WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-SIXTH LEGISLATURE

REGULAR SESSION, 2004

TWENTY-NINTH DAY

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Charleston, W. Va., Wednesday, February 11, 2004

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

     Prayer was offered by the Reverend Rick Watson, First Baptist Church, Marmet, West Virginia.
     Pending the reading of the Journal of Tuesday, February 10, 2004,
     On motion of Senator Sharpe, 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 that that body had agreed to the appointment of a committee of conference of five from each house on the disagreeing votes of the two houses, as to
     Eng. Com. Sub. for House Bill No. 4022, Creating "The All-Terrain Vehicle Safety Regulation Act".
     The message further announced the appointment of the following conferees on the part of the House of Delegates:
     Delegates Beane, Talbott, Ennis, Manuel and Caruth.
     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. 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.
     Referred to the Committee on Agriculture; and then to the Committee on Finance.
      The Senate 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
     Com. Sub. for Senate Bill No. 71, Relating to verifying legal employment status of workers employed in state.
     And reports the same back with the recommendation that it do pass.
                              Respectfully submitted,
                               Jeffrey V. Kessler,
                               Chair.
     Senator Minard, from the Committee on Banking and Insurance, submitted the following report, which was received:
     Your Committee on Banking and Insurance has had under consideration
     Senate Bill No. 176, Relating to investments and investment practices of insurance companies.
     And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Finance.
                              Respectfully submitted,
                               Joseph M. Minard,
                               Chair.
     The bill, under the original double committee reference, was then referred to the Committee on Finance.
     Senator Minard, from the Committee on Banking and Insurance, submitted the following report, which was received:
     Your Committee on Banking and Insurance has had under consideration
     Senate Bill No. 230, Defining term "federal flood insurance"; revenue fund.
     And reports back a committee substitute for same with the following title:
     Com. Sub. for Senate Bill No. 230 (originating in the Committee on Banking and Insurance)--A Bill to amend and reenact §33-1-10 of the code of West Virginia, 1931, as amended; and to amend and reenact §33-3-14 of said code, all relating to definitions of casualty insurance and federal flood insurance; establishing special funds; and transferring collections on certain insurance premium taxes to benefit office of emergency services for flood plain enhancement activities.
     With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on Finance.
                              Respectfully submitted,
                               Joseph M. Minard,
                               Chair.
     The bill (Com. Sub. for S. B. No. 230), under the original double committee reference, was then referred to the Committee on Finance.
     Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
     Your Committee on Finance 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 the Judiciary.
                              Respectfully submitted,
                               Walt Helmick,
                               Chair.
     The bills, under the original triple committee references, were then referred to the Committee on the Judiciary.
     Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
     Your Committee on Finance has had under consideration
     Senate Bill No. 339, Authorizing board of examiners in counseling to promulgate legislative rule relating to fees.
     Senate Bill No. 358, Authorizing division of health to promulgate legislative rule relating to cross connection and backflow prevention.
     Senate Bill No. 359, Authorizing division of health to promulgate legislative rule relating to certification of backflow prevention assembly testers.
     And,
     Senate Bill No. 363, Authorizing division of health to promulgate legislative rule relating to fees for services.
     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 the Judiciary.
                              Respectfully submitted,
                               Walt Helmick,
                               Chair.
     The bills, under the original triple committee references, were then referred to the Committee on the Judiciary.
     Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
     Your Committee on Finance has had under consideration
     Senate Bill No. 355, Authorizing fire marshal to promulgate legislative rule relating to fees for licenses, permits, inspections, plans review and other services rendered.
     And,
     Senate Bill No. 398, Authorizing state police to promulgate legislative rule relating to career progression system.
     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,
                               Walt Helmick,
                               Chair.
     The bills, under the original double committee references, were then referred to the Committee on the Judiciary.
     Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
     Your Committee on Finance has had under consideration
     Senate Bill No. 370, Authorizing insurance commissioner to promulgate legislative rule relating to surplus lines insurance.
     Senate Bill No. 386, Authorizing division of natural resources to promulgate legislative rule relating to public land corporation rule controlling sale, lease, exchange or transfer of land and minerals.
     And,
     Senate Bill No. 396, Authorizing board of risk and insurance management to promulgate legislative rule relating to public entities insurance program.
     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 the Judiciary.
                              Respectfully submitted,
                               Walt Helmick,
                               Chair.
     The bills, under the original triple committee references, were then referred to the Committee on the Judiciary.
     Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
     Your Committee on the Judiciary has had under consideration
     Senate Bill No. 376, Authorizing board of examiners of land surveyors to promulgate legislative rule relating to minimum standards for practice of land surveying.
     And reports the same back without recommendation as to passage; but with the recommendation that it first be rereferred to the Committee on Energy, Industry and Mining.
                              Respectfully submitted,
                               Jeffrey V. Kessler,
                               Chair.
     On motion of Senator Kessler, the bill (S. B. No. 376) contained in the foregoing report from the Committee on the Judiciary was then rereferred to the Committee on Energy, Industry and Mining.
      Senator Sharpe, from the Committee on Energy, Industry and Mining, submitted the following report, which was received:
     Your Committee on Energy, Industry and Mining has had under consideration
     Senate Bill No. 377, Authorizing board of examiners of land surveyors to promulgate legislative rule relating to mandatory continuing education for land surveyors.
     And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on the Judiciary.
                              Respectfully submitted,
                               William R. Sharpe, Jr.,
                               Chair.
      The bill, under the original double committee reference, was then referred to the Committee on the Judiciary.
     Senator Minard, from the Committee on Banking and Insurance, submitted the following report, which was received:
     Your Committee on Banking and Insurance has had under consideration
     Senate Bill No. 479, Relating to licensing foreign insurers.
     And has amended same.
     And reports the same back with the recommendation that it do pass, as amended.
                              Respectfully submitted,
                               Joseph M. Minard,
                               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 Senators Unger, Kessler, McCabe, Sprouse and Hunter:
     Senate Bill No. 503-- A Bill to amend and reenact §5B-2B-2, §5B-2B-4, §5B-2B-5 and §5B-2B-9 of the code of West Virginia, 1931, as amended, all relating to the West Virginia workforce investment act; updating terms; outlining duties; and creating the workforce investment interagency collaborative team.
     Referred to the Committee on Economic Development; and then to the Committee on Finance.
     By Senator Kessler:
     Senate Bill No. 504-- A Bill to amend and reenact §11A-3-19, §11A-3-21, §11A-3-22, §11A-3-23, §11A-3-24 and §11A-3-25 of the code of West Virginia, 1931, as amended, all relating to changing various monthly dates involving the statutory redemption process for real property that has been sold as the result of delinquent taxes; and changing the publication requirement for notice to persons who last owned real property sold due to delinquent taxes from Class III to Class II.
      Referred to the Committee on the Judiciary; and then to the Committee on Finance.
     By Senators Ross and Love:
     Senate Bill No. 505-- A Bill to amend and reenact §17A-1-1 of the code of West Virginia, 1931, as amended; to amend and reenact §17A-3-2 of said code; and to amend and reenact §17A-6-3 and §17A- 6-18 of said code, all relating to creating a motor vehicle classification of "low-speed vehicle".
     Referred to the Committee on Transportation.
     By Senators Minard and Jenkins:
     Senate Bill No. 506--A Bill to amend and reenact §31A-4-2 of the code of West Virginia, 1931, as amended, relating to the use of "bank" in its name by a licensed insurance company.
     Referred to the Committee on Banking and Insurance.
     By Senator Jenkins:
     Senate Bill No. 507-- A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §33-22-2a; to amend said code by adding thereto a new section, designated §33-23-2a; to amend said code by adding thereto a new section, designated §33-24-4a; to amend said code by adding thereto a new section, designated §33-25-6a; to amend said code by adding thereto a new section, designated §33-25A-24a; and to amend and reenact §33-41-1, §33-41-2, §33-41-3, §33-41-4, §33-41-5, §33-41-6, §33-41-7, §33-41-8, §33-41-9, §33-41-10, §33-41-11, §33-41-12, §33-41-13 and §33-41-14, all relating to insurance fraud; subjecting farmers mutual insurance companies, fraternal benefit societies, certain hospital, medical, dental and health services corporations, health care corporations and health maintenance organizations to insurance fraud provisions; defining terms; establishing an insurance fraud unit within the division of insurance; authorizing the promulgation of rules and requiring the filing of annual reports; establishing powers and duties of the unit; outlining investigative powers and procedures; providing confidentiality and immunity of the unit operations; prohibiting insurance fraud; establishing criminal penalties and fines; authorizing prosecution for fraudulent acts; authorizing special prosecutors; specifying duties of insurers; authorizing funding by an assessment of insurers; establishing the West Virginia insurance fraud prevention act; defining legislative intent and terms; creating misdemeanor and felony offenses for the commission of fraudulent acts; and creating penalties, exceptions and immunities.
      Referred to the Committee on the Judiciary; and then to the Committee on Finance.
     By Senators Plymale, Tomblin (Mr. President), Edgell, Dempsey and Hunter:
     Senate Bill No. 508-- A Bill to amend and reenact §29-1-3 of the code of West Virginia, 1931, as amended, relating to membership of the commission on the arts; and expenditure of moneys in the cultural facilities and capital resources matching grant program fund.
      Referred to the Committee on Government Organization; and then to the Committee on Finance.
     By Senators Ross, Hunter, Deem, Love, Kessler, Dempsey and Snyder:
     Senate Bill No. 509-- A Bill to amend and reenact §11A-3-10 of the code of West Virginia, 1931, as amended, relating to surplus being distributed to a person or persons who owned the property at the time of the sale, or the heirs, devisees, legatees, executors, administrators, successors or assigns thereof when there has been no redemption; and time for filing a claim.
      Referred to the Committee on the Judiciary; and then to the Committee on Finance.
     By Senators Ross and Love:
     Senate Bill No. 510-- A Bill to amend and reenact §29-1A-1 of the code of West Virginia, 1931, as amended, relating to the commission on uniform state laws; increasing to ten the number on the panel from which the governor will select commissioners; and increasing the number of commissioners to five.
      Referred to the Committee on the Judiciary.
     By Senators Love, Ross, Rowe and Hunter:
     Senate Bill No. 511-- A Bill to amend and reenact §17A-3-14 of the code of West Virginia, 1931, as amended, relating to motor vehicle registration plates generally; and providing for the issuance of special registration plates for whitewater enthusiasts.
      Referred to the Committee on Transportation; and then to the Committee on Finance.
     Senators Bowman and McKenzie offered the following resolution:
     Senate Concurrent Resolution No. 37-- Requesting the Division of Highways install a memorial sign on Route 2, south of the Market Street Bridge, near Archer Hills Road, north of Follansbee, Brooke County, where Harold Robert "Bob" Henderson was killed by a drunken driver stating "Harold Robert 'Bob' Henderson, Victim of a DUI driver with eight previous DUI convictions Memorial".
     Whereas, Harold Robert "Bob" Henderson of Follansbee, Brooke County, was killed by a drunk driver just after 8 o'clock a. m. on January 27, 2003; and
     Whereas, Harold Robert "Bob" Henderson was driving northbound on Route 2, between Archer Hills Road and Market Street Bridge, when his automobile was struck head-on by a truck driven by a person who was later convicted of driving under the influence of alcohol resulting in death; and
     Whereas, The convicted driver had a record of eight previous convictions for driving under the influence of alcohol in the State of Ohio; and
     Whereas, Harold Robert "Bob" Henderson was a recovering alcoholic; and
     Whereas, It is fitting to install a sign at the site of his death to memorialize his life and to serve as a reminder that driving while impaired is against the law in this state; therefore, be it
     Resolved by the Legislature of West Virginia:
     That the Legislature hereby requests the Division of Highways install a memorial sign on Route 2, south of the Market Street Bridge, near Archer Hills Road, north of Follansbee, Brooke County, where Harold Robert "Bob" Henderson was killed by a drunken driver stating "Harold Robert 'Bob' Henderson Victim of a DUI driver with eight previous DUI convictions Memorial"; 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 the family of the late Harold Robert "Bob" Henderson.
     Which, under the rules, lies over one day.
     Senators Jenkins, Rowe, Snyder and McKenzie offered the following resolution:
     Senate Resolution No. 12-- Recognizing and supporting the "Run Obesity Out of West Virginia" event April 19 through April 24, 2004.
     Whereas, The rate of obesity in West Virginia was 15 percent in the year 1990 and 23.2 percent in the year 2000, compared to the national obesity rate of 20.1 percent in the year 2000; and
     Whereas, Obesity has increased in virtually all of West Virginia's 55 counties, with the highest prevalence in the southern and western portions of the state as well as the eastern panhandle; and
     Whereas, A group of health care providers, academicians and other concerned citizens have planned an awareness run that will traverse the State of West Virginia April 19 through April 24, 2004, from Bluefield in the south and Huntington in the west to Morgantown in the north, as well as community awareness activities and health screenings in Bluefield, Beckley, Huntington, Charleston, Flatwoods, Clarksburg and Morgantown; and
     Whereas, These efforts to improve the health of our citizens are worthy of support from this body; therefore, be it
     Resolved by the Senate:
     That the Senate hereby recognizes and supports the "Run Obesity Out of West Virginia" event April 19 through April 24, 2004; and, be it
     Further Resolved, That the Senate commends the many people and organizations who are participating in planning and presenting this event; and, be it
     Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to A. Richard McGinnis, Marshall University Diabetes Center, and to members of the Capitol press corps.
     At the request of Senator Jenkins, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
      At the request of Senator Chafin, and by unanimous consent, the Senate returned to the fourth order of business.
     Senator Plymale, from the Committee on Education, submitted the following report, which was received:
     Your Committee on Education has had under consideration
     Senate Bill No. 512 (originating in the Committee on Education)--A Bill to amend and reenact §18B-17-6 of the code of West Virginia, 1931, as amended, relating to authorizing rules; higher education policy commission; higher education adult part-time student grant program HEAPS; and purchasing efficiencies.
     And reports the same back with the recommendation that it do pass; but with the further recommendation that it first be referred to the Committee on Judiciary.
                              Respectfully submitted,
                               Robert H. Plymale,
                               Chair.
     On motion of Senator Plymale, the bill (S. B. No. 512) contained in the foregoing report from the Committee on Education was then referred to the Committee on the Judiciary.
     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 K. Rice Bridge".
     On unfinished business, coming up in regular order, was reported by the Clerk.
     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.
     Senate Concurrent Resolution No. 20, Requesting Division of Highways name bridge over Little Sandy Creek, near Elkview, "Dewey Russell Crowder Bridge".
     On unfinished business, coming up in regular order, was reported by the Clerk.
     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.
      Senate Concurrent Resolution No. 22, Requesting Division of Highways name bridge on Turnpike at Sharon "Tony DeRaimo Memorial Bridge".
     On unfinished business, coming up in regular order, was reported by the Clerk.
     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.
      Senate Concurrent Resolution No. 34, Designating Cass Scenic Railroad State Park's Shay No. 5 steam locomotive as official state steam locomotive and 2005 "Year of the Shay No. 5".
     On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Government Organization.
      Senate Concurrent Resolution No. 35, Requesting Division of Highways name State Route 24 off Interstate 79 to Smith Chapel Church "Warner Road".
     On unfinished business, coming up in regular order, was reported by the Clerk.
     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.
      Senate Concurrent Resolution No. 36, Requesting Division of Highways name bridge on Interstate 68 spanning Route 7 at Sabraton Exit "James and Virginia Herring Memorial Bridge".
     On unfinished business, coming up in regular order, was reported by the Clerk.
     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.
      The Senate proceeded to the eighth order of business.
     Eng. Senate Bill No. 428, Defining "transacting insurance".
     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. 428) 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. 4131, Requiring certain reporting to the legislative oversight commission on workforce investment for economic development.
     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. H. B. No. 4131) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     The Senate proceeded to the tenth order of business.
      Com. Sub. for Senate Bill No. 125, Permitting solicitation of certain state employees for contributions to certain campaigns in local or county elections.
     On first reading, coming up in regular order, was read a first time and ordered to second reading.
     Com. Sub. for Senate Bill No. 261, Allowing supplemental assessment on personal property in certain cases.
     On first reading, coming up in regular order, was read a first time and ordered to second reading.
      Senate Bill No. 501, Relating to disqualification for public retirement plan benefits; 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 eleventh order of business and the introduction of guests.
     The Senate then proceeded to the twelfth order of business.
     Remarks were made by Senators Deem, Oliverio and Smith.
     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,
     On motion of Senator Chafin, the Senate adjourned until tomorrow, Thursday, February 12, 2004, at 11 a.m.
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