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Wednesday, January 21, 2004
The House of Delegates met at 11:00 a.m., and was called to order by the Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Tuesday, January 20, 2004, being the first order
of business, when the further reading thereof was dispensed with and the same approved.
Committee Reports
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has given further consideration to:
H. B. 4032, Reducing the allowable blood alcohol content for DUI from .10 to .08 of one
percent of body weight,
And reports the same back, with amendment, by unanimous vote of the Committee, with the
recommendation that it do pass, as amended.
The Clerk announced that, pursuant to House Rule 70a, Delegate Trump had requested H.
B. 4032 be removed from the Consent Calendar and be placed upon the House Calendar.
Messages from the Executive
Mr. Speaker, Mr. Kiss, presented the annual report of the West Virginia Massage Therapy
Licensure Board, in accordance with section twelve, article one, chapter thirty of the code; which
was filed in the Clerk's Office.
Mr. Speaker, Mr. Kiss, presented the annual report of the West Virginia Division of Motor
Vehicles, in accordance with the provisions of the code; which was filed in the Clerk's Office.
Mr. Speaker, Mr. Kiss, presented the 2002 SIDS annual report of the Department of Health
and Human Resources, in accordance with section ten, article one, chapter sixteen of the code; which
was filed in the Clerk's Office.
Mr. Speaker, Mr. Kiss, presented the Newborn Hearing Screening Project annual report of
the Department of Health and Human Resources, in accordance with section one, article twenty-two-
a, chapter sixteen of the code; which was filed in the Clerk's Office.
Mr. Speaker, Mr. Kiss, presented the annual report of the Joint Committee on Government
and Finance, in accordance with the provisions of the code; which was filed in the Clerk's Office.
Resolutions Introduced
Delegates Sobonya and Howard offered the following resolution, which was read by its title
and referred to the Committee on Rules:
H. C. R. 6 - "Requesting the Division of Highways name the bridge located at Howell's Mill
near Ona, WV, the 'Rimmer-White Bridge'."
Whereas, In 1850, Peter and "Lou" White settled along the right descending bank of the
Mud River at the site of the new bridge. In 1911, Fielding and "Callie" Rimmer moved into a house
on the other side of the river at the bridge site. Today, many Rimmer and White descendants live
on both sides of the river near the new bridge; and
Whereas, The families and residents of this area desire that this bridge be officially
recognized as the Rimmer-White Bridge in honor of their contributions to this community; therefore,
be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby names the bridge at Howell's Mill near Ona, WV, in Cabell
County, 2 miles North from Route 60 on Howell's Mill Road Country Route 1 and crosses Mud
River in West Virginia, the "Rimmer-White Bridge"; and, be it
Further Resolved, That the Clerk of the House is hereby directed to forward a copy of this
concurrent resolution to the secretary of transportation, the commissioner of the division of highways
and the West Virginia state historic preservation office and to the families of Ruth Rimmer Markin
and "Buddy" White.
Delegate Yost offered the following resolution, which was read by its title and referred to the
Committee on Rules:
H. C. R. 7 - "Requesting the Governor to take suitable public notice on Saturday, April 24,
2004, and on the last Saturday of April of each succeeding year thereafter, of 'Local Firefighter Day,'
in honor, recognition and appreciation of all local firefighters of West Virginia and their families."
Whereas, Local firefighters are first responders to calls for help in a wide variety of
emergencies, ranging from floods, fires, snow storms, wrecks and hazardous materials spills, to lost
children and beloved pets in need of rescue; and
Whereas, Local firefighters endure long hours of arduous work and training to serve the
people of West Virginia; and
Whereas, Services offered by local firefighters are vital to the health, welfare and safety of all the state's citizens; and
Whereas, During emergencies in the state, firefighters suffer prolonged discomfort and
frequently risk their lives to protect the lives and property of their fellow citizens; and
Whereas, The hardships, dangers and long hours away from home endured by local
firefighters cause loving family members of firefighters to bear many sacrifices and hardships;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Governor is hereby requested to take suitable public notice on Saturday, April 24,
2004, and on the last Saturday of April of each succeeding year thereafter, of "Local Firefighters
Day," in honor, recognition and appreciation of all West Virginia firefighters and their families; and,
be it
Further Resolved: That the Clerk of the House of Delegates is directed to send copies of this
resolution to appropriate members of the press, and to Gary Bonnett, President of the West Virginia
State Fire Chief's Association, PO Box 7, Rock Cave, WV 26234.
Bills Introduced
On motions for leave, bills were introduced, read by their titles, and severally referred as
follows:
By Delegate Beane:
H. B. 4085 - "A Bill to amend and reenact §18-10L-3 of the code of West Virginia, 1931,
as amended, relating to clarifying certain statutory terms related to the Ron Yost Personal Assistance
Services Act"; which was referred to the Committee on Government Organization.
By Delegate Beane:
H. B. 4086 - "A Bill to amend and reenact §9A-1-2 and §9A-1-3 of the code of West
Virginia, 1931, as amended, all relating to including Gulf War and Afghanistan conflict veterans on
the veterans' council"; which was referred to the Committee on Veterans Affairs and Homeland
Security then Government Organization.
By Delegates Browning, Staton and Beane:
H. B. 4087 - "A Bill to amend and reenact §19-20-13 of the code of West Virginia, 1931,
as amended; and to further amend said code by adding thereto a new section, designated §19-20-8b,
all relating to authorizing county commissions to enact ordinances prohibiting cats from running at
large and authorizing county dog wardens or others to seize and impound cats under authority of the
ordinance; requiring the giving of notice to owners of impounded cats; and providing owners of cats
who cause damage while running loose are liable for the damage"; which was referred to the
Committee on Agriculture and Natural Resources then the Judiciary.
By Delegates Browning, G. White and Staton:
H. B. 4088 - "A Bill to amend and reenact §5-10-25 of the code of West Virginia, 1931, as
amended, relating to public employees retirement system; and preventing reduction of disability
pensions at age sixty-five"; which was referred to the Committee on Pensions and Retirement then
Finance.
By Delegates Browning, G. White and Staton:
H. B. 4089 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §5-10-22h, relating to providing a one-time supplement to certain
public employee retirement system annuitants"; which was referred to the Committee on Pensions
and Retirement then Finance.
By Delegates Browning, G. White and Staton:
H. B. 4090 - "A Bill to amend and reenact §5-10B-4 of the code of West Virginia, 1931, as
amended, relating to contributions to government employees deferred plans"; which was referred to
the Committee on Pensions and Retirement then Finance.
By Delegate Hall:
H. B. 4091 - "A Bill to amend and reenact §61-3-12 of the code of West Virginia, 1931, as
amended, relating to the criminal offense of breaking and entering a building other than a dwelling
house; expanding the criminal intent element to include the intent to commit any crime; and thereby
removing the limited element of an intent to commit a felony or larceny"; which was referred to the
Committee on the Judiciary.
By Delegates Iaquinta and Caputo:
H. B. 4092 - "A Bill to amend and reenact §33-30-6 of the code of West Virginia, 1931, as
amended, relating to increasing the amount of mine subsidence insurance reinsured by the board of
risk management"; which was referred to the Committee on Banking and Insurance then Finance.
By Delegates Sobonya, Canterbury, Hamilton, Howard, Foster, Brown and Sumner:
H. B. 4093 - "A Bill to amend and reenact §17A-3-14 of the code of West Virginia, 1931,
as amended, relating to exempting certain recipients of military medals of valor from special
registration plate fees"; which was referred to the Committee on Roads and Transportation then
Finance.
By Delegates Sobonya, Howard and Crosier:
H. B. 4094 - "A Bill to amend and reenact §11-21-12 of the code of West Virginia, 1931,
as amended, relating to providing a state income tax exemption to retired federal employees"; which was referred to the Committee on Finance.
By Delegates Sobonya, Sumner, Howard, Canterbury, Hamilton, Foster and Brown:
H. B. 4095 - "A Bill to amend and reenact §6B-2-5 of the code of West Virginia, 1931, as
amended, relating to prohibiting elected or appointed public officials from using their names or
likenesses under certain specific circumstances"; which was referred to the Committee on the
Judiciary.
By Delegate Stalnaker:
H. B. 4096 - "A Bill to amend and reenact §19-20A-5 of the code of West Virginia, 1931,
as amended, relating to vaccination of dogs and cats; increasing the veterinary fee for vaccinating
dogs and cats for rabies from four dollars to eight dollars each"; which was referred to the
Committee on Agriculture and Natural Resources then Finance.
By Delegates Staton, Amores, Kominar and Pino:
H. B. 4097 - "A Bill to amend and reenact §59-1-11 of the code of West Virginia, 1931, as
amended, relating to clarifying those persons or entities responsible for paying certain fees assessed
by the clerk of a circuit court for processing of criminal bonds and bailpiece"; which was referred
to the Committee on the Judiciary.
By Delegates Sumner, Renner, Sobonya, Schoen and Duke:
H. B. 4098 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §4-13-1, relating to prohibiting the naming of a publicly funded
building, road, structure or project for a living elected official by any governmental entity in this state
and assessing personal liability for violations"; which was referred to the Committee on the
Judiciary.
By Delegates Swartzmiller and Ennis:
H. B. 4099 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §17A-3-1b; and to amend and reenact §17B-2-3 of said code, all
relating to the division of motor vehicles generally; requiring registered sex offenders to be issued
special driver's licenses and motor vehicle registration plates that identify the holder or owner as a
registered sex offender; and providing misdemeanor penalties for failure to comply with the special
licensing requirements"; which was referred to the Committee on Roads and Transportation then the
Judiciary.
Consent Calendar
Third Reading
The following bills on third reading, coming up in regular order, were each read a third time:
H. B. 4040, Relating to criteria for making decisions affecting the filling of vacancies if one
or more permanently employed instructional personnel apply for a classroom teaching position,
And,
H. B. 4045, Requiring submission of evidence to state superintendent that county
superintendent has given required bond and good security.
On the passage of the bills, the yeas and nays were taken (Roll No. 4), and there were--yeas
97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Coleman, Fragale and Shelton.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bills (H. B. 4040 and H. B. 4045) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates on the Consent Calendar bills and request concurrence therein.
Second Reading
Com. Sub. for H. B. 3190, Relating to the titling and ownership of property for area
vocational education programs; on second reading, coming up in regular order, was read a second
time and ordered to engrossment and third reading.
First Reading
The following bills on first reading, coming up in regular order, were each read a first time
and ordered to second reading:
Com. Sub. for H. B. 2801, Requiring the ethics commission to furnish copies of all advisory
opinions issued by the commission to the West Virginia Legislature and the supreme court law
library,
And,
H. B. 4083, Continuing the veterans' council.
House Calendar
Third Reading
Com. Sub. for H. B. 2268, Teachers and substitute teachers as professional educators and
addressing the critical need and shortage thereof; on third reading, coming up in regular order, was
read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 7), and
there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as
follows:
Absent And Not Voting: Coleman, Fragale and Shelton.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 2268) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Com. Sub. for H. B. 3052, Retitling the "Clerk of the Circuit Court" as the "Clerk of the
Circuit and Family Court"; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 8), and
there were--yeas 94, nays 3, absent and not voting 3, with the nays and absent and not voting being
as follows:
Nays: Ellem, Frich and R. Thompson.
Absent And Not Voting: Coleman, Fragale and Shelton.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for H. B. 3052) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. B. 4039, Relating to the posting of positions for the employment of persons other than
professional educators as coaches; on third reading, coming up in regular order, was read a third
time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 9), and
there were--yeas 89, nays 8, absent and not voting 3, with the nays and absent and not voting being
as follows:
Nays: Carmichael, Hamilton, Howard, Manuel, Poling, Sobonya, Sumner and Walters.
Absent And Not Voting: Coleman, Fragale and Shelton.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (H. B. 4039) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Second Reading
S. B. 166, Reducing allowable blood alcohol content for DUI; on second reading, coming
up in regular order, was read a second time.
At the request of Delegate Staton, and by unanimous consent, the bill was advanced to third
reading, and the rule was suspended to permit the offering and consideration of amendments on third
reading.
Com. Sub. for H. B. 2088, Prohibiting the manufacture, distribution or possession of certain
controlled or counterfeit substances near a park or housing project; on second reading, coming up
in regular order, was read a second time.
Delegate Amores moved to amend the bill on page two, following the enacting section, by
striking out the remainder of the bill, and inserting in lieu thereof the following:
"ARTICLE 4. OFFENSES AND PENALTIES.
§60A-4-412. Manufacturing, distributing, dispensing or possessing controlled substance,
marijuana or counterfeit substance within one thousand feet of park;
evidence of property location and boundaries; posting of property;
affirmative defenses.
(a) No person may manufacture, distribute, dispense, or possess with intent to distribute a controlled substance or marijuana or a counterfeit substance in, on, or within one thousand feet of
any real property which has been dedicated and set apart by the governing authority of any
municipality or county for use as a park, playground, recreation center or for any other recreation
purposes, unless the manufacture, distribution or dispensing is otherwise allowed by law.
(b) Any person who violates or conspires to violate subsection (a) of this section is guilty of
a felony and, upon conviction, shall receive the following punishment:
(1) Upon a first conviction, imprisonment for not more than ten years or a fine of not more
than twenty thousand dollars, or both; or
(2) Upon a second or subsequent conviction, imprisonment for not less than five years nor
more than twenty years or a fine of not more than forty thousand dollars, or both. The court shall
impose a minimum sentence of five years which may not be suspended unless otherwise provided
by law; and
(c) A sentence imposed under this section shall be served consecutively to any other sentence
imposed.
(d) In a prosecution under this section, a map produced or reproduced by any municipal or
county agency or department for the purpose of depicting the location and boundaries of the area on
or within one thousand feet of real property set apart for use as a park, playground, recreation center
or for any other recreational purposes, or a true copy of the map, shall, if certified as a true copy by
the custodian of the record, be admissible and is prima facie evidence of the location and boundaries
of the area, if the governing body of the municipality or county has approved the map as an official
record of the location and boundaries of the area. A map approved under this section may be revised
from time to time by the governing body of the municipality or county. The original of every map approved or revised under this subsection or a true copy of the original map shall be filed with the
municipality or county and shall be maintained as an official record of the municipality or county.
This subsection does not preclude the prosecution from introducing or relying upon any other
evidence or testimony to establish any element of this offense. This subsection does not preclude
the use or admissibility of a map or diagram other than the one which has been approved by the
municipality or county.
(e) The governing authority of a municipality or county may adopt regulations requiring the
posting of signs designating the areas within one thousand feet of any lands or buildings set apart
for use as parks, playgrounds, recreation centers or any other recreation purposes as 'Drug-Free
Recreation Zones'.
(f) It is an affirmative defense to prosecution for a violation of this section that the prohibited
conduct was not carried on for purposes of financial gain. Nothing in this subsection establishes an
affirmative defense with respect to any offense under this chapter other than the offense provided
in subsection (a) of this section."
Delegate Trump moved to amend the amendment on page three, line ten, by striking out
subsection (f) in its entirety.
On the adoption of the amendment to the amendment, Delegate Trump demanded the yeas
and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 10), and there were--yeas
35, nays 62, absent and not voting 3, with the yeas and absent and not voting being as follows:
Yeas: Anderson, Armstead, Ashley, Azinger, Blair, Border, Browning, Calvert, Canterbury,
Carmichael, Caruth, Duke, Evans, Faircloth, Frederick, Frich, Hall, Hamilton, Howard, Leggett, Louisos, Overington, Poling, Romine, Schadler, Smirl, Sobonya, Sumner, Susman, Tabb, Trump,
Wakim, Walters, Webb and G. White.
Absent And Not Voting: Coleman, Fragale and Shelton.
So, a majority of the members present and voting not having voted in the affirmative, the
amendment to the amendment was not adopted.
The question now being on the adoption of the amendment offered by Delegate Amores, the
same was put and prevailed.
There being no further amendments, the bill was then ordered to engrossment and third
reading.
Com. Sub. for H. B. 4004, Establishing an insurance fraud unit within the office of the
insurance commissioner; on second reading, coming up in regular order, was read a second time.
At the request of Delegate Staton, and by unanimous consent, the bill was advanced to third
reading with an amendment pending, and the rule was suspended to permit the offering and
consideration of amendments on third reading.
Com. Sub. for H. B. 4022, Creating "The All-Terrain Vehicle Safety Regulation Act"; on
second reading, coming up in regular order, was read a second time.
At the request of Delegate Staton, and by unanimous consent, the bill was advanced to third
reading with amendments pending, and the rule was suspended to permit the offering and
consideration of amendments on third reading.
At the request of Delegate Staton, and by unanimous consent, the following bills were
advanced to third reading, and the rule was suspended to permit the offering and consideration of
amendments on third reading:
Com. Sub. for H. B. 4043, Establishing the priority for early childhood education in the
basic skills of reading, mathematics and English language arts,
Com. Sub. for H. B. 4072, Providing for a unified approach to the long-term planning and
implementation of technology in the public schools,
And,
H. B. 4084, West Virginia Pharmaceutical Availability and Affordability Act.
First Reading
Com. Sub. for H. B. 2755, Creating a criminal penalty for persons receiving stolen property
that was obtained by means other than through the commission of a theft; on first reading, coming
up in regular order, was read a first time and ordered to second reading.
Leaves of Absence
At the request of Delegate Staton, and by unanimous consent, leaves of absence for the day
were granted Delegates Coleman, Fragale and Shelton.
At 12:01 p.m., on motion of Delegate Staton, the House of Delegates adjourned until 11:00
a.m., Thursday, January 22, 2004.