WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-SIXTH LEGISLATURE

REGULAR SESSION, 2004

TWENTY-FIRST DAY

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Charleston, W. Va., Tuesday, February 3, 2004

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

     Prayer was offered by Pastor Dan Meadows, Goshen Baptist Church, Morgantown, West Virginia.
     Pending the reading of the Journal of Monday, February 2, 2004,
     On motion of Senator Snyder, the Journal was approved and the further reading thereof dispensed with.
     The Senate proceeded to the second order of business and the introduction of guests.
     The Senate then proceeded to the third order of business.
     A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
     Eng. Com. Sub. for House Bill No. 4101--A Bill to amend and reenact §60-7-12 of the code of West Virginia, 1931, as amended, relating to the creation of an affirmative defense for certain civil and criminal actions arising from the sale of alcoholic liquors, wine and nonintoxicating beer by licensed private clubs to persons less than the age of twenty-one whose age is verified by use of scanner technology.
     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. Com. Sub. for House Bill No. 4104--A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-3-56, relating to creating the felony crime of scanning device or reencoder fraud; providing definitions; and establishing criminal penalties.
     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. 4119--A Bill to amend and reenact §7-18-1 of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact §8-6-4, all relating to annexation generally; limiting imposition and collection of hotel tax by municipality after annexation under certain circumstances; providing for a phase out of collection and imposition of hotel tax by county commission in certain circumstances; requiring county commission to provide hotel tax information to annexing municipality upon request; requiring municipality considering annexation without an election to provide notice to county commission; and requiring municipality considering annexation without an election to hold a public hearing.
     Referred to the Committee on Government Organization; and then 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. 4157--A Bill to amend and reenact §18B-16- 6b of the code of West Virginia, 1931, as amended, relating to continuation of
the rural health advisory panel .
     Referred to the Committee on Government Organization.
     The Senate proceeded to the fourth order of business.
     Senator Jenkins, from the Committee on Pensions, submitted the following report, which was received:
     Your Committee on Pensions has had under consideration
     Senate Bill No. 335, Authorizing consolidated public retirement board to promulgate legislative rule relating to general provisions.
     Senate Bill No. 336, Authorizing consolidated public retirement board to promulgate legislative rule relating to benefit determination and appeal.
     And,
     Senate Bill No. 337, Authorizing consolidated public retirement board to promulgate legislative rule relating to teachers defined benefit plan.
     And reports the same back with the recommendation that they each do pass; but under the original triple committee references first be referred to the Committee on Finance; and then to the Committee on the Judiciary.
                              Respectfully submitted,
                               Evan H. Jenkins,
                               Chair.
     The bills, under the original triple committee references, were referred to the Committee on Finance; and then to the Committee on the Judiciary.
     Senator McCabe, from the Committee on Economic Development, submitted the following report, which was received:
     Your Committee on Economic Development has had under consideration
     Senate Bill No. 345, Authorizing department of environmental protection to promulgate legislative rule relating to requirements for determining conformity of transportation plans, programs and projects developed, funded or approved under Title 23 U. S. C. or federal transit laws applicable air quality implementation plans.
     Senate Bill No. 350, Authorizing economic development authority to promulgate legislative rule relating to general administration of venture capital act.
     Senate Bill No. 351, Authorizing economic development authority to promulgate legislative rule relating to economic development and technology advancement centers.
     And,
     Senate Bill No. 368, Authorizing infrastructure and jobs development council to promulgate legislative rule relating to council.
     And reports the same back with the recommendation that they each do pass; but under the original double committee references first be referred to the Committee on the Judiciary.
                              Respectfully submitted,
                               Brooks F. McCabe, Jr.,
                               Chair.
     The bills, under the original double committee references, were then referred to the Committee on the Judiciary.
     Senator Ross, from the Committee on Transportation, submitted the following report, which was received:
     Your Committee on Transportation has had under consideration
     Senate Bill No. 366, Authorizing division of highways to promulgate legislative rule relating to use of state road rights-of-way and adjacent areas.
     And,
     Senate Bill No. 367, Authorizing division of highways to promulgate legislative rule relating to transportation of hazardous wastes upon roads and highways.
     And reports the same back with the recommendation that they each do pass; but under the original double committee references first be referred to the Committee on the Judiciary.
                              Respectfully submitted,
                               Mike Ross,
                               Chair.
     The bills, under the original double committee references, were then referred to the Committee on the Judiciary.
     Senator Ross, from the Committee on Transportation, submitted the following report, which was received:
     Your Committee on Transportation has had under consideration
     Senate Concurrent Resolution No. 15, Requesting Division of Highways name bridge on Route 33 East in Ripley "McGinley Memorial Bridge".
     Senate Concurrent Resolution No. 17, Requesting Division of Highways name bridge near Rowlesburg, Preston County, "Charles B. Felton, Jr., Bridge".
     And,
     House Concurrent Resolution No. 2, Renaming the East River Mountain Tunnel the "H. Edward Steele Memorial Tunnel".
     And reports the same back with the recommendation that they each be adopted.
                              Respectfully submitted,
                               Mike Ross,
                               Chair.
     At the request of Senator Ross, unanimous consent being granted, House Concurrent Resolution No. 2 contained in the preceding report from the Committee on Transportation was taken up for immediate consideration.
     The question being on the adoption of the resolution, the same was put and prevailed.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     At the request of Senator Bowman, and by unanimous consent, the Senate returned to the second order of business and the introduction of guests.
     The Senate again proceeded to the fourth order of business.
     Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
     Your Committee on the Judiciary has had under consideration
     Eng. House Bill No. 4020, Protecting personal information maintained by the state from inappropriate disclosure.
     And has amended same.
     And reports the same back with the recommendation that it do pass, as amended.
                              Respectfully submitted,
                               Jeffrey V. Kessler,
                               Chair.
     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 Facemyer:
     Senate Bill No. 418
--A Bill to amend and reenact §50-1-14 of the code of West Virginia, 1931, as amended, relating to allowing persons employed by the sheriff for the sole purpose of serving civil process to carry deadly weapons.
     Referred to the Committee on the Judiciary.
     By Senators Tomblin (Mr. President), Chafin, Minard, Unger and Dempsey:
     Senate Bill No. 419
--A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §60A-10-1, §60A-10-2, §60A-10-3 and §60A-10-4, all relating to creating the substance abuse prevention act; establishing a substance abuse prevention fund; providing mandatory costs to be collected from persons convicted of certain crimes; distributing the costs; designating purposes to be promoted by the fund; creating the substance abuse prevention commission; designating members of the commission; listing commission duties; authorizing the proposal of rules to administer the fund and effectuate the act's purposes; and requiring the commission to enlist and receive assistance from the partnership for a drug-free West Virginia, a program under the auspices of the West Virginia prevention resource center at Marshall university graduate college.
     Referred to the Committee on the Judiciary; and then to the Committee on Finance.
     By Senator Bowman:
     Senate Bill No. 420
--A Bill to amend and reenact §11-14C-20 of the code of West Virginia, 1931, as amended, relating to remittance of motor fuel excise tax where supplier is exporting fuel to another state.
     Referred to the Committee on Finance.
     By Senators Chafin and Minard:
     Senate Bill No. 421
--
A Bill to amend and reenact §6-9-7 of the code of West Virginia, 1931, as amended, relating to giving the state auditor, as the chief inspector, flexibility in determining when to conduct audits on local government offices instead of allowing the offices to contract for the audits.
     Referred to the Committee on Government Organization; and then to the Committee on Finance.
     By Senators Prezioso, Minard and Unger:
     Senate Bill No. 422
--
A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §4-6-1, §4-6-2 and §4-6-3, all relating to creating the joint commission on technology and advanced communications; providing for appointment of members of the Senate and House of Delegates to the commission; providing for the appointment of citizen members; meetings, periods of function, powers and duties of the commission; and recommending of guidelines.
     Referred to the Committee on Rules.
     By Senators Prezioso and Minard:
     Senate Bill No. 423
--A Bill to amend and reenact §31-18D-5, §31-18D-6, §31-18D-7 and §31-18D-9 of the code of West Virginia, 1931, as amended, all relating to reducing the number of directors of the affordable housing trust fund from eleven to nine members; deleting certain members appointed from nonprofit organizations and the executive director of a public housing authority from board membership; adding members appointed to the board from the real estate and manufactured housing sectors; reducing the quorum and majority vote requirements; providing for the appointment of an advisory board; providing start-up funds for initial operational expenses of local government programs; and eliminating certain restrictions on application procedures.
     Referred to the Committee on Government Organization.
     By Senator Snyder:
     Senate Bill No. 424
--A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §7-1-14, relating to authorizing county commissions to implement a hazardous road program.
     Referred to the Committee on Transportation.
     By Senators Edgell, McKenzie and Kessler:
     Senate Bill No. 425
--A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §2-2A-l, §2-2A-2 and §2-2A-3, all relating to the establishment of the English language as the official language of the state of West Virginia.
     Referred to the Committee on the Judiciary.
     By Senator McKenzie:
     Senate Bill No. 426
--A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-10-32, relating to crimes against public policy generally; prohibiting human and embryonic cloning; and prescribing criminal penalties for violations of the section.
     Referred to the Committee on the Judiciary.
     By Senator McKenzie:
     Senate Bill No. 427
--A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5-16B-10, relating to providing that unborn children are eligible for the children's health insurance program.
     Referred to the Committee on Health and Human Resources; and then to the Committee on Finance.
     Senators Prezioso, Unger and Rowe offered the following resolution:
     Senate Concurrent Resolution No. 19--
Requesting the Joint Committee on Government and Finance study the condition of the Mental Health Plan in West Virginia in regard to the organization and availability of services offered and the types of services needed.
     Whereas, The Mental Health Plan, the State Health Plan, the (Behavioral) Health Criteria for Performance Excellence and Healthy People 2010, as well as other goal-setting recommendation plans, contain some discussion on the topic of mental health, the degree of which depends on the particular document; and
     Whereas, The Mental Health Plan is under the review of the Bureau for Behavioral Health and Health Facilities, which process is monitored by the Legislative Oversight Commission on Health and Human Resources Accountability; and
     Whereas, According to the Department of Health and Human Resources, over 400 juveniles are in out-of-state care facilities at any given time, for a total cost of more than $22 million per year in out-of-state expenditures, due to a lack of adequate care systems within the state; and
     Whereas, In over 100 of the aforementioned instances, parents must sign custody of their children over to the state in order for the child to qualify for funding to cover the cost of treatment; and
     Whereas, The appropriate treatment of juveniles with serious emotional disturbances and their families requires a collaborative state effort from multiple agencies, including, but not limited to: The Department of Health and Human Resources, the Bureau for Behavioral Health and Health Facilities, the Bureau for Children and Families, the Department of Education and the Division of Juvenile Services; and
     Whereas, Community-based mental health care creates an environment of stability for those afflicted with mental health problems who receive family-based treatment in their communities of residence; and
     Whereas, Federal Comprehensive Community Mental Health Services grants are available to develop comprehensive, community- based systems of care for youth with serious emotional disturbances and their families, but may only be applied to in-state treatment; and
     Whereas, The Legislature should explore the possibilities of developing a comprehensive multiagency mental health plan in the State of West Virginia, identify the core services needed in West Virginia communities to provide adequate care to its residents and address the development of community-based treatment options and financial assistance opportunities available to avoid out-of-state placements; and
     Whereas,
The Legislature has studied this topic during the 2003-2004 interim session and has recommended that this subject receive further study during the 2004-2005 interim session; therefore, be it
      Resolved by the Legislature of West Virginia:
     That the Joint Committee on Government and Finance is hereby requested to study the condition of the Mental Health Plan in West Virginia in regard to the organization and availability of services offered and the types of services needed; and, be it
     Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2005, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
     Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
     Which, under the rules, lies over one day.
     Senators Plymale, Edgell, Tomblin (Mr. President), Minard, Facemyer, Bowman, Caldwell, Dempsey, Jenkins, Love, McCabe, Prezioso, Snyder, Unger, Kessler, Rowe, Helmick, Ross, White, Fanning, Sharpe, Oliverio, Hunter, McKenzie, Smith, Harrison, Weeks, Deem, Boley, Guills, Minear and Sprouse offered the following resolution:
     Senate Resolution No. 6--
Designating Tuesday, February 3, 2004, as "Higher Education Day".
     Whereas, The foundation of any society's success is the degree to which its citizens are educated; and
     Whereas, The citizens of West Virginia are committed to supporting higher education; and
     Whereas, West Virginia's colleges and universities increase the knowledge base of West Virginia's students, as well as those from other states; and
     Whereas, West Virginia's educational system helps students achieve their educational goals and meet the workforce needs of West Virginia and the United States; and
     Whereas, Not only does our educational system contribute to the economic vitality of the state, but it also enriches the culture and life of all communities and regions within the state and outside its boundaries; and
     Whereas, West Virginia's colleges and universities advance the development of technology, partner with business and industry, conduct groundbreaking research and improve lives through advanced health care; and
     Whereas, Through the services of outstanding faculty, staff, administration and executive leadership, West Virginia's colleges and universities have developed student-centered programs and curriculums; therefore, be it
     Resolved by the Senate:
     
That the Senate hereby designates Tuesday, February 3, 2004, as "Higher Education Day"; and, be it
     Further Resolved, That the Senate recognizes the commitment to excellence the leaders of our colleges and universities have demonstrated; and, be it
     Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the Chancellor of the Higher Education Policy Commission, the President of the West Virginia Independent Colleges and Universities, Inc., and to each of the presidents of West Virginia's private and public colleges and universities.
     At the request of Senator Plymale, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
     On motion of Senator Chafin, the Senate recessed for one minute.
     Upon expiration of the recess, the Senate reconvened and, at the request of Senator McKenzie, unanimous consent being granted, returned to the second order of business and the introduction of guests.
     The Senate proceeded to the seventh order of business.
     Senate Concurrent Resolution No. 18, Requesting Division of Highways name bridge on Route 60 spanning Kelly Creek in Cedar Grove "Dr. Otis Rice 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. 199, Relating to appointments to commission for deaf and hard-of-hearing.
     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, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 199) 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. 200, Requiring state police to annually report to Legislature effectiveness of recruiting minorities.
     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, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 200) 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. 209, Requiring review of certain state leases and purchases by joint committee on government and finance.
     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, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     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 S. B. No. 209) 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. 231, Authorizing county commission to establish flood plain enforcement agency.
     On third reading, coming up in regular order, was read a third time.
     Following discussion,
     At the request of Senator Ross, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar.
     Eng. Senate Bill No. 323, Continuing office of explosives and blasting.
     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, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 323) 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. 324, Continuing division of personnel.
     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, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 324) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     The Senate proceeded to the ninth order of business.
     Com. Sub. for Senate Bill No. 163, Establishing Water Resources Protection Act.
     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. 251, Providing requirements and limitations for mandatory nurse overtime in hospitals; other provisions.
     On second reading, coming up in regular order, was read a second time.
     On motion of Senator Jenkins, the following amendments to the bill were reported by the Clerk:
     On page three, section one, line seventeen, after the word "safety;" by striking out the word "and";
     On page three, section one, line nineteen, after the word "overtime" by changing the period to a semicolon and adding the word "and";
     And,
     On page three, section one, after line nineteen, by adding a new subdivision, designated subdivision (7), to read as follows:
     (7) The state has an interest in the quality of health care provided to patients in our state-operated hospitals and in the health and fitness for duty of the nurses as defined in this article in those facilities. The Legislature directs the department of health and human resources to conduct a feasability study of compliance by state-operated hospitals with the provisions of this article and to report findings to the joint committee on government and finance by the first day of December, two thousand four.
     At the request of Senator Jenkins, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar, with Senator Jenkins amendments pending.
     At the request of Senator Rowe, and by unanimous consent, the Senate returned to the sixth order of business.
Petitions

     Senator Rowe presented a petition from Howard L. Wilson and eighteen West Virginia State College National Alumni Association Chapters, supporting Senate Bill No. 80 (Changing name of West Virginia State College to West Virginia State University) and House Bill No. 2299 (Changing the name of West Virginia State College to West Virginia State University).
     Referred to the Committee on Education.
     The Senate proceeded to the twelfth order of business.
     Remarks were made by Senator Rowe.
     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 a minority party caucus,
     On motion of Senator Chafin, the Senate adjourned until tomorrow, Wednesday, February 4, 2004, at 11 a.m.
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