WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-SIXTH LEGISLATURE

REGULAR SESSION, 2004

TWENTIETH DAY

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Charleston, W. Va., Monday, February 2, 2004

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

     Prayer was offered by the Reverend Jeffrey C. Kanode, Reynolds Memorial United Methodist Church, Marmet, West Virginia, and Chelyan United Methodist Church, Chelyan, West Virginia.
     Pending the reading of the Journal of Friday, January 30, 2004,
     On motion of Senator Edgell, the Journal was approved and the further reading thereof dispensed with.
     The Senate proceeded to the second order of business and the introduction of guests.
     Senator Tomblin (Mr. President) presented a communication from the Board of Coal Mine Health and Safety, submitting its annual report, in accordance with chapter twenty-two-a, article six, section nine of the code of West Virginia.
     Which communication and report were received and filed with the Clerk.
     Senator Tomblin (Mr. President) presented a communication from the Department of Health and Human Resources, submitting its annual report of the Family Support Program, in accordance with chapter forty-nine, article four-a, section five of the code of West Virginia.
     Which communication and report were received and filed with the Clerk.
     Senator Tomblin (Mr. President) presented a communication from the Department of Tax and Revenue, submitting its quarterly report summarizing closing agreements as required by chapter eleven, article ten, section five-q of the code of West Virginia.
     Which communication and report were received and filed with the Clerk.
     The Senate proceeded to the third order of business.
     A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
     Eng. House Bill No. 4017--A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §29-22B-702a, relating to limitations on signage and other advertising by limited video lottery retailers; and authorizing legislative rules.
     Referred to the Committee on the Judiciary.
     A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
     Eng. House Bill No. 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.
     Referred to the Committee on the Judiciary; and then to the Committee on Finance.
     At the request of Senator Chafin, and by unanimous consent, the Senate returned to the second order of business and the introduction of guests.
     The Senate proceeded to the sixth order of business.
     On motions for leave, severally made, the following bills were introduced, read by their titles, and referred to the appropriate committees:
     By Senator Rowe:
     Senate Bill No. 411--A Bill to amend and reenact §11-10-14, §11-10-17 and §11-10-17a of the code of West Virginia, 1931, as amended; and to amend and reenact §11-11-15 of said code, all relating to the "Prompt Tax Refund Act"; payment of interest on tax refunds and tax overpayments; time limits on claims for refund of personal income taxes; requiring payment of interest on claims for refund of personal income taxes be paid after forty-five days; requiring payment of interest on claims for refund of corporation net income taxes be paid after ninety days; setting forth interest calculations; and revising interest provisions respecting estate taxes.
     Referred to the Committee on Finance.
     By Senators Love, Hunter and Prezioso:
     Senate Bill No. 412--A Bill to amend and reenact §11-3-24 of the code of West Virginia, 1931, as amended, relating to assessments; review and equalization by county commissions; and creating a rebuttable presumption that the assessed value of a property as determined by the assessor is correct.
     Referred to the Committee on Government Organization; and then to the Committee on Finance.
     By Senators Love and Prezioso:
     Senate Bill No. 413--A Bill to amend and reenact §11-3-9 of the code of West Virginia, 1931, as amended, relating to exempting from taxation streets or rights-of-way used for ingress and egress in a subdivision when the streets or rights-of-way have been conveyed to a duly incorporated homeowners' association.
     Referred to the Committee on the Judiciary; and then to the Committee on Finance.
     By Senator Minard:
     Senate Bill No. 414--A Bill to amend and reenact §33-6-8 of the code of West Virginia, 1931, as amended; and to amend and reenact §33-16B-1, §33-16B-2 and §33-16B-3 of said code, all relating to rate and form filing for group accident and sickness policies.
     Referred to the Committee on Banking and Insurance.
     By Senators Tomblin (Mr. President) and Bowman:
     Senate Bill No. 415--A Bill to amend and reenact §5A-3-45 of the code of West Virginia, 1931, as amended, relating to the disposition of state surplus property; allowing cannibalization of commodities under some circumstances; and allowing the disposing of commodities as waste under some circumstances.
     Referred to the Committee on Government Organization; and then to the Committee on Finance.
     By Senators Bowman, McKenzie, Kessler and Rowe:
     Senate Bill No. 416--A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §33-12-23a, relating to insurance; and requiring agents of automobile and health insurers to disclose to their insureds the amount of the commission he or she receives from each premium payment remitted by each insured.
     Referred to the Committee on Banking and Insurance.
     By Senator Minard:
     Senate Bill No. 417--A Bill to repeal §33-12-26 of the code of West Virginia, 1931, as amended; to amend and reenact §33-3-33 of said code; to amend and reenact §33-12-3, §33-12-8, §33-12-10, §33- 12-18, §33-12-23, §33-12-27, §33-12-28, §33-12-30, §33-12-31 and §33-12-32 of said code; to amend and reenact §33-37-1, §33-37-2, §33-37-3, §33-37-4, §33-37-6 and §33-37-7 of said code; and to amend said code by adding thereto a new section, designated §33-37- 8, all relating to Gramm-Leach-Bliley Act and reciprocity; eliminating the residency restriction reporting requirement for surplus lines licensees remitting the insurance policy surcharge; licensing of managing general agents; providing for certain penalties for violation by managing general agents; license requirement for insurance producers; continuing education required; fees charged; insurance producer appointments; service representatives; and repealing insurance vending machines.
     Referred to the Committee on Banking and Insurance.
     Senators Rowe and McCabe offered the following resolution:
     Senate Concurrent Resolution No. 18--Requesting the Division of Highways name the bridge on U. S. Route 60 spanning Kelly Creek in Cedar Grove, Kanawha County, the "Dr. Otis Rice Bridge".
     Whereas, Dr. Otis Rice, a native of Hugheston, Kanawha County, was the son of the late Charles Orion and Mary Catherine Belcher Rice; and
     Whereas, Dr. Rice rose from humble beginnings to become one of West Virginia's most distinguished teachers and scholars by reaching countless West Virginians through his teachings and textbooks; and
     Whereas, Dr. Rice began teaching history at West Virginia Institute of Technology in 1957 and retired in 1997 as Dean of the School of Humanities and Sciences, with the title of Professor Emeritus of History; and
     Whereas, Dr. Rice, known as one the fathers of West Virginia history, is credited with writing many of the definitive books on West Virginia, including The Allegheny Frontier; West Virginia: The State and Its People; Frontier Kentucky; The Hatfields and the McCoys; Charleston and the Kanawha Valley; West Virginia, A History; History of Greenbrier County; History of Lewisburg Methodist Church; A History of West Virginia Banking, which he coauthored with Steve Brown; and A History of the Sheltering Arms Hospital, which he coauthored with Wayne Williams; and
     Whereas, Dr. Rice was the recipient of many awards, including Associate of the Danforth Foundation in 1968, which recognizes outstanding teaching and concern for students; the first annual Award of the West Virginia Humanities Council; the first Virgil A. Lewis Award of the West Virginia Historical Society; Centennial Alumnus of the Year from Morris Harvey College in 1988; Vice Chairman of the Kanawha Bicentennial Commission of 1988; Alumnus of the Year from West Virginia Institute of Technology in 1991; Honorary Doctor of Humane Letters degree from West Virginia University; and the first Governor's Award for Contributions to Culture, History and the Arts; and
     Whereas, Dr. Otis Rice was named West Virginia's first Historian Laureate by Governor Bob Wise on July 22, 2003; and
     Whereas, The lifetime contributions of Dr. Rice, who passed away September 22, 2003, at the age of 84, will extend long into the future, if not forever; therefore, be it
     Resolved by the Legislature of West Virginia:
     That the Legislature hereby requests the Division of Highways name the bridge on U. S. Route 60 spanning Kelly Creek in Cedar Grove, Kanawha County, the "Dr. Otis Rice Bridge"; and, be it
     Further Resolved, That the Division of Highways is hereby requested to erect appropriate signage at the entryway of each end of the bridge with a prominent and legible inscription; and, be it
     Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Secretary of the Department of Transportation and to Alma Rice, Rosalie Rice and Sarah Lee Skaggs, sisters of the late Dr. Otis Rice.
     Which, under the rules, lies over one day.
Petitions

     Senator White presented a petition from Jason S. Gladwell and twenty-eight Webster County retired school employees, requesting the Legislature provide an annual cost-of-living adjustment to the pensions of retired school employees.
     Referred to the Committee on Pensions.
     The Senate proceeded to the seventh order of business.
     Senate Concurrent Resolution No. 15, Requesting Division of Highways name bridge on Route 33 East in Ripley "McGinley Memorial Bridge".
     On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Transportation.
     Senate Concurrent Resolution No. 16, Requesting Joint Committee on Government and Finance conduct study of Commission on Governing in 21st Century.
     On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Rules.
     Senate Concurrent Resolution No. 17, Requesting Division of Highways name bridge near Rowlesburg, Preston County, "Charles B. Felton, Jr., Bridge".
     On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Transportation.
     The Senate proceeded to the eighth order of business.
     Eng. Senate Bill No. 111, Establishing central highlands highway authority.
     Having been read a third time on Friday, January 30, 2004, and now coming up in regular order, was reported by the Clerk.
     The question being "Shall Engrossed Senate Bill No. 111 pass?"
     On the passage of the bill, the yeas were: 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, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--32.
     The nays were: None.
     Absent: Bailey and Smith--2.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 111) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Eng. Com. Sub. for Senate Bill No. 138, Relating to nondisclosure of personal information maintained by state.
     On third reading, coming up in regular order, was reported by the Clerk.
     On motion of Senator Chafin, the bill was rereferred to the Committee on the Judiciary.
     Eng. Com. Sub. for Senate Bill No. 258, Relating to enforcement of domestic violence protective orders generally.
     On third reading, coming up in regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: 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, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--32.
     The nays were: None.
     Absent: Bailey and Smith--2.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 258) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Eng. Senate Bill No. 286, Relating to assessment of regulated consumer lenders.
     On third reading, coming up in regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: 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, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--32.
     The nays were: None.
     Absent: Bailey and Smith--2.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 286) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Eng. Senate Bill No. 309, Relating to medical and mental evaluations.
     On third reading, coming up in regular order, was read a third time and put upon its passage.
     On the passage of the bill, the yeas were: 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, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--32.
     The nays were: None.
     Absent: Bailey and Smith--2.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 309) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Eng. House Bill No. 4021, Preventing the disclosure of personal information of state employees and officers, and their dependents.
     On third reading, coming up in regular order, was reported by the Clerk.
     On motion of Senator Chafin, the bill was rereferred to the Committee on the Judiciary.
     The Senate proceeded to the ninth order of business.
     Senate Bill No. 199, Relating to appointments to commission for deaf and hard-of-hearing.
     On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
     Senate Bill No. 200, Requiring state police to annually report to Legislature effectiveness of recruiting minorities.
     On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
     Com. Sub. for Senate Bill No. 209, Requiring review of certain state leases and purchases by joint committee on government and finance.
     On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
     Com. Sub. for Senate Bill No. 231, Authorizing county commission to establish flood plain enforcement agency.
     On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
     Senate Bill No. 323, Continuing office of explosives and blasting.
     On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
     Senate Bill No. 324, Continuing division of personnel.
     On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
     Eng. Com. Sub. for House Bill No. 4022, Creating "The All-Terrain Vehicle Safety Regulation Act".
     Having been read a second time on Thursday, January 29, 2004, and now coming up in regular order with Senator Oliverio's amendment to the Judiciary committee amendment (shown in the Senate Journal of that day, pages 5 to 12, inclusive) pending, was reported by the Clerk.
     The question being on the adoption of Senator Oliverio's amendment to the Judiciary committee amendment to the bill, the same was put.
     Following extended discussion and points of inquiry to the President, with resultant responses thereto,
     The question being on the adoption of Senator Oliverio's amendment to the Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B. No. 4022), and on this question, Senator Smith demanded the yeas and nays.
     The roll being taken, the yeas were: Bowman, Chafin, Fanning, Guills, Harrison, Hunter, Jenkins, McCabe, McKenzie, Minear, Oliverio, Prezioso, Rowe, Smith, Sprouse, Unger, Weeks and White--18.
     The nays were: Boley, Caldwell, Deem, Dempsey, Edgell, Facemyer, Helmick, Kessler, Love, Minard, Plymale, Ross, Sharpe, Snyder and Tomblin (Mr. President)--15.
     Absent: Bailey--1.
     So, a majority of those present and voting having voted in the affirmative, the President declared Senator Oliverio's amendment to the Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B. No. 4022) adopted.
     On motions of Senators Ross, Kessler and Snyder, the following amendment to the Judiciary committee amendment to the bill was next reported by the Clerk:
     On page six, after section five, by adding a new section, designated section six, to read as follows:
§17F-1-6. Applicability of the rules of the road.
     Notwithstanding any provision of the law to the contrary, whenever an all-terrain vehicle is operated on any public road or highway, the operator shall adhere to all statutes or rules applicable to a motor vehicle operating on any public or highway in this state: Provided, That no all-terrain vehicle is required to have a registration plate.
     Following discussion,
     The question being on the adoption of the amendment offered by Senators Ross, Kessler and Snyder to the Judiciary committee amendment to the bill, the same was put and prevailed.
     The question now being on the adoption of the Judiciary committee amendment to the bill, as amended, the same was put and prevailed.
     The bill, as amended, was ordered to the third reading.
     Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4022) was then read a third time and put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Chafin, Deem, Dempsey, Edgell, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, White and Tomblin (Mr. President)--28.
     The nays were: Caldwell, Facemyer, Fanning, Love and Weeks--5.
     Absent: Bailey--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4022) passed.
     At the request of Senator Kessler, as chair of the Committee on the Judiciary, and by unanimous consent, the unreported Judiciary committee amendment to the title of the bill was withdrawn.
     On motions of Senators Kessler, Ross and Snyder, the following amendment to the title of the bill was reported by the Clerk and adopted:
     On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
          Eng. Com. Sub. for House Bill No. 4022--A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new chapter, designated §17F-1-1, §17F-1-2, §17F-1-3, §17F-1-4, §17F-1-5 and §17F-1-6, all relating to child safety in regard to all- terrain vehicles; creating the child safety all-terrain vehicle act of 2004; requiring children under the age of eighteen riding or operating an all-terrain vehicle to wear an approved helmet; prohibiting passengers in certain circumstances; prohibiting children under the age of eighteen from riding or operating an all- terrain vehicle after sunset unless accompanied by a parent or guardian; requiring certain safety equipment on all-terrain vehicles; setting speed limits for operation of an all-terrain vehicle by a child under the age of eighteen; prohibiting operation of an all-terrain vehicle in a careless or reckless manner; authorizing law-enforcement officers to enter private lands in pursuit of an all-terrain vehicle when a violation of law has occurred; requiring written permission to operate an all-terrain vehicle on private lands; requiring safety training; establishing safety training requirements and exemptions; requiring all-terrain vehicle rental dealers to provide safety equipment; establishing criminal penalties and providing that traffic laws and rules apply to all-terrain vehicles except the requirements for registration.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     Thereafter, at the request of Senator Jenkins, and by unanimous consent, the remarks by Senator Oliverio regarding the adoption of Senator Oliverio's amendment to the Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B. No. 4022) were ordered printed in the Appendix to the Journal.
     The Senate proceeded to the tenth order of business.
     Com. Sub. for Senate Bill No. 163, Creating Water Resources Protection Act.
     On first reading, coming up in regular order, was read a first time and ordered to second reading.
     Com. Sub. for Senate Bill No. 251, Providing requirements and limitations for mandatory nurse overtime in hospitals; other provisions.
     On first reading, coming up in regular order, was read a first time and ordered to second reading.
     The Senate proceeded to the twelfth order of business.
     Remarks were made by Senators Chafin and Snyder.
     The Senate then proceeded to the thirteenth order of business.
     At the request of Senator Smith, unanimous consent being granted, it was ordered that the Journal show had Senator Smith been present in the chamber in earlier proceedings today, she would have voted "yea" on the passage of Engrossed Senate Bill No. 111, Engrossed Committee Substitute for Senate Bill No. 258, Engrossed Senate Bill No. 286 and Engrossed Senate Bill No. 309.
     On motion of Senator Chafin, a leave of absence for the day was granted Senator Bailey.
     Pending announcement of meetings of standing committees of the Senate, including majority and minority party caucuses,
     On motion of Senator Chafin, the Senate adjourned until tomorrow, Tuesday, February 3, 2004, at 11 a.m.
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