
other public body shall be subject to any assessments.
§16-13E-10. Assessment bonds; sinking fund for assessment bonds;
tax exemption.
(a) For constructing or acquiring any project authorized by
this article, and also for reimbursing or paying the costs and
expenses of creating the district, the board of any such district
is hereby authorized to borrow money, from time to time, and in
evidence thereof issue the bonds of such district, payable from the proceeds of the assessments granted under this article. Such bonds
shall be issued in one or more series, may bear such date or dates,
may mature at such time or times not exceeding thirty-five years
from their respective dates, shall be fully registered as to
principal and interest in the name of the bondholder with a
certificate of authentication attached thereto, may bear interest
at such rate or rates not exceeding eighteen percent per annum, may
be payable at such times, may be executed in such manner, may be
payable at such place or places, may be subject to such terms of
redemption with or without premium, may be declared or become due
before maturity date thereof, may be authenticated in any manner
and, upon compliance of such conditions, may contain such terms and
covenants as provided by the resolution or resolutions of the
board. All such bonds shall be, and shall be treated as,
negotiable instruments for all purposes. Bonds bearing the
signatures of officers and offices on the dates of the signing
thereof shall be valid and binding for all purposes notwithstanding
that before the delivery thereof any or all such persons whose
signatures appear thereon shall have ceased to be such officers.
Notwithstanding the requirements or provisions of any other law,
any such bonds may be negotiated or sold in such manner at such
time or times and at such price or prices as is found by the board
to be most advantageous. Any resolution or resolutions providing for the issuance of such bonds may contain covenants and
restrictions upon the issuance of additional bonds thereafter as
may be deemed necessary or advisable for the assurance of the
payment of the bonds thereby authorized.
(b) At or before the time of issuance of any bonds under this
article, the board shall by resolution provide for the creation of
a sinking fund and for payments in succession fund from the
assessments granted pursuant to this article in such amount as
shall be sufficient to pay the accruing interest and retire the
bonds at or before the time each will respectively become due and
to establish or maintain reserves therefor. All sums which are or
should be, in accordance with such provisions, paid into such
sinking fund shall be used solely for payment of interest and for
the retirement of such bonds at or prior to maturity as may be
provided or required by such resolution.
(c) The property, including leased property, of the community
enhancement district and bonds and any income or interest thereon
issued by the community enhancement district are exempt from
taxation by the state of West Virginia and other taxing bodies of
the state.
§16-13E-11. Indebtedness of assessment district.
No constitutional or statutory limitation with respect to the
nature or amount of or rate of interest on indebtedness which may be incurred by municipalities, counties or other public or
governmental bodies shall apply to the indebtedness of a community
enhancement district. No indebtedness of any nature of a community
enhancement district shall constitute an indebtedness of any
municipality or county creating and establishing such community
enhancement district or a charge against any property of said
municipalities or counties but shall be paid solely from the
assessments which the community enhancement district is authorized
to impose on the owners of the property within the district by this
article. No indebtedness or obligation incurred by any community
enhancement district shall give any right against any member of the
governing body of any municipality or any member of the county
commission of any county or any member of the community enhancement
board of any community enhancement district.
§16-13E-12. Payment of assessments to sheriff; report to community
enhancement district; collection of delinquent assessments.
The assessments imposed pursuant to this article will not be
considered to be ad valorem taxes or the equivalent of ad valorem
taxes under any other provision of this code: Provided, That for
the exclusive purposes of collection of the assessments imposed
under section eight of this article and enforcement of the
assessment liens created by section thirteen of this article, the
provisions of chapter eleven-a of this code shall apply as if the assessments were taxes as that term is defined in section one,
article one of said chapter. The sheriff shall promptly deposit
all assessments upon receipt thereof in a segregated account
established by the sheriff for such purpose and shall maintain a
record of the assessments so received. Each month, the sheriff
shall pay all moneys collected for the community enhancement
district into the district treasury or if the sheriff consents to
a trustee for the benefit of bondholders if assessment bonds are
issued by the community enhancement district. Payments to the
community enhancement district shall be made in the time set forth
in section fifteen, article one, chapter eleven-a of this code and
the sheriff shall be entitled to take a commission for collection
of the assessments on behalf of the community enhancement district,
as provided in section seventeen of said article. For each tax
year, the sheriff will prepare and deliver to the board of each
community enhancement district located in the county, a statement
setting forth the aggregate amount of assessments received for such
district and the name of any property owner who failed to pay the
assessments due and payable for the period in question. This
report shall be due on or before the first day of August of the
following year. The sheriff is authorized to collect delinquent
assessments and enforce the liens created in section thirteen of
this article as if those assessments were delinquent real property taxes and the liens are tax liens using the enforcement tools
provided in articles two and three, chapter eleven-a of this code.
§16-13E-13. Liens; recording notice of liens; priority; release of
lien; notice to future property owners.
(a) With the exception of property exempt from assessment
pursuant to section nine of this article, there shall be a lien on
all real property located within the community enhancement district
for the assessments imposed by section eight of this article, which
lien shall attach on the date specified in the notice to property
owners. A notice of the liens of said assessments referring to the
assessing resolution and setting forth a list of the property
assessed, described respectively as to amounts of assessment,
ownership and location of the property, shall be certified, by the
chairman and secretary of the board, to the clerk of the county
commission of the county wherein the project is located. The
county clerk shall record the notice of such lien in the
appropriate trust deed book or other appropriate county lien book
and index the same in the name of each owner of property assessed.
From the date of an assessment, the trustee, for the benefit of
bondholders if assessment bonds are issued by the community
enhancement district, and/or the district shall have such lien and
shall be entitled to enforce the same in its, his or their name to
the extent of the amount, including principal and interest and any penalty due for any failure to pay an installment when due, of such
assessments and against the property to which the assessment
applies, as to any assessment not paid as and when due. The
trustee or the district, as an alternative to the enforcement
provision set forth in section twelve of this article, are granted
all legal remedies as are necessary to collect the assessment.
Such assessments shall be and constitute liens for the benefit of
the community enhancement district or of the trustee, for the
benefit of bondholders if assessment bonds are issued by the
community enhancement district, upon the respective lots and
parcels of land assessed and shall have priority over all other
liens except those for land taxes due the state, county and
municipality and except any liens for preexisting special
assessments provided under this code. If any assessment is revised
in accordance with this article, the lien created by this section
shall extend to the assessment so revised and shall have the same
priority as the priority of the lien created upon the laying of the
original assessment. Such assessments and interest thereon shall
be paid by the owners of the property assessed as and when the
installments are due. Following the payment in full of any
assessment bonds including any interest thereon, the chairman and
secretary of the board shall execute a release of all liens and
shall certify the same to county clerk for recordation.
(b) Following the grant of an assessment on property as
provided in this article, the seller of such property shall provide
reasonable disclosure to the buyer in the real estate contract that
an assessment has been granted on the property, the amount of the
assessment and the duration of the assessment.
§16-13E-14. Liberal construction.
This article being necessary for the public health, safety and
welfare and economic development, it shall be liberally construed
to effectuate the purpose hereof.;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 605--A Bill to amend article twenty-four,
chapter eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, by adding thereto two new sections,
designated sections eighty-six and eighty-seven; and to amend
chapter sixteen of said code by adding thereto a new article,
designated article thirteen-e, all relating to expanding funding
methods for community improvement generally; authorizing the use of
voluntary proffers through zoning ordinance; providing enforcement
mechanism for proffers; authorizing the creation of and empowerment
of community improvement districts; providing for the development,
construction, acquisition, financing, extension and improvement of projects; providing for notice to owners of real property of
assessments; authorizing the issuance of assessment bonds; and
providing for assessments and liens related thereto.
On motion of Senator McCabe, the following amendment to the
House of Delegates amendments to 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. Senate Bill No. 605--A Bill to amend article twenty-four,
chapter eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, by adding thereto two new sections,
designated sections eighty-six and eighty-seven; and to amend
chapter sixteen of said code, by adding thereto a new article,
designated article thirteen-e, all relating to expanding funding
methods for community improvement generally; authorizing the use of
voluntary proffers through zoning ordinance; providing enforcement
mechanism for proffers; authorizing the creation of and empowerment
of community improvement districts; providing for the development,
construction, acquisition, financing, extension and improvement of
projects; providing for notice to owners of real property of
assessments; authorizing the issuance of assessment bonds; and
providing for assessments and liens related thereto.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill, as amended.
Engrossed Senate Bill No. 605, as amended was then put upon
its passage.
On the passage of the bill, the yeas were: Bailey, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie,
Oliverio, Plymale, Prezioso, Ross, Rowe, Snyder, White and Tomblin
(Mr. President)--25.
The nays were: Boley, Harrison, Minard, Minear, Sharpe,
Smith, Sprouse, Unger and Weeks--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. S.
B. No. 605) passed with its Senate amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
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, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 611, Defining podiatric
medical assistants; other provisions.
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 seven, section six, after line sixty-one, by inserting
a new subsection, designated subsection (e), to read as follows:
(e) The board shall propose rules for legislative approval in
accordance with the provisions of article three, chapter twenty-
nine of this code setting forth fees for licenses and permits and
the renewals of licenses and permits.;
On page eleven, section ten, line two, by striking out the
words "or denies an application for a temporary permit";
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 611--A Bill to amend and
reenact sections two, six, nine and ten, article twenty-three,
chapter thirty of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to further amend said article
by adding thereto two new sections, designated sections six-a and
six-b, all relating to licenses and permits issued by the board of
radiologic technologists; defining podiatric medical assistants;
establishing the requirement of a permit to perform podiatric
radiographs and eligibility criteria therefor; restricting the scope of practice under such permit; and requiring the promulgation
of legislative rules.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 611, 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, 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.
Com. Sub. for S. B. No. 611) passed with its House of Delegates
amended title.
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
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as to
Eng. Senate Bill No. 654, Extending supervision for certain
sex offenders.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page two, section twenty-five, line six, by striking out
the word "shall" and inserting in lieu thereof the word "may".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 654, 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, 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. 654) passed with its title.
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
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 440, Establishing
Contractors Notice and Opportunity to Cure Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That chapter twenty-one of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article eleven-a, to read as
follows:
ARTICLE 11A. NOTICE AND OPPORTUNITY TO CURE CONSTRUCTION DEFECTS.
§21-11A-1. Purpose.
This article is intended to establish procedures for the
negotiation of a claim of a construction defect asserted by a claimant against a contractor. The parties to a contract are
encouraged to resolve any disagreement concerning the contract
short of litigation.
§21-11A-2. Applicability of article.
This article does not apply to an action:
(1) Against a contractor for which a claimant, as a consumer,
is entitled to a specific remedy pursuant to chapter forty-six-a of
this code;
(2) Against a contractor who is not licensed under the
provisions of article eleven of this chapter;
(3) Demanding damages of five thousand dollars or less;
(4) Alleging a construction defect that poses an imminent
threat of injury to person or property;
(5) Alleging a construction defect that causes property not to
be habitable;
(6) Against a contractor who failed to provide the notice
required by section five or six of this article;
(7) Against a contractor if the parties to the contract agreed
to submit claims to mediation, arbitration or another type of
alternative dispute resolution; or
(8) Alleging claims for personal injury or death.
§21-11A-3. Suit by contractor perfecting mechanic's lien.
(a) If a contractor, subcontractor, supplier or design professional files suit against a property owner upon whose
property they provided goods or services, this article is not
applicable, and a claimant alleging a construction defect may
counterclaim or file an independent action, as appropriate.
(b) Nothing in this article precludes a contractor,
subcontractor, supplier or design professional from perfecting a
lien in accordance with the provisions of article two, chapter
thirty-eight of this code.
§21-11A-4. Applicability of definitions; definitions.
For the purposes of this article, the words or terms defined
in this article, and any variation of those words or terms required
by the context, have the meanings ascribed to them in this article.
These definitions are applicable unless a different meaning clearly
appears from the context.
(1) "Action" means any civil action, or any alternative
dispute resolution proceeding other than the negotiation required
under this article, for damages, asserting a claim for injury or
loss to real or personal property caused by an alleged defect
arising out of or related to residential improvements.
(2) "Claim" means a demand for damages by a claimant based
upon an alleged construction defect in residential improvements.
(3) "Claimant" means a homeowner, including a subsequent
purchaser, who asserts a claim against a contractor concerning an alleged construction defect in residential improvements.
(4) "Construction defect" means a deficiency in, or a
deficiency arising out of, the design, specifications, planning,
supervision or construction of residential improvements that
results from any of the following:
(A) Defective material, products or components used in the
construction of residential improvements;
(B) Violation of the applicable codes in effect at the time of
construction of residential improvements;
(C) Failure in the design of residential improvements to meet
the applicable professional standards of care;
(D) Failure to complete residential improvements in accordance
with accepted trade standards for good and workmanlike
construction: Provided, That compliance with the applicable codes
in effect at the time of construction is prima facie evidence of
construction in accordance with accepted trade standards for good
and workmanlike construction, with respect to all matters specified
in those codes; or
(E) Failure to properly oversee, supervise and inspect
services or goods provided by the contractor's subcontractor,
officer, employee, agent or other person furnishing goods or
services.
(5) "Contract" means a written contract between a contractor and a claimant by the terms of which the contractor agrees to
provide goods or services, by sale or lease, to or for a claimant.
(6) "Contractor" means a contractor, licensed under the
provisions of article eleven of this chapter, who has entered into
a contract directly with a claimant. The term does not include the
contractor's subcontractor, officer, employee, agent or other
person furnishing goods or services to a claimant.
(7) "Day" means a calendar day. If an act is required to
occur on a day falling on a Saturday, Sunday or holiday, the first
working day which is not one of these days should be counted as the
required day for purposes of this article.
(8) "Goods" means supplies, materials or equipment.
(9) "Parties" means: (A) The claimant; and (B) any
contractor, subcontractor, agent or other person furnishing goods
or services, and upon whom a claim of an alleged construction
defect has been served under this article.
(10) "Residential improvements" means: (A) The construction
of a residential dwelling or appurtenant facility or utility; (B)
an addition to, or alteration, modification or rehabilitation of an
existing dwelling or appurtenant facility or utility; or (C)
repairs made to an existing dwelling or appurtenant facility or
utility. In addition to actual construction or renovation,
residential improvements actually added to residential real property include the design, specifications, surveying, planning,
goods, services, and the supervision of a contractor's
subcontractor, officer, employee, agent or other person furnishing
goods or services to a claimant.
(11) "Services" means the furnishing of skilled or unskilled
labor or consulting or professional work, or a combination thereof.
(12) "Subcontractor" means a contractor who performs work on
behalf of another contractor on residential improvements.
(13) "Supplier" means a person who provides goods for
residential improvements.
§21-11A-5. Contract for residential improvements; notice.
(a) Upon entering into a contract for residential
improvements, the contractor shall provide notice to the owner of
the real property of the right of the contractor, or any
subcontractor, supplier or design professional to offer to cure
construction defects before a claimant may commence litigation
against the contractor, or a subcontractor, supplier or design
professional. Such notice shall be conspicuous and may be included
as part of the underlying contract.
(b) The notice required by subsection (a) of this section
shall be in substantially the following form:
WEST VIRGINIA STATE LAW, AS SET FORTH IN CHAPTER 21, ARTICLE 11A OF
THE WEST VIRGINIA CODE, CONTAINS IMPORTANT REQUIREMENTS YOU MUST FOLLOW BEFORE YOU MAY FILE A LAWSUIT FOR DEFECTIVE CONSTRUCTION
AGAINST THE CONTRACTOR WHO MADE RESIDENTIAL IMPROVEMENTS TO YOUR
PROPERTY. AT LEAST NINETY DAYS BEFORE YOU FILE YOUR LAWSUIT, YOU
MUST DELIVER TO THE CONTRACTOR A WRITTEN NOTICE OF ANY CONSTRUCTION
CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE YOUR CONTRACTOR AND
ANY SUBCONTRACTORS, SUPPLIERS OR DESIGN PROFESSIONALS THE
OPPORTUNITY TO MAKE AN OFFER TO REPAIR OR PAY FOR THE DEFECTS. YOU
ARE NOT OBLIGATED TO ACCEPT ANY OFFER MADE BY THE CONTRACTOR OR ANY
SUBCONTRACTORS, SUPPLIERS OR DESIGN PROFESSIONALS. THERE ARE
DEADLINES AND PROCEDURES UNDER STATE LAW AND FAILURE TO FOLLOW THEM
MAY AFFECT YOUR ABILITY TO FILE A LAWSUIT.
§21-11A-6. Contractor notification requirements for a new
residential dwelling constructed for sale.
(a) A contractor who constructs a new residential dwelling
shall, at or before the closing of the sale, provide in writing to
the initial purchaser of the residence:
(1) The name, license number, business address and telephone
number of each subcontractor, supplier or design professional who
provided goods or services related to the design or construction of
the dwelling; and
(2) A brief description of the goods or services provided by
each subcontractor, supplier or design professional identified
pursuant to this section.
(b) At or before the closing of the sale, a notice shall be
given to the purchaser that is in substantially the same form as
set forth in subsection (b), section five of this article.
§21-11A-7. Prerequisites to commencing an action.
(a) The procedures contained in this article are exclusive and
required prerequisites to commencing a civil action under the West
Virginia rules of civil procedure.
(b) If a claimant files a civil action alleging a construction
defect without first complying with the provisions of this article,
then on application by a party to the action, the court shall
dismiss the action, without prejudice, and the action may not be
refiled until the claimant has complied with the requirements of
this article.
§21-11A-8. Notice of claim of construction defect.
(a) A claimant asserting a claim of a construction defect
under this article shall file notice of the claim as provided by
this section.
(b) The notice of claim shall:
(1) Be in writing and signed by the claimant or the claimant's
authorized representative;
(2) Be delivered by hand, certified mail return receipt
requested, or other verifiable delivery service, to the person
designated in the contract to receive a notice of claim of a construction defect; if no person is designated in the contract,
the notice shall be delivered to the contractor's chief
administrative officer; and
(3) State in detail:
(A) The nature of the alleged construction defect and a
description of the results of the defect;
(B) A description of damages caused by the alleged
construction defect, including the amount and method used to
calculate those damages; and
(C) The legal theory of recovery, i.e., a construction defect,
including the causal relationship between the alleged construction
defect and the damages claimed.
(c) In addition to the mandatory contents of the notice of
claim as required by subsection (b) of this section, the claimant
may submit supporting documentation or other tangible evidence to
facilitate the contractor's evaluation of the claimant's claim.
(d) The notice of claim shall be delivered no later than
ninety days prior to filing an action.
§12-11A-9. Service on additional parties.
Within fourteen days after the initial service of the notice
of claim required in subsection (a) of this section, the contractor
shall forward a copy of the notice to each subcontractor, supplier
and design professional who the contractor reasonably believes is responsible for a defect specified in the notice and include with
the notice a description of the specific defect for which the
contractor believes the subcontractor, supplier or design
professional is responsible.
§21-11A-10. Request for voluntary disclosure of additional
information.
(a) Upon the filing of a claim, parties may request to review
and copy relevant information in the possession or custody or
subject to the control of the other party that pertains to the
alleged construction defect, including, without limitation:
(1) Reports of outside consultants or experts; or
(2) Photographs and videotapes.
(b) Subsection (a) of this section applies to all information
in the parties' possession regardless of the manner in which it is
recorded, including, without limitation, paper and electronic
media.
(c) The claimant and the contractor may seek additional
information directly from third parties.
(d) Nothing in this section requires any party to disclose the
requested information or any matter that is privileged under West
Virginia law.
Within thirty days after service of the notice of claim by the
claimant, each contractor, subcontractor, supplier or design professional that has received a notice of claim shall serve a
written response on the claimant, delivered by hand, certified mail
return receipt requested or other verifiable delivery service,
directed to the claimant or representative of the claimant who
signed the notice of claim of a construction defect. The written
response shall:
(1) Offer to compromise and settle the claim by monetary
payment without inspection;
(2) Propose to inspect the residential improvement that is the
subject of the claim; or
(3) State that the contractor, subcontractor, supplier or
design professional disputes the claim and will neither remedy the
alleged construction defect nor compromise and settle the claim.
(e) If the contractor, subcontractor, supplier or design
professional disputes the claim pursuant to subdivision (3),
subsection (d) of this section, and will neither remedy the alleged
construction defect nor compromise and settle the claim, or does
not respond to the claimant's notice of claim within the time
stated in said subsection, the claimant may bring an action against
the contractor, subcontractor, supplier or design professional for
the claim described in the notice of claim, without further notice.
(f) If the claimant rejects the inspection proposal or the
settlement offer made by the contractor, subcontractor, supplier or design professional pursuant to subsection (d) of this section, the
claimant shall serve written notice of the claimant's rejection on
the contractor, subcontractor, supplier, or design professional.
The notice shall include the basis for the claimant's rejection of
the contractor, subcontractor, supplier or design professional's
proposal or offer.
(g) After service of the rejection required by subsection (f)
of this section, the claimant may bring an action against the
contractor, subcontractor, supplier or design professional for the
claim described in the initial notice of claim without further
notice.
(h) If the claimant elects to allow the contractor,
subcontractor, supplier or design professional to inspect the
residential improvement in accordance with the contractor,
subcontractor, supplier or design professional's proposal pursuant
to subdivision (2), subsection (d) of this section, the claimant
shall provide the contractor, subcontractor, supplier or design
professional and its contractors or other agents reasonable access
to the claimant's residence during normal working hours to inspect
the premises and the claimed defect to determine the nature and
cause of the alleged defects and the nature and extent of any
repairs or replacements necessary to remedy the alleged defects.
(i) Within fourteen days following completion of the inspection, the contractor, subcontractor, supplier or design
professional shall serve on the claimant:
(1) A written offer to remedy the construction defect at no
cost to the claimant, including a report of the scope of the
inspection, the findings and results of the inspection, a
description of the additional labor and materials necessary to
remedy the defect described in the claim and a timetable for the
completion of such construction;
(2) A written offer to compromise and settle the claim by
monetary payment; or
(3) A written statement that the contractor, subcontractor,
supplier or design professional will not proceed further to remedy
the defect.
(j) If a claimant accepts a contractor, subcontractor,
supplier or design professional's offer made pursuant to
subdivision (1) or (2), subsection (i) of this section, and the
contractor, subcontractor, supplier or design professional does not
proceed to make the monetary payment or remedy the construction
defect within the agreed timetable, the claimant may bring an
action against the contractor, subcontractor, supplier or design
professional for the claim described in the initial notice of claim
without further notice.
(k) If a claimant receives a written statement that the contractor, subcontractor, supplier or design professional will not
proceed further to remedy the defect, the claimant may bring an
action against the contractor, subcontractor, supplier or design
professional for the claim described in the initial notice of claim
without further notice.
(l) If the claimant rejects the offer made by the contractor,
subcontractor, supplier or design professional to either remedy the
construction defect or to compromise and settle the claim by
monetary payment, the claimant shall serve written notice of the
claimant's rejection on the contractor, subcontractor, supplier or
design professional. The notice shall include the basis for the
claimant's rejection of the contractor, subcontractor, supplier or
design professional's offer. After service of the rejection the
claimant may bring an action against the contractor, subcontractor,
supplier or design professional for the claim described in the
notice of claim without further notice.
(m) Any claimant accepting the offer of the contractor,
subcontractor, supplier or design professional to remedy the
construction defects shall do so by serving the contractor,
subcontractor, supplier or design professional with a written
notice of acceptance within a reasonable period of time after
receipt of the offer but no later than thirty days after receipt of
the offer.
(n) If a claimant accepts a contractor, subcontractor,
supplier or design professional's offer to repair a defect
described in an initial notice of claim, the claimant shall provide
the contractor, subcontractor, supplier or design professional and
its contractors or other agents reasonable access to the claimant's
residence during normal working hours to perform and complete the
construction by the timetable stated in the offer.
(o) During negotiations under this article, if the running of
the applicable statute of limitations would otherwise become a bar
to a civil action, service of a claimant's written notice of claim
pursuant to this article tolls the applicable statute of
limitations until six months after the termination of negotiations
under this article.
§12-11A-11. Duty to negotiate.
The parties shall negotiate in accordance with the times set
forth in section twelve of this article (relating to timetable) to
attempt to resolve all claims. No party is obligated to settle with
the other party as a result of the negotiation.
§12-11A-12. Timetable.
(a) Following receipt of a claimant's notice of claim, the
contractor or other designated representative shall review the
claimant's claim and initiate negotiations with the claimant to
attempt to resolve the claim.
(b) Subject to subsection (c) of this section, the parties
shall begin negotiations within a reasonable period of time, not to
exceed thirty days following the date the contractor receives the
claimant's notice of claim.
(c) The parties may conduct negotiations according to an
agreed schedule, but must begin negotiations no later than the
deadline set forth in subsection (b) of this section.
(d) Subject to subsection (e) of this section, the parties
shall complete the negotiations that are required by this article
within ninety days after the contractor receives the claimant's
notice of claim.
(e) The parties may agree in writing to extend the time for
negotiations, on or before the ninetieth day after the contractor
receives the claimant's notice of claim. The agreement shall be
signed by representatives of the parties with authority to bind
each respective party and shall provide for the extension of the
statutory negotiation period until a date certain. The parties may
enter into a series of written extension agreements that comply
with the requirements of this section.
§21-11A-13. Conduct of negotiation.
Negotiation is a consensual bargaining process in which the
parties attempt to resolve the claim. A negotiation under this
article may be conducted by any method, technique or procedure authorized under the contract or agreed upon by the parties,
including, without limitation, negotiation in person, by telephone,
by correspondence, by video conference or by any other method that
permits the parties to identify their respective positions, discuss
their respective differences, confer with their respective
advisers, exchange offers of settlement and settle.
§21-11A-14. Settlement agreement.
(a) A settlement agreement may resolve an entire claim or any
designated and severable portion of a claim.
(b) To be enforceable, a settlement agreement must be in
writing and signed by representatives of the claimant and the
contractor who have authority to bind each respective party.
(c) A partial settlement does not waive parties' rights as to
the parts of the claims that are not resolved.
§21-11A-15. Costs of negotiation.
Unless the parties agree otherwise, each party shall be
responsible for its own costs incurred in connection with a
negotiation, including, without limitation, the costs of attorney's
fees, consultant's fees and expert's fees.
§21-11A-16. Commencement of action.
If a claim for a construction defect is not resolved in its
entirety through negotiation in accordance with this article on or
before the ninetieth day after the contractor receives the notice of claim, or after the expiration of any extension agreed to by the
parties, the claimant may commence an action.
§21-11A-17. Additional construction defects; additional notice of
claim.
A construction defect which is discovered after a claimant has
provided a contractor with the original notice of claim is subject
to the notice requirements and timetable of this article.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 440, 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, 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.
Com. Sub. for S. B. No. 440) passed with its title.
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
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Com. Sub. for Senate Bill No. 507, Modifying and updating
auctioneer licensing requirements; fees.
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 two, after the article heading, by inserting the
following:
§19-2C-1. Definitions.
For the purposes of this article:
(a) The term "auctioneer" means and includes a person who
sells goods or real estate at public auction for another on
commission or for other compensation. The term "auctioneer" does
not include: (1) Persons conducting sales at auctions conducted by
or under the direction of any public authority or pursuant to any
judicial order or direction or to any sale required by law to be at
auction; (2) the owner of any real or personal property when
personally sold at auction by such owner and such owner has not personally conducted an auction within the previous twelve-month
period; (3) persons conducting sales pursuant to a deed of trust or
other security agreement; (4) fiduciaries of estates when selling
real or personal property of such estate; (5) persons conducting
sales on behalf of charitable, religious, fraternal or other
nonprofit organizations; and (6) persons properly licensed pursuant
to the provisions of article twelve forty, chapter forty-seven
thirty of this code when conducting an auction, any portion of
which contains any leasehold or any estate in land whether
corporeal or incorporeal, freehold or nonfreehold, when such person
is retained to conduct an auction by a receiver or trustee in
bankruptcy, a fiduciary acting under the authority of a deed of
trust or will, or a fiduciary of a decedent's estate: Provided,
That nothing contained in this article exempts persons conducting
sales at public markets from the provisions of article two-a of
this chapter, where the sale is confined solely to livestock,
poultry and other agriculture and horticulture products.
(b) The term "public auction" means any public sale of real or
personal property when offers or bids are made by prospective
purchasers and the property sold to the highest bidder.
(c) The term "commissioner" means the commissioner of
agriculture of West Virginia.
(d) The term "department" means the West Virginia department of agriculture.;
On page two, by striking out the enacting section and
inserting in lieu thereof a new enacting section, to read as
follows:
That sections one, two, three, five, five-a, six, six-a, six-
b, six-c, seven, eight, eight-a and nine, article two-c, chapter
nineteen of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; and that said
article be further amended by adding thereto three new sections,
designated sections five-b, six-d and nine-a, all to read as
follows:;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 507--A Bill to amend and
reenact sections two, three, five, five-a, six, six-a, six-b, six-
c, seven, eight, eight-a and nine, article two-c, chapter nineteen
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended; to further amend said article by adding thereto three
new sections, designated sections five-b, six-d and nine-a; and to
amend and reenact section five, article forty, chapter thirty of
said code, all relating to auctioneers; license requirements; fees;
requiring notice of change of address; apprentice sponsorship requirements; reciprocity between states; continuing education
requirements; penalties for violating statutory provisions; license
revocation; contract requirements; and exemption from real estate
license act when conducting auctions of real estate.
On motion of Senator Bowman, the following amendment to the
House of Delegates amendments to the bill was reported by the Clerk
and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 507--A Bill to amend and
reenact sections one, two, three, five, five-a, six, six-a, six-b,
six-c, seven, eight, eight-a and nine, article two-c, chapter
nineteen of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; and to further amend said article by adding
thereto three new sections, designated sections five-b, six-d and
nine-a, all relating to auctioneers; definitions; license
requirements; fees; requiring notice of change of address;
apprentice sponsorship requirements; reciprocity between states;
continuing education requirements; penalties for violating
statutory provisions; license revocation; and contract
requirements.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as amended.
Engrossed Committee Substitute for Senate Bill No. 507, 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.
Com. Sub. for S. B. No. 507) passed with its Senate amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
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, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 531, Exempting certain lodging franchise
assessed fees from consumers sales and service tax.
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 one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That sections two and nine, article fifteen, chapter eleven of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted, all to read as follows:
ARTICLE 15. CONSUMERS SALES AND SERVICE TAX.
§11-15-2. Definitions.
(a) For the purpose of this article: General. -- When used in
this article and article fifteen-a of this chapter, words defined
in subsection (b) of this section shall have the meanings ascribed
to them in this section, except in those instances where a
different meaning is provided in this article or the context in
which the word is used clearly indicates that a different meaning
is intended by the Legislature.
_____(b) Definitions. --
(a) (1) "Business" includes all activities engaged in or
caused to be engaged in with the object of gain or economic
benefit, direct or indirect, and all activities of the state and
its political subdivisions which involve sales of tangible personal
property or the rendering of services when those service activities
compete with or may compete with the activities of other persons.
(b) (2) "Communication" means all telephone, radio, light,
light wave, radio telephone, telegraph and other communication or
means of communication, whether used for voice communication,
computer data transmission or other encoded symbolic information
transfers and shall include includes commercial broadcast radio,
commercial broadcast television and cable television.
(c) (3) "Contracting":
(1) (A) In general. -- "Contracting" means and includes the
furnishing of work, or both materials and work, for another (by a
sole contractor, general contractor, prime contractor,
subcontractor or construction manager) in fulfillment of a contract
for the construction, alteration, repair, decoration or improvement
of a new or existing building or structure, or any part thereof, or
for removal or demolition of a building or structure, or any part
thereof, or for the alteration, improvement or development of real
property. Contracting means and also includes services provided by
a construction manager so long as the project for which the
construction manager provides the services results in a capital
improvement to a building or structure or to real property.
(2) (B) Form of contract not controlling. -- An activity that
falls within the scope of the definition of contracting shall
constitute constitutes contracting regardless of whether the
contract governing the activity is written or verbal and regardless of whether it is in substance or form a lump sum contract, a
cost-plus contract, a time and materials contract, whether or not
open-ended, or any other kind of construction contract.
(3) (C) Special rules. -- For purposes of this definition:
(A) (i) The term "structure" includes, but is not limited to,
everything built up or composed of parts joined together in some
definite manner and attached or affixed to real property or which
adds utility to real property or any part thereof or which adds
utility to a particular parcel of property and is intended to
remain there for an indefinite period of time;
(B) (ii) The term "alteration" means, and is limited to,
alterations which are capital improvements to a building or
structure or to real property;
(C) (iii) The term "repair" means, and is limited to, repairs
which are capital improvements to a building or structure or to
real property;
(D) (iv) The term "decoration" means, and is limited to,
decorations which are capital improvements to a building or
structure or to real property;
(E) (v) The term "improvement" means, and is limited to,
improvements which are capital improvements to a building or
structure or to real property;
(F) (vi) The term "capital improvement" means improvements that are affixed to or attached to and become a part of a building
or structure or the real property or which add utility to real
property, or any part thereof, and that last or are intended to be
relatively permanent. As used herein, "relatively permanent" means
lasting at least a year in duration without the necessity for
regularly scheduled recurring service to maintain the capital
improvement. "Regular recurring service" means regularly scheduled
service intervals of less than one year;
(G) (vii) Contracting does not include the furnishing of work,
or both materials and work, in the nature of hookup, connection,
installation or other services if the service is incidental to the
retail sale of tangible personal property from the service
provider's inventory: Provided, That the hookup, connection or
installation of the foregoing is incidental to the sale of the same
and performed by the seller thereof or performed in accordance with
arrangements made by the seller thereof. Examples of transactions
that are excluded from the definition of contracting pursuant
hereto to this subdivision include, but are not limited to, the
sale of wall-to-wall carpeting and the installation of wall-to-wall
carpeting, the sale, hookup and connection of mobile homes, window
air conditioning units, dishwashers, clothing washing machines or
dryers, other household appliances, drapery rods, window shades,
venetian blinds, canvas awnings, free-standing industrial or commercial equipment and other similar items of tangible personal
property. Repairs made to the foregoing are within the definition
of contracting if the repairs involve permanently affixing to or
improving real property or something attached thereto which extends
the life of the real property or something affixed thereto or
allows or intends to allow the real property or thing permanently
attached thereto to remain in service for a year or longer; and
_____(H) (viii) The term "construction manager" means a person who
enters into an agreement to employ, direct, coordinate or manage
design professionals and contractors who are hired and paid
directly by the owner or the construction manager. The business
activities of a "construction manager" as defined herein shall in
this subdivision constitute contracting, so long as the project for
which the construction manager provides the services results in a
capital improvement to a building or structure or to real property.
(d) (1) (4) "Directly used or consumed" in the activities of
manufacturing, transportation, transmission, communication or the
production of natural resources means used or consumed in those
activities or operations which constitute an integral and essential
part of the activities, as contrasted with and distinguished from
those activities or operations which are simply incidental,
convenient or remote to the activities.
(2) (A) Uses of property or consumption of services which constitute direct use or consumption in the activities of
manufacturing, transportation, transmission, communication or the
production of natural resources includes include only:
(A) (i) In the case of tangible personal property, physical
incorporation of property into a finished product resulting from
manufacturing production or the production of natural resources;
(B) (ii) Causing a direct physical, chemical or other change
upon property undergoing manufacturing production or production of
natural resources;
(C) (iii) Transporting or storing property undergoing
transportation, communication, transmission, manufacturing
production or production of natural resources;
(D) (iv) Measuring or verifying a change in property directly
used in transportation, communication, transmission, manufacturing
production or production of natural resources;
(E) (v) Physically controlling or directing the physical
movement or operation of property directly used in transportation,
communication, transmission, manufacturing production or production
of natural resources;
(F) (vi) Directly and physically recording the flow of
property undergoing transportation, communication, transmission,
manufacturing production or production of natural resources;
(G) (vii) Producing energy for property directly used in transportation, communication, transmission, manufacturing
production or production of natural resources;
(H) (viii) Facilitating the transmission of gas, water, steam
or electricity from the point of their diversion to property
directly used in transportation, communication, transmission,
manufacturing production or production of natural resources;
(I) (ix) Controlling or otherwise regulating atmospheric
conditions required for transportation, communication,
transmission, manufacturing production or production of natural
resources;
(J) (x) Serving as an operating supply for property undergoing
transmission, manufacturing production or production of natural
resources, or for property directly used in transportation,
communication, transmission, manufacturing production or production
of natural resources;
(K) (xi) Maintenance or repair Maintaining or repairing of
property, including maintenance equipment, directly used in
transportation, communication, transmission, manufacturing
production or production of natural resources;
(L) (xii) Storage Storing, removal or transportation of
economic waste resulting from the activities of manufacturing,
transportation, communication, transmission or the production of
natural resources;
(M) (xiii) Engaging in pollution control or environmental
quality or protection activity directly relating to the activities
of manufacturing, transportation, communication, transmission or
the production of natural resources and personnel, plant, product
or community safety or security activity directly relating to the
activities of manufacturing, transportation, communication,
transmission or the production of natural resources; or
(N) (xiv) Otherwise be used using as an integral and essential
part of transportation, communication, transmission, manufacturing
production or production of natural resources.
(3) (B) Uses of property or services which do not constitute
direct use or consumption in the activities of manufacturing,
transportation, transmission, communication or the production of
natural resources include, but are not limited to:
(A) (i) Heating and illumination of office buildings;
(B) (ii) Janitorial or general cleaning activities;
(C) (iii) Personal comfort of personnel;
(D) (iv) Production planning, scheduling of work or inventory
control;
(E) (v) Marketing, general management, supervision, finance,
training, accounting and administration; or
(F) (vi) An activity or function incidental or convenient to
transportation, communication, transmission, manufacturing production or production of natural resources, rather than an
integral and essential part of these activities.
(e) (1) (5) "Directly used or consumed" in the activities of
gas storage, the generation or production or sale of electric
power, the provision of a public utility service or the operation
of a utility business means used or consumed in those activities or
operations which constitute an integral and essential part of those
activities or operation, as contrasted with and distinguished from
activities or operations which are simply incidental, convenient or
remote to those activities.
(2) (A) Uses of property or consumption of services which
constitute direct use or consumption in the activities of gas
storage, the generation or production or sale of electric power,
the provision of a public utility service or the operation of a
utility business include only:
(A) (i) Tangible personal property, custom software or
services, including equipment, machinery, apparatus, supplies, fuel
and power and appliances, which are used immediately in production
or generation activities and equipment, machinery, supplies, tools
and repair parts used to keep in operation exempt production or
generation devices. For purposes of this subsection, production or
generation activities shall commence from the intake, receipt or
storage of raw materials at the production plant site;
(B) (ii) Tangible personal property, custom software or
services, including equipment, machinery, apparatus, supplies, fuel
and power, appliances, pipes, wires and mains, which are used
immediately in the transmission or distribution of gas, water and
electricity to the public, and equipment, machinery, tools, repair
parts and supplies used to keep in operation exempt transmission or
distribution devices, and these vehicles and their equipment as are
specifically designed and equipped for such those purposes are
exempt from the tax when used to keep a transmission or
distribution system in operation or repair. For purposes of this
subsection, transmission or distribution activities shall commence
from the close of production at a production plant or wellhead when
a product is ready for transmission or distribution to the public
and shall conclude at the point where the product is received by
the public;
(C) (iii) Tangible personal property, custom software or
services, including equipment, machinery, apparatus, supplies, fuel
and power, appliance, pipes, wires and mains, which are used
immediately in the storage of gas or water, and equipment,
machinery, tools, supplies and repair parts used to keep in
operation exempt storage devices;
(D) (iv) Tangible personal property, custom software or
services used immediately in the storage, removal or transportation of economic waste resulting from the activities of gas storage, the
generation or production or sale of electric power, the provision
of a public utility service or the operation of a utility business;
(E) (v) Tangible personal property, custom software or
services used immediately in pollution control or environmental
quality or protection activity or community safety or security
directly relating to the activities of gas storage, generation or
production or sale of electric power, the provision of a public
utility service or the operation of a utility business.
(3) (B) Uses of property or services which would not
constitute direct use or consumption in the activities of gas
storage, generation or production or sale of electric power, the
provision of a public utility service or the operation of a utility
business include, but are not limited to:
(A) (i) Heating and illumination of office buildings;
(B) (ii) Janitorial or general cleaning activities;
(C) (iii) Personal comfort of personnel;
(D) (iv) Production planning, scheduling of work or inventory
control;
(E) (v) Marketing, general management, supervision, finance,
training, accounting and administration; or
(F) (vi) An activity or function incidental or convenient to
the activities of gas storage, generation or production or sale of electric power, the provision of public utility service or the
operation of a utility business.
(f) "Drugs" includes all sales of drugs or appliances to a
purchaser upon prescription of a physician or dentist and any other
professional person licensed to prescribe.
(g) (6) "Gas storage" means the injection of gas into a
storage reservoir or the storage of gas for any period of time in
a storage reservoir or the withdrawal of gas from a storage
reservoir engaged in by businesses subject to the business and
occupation tax imposed by sections two and two-e, article thirteen
of this chapter.
(h) (7) "Generating or producing or selling of electric power"
means the generation, production or sale of electric power engaged
in by businesses subject to the business and occupation tax imposed
by section two, two-d, two-m or two-n, article thirteen of this
chapter.
(i) (8) "Gross proceeds" means the amount received in money,
credits, property or other consideration from sales and services
within this state, without deduction on account of the cost of
property sold, amounts paid for interest or discounts or other
expenses whatsoever. Losses may not be deducted, but any credit or
refund made for goods returned may be deducted.
(9) "Includes" and "including", when used in a definition contained in this article, does not exclude other things otherwise
within the meaning of the term being defined.
_____(j) "Management information services" means, and is limited
to, data processing, data storage, data recovery and backup,
programming recovery and backup, telecommunications, computation
and computer processing, computer programming, electronic
information and data management activities, or any combination of
these activities, when such activity, or activities, is not subject
to regulation by the West Virginia public service commission and
the activity, or activities, is for the purpose of managing,
planning for, organizing or operating, any industrial or commercial
business, or any enterprise, facility or facilities of an
industrial or commercial business, whether the industrial or
commercial business or enterprise, facility or facilities of an
industrial or commercial business is located within or without this
state and without regard to whether the industrial or commercial
business, or enterprise, facility or facilities of an industrial or
commercial business is owned by the provider of the management
information services or by a "related person," as defined in
Section 267(b) of the Internal Revenue Code of 1986, as amended.
(k) "Management information services facility" means a
building, or any part thereof, or a complex of buildings, or any
part thereof, including the machinery and equipment located therein, that is exclusively dedicated to providing management
information services to the owner or operator thereof or to another
person.
(l) (10) "Manufacturing" means a systematic operation or
integrated series of systematic operations engaged in as a business
or segment of a business which transforms or converts tangible
personal property by physical, chemical or other means into a
different form, composition or character from that in which it
originally existed.
(n) (11) "Persons" "Person" means any individual, partnership,
association, corporation, limited liability company, limited
liability partnership, or any other legal entity including this
state or its political subdivisions or an agency of either, or the
guardian, trustee, committee, executor or administrator of any
person.
_____(m) (12) "Personal service" includes those: (1) (A)
Compensated by the payment of wages in the ordinary course of
employment; and (2) (B) rendered to the person of an individual
without, at the same time, selling tangible personal property, such
as nursing, barbering, shoe shining, manicuring and similar
services.
(o) (13) Production of natural resources.
_____(1) (A) "Production of natural resources" means, except for oil and gas, the performance, by either the owner of the natural
resources or another, of the act or process of exploring,
developing, severing, extracting, reducing to possession and
loading for shipment and shipment for sale, profit or commercial
use of any natural resource products and any reclamation, waste
disposal or environmental activities associated therewith and the
construction, installation or fabrication of ventilation
structures, mine shafts, slopes, boreholes, dewatering structures,
including associated facilities and apparatus, by the producer or
others, including contractors and subcontractors, at a coal mine or
coal production facility.
(2) (B) For the natural resources oil and gas, "production of
natural resources" means the performance, by either the owner of
the natural resources, a contractor or a subcontractor, of the act
or process of exploring, developing, drilling, well-stimulation
activities such as logging, perforating or fracturing,
well-completion activities such as the installation of the casing,
tubing and other machinery and equipment and any reclamation, waste
disposal or environmental activities associated therewith,
including the installation of the gathering system or other
pipeline to transport the oil and gas produced or environmental
activities associated therewith and any service work performed on
the well or well site after production of the well has initially commenced.
(3) (C) All work performed to install or maintain facilities
up to the point of sale for severance tax purposes would be is
included in the "production of natural resources" and subject to
the direct use concept.
(4) (D) "Production of natural resources" does not include the
performance or furnishing of work, or materials or work, in
fulfillment of a contract for the construction, alteration, repair,
decoration or improvement of a new or existing building or
structure, or any part thereof, or for the alteration, improvement
or development of real property, by persons other than those
otherwise directly engaged in the activities specifically set forth
in this subsection subdivision as "production of natural
resources".
(p) (14) "Providing a public service or the operating of a
utility business" means the providing of a public service or the
operating of a utility by businesses subject to the business and
occupation tax imposed by sections two and two-d, article thirteen
of this chapter.
(q) (15) "Purchaser" means a person who purchases tangible
personal property, custom software or a service taxed by this
article.
(r) (16) "Sale", "sales" or "selling" includes any transfer of the possession or ownership of tangible personal property or custom
software for a consideration, including a lease or rental, when the
transfer or delivery is made in the ordinary course of the
transferor's business and is made to the transferee or his or her
agent for consumption or use or any other purpose. "Sale" also
includes the furnishing of a service for consideration.
_____(s) (17) "Service" or "selected service" includes all
nonprofessional activities engaged in for other persons for a
consideration, which involve the rendering of a service as
distinguished from the sale of tangible personal property or custom
software, but shall does not include contracting, personal services
or the services rendered by an employee to his or her employer or
any service rendered for resale: Provided, That the term "service"
or "selected service" does not include payments received by a
vendor of tangible personal property as an incentive to sell a
greater volume of such tangible personal property under a
manufacturer's, distributor's or other third-party's marketing
support program, sales incentive program, cooperative advertising
agreement or similar type of program or agreement, and these
payments are not considered to be payments for a "service" or
"selected service" rendered, even though the vendor may engage in
attendant or ancillary activities associated with the sales of
tangible personal property as required under the programs or agreements.
_____(18) "Streamlined sales and use tax agreement" or "agreement",
when used in this article, shall have the same meaning as when used
in article fifteen-b of this chapter, except when the context in
which the word agreement is used clearly indicates that a different
meaning is intended by the Legislature.
_____(t) (19) "Tax" includes all taxes, additions to tax, interest
and penalties levied hereunder under this article or article ten of
this chapter.
_____(u) (20) "Tax commissioner" means the state tax commissioner
or his or her delegate. The term "delegate" in the phrase "or his
or her delegate", when used in reference to the tax commissioner,
means any officer or employee of the state tax division duly
authorized by the tax commissioner directly, or indirectly by one
or more redelegations of authority, to perform the functions
mentioned or described in this article or rules promulgated for
this article.
_____(v) (21) "Taxpayer" means any person liable for the tax
imposed by this article or additions to tax, penalties and interest
imposed by article ten of this chapter.
_____(w) (22) "Transmission" means the act or process of causing
liquid, natural gas or electricity to pass or be conveyed from one
place or geographical location to another place or geographical location through a pipeline or other medium for commercial
purposes.
(x) (23) "Transportation" means the act or process of
conveying, as a commercial enterprise, passengers or goods from one
place or geographical location to another place or geographical
location.
(y) (24) "Ultimate consumer" or "consumer" means a person who
uses or consumes services or personal property.
(z) (25) "Vendor" means any person engaged in this state in
furnishing services taxed by this article or making sales of
tangible personal property or custom software. "Vendor" and
"seller" are used interchangeably in this article.
_____(c) Additional definitions. -- Other terms used in this
article are defined in article fifteen-b of this chapter, which
definitions are incorporated by reference into article fifteen.
Additionally, other sections of this article may define terms
primarily used in the section in which the term is defined.
§11-15-9. Exemptions.
(a) Exemptions for which exemption certificate may be issued.
-- A person having a right or claim to any exemption set forth in
this subsection may, in lieu of paying the tax imposed by this
article and filing a claim for refund, execute a certificate of
exemption, in the form required by the tax commissioner, and deliver it to the vendor of the property or service in the manner
required by the tax commissioner. However, the tax commissioner
may, by rule, specify those exemptions authorized in this
subsection for which exemptions certificates are not required. The
following sales of tangible personal property and services are
exempt as provided in this subsection:
(1) Sales of gas, steam and water delivered to consumers
through mains or pipes and sales of electricity;
(2) Sales of textbooks required to be used in any of the
schools of this state or in any institution in this state which
qualifies as a nonprofit or educational institution subject to the
West Virginia department of education and the arts, the board of
trustees of the university system of West Virginia or the board of
directors for colleges located in this state;
(3) Sales of property or services to this state, its
institutions or subdivisions, governmental units, institutions or
subdivisions of other states: Provided, That the law of the other
state provides the same exemption to governmental units or
subdivisions of this state and to the United States, including
agencies of federal, state or local governments for distribution in
public welfare or relief work;
(4) Sales of vehicles which are titled by the division of
motor vehicles and which are subject to the tax imposed by section four, article three, chapter seventeen-a of this code or like tax;
(5) Sales of property or services to churches which make no
charge whatsoever for the services they render: Provided, That the
exemption granted in this subdivision applies only to services,
equipment, supplies, food for meals and materials directly used or
consumed by these organizations and does not apply to purchases of
gasoline or special fuel;
(6) Sales of tangible personal property or services to a
corporation or organization which has a current registration
certificate issued under article twelve of this chapter, which is
exempt from federal income taxes under Section 501(c)(3) or (c)(4)
of the Internal Revenue Code of 1986, as amended, and which is:
(A) A church or a convention or association of churches as
defined in Section 170 of the Internal Revenue Code of 1986, as
amended;
(B) An elementary or secondary school which maintains a
regular faculty and curriculum and has a regularly enrolled body of
pupils or students in attendance at the place in this state where
its educational activities are regularly carried on;
(C) A corporation or organization which annually receives more
than one half of its support from any combination of gifts, grants,
direct or indirect charitable contributions or membership fees;
(D) An organization which has no paid employees and its gross income from fund raisers, less reasonable and necessary expenses
incurred to raise the gross income (or the tangible personal
property or services purchased with the net income), is donated to
an organization which is exempt from income taxes under Section
501(c)(3) or (c)(4) of the Internal Revenue Code of 1986, as
amended;
(E) A youth organization, such as the girl scouts of the
United States of America, the boy scouts of America or the YMCA
Indian guide/princess program and the local affiliates thereof,
which is organized and operated exclusively for charitable purposes
and has as its primary purpose the nonsectarian character
development and citizenship training of its members;
(F) For purposes of this subsection:
(i) The term "support" includes, but is not limited to:
(I) Gifts, grants, contributions or membership fees;
(II) Gross receipts from fund raisers which include receipts
from admissions, sales of merchandise, performance of services or
furnishing of facilities in any activity which is not an unrelated
trade or business within the meaning of Section 513 of the Internal
Revenue Code of 1986, as amended;
(III) Net income from unrelated business activities, whether
or not the activities are carried on regularly as a trade or
business;
(IV) Gross investment income as defined in Section 509(e) of
the Internal Revenue Code of 1986, as amended;
(V) Tax revenues levied for the benefit of a corporation or
organization either paid to or expended on behalf of the
organization; and
(VI) The value of services or facilities (exclusive of
services or facilities generally furnished to the public without
charge) furnished by a governmental unit referred to in Section
170(c)(1) of the Internal Revenue Code of 1986, as amended, to an
organization without charge. This term does not include any gain
from the sale or other disposition of property which would be
considered as gain from the sale or exchange of a capital asset or
the value of an exemption from any federal, state or local tax or
any similar benefit;
(ii) The term "charitable contribution" means a contribution
or gift to or for the use of a corporation or organization
described in Section 170(c)(2) of the Internal Revenue Code of
1986, as amended; and
(iii) The term "membership fee" does not include any amounts
paid for tangible personal property or specific services rendered
to members by the corporation or organization;
(G) The exemption allowed by this subdivision does not apply
to sales of gasoline or special fuel or to sales of tangible personal property or services to be used or consumed in the
generation of unrelated business income as defined in Section 513
of the Internal Revenue Code of 1986, as amended. The provisions
of this subdivision apply to sales made after the thirtieth day of
June, one thousand nine hundred eighty-nine: Provided, That the
exemption granted in this subdivision applies only to services,
equipment, supplies and materials used or consumed in the
activities for which the organizations qualify as tax-exempt
organizations under the Internal Revenue Code and does not apply to
purchases of gasoline or special fuel;
(7) An isolated transaction in which any taxable service or
any tangible personal property is sold, transferred, offered for
sale or delivered by the owner of the property or by his or her
representative for the owner's account, the sale, transfer, offer
for sale or delivery not being made in the ordinary course of
repeated and successive transactions of like character by the owner
or on his or her account by the representative: Provided, That
nothing contained in this subdivision may be construed to prevent
an owner who sells, transfers or offers for sale tangible personal
property in an isolated transaction through an auctioneer from
availing himself or herself of the exemption provided in this
subdivision, regardless of where the isolated sale takes place.
The tax commissioner may propose a legislative rule for promulgation pursuant to article three, chapter twenty-nine-a of
this code which he or she considers necessary for the efficient
administration of this exemption;
(8) Sales of tangible personal property or of any taxable
services rendered for use or consumption in connection with the
commercial production of an agricultural product the ultimate sale
of which is subject to the tax imposed by this article or which
would have been subject to tax under this article: Provided, That
sales of tangible personal property and services to be used or
consumed in the construction of or permanent improvement to real
property and sales of gasoline and special fuel are not exempt:
Provided, however, That nails and fencing may not be considered as
improvements to real property;
(9) Sales of tangible personal property to a person for the
purpose of resale in the form of tangible personal property:
Provided, That sales of gasoline and special fuel by distributors
and importers is taxable except when the sale is to another
distributor for resale: Provided, however, That sales of building
materials or building supplies or other property to any person
engaging in the activity of contracting, as defined in this
article, which is to be installed in, affixed to or incorporated by
that person or his or her agent into any real property, building or
structure is not exempt under this subdivision;
(10) Sales of newspapers when delivered to consumers by route
carriers;
(11) Sales of drugs dispensed upon prescription and sales of
insulin to consumers for medical purposes;
(12) Sales of radio and television broadcasting time,
preprinted advertising circulars and newspaper and outdoor
advertising space for the advertisement of goods or services;
(13) Sales and services performed by day care centers;
(14) Casual and occasional sales of property or services not
conducted in a repeated manner or in the ordinary course of
repetitive and successive transactions of like character by a
corporation or organization which is exempt from tax under
subdivision (6) of this subsection on its purchases of tangible
personal property or services:
(A) For purposes of this subdivision, the term "casual and
occasional sales not conducted in a repeated manner or in the
ordinary course of repetitive and successive transactions of like
character" means sales of tangible personal property or services at
fund raisers sponsored by a corporation or organization which is
exempt, under subdivision (6) of this subsection, from payment of
the tax imposed by this article on its purchases when the fund
raisers are of limited duration and are held no more than six times
during any twelve-month period and "limited duration" means no more than eighty-four consecutive hours:
Provided, That sales for
volunteer fire departments and volunteer school support groups,
with duration of events being no more than eighty-four consecutive
hours at a time, which are held no more than eighteen times in a
twelve-month period for the purposes of this subdivision are
considered "casual and occasional sales not conducted in a repeated
manner or in the ordinary course of repetitive and successive
transactions of a like character"; and
(B) The provisions of this subdivision apply to sales made
after the thirtieth day of June, one thousand nine hundred
eighty-nine;
(15) Sales of property or services to a school which has
approval from the board of trustees of the university system of
West Virginia or the board of directors of the state college system
to award degrees, which has its principal campus in this state and
which is exempt from federal and state income taxes under Section
501(c)(3) of the Internal Revenue Code of 1986, as amended:
Provided, That sales of gasoline and special fuel are taxable;
(16) Sales of mobile homes to be used by purchasers as their
principal year-round residence and dwelling: Provided, That these
mobile homes are subject to tax at the three-percent rate;
(17) Sales of lottery tickets and materials by licensed
lottery sales agents and lottery retailers authorized by the state lottery commission, under the provisions of article twenty-two,
chapter twenty-nine of this code;
(18) Leases of motor vehicles titled pursuant to the
provisions of article three, chapter seventeen-a of this code to
lessees for a period of thirty or more consecutive days. This
exemption applies to leases executed on or after the first day of
July, one thousand nine hundred eighty-seven, and to payments under
long-term leases executed before that date for months of the lease
beginning on or after that date;
(19) Notwithstanding the provisions of section eighteen of
this article or any other provision of this article to the
contrary, sales of propane to consumers for poultry house heating
purposes, with any seller to the consumer who may have prior paid
the tax in his or her price, to not pass on the same to the
consumer, but to make application and receive refund of the tax
from the tax commissioner pursuant to rules which are promulgated
after being proposed for legislative approval in accordance with
chapter twenty-nine-a of this code by the tax commissioner;
(20) Any sales of tangible personal property or services
purchased after the thirtieth day of September, one thousand nine
hundred eighty-seven, and lawfully paid for with food stamps
pursuant to the federal food stamp program codified in 7 U. S. C.
§2011, et seq., as amended, or with drafts issued through the West Virginia special supplement food program for women, infants and
children codified in 42 U. S. C. §1786;
(21) Sales of tickets for activities sponsored by elementary
and secondary schools located within this state;
(22) Sales of electronic data processing services and related
software: Provided, That, for the purposes of this subdivision,
"electronic data processing services" means: (A) The processing of
another's data, including all processes incident to processing of
data such as keypunching, keystroke verification, rearranging or
sorting of previously documented data for the purpose of data entry
or automatic processing and changing the medium on which data is
sorted, whether these processes are done by the same person or
several persons; and (B) providing access to computer equipment for
the purpose of processing data or examining or acquiring data
stored in or accessible to the computer equipment;
(23) Tuition charged for attending educational summer camps;
(24) Dispensing of services performed by one corporation,
partnership or limited liability company for another corporation,
partnership or limited liability company when the entities are
members of the same controlled group or are related taxpayers as
defined in Section 267 of the Internal Revenue Code. "Control"
means ownership, directly or indirectly, of stock, equity interests
or membership interests possessing fifty percent or more of the total combined voting power of all classes of the stock of a
corporation, equity interests of a partnership or membership
interests of a limited liability company entitled to vote or
ownership, directly or indirectly, of stock, equity interests or
membership interests possessing fifty percent or more of the value
of the corporation, partnership or limited liability company;
(25) Food for the following are exempt:
(A) Food purchased or sold by a public or private school,
school-sponsored student organizations or school-sponsored
parent-teacher associations to students enrolled in the school or
to employees of the school during normal school hours; but not
those sales of food made to the general public;
(B) Food purchased or sold by a public or private college or
university or by a student organization officially recognized by
the college or university to students enrolled at the college or
university when the sales are made on a contract basis so that a
fixed price is paid for consumption of food products for a specific
period of time without respect to the amount of food product
actually consumed by the particular individual contracting for the
sale and no money is paid at the time the food product is served or
consumed;
(C) Food purchased or sold by a charitable or private
nonprofit organization, a nonprofit organization or a governmental agency under a program to provide food to low-income persons at or
below cost;
(D) Food sold by a charitable or private nonprofit
organization, a nonprofit organization or a governmental agency
under a program operating in West Virginia for a minimum of five
years to provide food at or below cost to individuals who perform
a minimum of two hours of community service for each unit of food
purchased from the organization;
(E) Food sold in an occasional sale by a charitable or
nonprofit organization, including volunteer fire departments and
rescue squads, if the purpose of the sale is to obtain revenue for
the functions and activities of the organization and the revenue
obtained is actually expended for that purpose;
(F) Food sold by any religious organization at a social or
other gathering conducted by it or under its auspices, if the
purpose in selling the food is to obtain revenue for the functions
and activities of the organization and the revenue obtained from
selling the food is actually used in carrying on those functions
and activities: Provided, That purchases made by the organizations
are not exempt as a purchase for resale;
(G) Food sold after the thirty-first day of July, two thousand
two, by volunteer fire departments and rescue squads that are
exempt from federal income taxes under Section 501(c)(3) or (c)(4) of the Internal Revenue Code of 1986, as amended, when the purpose
of the sale is to obtain revenue for the functions and activities
of the organization and the revenue obtained is exempt from federal
income tax and actually expended for that purpose;
(26) Sales of food by little leagues, midget football leagues,
youth football or soccer leagues, band boosters or other school or
athletic booster organizations supporting activities for grades
kindergarten through twelve and similar types of organizations,
including scouting groups and church youth groups, if the purpose
in selling the food is to obtain revenue for the functions and
activities of the organization and the revenues obtained from
selling the food is actually used in supporting or carrying on
functions and activities of the groups: Provided, That the
purchases made by the organizations are not exempt as a purchase
for resale;
(27) Charges for room and meals by fraternities and sororities
to their members: Provided, That the purchases made by a
fraternity or sorority are not exempt as a purchase for resale;
(28) Sales of or charges for the transportation of passengers
in interstate commerce;
(29) Sales of tangible personal property or services to any
person which this state is prohibited from taxing under the laws of
the United States or under the constitution of this state;
(30) Sales of tangible personal property or services to any
person who claims exemption from the tax imposed by this article or
article fifteen-a of this chapter pursuant to the provision of any
other chapter of this code;
(31) Charges for the services of opening and closing a burial
lot;
(32) Sales of livestock, poultry or other farm products in
their original state by the producer of the livestock, poultry or
other farm products or a member of the producer's immediate family
who is not otherwise engaged in making retail sales of tangible
personal property; and sales of livestock sold at public sales
sponsored by breeders or registry associations or livestock auction
markets: Provided, That the exemptions allowed by this subdivision
apply to sales made on or after the first day of July, one thousand
nine hundred ninety, and may be claimed without presenting or
obtaining exemption certificates: Provided, however, That the
farmer shall maintain adequate records;
(33) Sales of motion picture films to motion picture
exhibitors for exhibition if the sale of tickets or the charge for
admission to the exhibition of the film is subject to the tax
imposed by this article and sales of coin-operated video arcade
machines or video arcade games to a person engaged in the business
of providing the machines to the public for a charge upon which the tax imposed by this article is remitted to the tax commissioner:
Provided, That the exemption provided in this subdivision applies
to sales made on or after the first day of July, one thousand nine
hundred ninety, and may be claimed by presenting to the seller a
properly executed exemption certificate;
(34) Sales of aircraft repair, remodeling and maintenance
services when the services are to an aircraft operated by a
certified or licensed carrier of persons or property, or by a
governmental entity, or to an engine or other component part of an
aircraft operated by a certificated or licensed carrier of persons
or property, or by a governmental entity and sales of tangible
personal property that is permanently affixed or permanently
attached as a component part of an aircraft owned or operated by a
certificated or licensed carrier of persons or property, or by a
governmental entity, as part of the repair, remodeling or
maintenance service and sales of machinery, tools or equipment,
directly used or consumed exclusively in the repair, remodeling or
maintenance of aircraft, aircraft engines or aircraft component
parts, for a certificated or licensed carrier of persons or
property, or for a governmental entity;
(35) Charges for memberships or services provided by health
and fitness organizations relating to personalized fitness
programs;
(36) Sales of services by individuals who baby-sit for a
profit: Provided, That the gross receipts of the individual from
the performance of baby-sitting services do not exceed five
thousand dollars in a taxable year;
(37) Sales of services after the thirtieth day of June, one
thousand nine hundred ninety-seven, by public libraries or by
libraries at academic institutions or by libraries at institutions
of higher learning;
(38) Commissions received after the thirtieth day of June, one
thousand nine hundred ninety-seven, by a manufacturer's
representative;
(39) Sales of primary opinion research services after the
thirtieth day of June, one thousand nine hundred ninety-seven,
when:
(A) The services are provided to an out-of-state client;
(B) The results of the service activities, including, but not
limited to, reports, lists of focus group recruits and compilation
of data are transferred to the client across state lines by mail,
wire or other means of interstate commerce, for use by the client
outside the state of West Virginia; and
(C) The transfer of the results of the service activities is
an indispensable part of the overall service.
For the purpose of this subdivision, the term "primary opinion research" means original research in the form of telephone surveys,
mall intercept surveys, focus group research, direct mail surveys,
personal interviews and other data collection methods commonly used
for quantitative and qualitative opinion research studies;
(40) Sales of property or services after the thirtieth day of
June, one thousand nine hundred ninety-seven, to persons within the
state when those sales are for the purposes of the production of
value-added products: Provided, That the exemption granted in this
subdivision applies only to services, equipment, supplies and
materials directly used or consumed by those persons engaged solely
in the production of value-added products: Provided, however, That
this exemption may not be claimed by any one purchaser for more
than five consecutive years, except as otherwise permitted in this
section.
For the purpose of this subdivision, the term "value-added
product" means the following products derived from processing a raw
agricultural product, whether for human consumption or for other
use: For purposes of this subdivision, the following enterprises
qualify as processing raw agricultural products into value-added
products: Those engaged in the conversion of:
(A) Lumber into furniture, toys, collectibles and home
furnishings;
(B) Fruits into wine;
(C) Honey into wine;
(D) Wool into fabric;
(E) Raw hides into semifinished or finished leather products;
(F) Milk into cheese;
(G) Fruits or vegetables into a dried, canned or frozen
product;
(H) Feeder cattle into commonly accepted slaughter weights;
(I) Aquatic animals into a dried, canned, cooked or frozen
product; and
(J) Poultry into a dried, canned, cooked or frozen product;
(41) After the thirtieth day of June, one thousand nine
hundred ninety-seven, sales of music instructional services by a
music teacher and artistic services or artistic performances of an
entertainer or performing artist pursuant to a contract with the
owner or operator of a retail establishment, restaurant, inn, bar,
tavern, sports or other entertainment facility or any other
business location in this state in which the public or a limited
portion of the public may assemble to hear or see musical works or
other artistic works be performed for the enjoyment of the members
of the public there assembled when the amount paid by the owner or
operator for the artistic service or artistic performance does not
exceed three thousand dollars: Provided, That nothing contained
herein may be construed to deprive private social gatherings, weddings or other private parties from asserting the exemption set
forth in this subdivision. For the purposes of this exemption,
artistic performance or artistic service means and is limited to
the conscious use of creative power, imagination and skill in the
creation of aesthetic experience for an audience present and in
attendance and includes, and is limited to, stage plays, musical
performances, poetry recitations and other readings, dance
presentation, circuses and similar presentations and does not
include the showing of any film or moving picture, gallery
presentations of sculptural or pictorial art, nude or strip show
presentations, video games, video arcades, carnival rides, radio or
television shows or any video or audio taped presentations or the
sale or leasing of video or audio tapes, air shows, or any other
public meeting, display or show other than those specified herein:
Provided, however, That nothing contained herein may be construed
to exempt the sales of tickets from the tax imposed in this
article. The state tax commissioner shall propose a legislative
rule pursuant to article three, chapter twenty-nine-a of this code
establishing definitions and eligibility criteria for asserting
this exemption which is not inconsistent with the provisions set
forth herein: Provided further, That nude dancers or strippers may
not be considered as entertainers for the purposes of this
exemption;
(42) After the thirtieth day of June, one thousand nine
hundred ninety-seven, charges to a member by a membership
association or organization which is exempt from paying federal
income taxes under Section 501(c)(3) or (c)(6) of the Internal
Revenue Code of 1986, as amended, for membership in the association
or organization, including charges to members for newsletters
prepared by the association or organization for distribution
primarily to its members, charges to members for continuing
education seminars, workshops, conventions, lectures or courses put
on or sponsored by the association or organization, including
charges for related course materials prepared by the association or
organization or by the speaker or speakers for use during the
continuing education seminar, workshop, convention, lecture or
course, but not including any separate charge or separately stated
charge for meals, lodging, entertainment or transportation taxable
under this article: Provided, That the association or organization
pays the tax imposed by this article on its purchases of meals,
lodging, entertainment or transportation taxable under this article
for which a separate or separately stated charge is not made. A
membership association or organization which is exempt from paying
federal income taxes under Section 501(c)(3) or (c)(6) of the
Internal Revenue Code of 1986, as amended, may elect to pay the tax
imposed under this article on the purchases for which a separate charge or separately stated charge could apply and not charge its
members the tax imposed by this article or the association or
organization may avail itself of the exemption set forth in
subdivision (9) of this subsection relating to purchases of
tangible personal property for resale and then collect the tax
imposed by this article on those items from its member;
(43) Sales of governmental services or governmental materials
after the thirtieth day of June, one thousand nine hundred
ninety-seven, by county assessors, county sheriffs, county clerks
or circuit clerks in the normal course of local government
operations;
(44) Direct or subscription sales by the division of natural
resources of the magazine currently entitled "Wonderful West
Virginia" and by the division of culture and history of the
magazine currently entitled "Goldenseal" and the journal currently
entitled "West Virginia History";
(45) Sales of soap to be used at car wash facilities;
(46) Commissions received by a travel agency from an
out-of-state vendor;
(47) The service of providing technical evaluations for
compliance with federal and state environmental standards provided
by environmental and industrial consultants who have formal
certification through the West Virginia department of environmental protection or the West Virginia bureau for public health or both.
For purposes of this exemption, the service of providing technical
evaluations for compliance with federal and state environmental
standards includes those costs of tangible personal property
directly used in providing such services that are separately billed
to the purchaser of such services and on which the tax imposed by
this article has previously been paid by the service provider; and
(48) Sales of tangible personal property and services by
volunteer fire departments and rescue squads that are exempt from
federal income taxes under Section 501(c)(3) or (c)(4) of the
Internal Revenue Code of 1986, as amended, during fund-raising
activities held after the thirty-first day of July, two thousand
two, if the sole purpose of the sale is to obtain revenue for the
functions and activities of the organization and the revenue
obtained is exempt from federal income tax and actually expended
for that purpose;
(49) Lodging franchise fees, including royalties, marketing
fees, reservation system fees or other fees assessed after the
first day of December, one thousand nine hundred ninety-seven, that
have been or may be imposed by a lodging franchiser as a condition
of the franchise agreement; and
_____(50) Sales of the regulation size United States flag and the
regulation size West Virginia flag for display.
(b) Refundable exemptions. -- Any person having a right or
claim to any exemption set forth in this subsection shall first pay
to the vendor the tax imposed by this article and then apply to the
tax commissioner for a refund or credit, or as provided in section
nine-d of this article, give to the vendor his or her West Virginia
direct pay permit number. The following sales of tangible personal
property and services are exempt from tax as provided in this
subsection:
(1) Sales of property or services to bona fide charitable
organizations who make no charge whatsoever for the services they
render: Provided, That the exemption granted in this subdivision
applies only to services, equipment, supplies, food, meals and
materials directly used or consumed by these organizations and does
not apply to purchases of gasoline or special fuel;
(2) Sales of services, machinery, supplies and materials
directly used or consumed in the activities of manufacturing,
transportation, transmission, communication, production of natural
resources, gas storage, generation or production or selling
electric power, provision of a public utility service or the
operation of a utility service or the operation of a utility
business, in the businesses or organizations named in this
subdivision and does not apply to purchases of gasoline or special
fuel;
(3) Sales of property or services to nationally chartered
fraternal or social organizations for the sole purpose of free
distribution in public welfare or relief work: Provided, That
sales of gasoline and special fuel are taxable;
(4) Sales and services, fire fighting or station house
equipment, including construction and automotive, made to any
volunteer fire department organized and incorporated under the laws
of the state of West Virginia: Provided, That sales of gasoline
and special fuel are taxable; and
(5) Sales of building materials or building supplies or other
property to an organization qualified under Section 501(c)(3) or
(c)(4) of the Internal Revenue Code of 1986, as amended, which are
to be installed in, affixed to or incorporated by the organization
or its agent into real property or into a building or structure
which is or will be used as permanent low-income housing,
transitional housing, an emergency homeless shelter, a domestic
violence shelter or an emergency children and youth shelter if the
shelter is owned, managed, developed or operated by an organization
qualified under Section 501(c)(3) or (c)(4) of the Internal Revenue
Code of 1986, as amended.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 531--A Bill
to amend and reenact sections
two and nine, article fifteen, chapter eleven of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, all
relating to the consumers sales and service tax; clarifying that
payments received by a vendor of tangible personal property as an
incentive to sell a greater volume of such tangible personal
property under a manufacturer, distributor or other third-party
marketing support program, sales incentive program, cooperative
advertising agreement or similar type of program or agreement are
excepted from the tax; providing an expansion of the current
exemption for casual and occasional sales by volunteer fire
departments and volunteer school support groups from six to
eighteen sales per year; and
providing an exemption for certain
lodging franchise assessed fees from the consumers sales and
service tax.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 531, 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, 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. 531) passed with its House of Delegates amended title.
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
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Senate Bill No. 655, Creating public utilities tax loss
restoration fund.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On
page four, section twenty-seven, line seventeen, after the
word "Provided," by inserting the words "That the calculation to
the adjustments shall exclude
loss in tax revenue attributed to the
school current levy, as set forth in section six-c, article eight, chapter eleven of this code: Provided, however,".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 655, 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, 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. 655) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, 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. 655) 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
the concurrence by that body in the Senate amendments, as amended
by the House of Delegates, passage as amended with its Senate
amended title, and requested the concurrence of the Senate in the
House of Delegates amendment to the Senate amendments, as to
Eng. Com. Sub. for House Bill No. 2092, Creating a sentencing
commission and providing for the appointment, terms and
qualifications of members.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the Senate
amendments to the bill was reported by the Clerk:
On
page two, section four, line two, after the word "research"
by inserting the words "and make any recommendations for
modifications of criminal sentencing laws or procedures provided
that no such recommendations or modifications shall become effective without further action of the Legislature
".
At the request of Senator Kessler, unanimous consent being
granted, further consideration of the message on the bill was
deferred until the conclusion of House messages now lodged with the
Clerk, following consideration of Engrossed Senate Bill No. 547,
already placed in that position.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments, as amended
by the House of Delegates, 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
to the Senate amendments, as to
Eng. House Bill No. 2224, Relating to higher education
reorganization.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the Senate
amendments to the bill were reported by the Clerk:
In chapter eighteen-b,
article five,
section nine, subsection
(c), after the word "institution" by changing the comma to a
period, striking out the words "but may not include fuel." and
inserting in lieu thereof the following: Traveling expenses may
not include fuel or food purchases.;
In chapter eighteen-b,
article five,
section nine, subsection
(d),
after the word "code" by inserting the words "or any other
provision of this code or law to the contrary,";
In chapter eighteen-b,
article five,
section nine, subsection
(d),
after the word "media" by inserting the words "and from the
effective date of this section shall conduct any audit or
investigation of the commission or any institution at its own
expense and at no cost to the commission or institution";
In chapter eighteen-b,
article nine,
section five, after
subsection (b), by inserting a new subsection, designated
subsection (c), to read as follows:
(c) The cost of providing any salary increase pursuant to the
provisions of section two, article five, chapter five of this code,
shall be borne by the commission or institution from its existing
budget. The commission or institution may not increase tuition and
fee charges, increase auxiliary fee charges, or receive additional
general revenue funds to recover the costs of the increase.
Notwithstanding any other provision of this code or law to the
contrary, if insufficient funding is available to an institution or
the commission to implement the provisions of said section, funding
may be derived from reducing employee positions to any level, in
the discretion of the institution or commission, that is sufficient
to provide adequate funds, and without regard to seniority.;
On pages one and two, by striking out the enacting section and
inserting in lieu thereof a new enacting section, to read as
follows:
That section two, article eight, chapter eighteen-b of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that section one, article five, chapter five
of said code be amended and reenacted; that section two, article
one, chapter eighteen-b of said code be amended and reenacted; that
said article be further amended by adding thereto two new sections,
designated sections eight and ten; that section three, article one-
a of said chapter be amended and reenacted; that section six,
article one-b of said chapter be amended and reenacted; that said
article be further amended by adding thereto a new section,
designated section ten; that sections three, four and eight,
article three-c of said chapter be amended and reenacted; that
sections three, four, five, six and seven, article five of said
chapter be amended and reenacted; said article be further amended
by adding thereto a new section, designated section nine;
that
article six of said chapter be amended by adding thereto a new
section, designated section four-b; that sections four and six,
article seven of said chapter be amended and reenacted; that
section three, article eight of said chapter be amended and
reenacted; that sections five and ten, article nine of said chapter be amended and reenacted; that sections one and fourteen, article
ten of said chapter be amended and reenacted; and that article
fourteen of said chapter be amended by adding thereto a new
section, designated section eleven, all to read as follows:;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. House Bill No. 2224--A Bill
to repeal section two,
article eight, chapter eighteen-b of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to amend and reenact
section one, article five, chapter five of said code; to amend and
reenact section two, article one, chapter eighteen-b of said code;
to further amend said article by adding thereto two new sections,
designated sections eight and ten; to amend and reenact section
three, article one-a of said chapter; to amend and reenact section
six, article one-b of said chapter; to further amend said article
by adding thereto a new section, designated section ten; to amend
and reenact sections three, four and eight, article three-c of said
chapter; to amend and reenact sections three, four, five, six and
seven, article five of said chapter; to further amend said article
by adding thereto a new section, designated section nine; to amend
article six of said chapter by adding thereto a new section,
designated section four-b; to amend and reenact sections four and six, article seven of said chapter; to amend and reenact section
three, article eight of said chapter; to amend and reenact sections
five and ten, article nine of said chapter; to amend and reenact
sections one and fourteen, article ten of said chapter; and to
amend article fourteen of said chapter by adding thereto a new
section, designated section eleven, all relating to higher
education; higher education policy commission; governing, advisory
and visitor boards; administrative heads; faculty; staff; students;
administrative and programmatic efficiencies;
definitions;
clarifying certain student rights; providing for Potomac state
college to become a fully integrated division of West Virginia
university; limiting certain operational costs; incorporation of
certain auxiliary enterprises; auxiliary service and product rates;
establishing areas of academic emphasis at the Potomac campus;
institutional missions; program and service contracts and
collaboration; reports to the policy commission, legislative
oversight commission on education accountability and Legislature;
draft legislation submission requirements; peers; peer approval;
appointment and evaluation of administrative heads; directing
Concord college and Bluefield state college to make a joint study
on progress toward meeting goals; altering sponsoring institutions
for certain community and technical college components;
implementation of certain institutional changes; monitoring institutional progress toward meeting goals; clarifying reporting
relationships of certain provosts; establishing and redesignating
certain community and technical college responsibility districts;
transfer of certain property, obligations and staff; deleting
references to Bluefield community and technical college and the
center for higher education and work force development at Beckley;
creating New River community and technical college of Bluefield
state college from existing components and entities; transfer and
retention of certain academic programs; findings and intent;
governance and program offerings; expenditures; contractual
arrangements; responsibilities and duties of certain executive
agencies and officials; expanding certain purchasing authority;
eliminating bid preference for institutional print shops; modifying
attorney general-lease purchase agreement and contract approval;
authorizing certain leasing authority for the policy commission and
the governing boards; requiring prior review of lease agreements;
lease cancellation and renewal; authorized signatures on approved
leases; requirements and authorizations for promulgating policies,
rules and emergency rules; adjusting purchasing threshold for
requiring vendor registration; vendor eligibility; clarifying
provisions relating to purchasing; disposal of obsolete or unusable
equipment, surplus supplies; application of proceeds; ensuring the
fiscal integrity of certain institutional procedures; providing for expanded electronic transfers; expanding purchasing authority on
purchase cards; authorizing certain emergency expenditures;
consolidating certain financial and administrative operations;
authorizing fee charges for services provided; limiting certain fee
charges; authorizing certain services to be provided by higher
education institutions; reduction of low-enrollment sections of
certain courses; directing utilization of certain natural resources
and alternative fuel resources; retention of cost savings;
establishing staff councils; election of members and chair;
meetings; notice to probationary faculty of retention status;
consideration of need for flexibility at community and technical
colleges when reviewing institutional policies; deleting obsolete
language referencing faculty salary schedule; modifying certain
salary provisions; competitive faculty salary schedule requirement;
removing obsolete references to annual experience increment;
providing means for funding certain salary increases; participation
in catastrophic leave banks; authorizing certain mandatory
auxiliary fee increases; limiting certain tuition and fee
increases; increase approval; use of fees; reduction of certain
state subsidies; return of funds to general revenue; certification
of fee revenues; expanding use of bookstore revenues; and public
employees insurance agency benefit option expansion study.
Senator Chafin moved that the Senate concur in the foregoing House of Delegates amendments to the Senate amendments to the bill.
Following discussion,
The question being on the adoption of Senator Chafin's
aforestated motion, the same was put and prevailed.
Engrossed House Bill No. 2224, as amended, was then put upon
its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Deem, Dempsey, Edgell, Facemyer, 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)--30.
The nays were: Caldwell, Chafin, Fanning and Guills--4.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2224) 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, Deem,
Dempsey, Edgell, Facemyer, 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)--30.
The nays were: Caldwell, Chafin, Fanning and Guills--4.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2224) 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
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 423, Allowing board of
examiners of land surveyors set certain fees by legislative rule.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page three, section six, after subsection (g), by adding a
new subsection, designated subsection (h), to read as follows:
(h) The fees in effect as of the date of reenactment of this
section remain in effect until the effective date of the
legislative rule promulgated pursuant to this section.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendment to the bill (Eng. Com. Sub. for S. B. No. 423) and requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
that that body had refused to concur in the amendments of the
Senate to the House of Delegates amendments and insists that the
Senate concur in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 522, Authorizing county
boards of education to lease school property no longer needed.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
On further motion of Senator Chafin, the Senate concurred in
the House of Delegates amendments to the bill (shown in the Senate
Journal of today, pages 378 to 386, inclusive).
Engrossed Committee Substitute for Senate Bill No. 522, 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, 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.
Com. Sub. for S. B. No. 522) passed with its House of Delegates
amended title.
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
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Senate Bill No. 636, Exempting competitive bidding
requirement for commodities and services by nonprofit workshops.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page five, section six, line twenty-one, after the word
"workshops" by changing the period to a colon and adding the
following: Provided, That if a purchasing unit is required or may
be required by federal statute or regulations to purchase
commodities or services with competitive bidding, or may otherwise
be disqualified from federal funding or assistance if it fails to purchase commodities or services with competitive bidding, the
purchasing unit shall not be required to purchase commodities or
services from nonprofit workshops. Such purchasing units not
required to purchase commodities or services from nonprofit
workshops include military installations of the national guard.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 636, 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, 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. 636) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, 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. 636) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Consideration of House messages having been concluded, the
Senate proceeded to the consideration of
Eng. Senate Bill No. 547, Relating to judges and justices and
judicial retirement.
Having been received as a House message in earlier proceedings
today, and the House of Delegates amendments reported at that time
(shown in the Senate Journal of today, pages 483 to 487,
inclusive).
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as amended (shown in the Senate Journal of
today, pages 501 to 506, inclusive; pages 542 and 543; and pages
545 and 546).
Engrossed Senate Bill No. 547, as amended, was then put upon
its passage.
Pending discussion,
The question being "Shall Engrossed Senate Bill No. 547 pass?"
On the passage of the bill, the yeas were: Bailey, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Unger and
Tomblin (Mr. President)--27.
The nays were: Boley, Harrison, Minear, Oliverio, Sprouse,
Weeks and White--7.
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. 547) passed with its Senate amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Helmick,
Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Plymale,
Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Unger and Tomblin (Mr.
President)--27.
The nays were: Boley, Harrison, Minear, Oliverio, Sprouse,
Weeks and White--7.
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. 547) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Action as to Engrossed Senate Bill No. 547 having been
concluded, the Senate proceeded to the consideration of
Eng. Com. Sub. for House Bill No. 2092, Creating a sentencing
commission and providing for the appointment, terms and
qualifications of members.
Having been received as a House message in earlier proceedings
today, and now coming up in deferred order, was again reported by
the Clerk.
The following House of Delegates amendment to the Senate
amendments to the bill was again reported by the Clerk:
On
page two, section four, line two, after the word "research"
by inserting the words "and make any recommendations for
modifications of criminal sentencing laws or procedures provided
that no such recommendations or modifications shall become
effective without further action of the Legislature
".
On motion of Senator Kessler, the Senate concurred in the
House of Delegates amendment to the Senate amendments to the bill.
Engrossed Committee Substitute for House Bill No. 2092, 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.
Com. Sub. for H. B. No. 2092) passed with its Senate amended title.
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
the passage by that body, to take effect from passage, and
requested the concurrence of the Senate in the passage of
Eng. House Bill No. 3213--A Bill expiring funds to the
unappropriated surplus balance in the state fund, general revenue,
for the fiscal year ending the thirtieth day of June, two thousand
three, in the amount of two million dollars from the premium tax
savings fund, fund 2367, fiscal year 2003, organization 0218, and making a supplementary appropriation of public moneys out of the
treasury from the unappropriated surplus balance for the fiscal
year ending the thirtieth day of June, two thousand three, to the
to the department of education and the arts - division of
rehabilitation services, fund 0310, fiscal year 2003, organization
0932, and to the bureau of commerce - West Virginia development
office, fund 0256, fiscal year 2003, organization 0307.
At the request of Senator Chafin, and by unanimous consent,
reference of the bill to a committee was dispensed with, and it was
taken up for immediate consideration, read a first time and ordered
to second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, 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.
The bill (Eng. H. B. No. 3213) was then read a second time.
On motion of Senator Helmick, the following amendment to the
bill 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 the balance of funds in the premium tax savings fund,
fund 2367, fiscal year 2003, organization 0218, be decreased by
expiring the amount of two million dollars to the unappropriated
surplus balance of the state fund, general revenue, and that the
total appropriation for the fiscal year ending the thirtieth day of
June, two thousand three, to the department of education and the
arts - division of rehabilitation services, fund 0310, fiscal year
2003, organization 0932, be supplemented and amended by
establishing a new line item and increasing the total appropriation
as follows:
TITLE II--APPROPRIATIONS.
Section 1. Appropriations from general revenue.
DEPARTMENT OF EDUCATION AND THE ARTS
45--State Board of Rehabilitation--
Division of Rehabilitation Services
(WV Code Chapter 18)
Fund 0310 FY 2003 Org 0932
__ General
Act- Revenue
ivity Funds
11a Capital Improvements - Surplus (R) 661 $ 550,000
Any unexpended balance remaining in the appropriation for
Capital Improvements (fund 0310, activity 661) at the close of
fiscal year 2003 is hereby reappropriated for expenditure during
the fiscal year 2004; and
That the total appropriation for fiscal year ending the
thirtieth day of June, two thousand three, to the bureau of
commerce - West Virginia development office, fund 0256, fiscal year
2003, organization 0307, be supplemented and amended by increasing
the total appropriations as follows:
Section 1. Appropriations from general revenue.
B UREAU OF COMMERCE
73--West Virginia Development Office
(WV Code Chapter 5B)
Fund 0256 FY 2003 Org 0307
____________________________________________________________ General
Act- Revenue
ivity Funds
12 Mid-Atlantic Aerospace Complex -
Surplus(R) $ 200,000
38 Local Economic Development
39 Assistance - Surplus (R) 1,250,000
The purpose of this supplementary appropriation bill is to
supplement and increase items of appropriations in the aforesaid
accounts for the designated spending units for expenditure during
the fiscal year two thousand three.
The bill, as amended, was ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 3213) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, 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. H.
B. No. 3213) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, 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. H.
B. No. 3213) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the passage by that body, to take effect from passage, and
requested the concurrence of the Senate in the passage of
Eng. House Bill No. 3214--A Bill expiring funds to the
secretary of state - state election fund, fund 1614, fiscal year
2003, organization 1600, for the fiscal year ending the thirtieth
day of June, two thousand three, in the amount of one hundred
thousand dollars from the secretary of state - service fees and
collections account, fund 1612, fiscal year 2003, organization
1600.
At the request of Senator Chafin, and by unanimous consent,
reference of the bill to a committee was dispensed with, and it was
taken up for immediate consideration, read a first time and ordered
to second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, 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.
The bill was read a second time and ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 3214) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, 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. H.
B. No. 3214) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, 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. H.
B. No. 3214) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the sixth order of business,
which agenda includes the making of main motions.
On motion of Senator Plymale, the Senate requested the return
from the House of Delegates of
Eng. Senate Bill No. 646, Authorizing creation of centers for
economic development and technology advancement; higher education
agreements.
Passed by the Senate in prior proceedings today; for the
purpose of subsequently moving reconsideration of the vote thereon.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence as to the recall
of Engrossed Senate Bill No. 646.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the passage by that body, to take effect from passage, and
requested the concurrence of the Senate in the passage of
Eng. House Bill No. 3215--A Bill expiring funds to the
unappropriated surplus balance in the state fund, general revenue,
for the fiscal year ending the thirtieth day of June, two thousand
three, in the amount of ninety-nine thousand six hundred eighty-
four dollars from the secretary of state, fund 0155, fiscal year
2001, organization 1600, activity 097; in the amount of seventy-two
thousand three hundred sixty-nine dollars from the secretary of
state, fund 0155, fiscal year 1998, organization 1600, activity
599; in the amount of fifty-five thousand seven hundred forty-five
dollars from the secretary of state, fund 0155, fiscal year 2001,
organization 1600, activity 099; and in the amount of three hundred
thirteen thousand eight hundred sixteen dollars from the secretary
of state, fund 0155, fiscal year 2002, organization 1600, activity 099; and making a supplementary appropriation of public moneys out
of the treasury from the unappropriated surplus balance for the
fiscal year ending the thirtieth day of June, two thousand three,
to the secretary of state, fund 0155, fiscal year 2003,
organization 1600, in the line item entitled "Help America Vote Act
- Transfer" and transferring the balance of the line item to the
secretary of state - state election fund, fund 1614, fiscal year
2003, organization 1600.
At the request of Senator Chafin, and by unanimous consent,
reference of the bill to a committee was dispensed with, and it was
taken up for immediate consideration, read a first time and ordered
to second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, 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.
The bill (Eng. H. B. No. 3215) was then read a second time.
On motion of Senator Helmick, the following amendment to the
bill 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 the balance of funds in the secretary of state, fund
0155, fiscal year 2001, organization 1600, activity 097, be
decreased by expiring the amount of ninety-nine thousand six
hundred eighty-four dollars; in the secretary of state, fund 0155,
fiscal year 1998, organization 1600, activity 599, be decreased by
expiring the amount of seventy-two thousand three hundred sixty-
nine dollars; in the secretary of state, fund 0155, fiscal year
2001, organization 1600, activity 099, be decreased by expiring the
amount of fifty-five thousand seven hundred forty-five dollars; and
in the secretary of state, fund 0155, fiscal year 2002,
organization 1600, activity 099, be decreased by expiring the
amount of three hundred thirteen thousand eight hundred sixteen
dollars to the unappropriated surplus balance of the state fund,
general revenue; and
That the total appropriation for fiscal year ending the
thirtieth day of June, two thousand three, to the secretary of
state, fund 0155, fiscal year 2003, organization 1600, be
supplemented and amended by increasing the total appropriation as follows:
TITLE II-APPROPRIATIONS.
Section 1. Appropriations from general revenue.
EXECUTIVE
16-Secretary of State
(WV Code Chapter 3, 5 and 59)
Fund 0155 FY 2003 Org 1600
_________________________________________________________________General
Act- Revenue
ivity Fund
8a Help America Vote Act--Transfer--
8b Surplus 244 $ 541,614
The above appropriation for Help America Vote Act--Transfer
(activity 244) shall be transferred to the State Election Fund
(fund 1614, organization 1600).
The purpose of this supplemental appropriation bill is to
expire, supplement, decrease, increase and transfer items of
appropriation in the aforesaid accounts for the designated spending
unit for expenditure during the fiscal year two thousand three.
The bill, as amended, was ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 3215) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, 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. H.
B. No. 3215) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, 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. H.
B. No. 3215) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the passage by that body, to take effect from passage, and
requested the concurrence of the Senate in the passage of
Eng. House Bill No. 3216--A Bill supplementing, amending,
reducing and increasing items of the existing appropriations from
the state fund, general revenue, to the secretary of state, fund
0155, fiscal year 2003, organization 1600, supplementing and
amending the appropriation for the fiscal year ending the thirtieth
day of June, two thousand three.
At the request of Senator Chafin, and by unanimous consent,
reference of the bill to a committee was dispensed with, and it was
taken up for immediate consideration, read a first time and ordered
to second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, 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.
The bill (Eng. H. B. No. 3216) was then read a second time.
On motion of Senator Helmick, the following amendment to the
bill was reported by the Clerk and adopted:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That the items of the total appropriation from the state fund,
general revenue, to the secretary of state, fund 0155, fiscal year
2003, organization 1600, be amended and reduced in the existing
line item as follows:
TITLE II-APPROPRIATIONS.
Section 1. Appropriations from general revenue.
EXECUTIVE
16-Secretary of State
(WV Code Chapters 3, 5 and 59)
Fund 0155 FY 2003 Org 1600
_____________________________________________________ General
Act- Revenue
ivity Funds
4 Unclassified (R) 099 $ 158,386
That the items of the total appropriations from the state
fund, general revenue, to the secretary of state, fund 0155, fiscal year 2003, organization 1600, be amended and increased in the line
item as follows:
TITLE II-APPROPRIATIONS.
Section 1. Appropriations from general revenue.
EXECUTIVE
16-Secretary of State
(WV Code Chapters 3, 5 and 59)
Fund 0155 FY 2003 Org 1600
_____________________________________________________ General
Act- Revenue
ivity Funds
8a Help America Vote Act--Transfer 100 $ 158,386
The above appropriation for Help America Vote Act--Transfer
(activity 100) shall be transferred to the State Election Fund
(fund 1614, organization 1600).
The purpose of this supplementary appropriation bill is to
supplement, amend, reduce and increase items of existing
appropriations in the aforesaid account for the designated spending
unit. The funds are for expenditure during the fiscal year two
thousand three with no new money being appropriated.
The bill, as amended, was ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 3216) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, 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. H.
B. No. 3216) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, 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. H.
B. No. 3216) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the passage by that body, to take effect from passage, and
requested the concurrence of the Senate in the passage of
Eng. House Bill No. 3217--A Bill establishing a fund and
making a supplementary appropriation of federal funds out of the
treasury from the balance of federal moneys remaining
unappropriated for fiscal year ending the thirtieth day of June,
two thousand three, to the secretary of state - federal
consolidated fund, fund 8854, fiscal year 2003, organization 1600,
creating and supplementing the appropriation for fiscal year ending
the thirtieth day of June, two thousand three.
At the request of Senator Chafin, and by unanimous consent,
reference of the bill to a committee was dispensed with, and it was
taken up for immediate consideration, read a first time and ordered
to second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, 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.
The bill (Eng. H. B. No. 3217) was then read a second time.
On motion of Senator Helmick, the following amendment to the
bill was reported by the Clerk and adopted:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That the total appropriation for fiscal year ending the
thirtieth day of June, two thousand three, to the secretary of
state, fund 8854, fiscal year 2003, organization 1600, be
established and supplemented the total appropriation by nine
million dollars in the line item as follows:
TITLE II--APPROPRIATIONS.
Section 6. Appropriations of federal funds.
EXECUTIVE
249a--Secretary of State
(WV Code Chapter 3)
Fund 8488 FY 2003 Org 1600
__________________________________________________________Act- Federal
ivity Funds
1 Unclassified--Total 096 $9,000,000
The purpose of this supplementary appropriation bill is to
supplement this account in the budget act for fiscal year ending
the thirtieth day of June, two thousand three, by establishing and
appropriating nine million dollars to unclassified for the federal
Help America Vote Act for expenditure during fiscal year two
thousand three.
The bill, as amended, was ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 3217) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, 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. H.
B. No. 3217) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, 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. H.
B. No. 3217) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the passage by that body, to take effect from passage, and
requested the concurrence of the Senate in the passage of
Eng. House Bill No. 3218--A Bill expiring funds to the
unappropriated surplus balance in the state fund, general revenue,
for the fiscal year ending the thirtieth day of June, two thousand
three, in the amount of fifty thousand dollars from the office of
emergency services - flood disaster, January, 1996, fund 6258,
fiscal year 2003, organization 0606; in the amount of fifty
thousand dollars from the office of emergency services - flood
disaster, May, 1996, fund 6260, fiscal year 2003, organization 0606; in the amount of fifty thousand dollars from the office of
emergency services - flood disaster, July, 1996, fund 6261, fiscal
year 2003, organization 0606; in the amount of fifty thousand
dollars from the office of emergency services - flood disaster,
September, 1996, fund 6262, fiscal year 2003, organization 0606; in
the amount of thirty-three thousand eight hundred four dollars from
the office of emergency services - flood disaster, March, 1997,
fund 6263, fiscal year 2003, organization 0606; in the amount of
fifty thousand dollars from the office of emergency services -
flood disaster, June, 1998, fund 6264, fiscal year 2003,
organization 0606; in the amount of eleven thousand six hundred
seventy-five dollars from the office of emergency services - flood
disaster, February, 2000, governor's civil contingent fund, fund
6266, fiscal year 2003, organization 0606; and making a
supplementary appropriation of public moneys out of the treasury
from the unappropriated surplus balance for the fiscal year ending
the thirtieth day of June, two thousand three, to the department of
military affairs and public safety - office of emergency services,
fund 0443, fiscal year 2003, organization 0606.
At the request of Senator Chafin, and by unanimous consent,
reference of the bill to a committee was dispensed with, and it was
taken up for immediate consideration, read a first time and ordered
to second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, 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.
The bill (Eng. H. B. No. 3218) was then read a second time.
On motion of Senator Helmick, the following amendment to the
bill was reported by the Clerk and adopted:
On page three, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That the balance of funds in the office of emergency services
- flood disaster, January, 1996, fund 6258, fiscal year 2003,
organization 0606, be decreased by expiring the amount of fifty
thousand dollars; the office of emergency services - flood
disaster, May, 1996, fund 6260, fiscal year 2003, be decreased by
expiring fifty thousand dollars; the office of emergency services -
flood disaster, July, 1996, fund 6261, fiscal year 2003, organization 0606, be decreased by expiring the amount of fifty
thousand dollars; the office of emergency services - flood
disaster, September, 1996, fund 6262, fiscal year 2003,
organization 0606, be decreased by expiring the amount of fifty
thousand dollars; the office of emergency services - flood
disaster, March, 1997, fund 6263, fiscal year 2003, organization
0606, be decreased by expiring the amount of thirty-three thousand
eight hundred four dollars; the office of emergency services -
flood disaster, June, 1998, fund 6264, fiscal year 2003,
organization 0606, be decreased by expiring the amount of fifty
thousand dollars; and the office of emergency services - flood
disaster, February, 2000, governor's civil contingent fund, fund
6266, fiscal year 2003, organization 0606, be decreased by expiring
the amount of eleven thousand six hundred seventy-five dollars to
the unappropriated surplus balance of the state fund, general
revenue, and that the total appropriation for fiscal year ending
the thirtieth day of June, two thousand three, to fund 0443, fiscal
year 2003, organization 0606, be supplemented and amended by
increasing the total appropriations as follows:
TITLE II-APPROPRIATIONS.
Section 1. Appropriations from general revenue.
DEPARTMENT OF MILITARY AFFAIRS AND PUBLIC SAFETY
55-Office of Emergency Services
(WV Code Chapter 15)
Fund 0443 FY 2003 Org 0606
_________________________________________________________ General
Act- Revenue
ivity Fund
4 Unclassified - Surplus 097 $ 78,000
5 Federal Emergency Management
6 Agency Match - Surplus 217,479
Any unexpended balances remaining in the appropriation for
Federal Emergency Management Agency Match - Surplus (fund 0443,
activity ) at the close of the fiscal year 2003 are hereby
reappropriated for expenditure during the fiscal year 2004.
The purpose of this supplemental appropriation bill is to
supplement and increase items of appropriation in the aforesaid
accounts for the designated spending units for expenditure during
the fiscal year two thousand three.
The bill, as amended, was ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 3218) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, 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. H.
B. No. 3218) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, 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. H.
B. No. 3218) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
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 March 15, 2003, and
requested the concurrence of the Senate in the House of Delegates
amendments, as to
Eng. Senate Bill No. 352, Reenacting jobs act.
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 two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 1C. WEST VIRGINIA JOBS ACT.
§21-1C-2. Definitions.
As used in this article:
(1) The term "construction project" means any construction,
reconstruction, improvement, enlargement, painting, decorating or
repair of any public improvement let to contract in an amount equal
to or greater than five hundred thousand one million dollars. The
term "construction project" does not include temporary or emergency
repairs;
(2) (A) The term "employee" means any person hired or
permitted to perform hourly work for wages by a person, firm or
corporation in the construction industry;
(B) The term "employee" does not include:
(i) Bona fide employees of a public authority or individuals
engaged in making temporary or emergency repairs;
(ii) Bona fide independent contractors; or
(iii) Salaried supervisory personnel necessary to assure
efficient execution of the employee's work;
(3) The term "employer" means any person, firm or corporation
employing one or more employees on any public improvement and
includes all contractors and subcontractors;
(4) The term "local labor market" means every county in West
Virginia and all counties bordering West Virginia that fall within
seventy-five miles of the border of West Virginia;
(5) The term "public authority" means any officer, board,
commission or agency of the state of West Virginia excluding
and
its subdivisions, including counties and municipalities. Further,
the economic grant committee, economic development authority,
infrastructure and jobs development council and school building
authority shall be required to comply with the provisions of this
article for loans, grants or bonds provided for public improvement
construction projects; Provided, That any project initiated by a
county or local economic development authority and which is under
the effective management of the county or local economic
development authority shall not be included in this requirement
(6) The term "public improvement" includes the construction of all buildings, roads, highways, bridges, streets, alleys, sewers,
ditches, sewage disposal plants, waterworks, airports and all other
structures that may be let to contract by a public authority,
excluding improvements funded, in whole or in part, by federal
funds.
§21-1C-3. Legislative findings; statement of policy.
The Legislature finds that the rate of unemployment in this
state is significantly higher than that of most other states and
that a majority of West Virginia counties are designated as labor
surplus areas by the United States department of labor.
The Legislature finds that the employment of persons from
outside the local labor market on public improvement construction
projects contracted for and subsidized by the taxpayers of the
state contributes significantly to the rate of unemployment and the
low per capita income among qualified state residents who would
otherwise be hired for these jobs.
Therefore, the Legislature declares that residents of local
labor markets should be employed and given preference in hiring for
the construction of public improvement projects which depend, in
whole or in part, on state directly utilize taxpayer funding, in
whole or in part.
§21-1C-4. Local labor market utilization on public improvement
construction projects; waiver certificates.
(a) Employers shall hire at least seventy-five percent of
employees for public improvement construction projects from the
local labor market, to be rounded off, with at least two employees
from outside the local labor market permissible for each employer
per project. Employees shall have resided in the local labor
market for at least six months prior to their application for
employment.
(b) Any employer unable to employ the minimum number of
employees from the local labor market shall inform the nearest
office of the bureau of employment programs' division of employment
services of the number of qualified employees needed and provide a
job description of the positions to be filled.
(c) If, within three business days following the placing of a
job order, the division is unable to refer any qualified job
applicants to the employer or refers less qualified job applicants
than the number requested, then the division shall issue a waiver
to the employer stating the unavailability of applicant and shall
permit the employer to fill any positions covered by the waiver
from outside the local labor market. The waiver shall be either
oral or in writing and shall be issued within the prescribed three
days. A waiver certificate shall be sent to both the employer for
its permanent project records and to the public authority.
§21-1C-5. Applicability and scope of article; reporting requirements.
(a) This article applies to expenditures for construction
projects by any public authority for public improvements as defined
by this article.
(b) For public improvement projects let pursuant to this
article, the public authority shall file, or require an employer as
defined in section two of this article to file, with the division
of labor copies of the waiver certificates and certified payrolls,
pursuant to article five-a of this chapter, or other comparable
documents that include the number of employees, the county and
state wherein the employees reside and their occupation.
(c) The division of labor shall compile the information
required by this section and submit it to the joint committee on
government and finance by the fifteenth day of October, two
thousand two five, for a legislative audit to be prepared for the
December, two thousand two five, interim session. Beginning with
the legislative interim meetings in May, two thousand three, and
continuing through the interim period ending in November, two
thousand five, the division of labor shall provide quarterly
reports to the joint committee on government and finance on the
information compiled pursuant to this article. The joint committee
may forward these reports to the legislative auditor to review and
make comments regarding the usefulness of the information collected and to suggest changes to the division's method of reporting to
ensure the information collected will prove useful in evaluating
the effectiveness of the provisions of this article.
(d) Each public authority has the duty to implement the
reporting requirements of this article. Every public improvement
contract or subcontract let by a public authority shall contain
provisions conforming to the requirements of this article.
(e) The division of labor is authorized to establish
procedures for the efficient collection of data, collection of
civil penalties prescribed in section six and transmittal of data
to the joint committee on government and finance.
§21-1C-7. Effective date.
This article is effective from passage through the fifteenth
day of March, two thousand six.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 352--A Bill to amend and reenact sections
five and seven, article one-c, chapter twenty-one of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
all relating to the West Virginia jobs act; requiring reporting to
the state tax department; and changing the effective date.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Senate Bill No. 352, 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, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Snyder--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 352) passed with its House of Delegates amended title.
Senator Chafin moved that the bill take effect March 15, 2003.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Snyder--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 352) takes effect March 15, 2003.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.