WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-SIXTH LEGISLATURE
REGULAR SESSION, 2004
THIRTY-FIRST DAY
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Charleston, W. Va., Friday, February 13, 2004
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by Pastor Bryan Stewart, Ripley Baptist
Temple, Ripley, West Virginia.
Pending the reading of the Journal of Thursday, February 12,
2004,
On motion of Senator Deem, 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.
On motion of Senator Chafin, the Senate recessed for five
minutes to permit Angel Smith to address the Senate on behalf of
the Frasure-Singleton Student Legislative Program.
Upon expiration of the recess, the Senate reconvened and
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. 2200--A Bill to amend and reenact §61-3-30 of the code of West Virginia, 1931, as amended,
relating to creating the felony offense of injury, defacing or
destruction of property causing damage, destruction or diminution
in value of twenty-five hundred dollars or more; and providing
penalties.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments to, and the
passage as amended, with its Senate amended title, of
Eng. House Bill No. 4020, Protecting personal information
maintained by the state from inappropriate disclosure.
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. 4134--A Bill to amend and reenact §5A-1A-2
of the code of West Virginia, 1931, as amended, relating to
deleting reference to the secretary of the department of commerce,
labor and environmental services as a member of the employee
suggestion award program and replacing the reference with the
governor's chief technology officer; and increasing membership in
the program by one senator and one delegate.
Referred to the Committee on Government Organization.
A message from The Clerk of the House of Delegates announced
the passage by that body, to take effect from passage, and
requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4143--A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §30-7-8a; to amend said code by adding thereto
a new section, designated §30-7A-7a; and to amend said code by
adding thereto a new article, designated §30-7B-1, §30-7B-2, §30-
7B-3, §30-7B-4, §30-7B-5 and §30-7B-6, all relating to recruiting
and retaining nurses; authorizing supplemental nursing licensure
and renewal fee; creating a center for nursing; establishing
purpose; providing for board of directors; setting forth powers and
duties; permitting expense reimbursement; establishing special
revenue account; authorizing rules and limiting continuation.
Referred to the Committee on Government Organization; and then
to the Committee on Finance.
The Senate proceeded to the fourth order of business.
Senator Rowe, from the Joint Committee on Enrolled Bills,
submitted the following report, which was received:
Your Joint Committee on Enrolled Bills has examined, found
truly enrolled, and on the 13th day of February, 2004, presented to
His Excellency, the Governor, for his action, the following bill,
signed by the President of the Senate and the Speaker of the House
of Delegates:
(S. B. No. 166), Reducing allowable blood alcohol content for
DUI.
Respectfully submitted,
Larry L. Rowe,
Chair, Senate Committee.
Sharon Spencer,
Chair, House Committee.
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. 245, Relating to county school impact fees.
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,
Robert H. Plymale,
Chair.
On motion of Senator Plymale, the bill (S. B. No. 245)
contained in the foregoing report from the Committee on Education
was referred to the Committee on the Judiciary; and then, under the
original double committee reference, to the Committee on Finance.
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. 276, Establishing marriage license discount
for applicants who complete approved premarital counseling.
And,
Senate Bill No. 509, Relating to property sold at sheriff's
sale.
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 Finance.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Helmick, as chair of the Committee
on Finance, unanimous consent was granted to dispense with the
second committee references of the bills contained in the foregoing
report from the Committee on the Judiciary.
Senator Prezioso, from the Committee on Health and Human
Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under
consideration
Senate Bill No. 356, Authorizing department of health and
human resources to promulgate legislative rule relating to
eligibility standards for economic assistance from James "Tiger"
Morton catastrophic illness fund.
And,
Senate Bill No. 379, Authorizing board of examiners for
licensed practical nurses to promulgate legislative rule relating
to policies and procedures for development and maintenance of
education programs in practical nursing.
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,
Roman W. Prezioso, Jr.,
Chair.
The bills, under the original double committee references,
were then referred to the Committee on the Judiciary.
Senator Prezioso, from the Committee on Health and Human
Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under
consideration
Senate Bill No. 360, Authorizing division of health to
promulgate legislative rule relating to statewide trauma/emergency
care system.
Senate Bill No. 362, Authorizing division of health to
promulgate legislative rule relating to childhood lead screening.
And,
Senate Bill No. 365, Authorizing division of health to
promulgate legislative rule relating to birth defects information
system.
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,
Roman W. Prezioso, Jr.,
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 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. 425, Establishing English Language Empowerment
Act.
And reports back a committee substitute for same with the
following title:
Com. Sub. for Senate Bill No. 425 (originating in the
Committee on the Judiciary)--A Bill to amend the code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §2-1-3, relating to making English the official language
of West Virginia.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
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. 524, Relating to council for community and
technical college education and PROMISE scholarship board of
control.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Robert H. Plymale,
Chair.
At the request of Senator Plymale, unanimous consent being
granted, the bill (S. B. No. 524) contained in the preceding report
from the Committee on Education was taken up for immediate
consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: 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, White and Tomblin (Mr.
President)--30.
The nays were: Boley, Smith and Weeks--3.
Absent: Bailey--1.
The bill (S. B. No. 524) was then read a second time.
On motion of Senator Plymale, the following amendments to the
bill were reported by the Clerk, considered simultaneously, and
adopted:
On pages one and two, section four, by striking out all of
subsection (a) and inserting in lieu thereof a new subsection (a),
to read as follows:
(a) There is hereby continued the West Virginia council for
community and technical college education. Any member appointed by
the governor prior to the effective date of this section may
continue to serve the term for which the member has been appointed.;
And,
On page five, section four, line eighteen, after the word
"field." by inserting the following: Any member appointed by the
governor prior to the effective date of this section may continue
to serve the term for which the member has been appointed.
The bill, as amended, was ordered to engrossment and third
reading.
Engrossed Senate Bill No. 524 was then 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. 524) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, 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, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 524) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
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. Com. Sub. for House Bill No. 4004, Establishing an
insurance fraud unit within the office of the insurance
commissioner.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original double committee reference
first be referred to the Committee on Finance.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
The bill, under the original double committee reference, was
then referred to the Committee on Finance, with amendments from the
Committee on the Judiciary pending.
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 Prezioso and Oliverio:
Senate Bill No. 527--
A Bill to amend and reenact §22A-1-8,
§22A-1-9, §22A-1-11, §22A-1-12 and §22A-1-13 of the code of West
Virginia, 1931, as amended, all relating to mine inspectors;
districts and regions; employment; tenure; oath; bond; mine safety
instructors; qualifications; employment; compensation; employment
of electrical inspectors; qualifications; salary and expenses;
eligibility for appointment as an underground mine inspector;
qualifications; salary and expenses; removal; eligibility for
appointment as surface mine inspector; qualifications; salary and
expenses; and removal.
Referred to the Committee on Energy, Industry and Mining; and
then to the Committee on Finance.
By Senator Jenkins:
Senate Bill No. 528--A Bill to amend and reenact §11-21-12 of
the code of West Virginia, 1931, as amended, relating to adding
federal retirement payments or benefits to conservation officers to
modifications reducing the federal adjusted gross income.
Referred to the Committee on Finance.
By Senators Love, Jenkins and White:
Senate Bill No. 529--A Bill to repeal §17-15-3 of the code of
West Virginia, 1931, as amended, relating to working prisoners by
county courts.
Referred to the Committee on the Judiciary.
By Senators Hunter, Unger, Prezioso, McCabe, Harrison, Rowe,
Fanning, White, Dempsey, Jenkins and Bowman:
Senate Bill No. 530--A Bill to amend and reenact §7-1-3jj of
the code of West Virginia, 1931, as amended, relating to defining
"adult-oriented establishment" and "limited video lottery
location"; authorizing counties to restrict the location of
adult-oriented establishments and limited video lottery
establishments; and exempting certain existing limited video
lottery establishments from regulation by county ordinance.
Referred to the Committee on the Judiciary; and then to the
Committee on Finance.
By Senators Love, Prezioso, White, Bowman, Caldwell and
Hunter:
Senate Bill No. 531--
A Bill to amend the code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §17C-5-2b; and to amend said code by adding thereto a
new section, designated §20-7-18e, all relating to driving
vehicles, motorboats, jet skis or other motorized vessels; and
providing certain first-time offenders convicted of driving while
under the influence of alcohol, controlled substances, other drugs
or any combination of alcohol, controlled substances or other drugs
the option of participating in litter control programs instead of
serving time in jail.
Referred to the Committee on the Judiciary; and then to the
Committee on Finance.
By Senators Love, Hunter, White and McKenzie:
Senate Bill No. 532--A Bill to repeal §7-8-3 of the code of
West Virginia, 1931, as amended, relating to inspection of jails.
Referred to the Committee on the Judiciary.
Senators Edgell and Kessler offered the following resolution:
Senate Concurrent Resolution No. 40--
Requesting the Division
of Highways rename the Tallman Bridge at Sellers Run Road, between
Middlebourne and Shiloh, Tyler County, the "E. Glen Moore Memorial
Bridge".
Whereas, E. Glen Moore was a lifelong resident of Tyler
County, West Virginia; and
Whereas, During his life, E. Glen Moore dedicated himself to
the preservation of Tyler County's heritage and history. He was
instrumental in the establishment of the Tyler County Museum, which
is housed in the former Tyler County High School; and
Whereas, E. Glen Moore was also recognized for his positive
influence on the youth of Tyler County, to whom he served as an
outstanding role model; and
Whereas, Even after his passing, E. Glen Moore's unselfish
dedication and commitment to his community continues to inspire
others; and
Whereas, In tribute to the community service of E. Glen
Moore, the Tyler County Commission adopted a resolution, which was
forwarded to the Legislature, requesting the Division of Highways
rename the Tallman Bridge at Sellers Run Road in his honor;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways
rename the Tallman Bridge at Sellers Run Road, between Middlebourne
and Shiloh, Tyler County, the "E. Glen Moore Memorial Bridge"; and,
be it
Further Resolved, That the Legislature hereby requests the
Division of Highways have made and be placed signs identifying the
bridge as the "E. Glen Moore Memorial Bridge"; 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.
Which, under the rules, lies over one day.
Petitions
Senator Fanning presented a petition from Franklin D. Dishman
and forty-two Mount View High School teachers, supporting the
merger of the Teachers Defined Benefit Retirement Plan with the
Teachers Defined Contribution Retirement Plan.
Referred to the Committee on Pensions.
At the request of Senator Chafin, and by unanimous consent,
the Senate returned 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
Senate Concurrent Resolution No. 41 (originating in the
Committee on the Judiciary)--Affirming that religious tolerance is
the official policy of the State of West Virginia.
Whereas, The right to freedom of religion undergirds the very
origin and existence of the United States and the State of West
Virginia; and
Whereas, Freedom of religious belief and practice is a
universal human right and fundamental freedom articulated in
numerous international instruments, including the Universal
Declaration of Human Rights, the International Covenant on Civil
and Political Rights, the Helsinki Accords, the Declaration on the
Elimination of All Forms of Intolerance and Discrimination Based on
Religion or Belief, the Charter of the United Nations and the
European Convention for the Protection of Human Rights and
Fundamental Freedoms; and
Whereas, Governments have the responsibility to protect the
fundamental rights of their citizens and to pursue justice for all.
Religious freedom is a fundamental right of every individual
regardless of race, sex, country, creed or nationality and should
never be arbitrarily abridged by any government; and
Whereas, The right to freedom of religion is under renewed
and, in some cases, increasing assault in many countries around the
world; and
Whereas, Religious believers in many countries face such
severe and violent forms of religious persecution as detention,
torture, beatings, forced marriage, rape, imprisonment,
enslavement, mass resettlement and death merely for the peaceful
belief in, change of or practice of their faith; and
Whereas, The Legislature denounces acts of religious persecution; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby affirms that religious tolerance
is the official policy of the State of West Virginia; and, be it
Further Resolved, That it is the policy of the State of West
Virginia:
(1) To condemn violations of religious freedom and to promote
and assist other governments in the promotion of the fundamental
right to freedom of religion; and
(2) To be vigorous and flexible, reflecting both the
unwavering commitment of the United States to religious freedom and
the desire of the United States for the most effective and
principled response, in light of the range of violations of
religious freedom by a variety of persecuting regimes and the
status of the relations of the United States with different
nations; and
(3) To affirm and protect religious freedom in order to
develop multilateral documents and initiatives to combat violations
of religious freedom and promote the right to religious freedom
abroad; and
(4) To stand for liberty and to stand with the persecuted, to
use and implement appropriate tools, including diplomatic,
political, commercial, charitable, educational and cultural
channels, to promote respect for religious freedom by all
governments and peoples.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 38, Requesting Division of
Highways name bridge crossing Tug Fork River from Williamson, Mingo
County, to Pike County, Kentucky, "Julien and Antoine Gaujot
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. 39, Requesting Joint
Committee on Government and Finance study state's water quality
standards.
On unfinished business, coming up in regular order, was
reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to
the Committee on Rules.
The Senate proceeded to the eighth order of business.
Eng. Com. Sub. for Senate Bill No. 125, Permitting
solicitation of certain state employees for contributions to
certain campaigns in local or county elections.
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,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder,
Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--31.
The nays were: Harrison and Minear--2.
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. 125) 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. 261, Allowing supplemental
assessment on personal property in certain cases.
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. 261) 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. 501, Relating to disqualification for
public retirement plan benefits; other provisions.
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. 501) 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. 71, Relating to verifying legal
employment status of workers employed in state.
On second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading.
Senate Bill No. 479, Relating to licensing foreign insurers.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on
Banking and Insurance, was reported by the Clerk and adopted:
On pages two and three, section seven, lines twenty-two
through twenty-seven, by striking out all of subsection (b) and
inserting in lieu thereof a new subsection (b), to read as follows:
(b) A foreign insurer that obtains a license pursuant to the
provisions of this section may transact the business of insurance
in this state without obtaining the certificate of authority from
the secretary of state otherwise required by the provisions of
article fifteen, chapter thirty-one-d of this code.
The bill (S. B. No. 479), as amended, was then ordered to
engrossment and third reading.
The Senate proceeded to the tenth order of business.
Com. Sub. for Senate Bill No. 240, Providing certain public
governing bodies need not require second to motion.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
Com. Sub. for Senate Bill No. 271, Relating to racial
profiling data collection.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
Senate Bill No. 526, Making supplementary appropriation of
public moneys from unappropriated surplus balance in general
revenue to division of rehabilitation services.
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 Rowe, Deem, Bowman and Smith.
Thereafter, at the request of Senator Caldwell, and by
unanimous consent, the remarks by Senator Rowe were ordered printed
in the Appendix to the Journal.
At the request of Senator Sprouse, unanimous consent being
granted, the remarks by Senator Deem were ordered printed in the
Appendix to the Journal.
The Senate proceeded to the thirteenth order of business.
At the request of Senator Harrison, the name of Senator
Harrison was removed as a sponsor of Engrossed Senate Bill No. 448
(Relating to higher education advisory boards generally).
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
Monday, February 16, 2004, at 11 a.m.
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