WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-SIXTH LEGISLATURE
REGULAR SESSION, 2004
TWENTY-FIRST DAY
____________
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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