WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-SIXTH LEGISLATURE
REGULAR SESSION, 2004
FIFTY-FIFTH DAY
____________
Charleston, W. Va., Monday, March 8, 2004
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by Senior Chaplain C. J. Rider, Mount Olive
Correctional Complex, Mount Olive, West Virginia.
Pending the reading of the Journal of Friday, March 5, 2004,
On motion of Senator Ross, 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 concurrence by that body in the passage of
Eng. Senate Bill No. 199, Relating to appointments to
commission for deaf and hard-of-hearing.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 296, Continuing center for professional
development board.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Senate Bill No. 471, Continuing state board of risk and
insurance management.
The Senate proceeded to the fourth order of business.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4006, Increasing the vendor
registration fee per fiscal year with a limited waiver provided.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4517, Finding and declaring
certain claims against the state and its agencies to be moral
obligations of the state and directing the auditor to issue
warrants for the payment thereof.
And,
Eng. House Bill No. 4623, Repealing the section of the code
relating to expenditure of excess in collections upon approval of
governor.
And reports the same back with the recommendation that they
each do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bills (Eng. Com. Sub. for H. B. No. 4517 and Eng. H.
B. No. 4623) contained in the preceding report from the Committee
on Finance were each taken up for immediate consideration, read a
first time and ordered to second reading.
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
Eng. Com. Sub. for House Bill No. 4655, Giving the children's
health insurance program the right of subrogation.
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,
Joseph M. Minard,
Chair.
The bill, under the original double committee reference, was
then referred to the Committee on the Judiciary.
The Senate proceeded to the sixth order of business.
Senators McCabe, Rowe, Sprouse, Harrison, Tomblin (Mr. President), Bailey, Boley, Bowman, Caldwell, Chafin, Deem, Dempsey,
Edgell, Facemyer, Fanning, Guills, Helmick, Hunter, Jenkins,
Kessler, Love, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Ross, Sharpe, Smith, Snyder, Unger, Weeks and White
offered the following resolution:
Senate Resolution No. 35--Memorializing the life of the
Honorable Neal A. Kinsolving, former police officer, member of the
Senate, attorney and dedicated public servant.
Whereas, Neal A. Kinsolving was born January 15, 1930, the son
of the late Walter Scott and Edna (Crowder) Kinsolving; and
Whereas, Neal A. Kinsolving served his nation with pride and
distinction in the United States Army and was stationed in Germany;
and
Whereas, Neal A. Kinsolving also served and protected the
citizens of South Charleston, Kanawha County, as a police officer;
and
Whereas, Neal A. Kinsolving earned his Bachelor's degree from
West Virginia State College and earned his law degree from West
Virginia University College of Law; and
Whereas, In 1966, Neal A. Kinsolving was elected to the West
Virginia Senate from the seventeenth Senatorial District; and
Whereas, During his tenure as a member of the Senate, the
Honorable Neal A. Kinsolving was responsible for numerous
legislative acts which bear his name for the benefit of the
citizens he served; and
Whereas, Following an unsuccessful congressional campaign, the Honorable Neal A. Kinsolving continued to practice law in
Charleston; and
Whereas, Later, the Honorable Neal A. Kinsolving moved to
Gallipolis, Ohio, and was plagued by ill health for a number of
years; and
Whereas, Sadly, the Honorable Neal A. Kinsolving passed away
on Sunday, February 15, 2004; therefore, be it
Resolved by the Senate:
That the Senate hereby memorializes the life of the Honorable
Neal A. Kinsolving, former police officer, member of the Senate,
attorney and dedicated public servant; and, be it
Further Resolved, That the Senate extends its sincere sympathy
to the family of the Honorable Neal A. Kinsolving; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to his brothers, James and Odie
Kinsolving, and his sisters, Ruth Johnson and Ruby Norman.
At the request of Senator McCabe, 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
resumed business under the sixth order.
Senators McCabe, Rowe, Sprouse and Harrison offered the
following resolution:
Senate Resolution No. 36--Congratulating the Capital High School boys' soccer team on winning the 2003 state soccer
championship.
Whereas, The Capital High School boys' soccer team had an
exceptional season which earned it the opportunity to participate
in the 2003 championship playoffs; and
Whereas, The Capital High School boys' soccer team won the
2003 state soccer championship by defeating Morgantown High School
3-0; and
Whereas, The coaching staff, consisting of Scott Menefee, Al
Mays, Joey Dutton and Jonathan Hardman, is commended for its
outstanding leadership ability; and
Whereas, The team players, consisting of Chris Bohach, Chris
Howard, Derek Pennington, Tommy Polites, Josh Smith-Shimer, Michael
Stark, Alex Ashley, Will Calvert, Reinier Coutimho, Nicholas Dodd,
Shane Guthrie, Allen Hartley, Gabe Haynes, Travis Johnson, David
Margolis, Austin Slater, Zach Treister, Daniel White, Jared Hawley,
Taylor Johnston, Adam Treister, Adam Batty and Jo'an Gallego, are
commended for their outstanding athletic ability, team spirit and
sportsmanship; therefore, be it
Resolved by the Senate:
That the Senate hereby congratulates the Capital High School
boys' soccer team on winning the 2003 state soccer championship;
and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to the Capital High School boys' soccer
team.
At the request of Senator McCabe, 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 Minard, 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. 3, Requesting Joint Committee
on Government and Finance study creating forensic science task
force.
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. 9, Requesting Joint Committee
on Government and Finance study converting Teachers Defined
Contribution Retirement System to defined benefit retirement
system.
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. 16, Requesting Joint
Committee on Government and Finance study Commission on Governing
in 21st Century.
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. 19, Requesting Joint
Committee on Government and Finance study Mental Health Plan.
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. 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.
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. 43, Requesting Joint
Committee on Government and Finance study repealing current
corporate license tax.
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. 48, Requesting Joint
Committee on Government and Finance study training and educational
needs related to Alzheimer's disease and related dementias.
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. 49, Urging President George
W. Bush and Congress stop outsourcing American jobs.
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. 55, Requesting Joint
Committee on Government and Finance study state fire code rules
applying to bed and breakfasts.
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. 57, Requesting Joint
Committee on Government and Finance study need for adult day care,
congregate respite and in-home services for persons with
Alzheimer's.
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. 61, Requesting Joint
Committee on Government and Finance study local health departments.
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. 62, Requesting Joint
Committee on Government and Finance study epidemic of youth suicide
in state.
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. 63, Requesting Joint
Committee on Government and Finance study use of credit scoring in
insurance underwriting and rate-making process.
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. 65, Requesting Joint
Committee on Government and Finance study commercial property and
casualty insurance.
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. 66, Requesting Joint
Committee on Government and Finance study homeowners' insurance.
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. 68, Requesting Joint
Committee on Government and Finance study grievance boards and
administrative law judge systems.
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. 79, Requesting Joint
Committee on Government and Finance study childhood obesity
epidemic.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Rules.
Senate Concurrent Resolution No. 80, Requesting Joint
Committee on Government and Finance study problems with vision
services.
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on Rules.
Senate Concurrent Resolution No. 81, Requesting Joint
Committee on Government and Finance study economic development
funding.
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.
House Concurrent Resolution No. 7, Naming Saturday, April 24,
2004, and on the last Saturday of April of each succeeding year
thereafter, "Local Firefighter Day," in honor, recognition and
appreciation of all local firefighters of West Virginia and their
families.
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.
House Concurrent Resolution No. 11, Requesting a study on the
causes of the devastating flooding in southern West Virginia.
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.
House Concurrent Resolution No. 39, Requesting a study of the
economic feasibility and beneficial effect of establishing a
state-wide thoroughbred racing breeders program at the state's two
horse racing facilities.
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.
The Senate proceeded to the eighth
order of business.
Eng. House Bill No. 4108, Authorizing sun screening devices
that exceed statutory limits to be used in law-enforcement K-9 and
other emergency vehicles that haul animals.
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. 4108) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4273, Changing the authority
to appoint guardians of minors from the county commission to the
family court.
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 H. B. No. 4273) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 4377, Assessing a penalty on
those physicians who fail to pay the special assessment.
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, 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)--32.
The nays were: Chafin--1.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4377) passed.
On motion of Senator Kessler, the following amendment to the
title of the bill was reported by the Clerk and adopted:
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 4377--A Bill to amend and
reenact §30-3-12 of the code of West Virginia, 1931, as amended;
and to amend and reenact §33-20F-7 of said code, all relating to
permitting a physician who allows his or her medical license to
expire upon retirement to retain the original wall license issued
by the board of medicine; exempting a physician holding an inactive license from payment of the assessment required for the physicians'
mutual insurance company; board of medicine and board of osteopathy
to notify physicians of payment of assessment; time for payment;
physician may file for exemption; failure to pay assessment by the
thirtieth day of June, two thousand four; suspension of license;
reinstatement of license upon payment to the appropriate licensing
board; and sunset provision.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
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)--32.
The nays were: Chafin--1.
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.
Com. Sub. for H. B. No. 4377) takes effect from passage.
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.
Eng. Com. Sub. for House Bill No. 3096, Authorizing
cooperation of campus police and rangers employed by the
Hatfield-McCoy regional recreation authority with other
law-enforcement agencies.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page two, section three, line one, by striking out the
words "In this article," and inserting in lieu thereof the words
"For purposes of this article only, and".
The bill (Eng. Com. Sub. for H. B. No. 3096), as amended, was
then ordered to third reading.
Eng. House Bill No. 4040, Relating to criteria for making
decisions affecting the filling of vacancies if one or more
permanently employed instructional personnel apply for a classroom
teaching position.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Education, was reported by the Clerk and adopted:
On page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.
§18A-4-7a. Employment, promotion and transfer of professional
personnel; seniority.
(a) A county board of education shall make decisions affecting
the hiring of professional personnel other than classroom teachers
on the basis of the applicant with the highest qualifications.
(b) The county board shall make decisions affecting the hiring of new classroom teachers on the basis of the applicant with the
highest qualifications.
(c) In judging qualifications for hiring employees pursuant to
subsections (a) and (b) of this section, consideration shall be
given to each of the following:
(1) Appropriate certification and/or licensure certification,
licensure or both;
(2) Amount of experience relevant to the position; or, in the
case of a classroom teaching position, the amount of teaching
experience in the subject area;
(3) The amount of course work and/or degree level course work,
degree level or both in the relevant field and degree level
generally;
(4) Academic achievement;
(5) Relevant specialized training;
(6) Past performance evaluations conducted pursuant to section
twelve, article two of this chapter; and
(7) Other measures or indicators upon which the relative
qualifications of the applicant may fairly be judged.
(d) If one or more permanently employed instructional
personnel apply for a classroom teaching position and meet the
standards set forth in the job posting, the county board of
education shall make decisions a decision affecting the filling of
such positions the position on the basis of the following criteria:
(1) Appropriate certification and/or licensure certification,
licensure or both;
(2) Total amount of teaching experience;
(3) The existence of teaching experience in the required
certification area;
(4) Degree level in the required certification area;
(5) Specialized training directly related to the performance
of the job as stated in the job description;
(6) Receiving an overall rating of satisfactory in the
previous two evaluations over the previous two years conducted
pursuant to section twelve, article two of this chapter; and
(7) Seniority.
(e) In filling positions pursuant to subsection (d) of this
section, consideration shall be given to each criterion with each
criterion being given equal weight. If the applicant with the most
seniority is not selected for the position, upon the request of the
applicant a written statement of reasons shall be given to the
applicant with suggestions for improving the applicant's
qualifications.
(f) With the exception of guidance counselors, the The
seniority of classroom teachers, as defined in section one, article
one of this chapter with the exception of guidance counselors shall
be determined on the basis of the length of time the employee has
been employed as a regular full-time certified and/or licensed
professional educator by the county board of education and shall be
granted in all areas that the employee is certified and/or licensed
certified, licensed or both.
(g) Upon completion of one hundred thirty-three days of employment in any one school year, substitute teachers, except
retired teachers and other retired professional educators employed
as substitutes, shall accrue seniority exclusively for the purpose
of applying for employment as a permanent, full-time professional
employee. One hundred thirty-three days or more of said employment
shall be prorated and shall vest as a fraction of the school year
worked by the permanent, full-time teacher.
(h) Guidance counselors and all other professional employees,
as defined in section one, article one of this chapter, except
classroom teachers, shall gain seniority in their nonteaching area
of professional employment on the basis of the length of time the
employee has been employed by the county board of education in that
area: Provided, That if an employee is certified as a classroom
teacher, the employee accrues classroom teaching seniority for the
time that that employee is employed in another professional area.
For the purposes of accruing seniority under this paragraph,
employment as principal, supervisor or central office
administrator, as defined in section one, article one of this
chapter, shall be considered one area of employment.
(i) Employment for a full employment term shall equal one year
of seniority, but no employee may accrue more than one year of
seniority during any given fiscal year. Employment for less than
the full employment term shall be prorated. A random selection
system established by the employees and approved by the board shall
be used to determine the priority if two or more employees
accumulate identical seniority: Provided, That when two or more principals have accumulated identical seniority, decisions on
reductions in force shall be based on qualifications.
(j) Whenever a county board is required to reduce the number
of professional personnel in its employment, the employee with the
least amount of seniority shall be properly notified and released
from employment pursuant to the provisions of section two, article
two of this chapter. The provisions of this subsection are subject
to the following:
(1) All persons employed in a certification area to be reduced
who are employed under a temporary permit shall be properly
notified and released before a fully certified employee in such a
position is subject to release;
(2) An employee subject to release shall be employed in any
other professional position where such the employee is certified
and was previously employed or to any lateral area for which such
the employee is certified and/or licensed certified, licensed or
both, if such the employee's seniority is greater than the
seniority of any other employee in that area of certification
and/or licensure certification, licensure or both;
(3) If an employee subject to release holds certification
and/or licensure certification, licensure or both in more than one
lateral area and if such the employee's seniority is greater than
the seniority of any other employee in one or more of those areas
of certification and/or licensure certification, licensure or both,
the employee subject to release shall be employed in the
professional position held by the employee with the least seniority in any of those areas of certification and/or licensure
certification, licensure or both; and
(4) If, prior to the first day of August of the year a
reduction in force is approved, the reason for any particular
reduction in force no longer exists as determined by the county
board in its sole and exclusive judgment, the board shall rescind
the reduction in force or transfer and shall notify the released
employee in writing of his or her right to be restored to his or
her position of employment. Within five days of being so notified,
the released employee shall notify the board, in writing, of his or
her intent to resume his or her position of employment or the right
to be restored shall terminate. Notwithstanding any other
provision of this subdivision, if there is another employee on the
preferred recall list with proper certification and higher
seniority, that person shall be placed in the position restored as
a result of the reduction in force being rescinded.
(k) For the purpose of this article, all positions which meet
the definition of classroom teacher as defined in section one,
article one of this chapter shall be lateral positions. For all
other professional positions, the county board of education shall
adopt a policy by the thirty-first day of October, one thousand
nine hundred ninety-three, and may modify said the policy
thereafter as necessary, which defines which positions shall be
lateral positions. The board shall submit a copy of its policy to
the state board within thirty days of adoption or any modification,
and the state board shall compile a report and submit same the report to the legislative oversight commission on education
accountability by the thirty-first day of December, one thousand
nine hundred ninety-three, and by such that date in any succeeding
year in which any county board submits a modification of its policy
relating to lateral positions. In adopting such a the policy, the
board shall give consideration to the rank of each position in
terms of title; nature of responsibilities; salary level;
certification and/or licensure certification, licensure or both;
and days in the period of employment.
(l) After the fifth day prior to the beginning of the
instructional term, no person employed and assigned to a
professional position may transfer to another professional position
in the county during that instructional term unless the person
holding that position does not have valid certification. The
provisions of this subsection are subject to the following:
(1) The person may apply for any posted, vacant positions with
the successful applicant assuming the position at the beginning of
the next instructional term;
(2) Professional personnel who have been on an approved leave
of absence may fill these vacancies upon their return from the
approved leave of absence; and
(3) The county board, upon recommendation of the
superintendent may fill a position before the next instructional
term when it is determined to be in the best interest of the
students: Provided, That the county superintendent shall notify
the state board of each transfer of a person employed in a professional position to another professional position after the
fifth day prior to the beginning of the instructional term. The
Legislature finds that it is not in the best interest of the
students particularly in the elementary grades to have multiple
teachers for any one grade level or course during the instructional
term. It is the intent of the Legislature that the filling of
positions through transfers of personnel from one professional
position to another after the fifth day prior to the beginning of
the instructional term should be kept to a minimum.
(m) All professional personnel whose seniority with the county
board is insufficient to allow their retention by the county board
during a reduction in work force shall be placed upon a preferred
recall list. As to any professional position opening within the
area where they had previously been employed or to any lateral area
for which they have certification and/or licensure certification,
licensure or both, the employee shall be recalled on the basis of
seniority if no regular, full-time professional personnel, or those
returning from leaves of absence with greater seniority, are
qualified, apply for and accept such the position.
(n) Before position openings that are known or expected to
extend for twenty consecutive employment days or longer for
professional personnel may be filled by the board, the board shall
be required to notify all qualified professional personnel on the
preferred list and give them an opportunity to apply, but failure
to apply shall not cause the employee to forfeit any right to
recall. The notice shall be sent by certified mail to the last known address of the employee, and it shall be the duty of each
professional personnel to notify the board of continued
availability annually, of any change in address or of any change in
certification and/or licensure certification, licensure or both.
(o) Openings in established, existing or newly created
positions shall be processed as follows:
(1) Boards shall be required to post and date notices which
shall be subject to the following:
(A) The notices shall be posted in conspicuous working places
for all professional personnel to observe for at least five working
days;
(B) The notice shall be posted within twenty working days of
the position openings and shall include the job description;
(C) Any special criteria or skills that are required by the
position shall be specifically stated in the job description and
directly related to the performance of the job;
(D) Postings for vacancies made pursuant to this section shall
be written so as to ensure that the largest possible pool of
qualified applicants may apply; and
(E) Job postings may not require criteria which are not
necessary for the successful performance of the job and may not be
written with the intent to favor a specific applicant;
(2) No vacancy shall be filled until after the five-day
minimum posting period;
(3) If one or more applicants meets the qualifications listed
in the job posting, the successful applicant to fill the vacancy shall be selected by the board within thirty working days of the
end of the posting period;
(4) A position held by a certified and/or licensed teacher who
is certified, licensed or both, who has been issued a permit for
full-time employment and is working toward certification in the
permit area shall not be subject to posting if the certificate is
awarded within five years; and
(5) Nothing provided herein shall prevent the county board of
education from eliminating a position due to lack of need.
(p) Notwithstanding any other provision of the code to the
contrary, where the total number of classroom teaching positions in
an elementary school does not increase from one school year to the
next, but there exists in that school a need to realign the number
of teachers in one or more grade levels, kindergarten through six,
teachers at the school may be reassigned to grade levels for which
they are certified without that position being posted: Provided,
That the employee and the county board of education mutually agree
to the reassignment.
(q) Reductions in classroom teaching positions in elementary
schools shall be processed as follows:
(1) When the total number of classroom teaching positions in
an elementary school needs to be reduced, the reduction shall be
made on the basis of seniority with the least senior classroom
teacher being recommended for transfer; and
(2) When a specified grade level needs to be reduced and the
least senior employee in the school is not in that grade level, the least senior classroom teacher in the grade level that needs to be
reduced shall be reassigned to the position made vacant by the
transfer of the least senior classroom teacher in the school
without that position being posted: Provided, That the employee is
certified and/or licensed certified, licensed or both and agrees to
the reassignment.
(r) Any board failing to comply with the provisions of this
article may be compelled to do so by mandamus and shall be liable
to any party prevailing against the board for court costs and
reasonable attorney fees as determined and established by the
court. Further, employees denied promotion or employment in
violation of this section shall be awarded the job, pay and any
applicable benefits retroactive to the date of the violation and
payable entirely from local funds. Further, the board shall be
liable to any party prevailing against the board for any court
reporter costs including copies of transcripts.
(s) The county board shall compile, update annually on the
first day of July and make available by electronic or other means
to all employees a list of all professional personnel employed by
the county, their areas of certification and their seniority.
The bill (Eng. H. B. No. 4040), as amended, was then ordered
to third reading.
Eng. House Bill No. 4097, Clarifying those persons or entities
responsible for paying certain fees assessed by the clerk of the
circuit court for processing of criminal bonds and bailpiece.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4104, Creating the felony
crime of scanning device or reencoder fraud.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
O
n page two, by striking out the everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-56. Scanning device or reencoder fraud; felony; definitions;
and penalties.
(a) As used in this section, the term:
(1) "Authorized user" means the person to whom a payment card
is issued or any other person acting with the permission of the
person to whom the card is issued;
(2) "Merchant" means an owner or operator of any retail
mercantile establishment or any agent, employee, lessee, consignee,
officer, director, franchisee or independent contractor of the
owner or operator. A "merchant" also means a person who receives
from an authorized user of a payment card, or someone the person
believes to be an authorized user, a payment card or information
from a payment card, or what the person believes to be a payment
card or information from a payment card, as the instrument for
obtaining, purchasing or receiving goods, services, money or
anything else of value from the person;
(3) "Payment card" means a credit card, charge card, debit
card, hotel key card, stored-value card or any other card that is
issued to an authorized card user and that allows the user to
obtain, purchase or receive goods, services, money or anything else
of value from a merchant;
(4) "Reencoder" means an electronic device that places encoded
information from the magnetic strip or stripe of a payment card
onto the magnetic strip or stripe of a different payment card; and
(5) "Scanning device" means a scanner, reader or any other
electronic device that is used to access, read, scan, obtain,
memorize or store, temporarily or permanently, information encoded
on the magnetic strip or stripe of a payment card;
(b) Any person who uses a scanning device to access, read,
obtain, memorize or store, temporarily or permanently, information
encoded on the magnetic strip or stripe of a payment card without
the permission of the authorized user of the payment card and with
the intent to defraud the authorized user, the issuer of the
authorized user's payment card or a merchant is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than two thousand five hundred dollars or confined in a county or
regional jail for not more than one year, or both.
(c) Any person who uses a reencoder to place information
encoded on the magnetic strip or stripe of a payment card onto the
magnetic strip or stripe of a different card without the permission
of the authorized user of the card from which the information is
being reencoded and with the intent to defraud the authorized user, the issuer of the authorized user's payment card or a merchant is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than two thousand five hundred dollars or confined
in a county or regional jail not more than one year, or both.
(d) Notwithstanding the provisions of subsections (b) and (c)
of this section, any person who is convicted of the provisions of
subsection (b) or (c) of this section who has previously been
convicted of a violation of either subsection shall be guilty of a
felony and, upon conviction, shall be imprisoned in a state
correctional facility for not less than one nor more than three
years or fined not more than five thousand dollars, or both.
The bill (Eng. Com. Sub. for H. B. No. 4104), as amended, was
then ordered to third reading.
Eng. House Bill No. 4144, Excepting secretaries of real estate
brokers who set appointments with sellers and buyers from the scope
of practice.
On second reading, coming up in regular order, was read a
second time.
On motion of Senator Snyder, the following amendment to the
bill was reported by the Clerk:
On pages three and four, section five, by striking out all of
subdivision (9) and inserting in lieu thereof a new subdivision
(9), to read as follows:
(9) Any person properly licensed pursuant to the provisions of
article two-c, chapter nineteen of this code when conducting an
auction.
The question being on the adoption of Senator Snyder's
amendment to the bill (Eng. H. B. No. 4144), and on this question,
Senator McCabe demanded the yeas and nays.
To which demand, Senator Helmick objected.
Thereafter, Senator McCabe's demand for a roll call was
sustained.
The roll being taken, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Helmick,
Love, Minard, Minear, Ross, Sharpe, Smith, Snyder and Tomblin (Mr.
President)--19.
The nays were: Harrison, Hunter, Jenkins, Kessler, McCabe,
McKenzie, Oliverio, Plymale, Prezioso, Rowe, Sprouse, Unger, Weeks
and White--14.
Absent: Bailey--1.
So, a majority of those present and voting having voted in the
affirmative, the President declared Senator Snyder's amendment to
the bill (Eng. H. B. No. 4144) adopted.
The bill, as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 4167, Creating the Exotic
Animal Control Board to protect the health and safety of humans and
the state's agricultural and forestry industries, its wildlife and
other natural resource interests from the introduction or spread of
disease.
On second reading, coming up in regular order, was read a
second time.
On motions of Senators Edgell, Sharpe, Ross, Snyder and Love, the following amendment to the bill was reported by the Clerk:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §19-2H-1, §19-2H-2,
§19-2H-3, §19-2H-4, §19-2H-5, §19-2H-6, §19-2H-7, §19-2H-8, §19-2H-
9, §19-2H-10, §19-2H-11, §19-2H-12, §19-2H-13, §19-2H-14 and §19-
2H-15;
that said code be amended by adding thereto a new article,
designated §19-9B-1, §19-9B-2, §19-9B-3, §19-9B-4, §19-9B-5,
§19-9B-6, §19-9B-7, §19-9B-8, §19-9B-9, §19-9B-10, §19-9B-11,
§19-9B-12, §19-9B-13, §19-9B-14, §19-9B-15, §19-9B-16, §19-9B-17,
§19-9B-18, §19-9B-19, §19-9B-20, §19-9B-21, §19-9B-22 and
§19-9B-23;
that §19-29-2 of said code be amended and reenacted;
that §20-1-2 of said code be amended and reenacted; and that §20-2-
11 and §20-2-12 of said code be amended and reenacted
, all to read
as follows:
CHAPTER 19. AGRICULTURE.
ARTICLE 2H. CAPTIVE CERVID-FARMING ACT.
§19-2H-1. Short title.
This article shall be known and may be cited as the "Captive
Cervid-Farming Act".
§19-2H-2. Purpose and legislative findings.
(a) The purpose of this article is to promote this state's
agricultural economy, to preserve family farming opportunities, to
encourage agricultural uses of the natural topography of the
state's rural lands and to foster job retention and job creation in the state's rural areas by providing for comprehensive regulation
in the public interest of captive cervid farming as a viable
agricultural business.
(b) The Legislature finds and declares that captive cervid
farming is primarily an agricultural pursuit which is separate from
and largely unrelated to wildlife management, and that captive
cervids should be treated in a manner similar to other farm
livestock animals. The Legislature further finds and declares that
the commissioner of the department of agriculture and the
professional staff of that department possess the knowledge,
training and experience required to properly regulate captive
cervid farming as an agricultural business and to adequately
protect the health and safety of animals and the general public in
connection with this farming business. The Legislature also finds
and declares that matters related to animal health, farm fencing,
animal identification, agricultural recordkeeping and animal
husbandry methods and equipment are best managed and regulated by
the farming professionals within the department of agriculture, in
consultation with the department of natural resources and other
state agencies and departments having related regulatory authority.
§19-2H-3. Definitions.
As used in this article:
(a) "Biosecurity" means measures, actions or precautions taken
to prevent the transmission of disease in, among or between
free-ranging and captive cervids.
(b) "Captive cervid" or "captive cervids" means members of the cervidae family of animals, including, but not limited to,
fallow deer, red deer, white-tail deer, axis deer, elk, moose,
reindeer and caribou, which are domesticated animals under the
control of the owner of the animal.
(c) "Commissioner" means the commissioner of the West
Virginia department of agriculture.
(d) "Department" means the West Virginia department of
agriculture.
(e) "Identification system" means a process or procedure that
allows an individual cervid to be continuously recognized as a
unique animal throughout its lifetime.
(f) "License" means the authorization issued by the
department for the operation of a captive cervid-farming facility.
(g) "Licensed captive cervid-farming facility" means the
specific fenced area and all equipment and components therein
approved by the department for use as a captive cervid-farming
operation, but not including zoos accredited under the American
zoological association, other petting zoos or roadside menageries
licensed under section fifty-two, article two, chapter twenty of
this code or backyard enclosures containing less than one acre of
fenced area and having captive cervids located there for public or
private viewing.
(h) "Owner" means the person who owns or operates a licensed
captive cervid-farming facility.
(i) "Person" means an individual, corporation, limited
liability company, partnership, association, joint venture or other legal entity.
(j) "Release" means to allow a cervid from a licensed captive
cervid-farming facility to be outside the perimeter fence of that
licensed captive cervid-farming facility without being under the
direct control of the owner or his or her agent.
§19-2H-4. Authority of the department of agriculture.
The department is hereby granted authority to regulate and
control captive cervid-farming operations in this state in
accordance with the provisions of this article. Subject to the
transition provisions contained in section twelve of this article,
no person shall operate a captive cervid-farming facility in this
state unless that person holds a license issued by the commissioner
pursuant to this article authorizing operation of that particular
facility.
§19-2H-5. Captive cervid farming rules and regulations.
(a) The commissioner shall promulgate legislative rules in
accordance with the provisions of article three, chapter twenty-
nine-a of this code as are necessary to provide for implementation
and enforcement of the provisions of this article. Any rules
proposed by the commissioner before the first day of September, two
thousand four, may be by emergency rule.
(b) The rules and regulations, insofar as practicable, shall
include provisions for the protection of animal and human health
and promotion of biosecurity which are consistent with the rules
and regulations on those same subjects promulgated by the United
States department of agriculture, division of animal and plant health inspection service, in order that the regulations
promulgated pursuant to this section and the provisions of similar
regulations promulgated by the United States department of
agriculture may be harmoniously administered and applied to captive
cervid-farming operations subject to both the applicable federal
regulations and to regulations promulgated under this section.
(c) The rules and regulations promulgated under this section
shall include, among other provisions, specific requirements which
shall:
(1) Prevent the spread of diseases between captive and free-
ranging cervids;
(2) Implement an identification system which will allow
individual captive cervids to be recognized and identified
throughout the animal's life;
(3) Establish the specifications for fencing necessary to
prevent the escape of captive cervids and the infiltration of free-
ranging cervids into a licensed captive cervid-farming facility;
(4) Specify the record-keeping standards required of
licensees, including standards for documentation of purchases,
propagation, sales, harvesting and any other documentation required
to maintain accurate and complete records of captive cervid-farming
operations.
(5) Establish animal health testing criteria needed to
discover and prevent the spread of animal diseases;
(6) Regulate the transportation and movement of captive
cervids and provide for maintenance of documentation of the origin and destination of all shipments and any other documentation
required under the animal industry laws of this state.
(7) Establish a schedule of fees and charges for services
provided by the department to licensed captive cervid-farming
facilities, which fees and charges shall be set so that the costs
of regulation pursuant to this article are covered by the
combination of the fees and charges, license fees and any federal
and state grants and appropriations available for support of the
regulation of captive cervid-farming operations.
§19-2H-6. Duties and obligations of the commissioner.
The commissioner or his or her designees shall have the
authority to:
(1) Establish within the department a section responsible for
the enforcement of the provisions of this article;
(2) Designate members of the department staff responsible for
each of the functions required for the proper regulation of captive
cervid-farming operations;
(3) Contract, if deemed desirable, with veterinarians and
other animal health professionals to provide services required to
assure the biosecurity of captive cervid-farming operations in this
state;
(4) Enter into interstate contracts with other states to
enhance the biosecurity of captive cervid-farming operations in
this and other states;
(5) Lease, rent, acquire, purchase, own, hold, construct,
equip, maintain, operate, sell, encumber and assign rights of any property, real or personal, consistent with the objectives set
forth in this article;
(6) Hold hearings on any matter of concern relating to captive
cervid farming, subpoena witnesses, administer oaths, take
testimony, require the production of evidence and documentary
evidence and designate hearing examiners and employees to so act;
and
(7) To make and enter into all agreements and do all acts
necessary or incidental to the performance of duties and the
exercise of powers under this article.
§19-2H-7. Application for license.
(a) A person desiring to operate a captive cervid-farming
facility in this state must submit an application for a license to
the department. The department shall provide the forms and
instructions for the filing of applications.
(b) The application form shall require submission of the
following information:
(1) The mailing address of the proposed captive cervid-
farming facility and the size, location and an adequate legal
description of the facility;
(2) The number of each species of cervid proposed to be
included in the proposed facility;
(3) The biosecurity measures to be utilized, including, but
not limited to, a description of the fencing and the animal
identification system to be used;
(4) The proposed method of flushing wild cervid species from the enclosure, if applicable;
(5) The proposed record-keeping system;
(6) The method of verification that all free-ranging deer
species have been removed;
(7) The current zoning, if any, of the property proposed for
the facility; and
(8) Any other information considered necessary by the
department.
(c) The application shall be accompanied by the biannual
license fee as follows:
(1) Class I license--for a facility to be used only for
breeding and propagation of cervids for sale to others - seven
hundred fifty dollars;
(2) Class II license--for facilities from which cervids will
be harvested - one thousand five hundred dollars.
§19-2H-8. Departmental action on applications.
(a) The department shall act on an application for a license
within sixty days of receipt. The department may issue a
provisional license for a proposed facility which has not yet been
constructed, but operations shall not begin under a provisional
license until after inspection of the fully constructed facility by
the department and the issuance of a nonprovisional license for the
facility.
(b) The department shall not issue any nonprovisional license
until the commissioner has determined that the facility and its
operation meet all of the following criteria:
(1) The facility has been inspected by the department and the
commissioner has determined that the facility and its proposed
operation meet each of the standards and requirements under this
article and the rules promulgated under this article.
(2) The applicant has all necessary federal, state and local
governmental permits required for the facility and operations
subject to the license.
(3) The owner has paid all applicable license fees and all
departmental charges for services provided to the owner's captive
cervid-farming facility.
(c) If the department finds a deficiency in the license
application, the owner shall be given at least thirty days to
remedy the deficiency before the license application is denied.
(d) If the commissioner determines that the proposed captive
cervid-farming facility or its proposed operation does not comply
with the requirements of this article after the opportunity to
remedy deficiencies, the commissioner shall deny the application
and notify the applicant in writing of the reasons for the denial.
(e) The applicant may request a hearing pursuant to article
five, chapter twenty-nine-a of this code to contest the denial of
a license or any limitations placed upon the issuance of a license.
(f) The department shall not return the license fee or any
portion of the license fee to an applicant if a license is denied.
§19-2H-9. License certificate; renewal; sale or transfer of
license.
(a) The department shall issue a license certificate to the owner of each licensed captive cervid-farming facility, which shall
contain the following information:
(1) The class of license, the license number and expiration
date;
(2) The deer species approved for the licensed facility;
(3) The name, business address and telephone number of the
owner of the licensed facility; and
(4) The address of the captive cervid-farming facility.
(b) An application for renewal of a license shall be submitted
on forms provided by the department not later than sixty days
before expiration of the current license. Each license issued
shall be for a period of two years from the date of issuance.
(c) The sale or transfer of ownership of a captive cervid-
farming facility will not operate to transfer the license. The
department may issue a new license to the transferee if all license
requirements are met and a new license fee is paid.
§19-2H-10. License modification.
An owner must apply to the department for a license
modification if there is any proposed change in the class of
license or the species approved for the licensed facility.
§19-2H-11. Inspection of facility by the department.
The department and its duly authorized agents shall have
access at all reasonable hours to any licensed captive cervid-
farming facility for the purpose of conducting inspections,
securing samples or specimens of any cervid species and determining
whether the owner is in compliance with the requirements of this article. Any inspection and sampling shall be conducted in a
manner which will not jeopardize the health of the captive cervids.
§19-2H-12. Transition to captive cervid-farming licenses; statutory
conflicts.
(a) A captive cervid-farming facility in existence on the
effective date of this article may continue operation under its
existing authorization until the department acts on its application
for a license under this article, provided the owner of that
facility makes application for a license under this article within
sixty days after application forms are available from the
department.
(b) Notwithstanding any other provision of law to the
contrary, an owner or an owner's customer harvesting captive
cervids from a licensed captive cervid-farming facility is not
subject to any possession limits laws, closed season laws or
hunting license requirements. A license under this article does
not give the licensee any right to take free-ranging cervids unless
it is done pursuant to a permit issued by the department of natural
resources.
(c) A licensed captive cervid-farming facility is not subject
to the provisions of sections eleven, twelve, thirteen, fourteen,
forty-seven and fifty-one, article two, chapter twenty of this code
or the regulations promulgated thereunder.
§19-2H-13. Noncompliance with article, standards, orders or
rules; suspension, revocation or limitation of
license.
The department may suspend, revoke or limit a license if the
licensee fails to comply with this article, standards adopted under
this article, orders issued by the commissioner as a result of an
administrative action or departmental review conducted under this
article or rules promulgated under this article.
§19-2H-14. Prohibited conduct; violation; penalty.
(a) No person may release or allow the release of any captive
cervids from a captive cervid-farming facility. This subsection
does not prohibit the sale, breeding, marketing, exhibition or
other uses of captive cervids approved by the department.
(b) An owner shall not abandon a captive cervid-farming
facility without first notifying the department in compliance with
standards established under this article.
(c) A person shall not intentionally or knowingly cause the
ingress of free-ranging cervids into a captive cervid-farming
facility.
(d) Any person who violates subsection (a) or (b) of this
section is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than three hundred dollars, confined for
not more than ninety days, or both, for a first offense. A second
or subsequent offense is a misdemeanor and is punishable by a fine
of not more than one thousand dollars, confinement for not more
than one year, or both.
(e) Notwithstanding subsection (d) of this section, any person
who intentionally or knowingly violates subsection (a), (b) or (c)
of this section is guilty of a felony and, upon conviction thereof, shall be fined not more than one thousand dollars or imprisoned in
a state correctional facility not less than one nor more than three
years, or both fined and imprisoned.
§19-2H-15. Findings of violations; remedies.
(a) The commissioner, upon finding that a person has violated
any requirements under this article, may:
(1) Issue a warning; or
(2) Impose a civil penalty of not more than one thousand
dollars, plus the costs of investigation, for each violation, after
notice and an opportunity for a hearing. A person aggrieved by an
administrative action under this section may request a hearing
pursuant to article five, chapter twenty-nine-a of this code.
(b) Notwithstanding any other provisions of this article, the
commissioner may bring an action to:
(1) Obtain a declaratory judgment that a particular method,
activity or practice is a violation of this article; or
(2) Obtain an injunction against a person who is engaging in
a method, activity or practice that violates this article.
(d) The remedies under this article are cumulative and use of
one remedy does not bar the use of any other remedy.
ARTICLE 9B. ANIMAL HEALTH SAFETY CONTROL ACT.
§19-9B-1. Purpose; short title.
(a) It is the intent of the Legislature to prevent the
introduction or spread of disease or parasites harmful to humans,
wildlife, livestock, poultry and other animals; to prevent the
escape or release of an animal injurious to or competitive with the state's agricultural and forestry industries, wildlife and other
natural resource interests; to prevent the mistreatment of animals;
and to ensure the physical safety of humans by regulating the
possession and sale of domestic and exotic animals.
(b) This article may be cited as the "West Virginia Animal
Health Safety Control Act".
§19-9B-2. Definitions.
As used in this article:
(1) "Animal" means wildlife, domestic animals and exotic
animals as defined by this article.
(2) "Board" means the animal health safety control board.
(3) "Domestic animal" means an animal which, through extremely
long association with humans, has been bred to a degree that
resulted in genetic changes affecting the temperament, color,
conformation or other attributes of the species to an extent that
makes the animal unique and distinguishable from wild members of
the species and the animal has federally approved biologics for the
treatment and prevention of disease.
(4) "Exotic animal" means an animal, other than a domestic
animal or wildlife, and includes a crossbreed of an animal that
does not occur naturally either presently or historically within
the boundaries of this state, as well as all species listed as
threatened or endangered in accordance with 16 U. S. C. §1533 not
presently or historically native to this state.
(5) "Person" means, but is not limited to, an individual,
partnership, limited partnership, corporation, organization, firm, limited liability company, joint venture, association, trust,
estate and any officer, member, shareholder, director, employee,
agent or representative who is under a duty to perform or is
responsible for the performance of an act prescribed by the
provisions of this article.
(6) "Pet shop" means a facility where an animal is kept for
the purpose of sale or breeding.
(7) "Possess" means to own, harbor, keep, release, exhibit,
bring into the state, offer for sale, offer for trade or have
custody or control of an animal.
(8) "Possessor" means the person who owns, harbors, keeps,
releases, exhibits, brings into the state, offers for sale, offers
for trade or has custody or control of an animal.
(9) "Sale" means and includes, but is not limited to, any
transfer of ownership or title, whether for money, exchange for
other property or services or without any remuneration.
(10) "Wildlife" means wildlife and game fish, as those terms
are defined in section two, article one, chapter twenty of this
code and fish and all animals commonly accepted and documented to
live in the wild as part of the present or historic natural fauna
of West Virginia.
§19-9B-3. Board created; composition; duties.
(a) The animal health safety control board is created.
(b) The board shall consist of three members: The
commissioner of the department of agriculture, or his or her
designee, who shall serve as chair; the director of the division of natural resources or his or her designee; and the commissioner of
the bureau for public health or his or her designee.
(c) The board may:
(1) Establish requirements for the operation of pet shops,
including standards of care for the animals offered for sale or
breeding;
(2) Establish permit requirements for the possession of exotic
animals and grant, deny, suspend, revoke and reinstate permits;
(3) Establish standards for the care and treatment of exotic
animals;
(4) Prohibit the importation of any domestic or exotic animal
that threatens the public health and safety, endangers wildlife or
livestock or may be injurious to the agricultural and forestry
industries or other natural resource interests;
(5) Investigate alleged violations of the provisions of this
article, applicable rules and orders and final decisions of the
board;
(6) Conduct necessary hearings;
(7) Cooperate with appropriate state and federal officials in
the investigation and enforcement of violations of this article or
comparable acts of other states or the federal government;
(8) Propose rules in accordance with the provisions of article
three, chapter twenty-nine-a of this code;
(9) Seize, quarantine or destroy an animal which poses a
threat to the health and safety of humans or other animals or plant
life;
(10) Grant exemptions from the requirements of this article;
and
(11) Take all other actions necessary and proper to effectuate
the purposes of this article.
(d) The members of the board may delegate the duties set forth
in this article to other members of their staff.
§19-9B-4. Technical committee created; composition; duties.
(a) The technical committee to the board is created.
(b) The technical committee shall consist of nine members:
Three members will be representatives of the department of
agriculture designated by the commissioner of agriculture; three
members will be representatives of the division of natural
resources designated by the director of natural resources; and
three members will be representatives of the bureau for public
health designated by the commissioner of the bureau for public
health.
(c) The technical committee may make recommendations to and
advise the board on matters within its jurisdiction.
§19-9B-5. Establishment of special revenue fund; authorized
expenditures.
There is created in the state treasury a special revenue fund
to be known as the "animal health safety fees fund" which shall
consist of all fees, civil penalties, assessed costs, any
appropriations of moneys to the fund made by the Legislature and
all interest or other return earned from investment of the fund.
Expenditures from the fund shall be made by the commissioner of agriculture for the purposes set forth in this article. Any
balance, including accrued interest and other returns, in the fund
at the end of each fiscal year shall not expire to the general fund
but shall remain in the fund and be expended as provided by this
section.
§19-9B-6. Rule-making authority.
(a) The board may propose rules for legislative approval in
accordance with the provisions of article three, chapter
twenty-nine-a of this code to implement the provisions of this
article, including, but not limited to:
(1) The operation of pet shops;
(2) The standards of care for domestic and exotic animals
offered for sale;
(3) The importation and transportation of domestic and exotic
animals;
(4) The possession of exotic animals;
(5) The permitting process;
(6) The amount of any fee authorized by the provisions of this
article;
(7) The keeping, maintenance and inspection of records;
(8) The seizure, quarantine or destruction of an animal;
(9) The minimum caging requirements for each animal species or
family. including all requirements necessary for the safe and
humane caging of an exotic animal and safety of humans and other
animals; and
(10) The procedures for the imposition and collection of bonds, civil penalties and assessed costs.
(b) The board may promulgate emergency rules pursuant to the
provisions of section fifteen, article three, chapter twenty-nine-a
of this code to implement the provisions of this article.
§19-9B-7. Jurisdiction of member agencies.
(a) The department of agriculture is responsible for the
administration and enforcement of the provisions of this act.
(b) The bureau for public health may examine and test a
domestic or exotic animal at any time when there is probable cause
to believe that the animal is harboring disease or parasites
suspected of endangering public health.
(c) The division of natural resources may examine and test a
domestic or exotic animal or wildlife at any time when there is
probable cause to believe that the animal may pose a threat to
wildlife.
(d) Nothing in this article shall affect or abrogate the
authority of the department of agriculture, the bureau for public
health or the division of natural resources to carry out the duties
set forth in chapters nineteen, sixteen and twenty of this code,
respectively. Each agency shall advise the board of any action
taken to protect the health and safety of humans and animals under
their jurisdiction from any harm posed by an animal.
(e) Each member agency may immediately seize, quarantine or
destroy an animal which poses a threat to humans, other animals,
wildlife or the state's agricultural or forestry industries or
other natural resource interests. The agency shall advise the board of its action.
§19-9B-8. Costs of care for seized animal; bond; placement.
(a) The owner of an animal seized because it poses a threat to
the health and safety of humans or other animals is liable for all
costs of treatment and care while the animal is under the control
of the board.
(b) The owner of the seized animal shall post a bond, within
five days of the date of the seizure, with the board in an amount
determined by the board which is sufficient to provide for the
reasonable costs of treatment and care of the animal during the
period of confinement. The board may prescribe the form of the bond
by rule.
(c) The board shall determine the appropriate placement of the
seized animal based upon the threat posed by the animal.
§19-9B-9. Pet shop registration required.
Effective the first day of January, two thousand five, no
person shall operate a pet shop in this state unless he or she has
registered with the board.
§19-9B-10. Registration; renewal; fee.
(a) A pet shop operator shall register on forms supplied by
the board and provide all information required by the board by
rule.
(b) Registrations expire on the thirtieth day of June of each
year and must be renewed annually. The board shall mail renewal
forms to current registrants. The failure to receive the renewal
form does not relieve a registrant of the obligation to renew. The board may require a late fee when a renewal is received more than
sixty days after the expiration of the current registration.
(c) A pet shop operator shall pay the applicable registration
or renewal fee.
§19-9B-11. Recordkeeping; notifications required.
(a) Pet shops shall keep all records required to be kept by
the board.
(b) Pet shops shall notify the board of the sale of an animal
as required by the board.
(c) Pet shops shall notify all customers purchasing an animal
of the permitting requirements of this article.
§19-9B-12. Possession, breeding of exotic animals prohibited.
It is unlawful for any person to possess or breed an exotic
animal, except in compliance with this article.
§19-9B-13. Possession permit.
(a) No person may own or possess an exotic animal unless the
person applies for and is granted a possession permit.
(1) A person who possesses an exotic animal on the effective
date of this act shall apply for a possession permit within ninety
days of the effective date of this article.
(2) A person buying an exotic animal shall apply for a
possession permit within ten days of the date of purchase.
(b) A possession permit shall be renewed annually.
(c) An applicant shall file an application to receive a
possession permit with the board on forms supplied by the board.
The application shall include, but is not limited to:
(1) The name, address and telephone number of the applicant;
(2) A description of each exotic animal, including the
scientific name, sex, age, color, weight and any distinguishing
marks or coloration that would aid in the identification of the
animal;
(3) A photograph of the exotic animal;
(4) The exact location and a detailed description of the
holding facility where the exotic animal is to be kept;
(5) The name, address and telephone number of the person from
whom the applicant obtained the exotic animal;
(6) The identification number of the exotic animal required in
accordance with the provisions of section fifteen of this article
or a verified statement from a veterinarian that placement of an
identification number would endanger the exotic animal or an
exemption from this requirement granted by the board;
(7) The name, address and phone number of the veterinarian who
is to provide veterinary care to the exotic animal; and
(8) Any additional information required by the board.
(d) The application for a possession permit shall be
accompanied by the applicable permit fee.
(e) The board shall not grant a permit unless it finds that:
(1) The requirements set forth in subsection (a) of this
section are met;
(2) The applicant has not been convicted of or found
responsible for violating a state or federal law prohibiting
cruelty, neglect or mistreatment of an animal or any state or federal law relating to the possession of wildlife or endangered
species;
(3) The facility and the conditions in which the exotic animal
will be kept are in compliance with this article; and
(4) The applicant has obtained liability insurance for the
possession of an exotic animal as required by section eighteen of
this article.
(f) A permit holder shall notify the board of any changes in
the information on the permit, including the death of the exotic
animal and any additions through births or acquisitions throughout
the permit period.
(g) Possession permits expire on the thirtieth day of June of
each year and must be renewed annually. The board shall mail
renewal forms will be mailed to current permit holders. The
failure to receive the renewal form does not relieve the permit
holder of the obligation to renew. The board may require a late
fee when a renewal is received more than sixty days after the
expiration of the current permit.
(h) The board shall keep records of the permits issued.
§19-9B-14. Exemptions.
(a) The possession permit provisions of this act do not apply
to:
(1) Institutions accredited by the American zoo and aquarium
association (AZA);
(2) A facility subject to the provisions of article twenty or
twenty-three of this chapter;
(3) A licensed or accredited research or medical institution;
(4) A veterinary hospital or clinic; or
(5) A licensed or accredited educational institution.
(b) These facilities are subject to all other provisions of
this article unless determined exempt by the board.
§19-9B-15. Identification number.
The possessor of an exotic animal shall have an identification
number placed in the exotic animal, at his or her expense, by or
under the supervision of a veterinarian in accordance with a method
prescribed by the board.
§19-9B-16. Caging requirements.
(a) The board shall establish specific caging requirements for
the keeping and confinement of exotic animals. Persons possessing
exotic animals shall keep and confine the exotic animal in strict
compliance with the caging requirements established by the board.
(b) All caging requirements shall ensure that the exotic
animal is confined in a primary enclosure that protects the
public's safety and health and ensures the safety and well-being of
the exotic animal.
§19-9B-17. Care and treatment of exotic animals.
(a) An exotic animal shall not be tethered, leashed or chained
outdoors or allowed to run at-large.
(b) No exotic animal shall be released into the wild.
(c) No exotic animal shall be mistreated, neglected, abandoned
or deprived of necessary food, water and sustenance.
(d) A person transporting an exotic animal in a vehicle shall keep the animal securely caged in the vehicle at all times.
(e) Each possessor of an exotic animal shall have a plan for
the quick and safe recapture of the exotic animal if it escapes and
a plan for the destruction of the exotic animal if recapture
becomes impossible. This plan is not a substitute for notification
of law-enforcement officials required by section eighteen of this
article and the plan is not binding on law-enforcement officials
who may be required to destroy the animal if considered necessary
to protect the public health and safety.
(f) If a possessor of an exotic animal realizes that he or she
can no longer care for the exotic animal, the possessor shall
contact an approved animal rescue facility or an American zoo and
aquarium association-accredited facility for possible placement of
the animal. The proper permits shall be obtained to transfer any
animal. If the possessor is unable to care for the exotic animal
and cannot find a permitted facility to accept the exotic animal,
the animal shall be humanely euthanized at the possessor's expense.
§19-9B-18. Insurance; signs; notification.
(a) A possessor of an exotic animal shall maintain liability
insurance in an amount of not less than one hundred thousand
dollars for each occurrence and shall provide a copy of the policy
annually to the board.
(b) The possessor of an exotic animal shall post and display,
at each possible entrance to the premises, a conspicuous sign,
clearly legible and easily readable by the public warning that
there is an exotic animal on the premises. In addition, the possessor shall conspicuously display a sign with a warning symbol
that informs children of the presence of an exotic animal. The
content and size of the sign shall be prescribed by the board.
(c) If any exotic animal escapes or is released, either
intentionally or unintentionally, the possessor of the exotic
animal shall immediately contact a law-enforcement officer of the
city or county in which the possessor resides and the department of
agriculture to report the escape or release. The possessor is
liable for all expenses associated with efforts to recapture the
animal. The animal may be destroyed if necessary to protect the
public health or safety.
§19-9B-19. Public contact.
Unless specifically authorized by the board, a possessor may
not take an exotic animal to a public place except to a
veterinarian or a veterinarian clinic.
§19-9B-20. Inspection.
During reasonable hours, the employees of the department of
agriculture, the division of natural resources or the bureau for
public health may enter any premises to access domestic or exotic
animals for the purpose of inspection. No person shall obstruct or
hinder the employees in the discharge of their duties to enforce
this article.
§19-9B-21. Denial of possession permit; appeal.
(a) If the board finds that an applicant for an original or
renewal possession permit does not meet the requirements set forth
in this article, it may deny the applicant a possession permit. The board shall give the applicant written notice of the denial and the
reasons for this denial.
(b) If the board finds that a person has not complied with
this article the board may suspend or revoke the possession permit.
The board shall give the possessor written notice of the suspension
or revocation and the reasons for the suspension or revocation.
(c) A person who is denied a possession permit, denied a
renewal of a possession permit or who has had a permit suspended or
revoked shall be afforded a hearing before the board to be held in
accordance with the contested case provisions of article five,
chapter twenty-nine-a of this code.
§19-9B-22. Seizure; return; bond.
(a) An exotic animal or an animal possessed by a pet shop may
be immediately seized by the board if:
(1) The possessor does not have a possession permit as
required by section twelve of this article;
(2) The possessor does not secure and maintain liability
insurance as required by section eighteen of this article;
(3) The possessor is not in compliance with the provisions of
this article and rules promulgated under this article; or
(4) The animal poses a threat to humans, other animals,
wildlife or the state's agricultural or forestry industries or
other natural resource interests.
(b) An exotic animal or an animal possessed by a pet shop
which was seized by the board may be returned to the possessor only
if the possessor has a possession permit, is in compliance with this article and rules promulgated under this article and the
animal poses no threat to humans or other animals.
(c) If an exotic animal or an animal possessed by a pet shop
is seized under this section, the possessor shall post bond in
accordance with the requirements of section eight of this article.
§19-9B-23. Penalties for violation of article.
(a) Any person violating a provision of this article or a rule
promulgated under this article is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than one hundred
dollars nor more than five hundred dollars for the first offense
and for each subsequent offense shall be fined not less than five
hundred dollars nor more than one thousand dollars or imprisoned in
the county or regional jail not more than six months, or both.
Magistrates have concurrent jurisdiction with circuit courts to
enforce the provisions of this article.
(b) Any person violating the provisions of this article or a
rule promulgated pursuant to this article may be assessed a civil
penalty by the board. In determining the amount of the civil
penalty, the board shall give due consideration to the history of
previous violations by the person, the seriousness of the
violation, including any hazards to agriculture, natural resources
or public health in this state and the demonstrated good faith of
the person charged in attempting to achieve compliance with this
article after written notification of the violation.
(1) The board may assess a penalty of not more than one
hundred dollars for the first offense or less serious violation, as determined by the board, and not more than one thousand dollars for
a serious, repeat or intentional violation as determined by the
board.
(2) In addition to the civil penalty, the board may assess the
costs to the state to recover the animal, house the animal, dispose
of the animal or moneys otherwise expended by the state to control
the spread of or to prevent the introduction of disease and
parasites.
(3) The board may negotiate and enter into a settlement
agreement for the payment of civil penalties and assessed costs.
(4) The civil penalty and assessed costs are payable to the
state of West Virginia and are collectable in any manner authorized
by law for the collection of debts. Any person liable to pay a
civil penalty or any assessed costs who neglects or refuses to pay
the civil penalty or assessed costs within thirty days of written
notice of demand for payment shall be assessed interest at the rate
of ten percent per year from the date the penalty and assessed
costs were imposed to the date of payment. The penalty, costs and
interest constitute a lien in favor of the state of West Virginia
and shall attach on the person's property when a lien is properly
recorded in the county in which the property is situated. There
shall be no cost as a condition precedent to recording.
(5) All penalties and assessed costs collected pursuant to
this act shall be deposited in the exotic animal fees fund created
under section five of this article.
(6) No state court may allow the recovery of damages for administrative action taken if the court finds that there was
probable cause for the action. In the event that a court
determines that no probable cause existed for an action and that
compensation is necessary, the compensation shall not exceed the
fair market value of the animal at issue. The board shall pay
damages as determined by a state court provided funds are
available.
ARTICLE 29. PRODUCTION OF NONTRADITIONAL AGRICULTURE PRODUCTS.
§19-29-2. Definitions.
(a) "Aquaculture" means the commercial production of fish
and/or other aquatic life.
(b) "Commissioner" means the commissioner of agriculture or
his or her designee.
(c) "Domestic purposes" means for the purposes of food
production, for resale as breeding stock or for the sale of
immature stock for the purposes of further feeding.
(d) "Nontraditional agriculture" means the production of
animals domesticated from wild stock, either native or nonnative,
and are being confined, bred and/or fed for domestic purposes,
except that white-tailed deer (Odocoileus virginianus) and all its
subspecies shall not be included including privately owned cervid
and all its subspecies that are kept pursuant to the provisions of
article two-h of this chapter; aquaculture; or other agricultural
products as defined in this article.
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 1. ORGANIZATION AND ADMINISTRATION.
§20-1-2. Definitions.
As used in this chapter, unless the context clearly requires
a different meaning:
"Agency" means any branch, department or unit of the state
government, however designated or constituted.
"Alien" means any person not a citizen of the United States.
"Bag limit" or "creel limit" means the maximum number of
wildlife which may be taken, caught, killed or possessed by any
person.
"Bona fide resident, tenant or lessee" means a person who
permanently resides on the land.
"Citizen" means any native born citizen of the United States,
and foreign born persons who have procured their final
naturalization papers.
"Closed season" means the time or period during which it shall
be unlawful to take any wildlife as specified and limited by the
provisions of this chapter.
"Commission" means the natural resources commission.
"Commissioner" means a member of the advisory commission of
the natural resources commission.
"Director" means the director of the division of natural
resources.
"Fishing" or "to fish" means the taking, by any means, of
fish, minnows, frogs or other amphibians, aquatic turtles and other
forms of aquatic life used as fish bait.
"Fur-bearing animals" include: (a) The mink; (b) the weasel; (c) the muskrat; (d) the beaver; (e) the opossum; (f) the skunk and
civet cat, commonly called polecat; (g) the otter; (h) the red fox;
(i) the gray fox; (j) the wildcat, bobcat or bay lynx; (k) the
raccoon; and (l) the fisher.
"Game" means game animals, game birds and game fish as herein
defined.
"Game animals" include: (a) The elk; (b) the deer; (c) the
cottontail rabbits and hares; (d) the fox squirrels, commonly
called red squirrels, and gray squirrels and all their color phases
-- red, gray, black or albino; (e) the raccoon; (f) the black bear;
and (g) the wild boar: Provided, That "game animals" does not
include privately owned cervid and all its subspecies that are kept
pursuant to the provisions of article two-h, chapter nineteen of
this code.
"Game birds" include: (a) The Anatidae, commonly known as
swan, geese, brants and river and sea ducks; (b) the Rallidae,
commonly known as rails, sora, coots, mudhens and gallinales; (c)
the Limicolae, commonly known as shorebirds, plover, snipe,
woodcock, sandpipers, yellow legs and curlews; (d) the Galli,
commonly known as wild turkey, grouse, pheasants, quails and
partridges (both native and foreign species); and (e) the
Columbidae, commonly known as doves, and the Icteridae, commonly
known as blackbirds, redwings and grackle.
"Game fish" include: (a) Brook trout; (b) brown trout; (c)
rainbow trout; (d) golden rainbow trout; (e) largemouth bass; (f)
smallmouth bass; (g)spotted bass; (h) striped bass; (i) chain pickerel; (j) muskellunge; (k) walleye; (l) northern pike; (m) rock
bass; (n) white bass; (o) white crappie; (p) black crappie; (q) all
sunfish species; (r) channel catfish; (s) flathead catfish; (t)
sauger; and (u) all game fish hybrids.
"Hunt" means to pursue, chase, catch or take any wild birds or
wild animals.
"Lands" means land, waters and all other appurtenances
connected therewith.
"Migratory birds" means any migratory game or nongame birds
included in the terms of conventions between the United States and
Great Britain and between the United States and United Mexican
States, known as the "Migratory Bird Treaty Act", for the
protection of migratory birds and game mammals concluded,
respectively, the sixteenth day of August, one thousand nine
hundred sixteen, and the seventh day of February, one thousand nine
hundred thirty-six.
"Nonresident" means any person who is a citizen of the United
States and who has not been a domiciled resident of the state of
West Virginia for a period of thirty consecutive days immediately
prior to the date of his or her application for a license or permit
except any full-time student of any college or university of this
state, even though he or she is paying a nonresident tuition.
"Open season" means the time during which the various species
of wildlife may be legally caught, taken, killed or chased in a
specified manner, and shall include both the first and the last day
of the season or period designated by the director.
"Person" except as otherwise defined elsewhere in this
chapter, means the plural "persons" and shall include individuals,
partnerships, corporations or other legal entities.
"Preserve" means all duly licensed private game farmlands, or
private plants, ponds or areas, where hunting or fishing is
permitted under special licenses or seasons other than the regular
public hunting or fishing seasons: Provided, That "preserve" does
not include privately owned lands that are kept pursuant to the
provisions of article two-h, chapter nineteen of this code.
"Protected birds" means all wild birds not included within the
definition of "game birds" and "unprotected birds".
"Resident" means any person who is a citizen of the United
States and who has been a domiciled resident of the state of West
Virginia for a period of thirty consecutive days or more
immediately prior to the date of his or her application for license
or permit: Provided, That a member of the armed forces of the
United States who is stationed beyond the territorial limits of
this state, but who was a resident of this state at the time of his
or her entry into such service, and any full-time student of any
college or university of this state, even though he or she is
paying a nonresident tuition, shall be considered a resident under
the provisions of this chapter.
"Roadside menagerie" means any place of business, other than
commercial game farm, commercial fish preserve, place or pond,
where any wild bird, game bird, unprotected bird, game animal or
fur-bearing animal is kept in confinement for the attraction and amusement of the people for commercial purposes.
"Take" means to hunt, shoot, pursue, lure, kill, destroy,
catch, capture, keep in captivity, gig, spear, trap, ensnare, wound
or injure any wildlife, or attempt to do so.
"Unprotected birds" shall include: (a) The English sparrow;
(b) the European starling; (c) the cowbird; and (d) the crow.
"Wild animals" means all mammals native to the state of West
Virginia occurring either in a natural state or in captivity,
except house mice or rats: Provided, That "wild animals" does not
include privately owned cervid and all its subspecies that are kept
pursuant to the provisions of article two-h, chapter nineteen of
this code.
"Wild birds" shall include all birds other than: (a) Domestic
poultry -- chickens, ducks, geese, guinea fowl, peafowls and
turkeys; (b) psittacidae, commonly called parrots and parakeets;
and (c) other foreign cage birds such as the common canary, exotic
finches and ring dove. All wild birds, either: (a) Those
occurring in a natural state in West Virginia; or (b) those
imported foreign game birds, such as waterfowl, pheasants,
partridges, quail and grouse, regardless of how long raised or held
in captivity, shall remain wild birds under the meaning of this
chapter.
"Wildlife" means wild birds, wild animals, game and fur-
bearing animals, fish (including minnows), reptiles, amphibians,
mollusks, crustaceans and all forms of aquatic life used as fish
bait, whether dead or alive: Provided, That "wildlife" does not include privately owned cervid and all its subspecies that are kept
pursuant to the provisions of article two-h, chapter nineteen of
this code.
"Wildlife refuge" means any land set aside by action of the
director as an inviolate refuge or sanctuary for the protection of
designated forms of wildlife.
ARTICLE 2. WILDLIFE RESOURCES.
§20-2-11. Sale of wildlife; transportation of same.
(a) No person, except those legally licensed to operate
private game preserves for the purpose of propagating game for
commercial purposes and those legally licensed to propagate or sell
fish, amphibians and other forms of aquatic life, shall purchase or
offer to purchase, sell or offer to sell, expose for sale, or have
in his or her possession for the purpose of sale any wildlife, or
part thereof, which has been designated as game animals,
fur-bearing animals, game birds, game fish or amphibians, or any of
the song or insectivorous birds of the state, or any other species
of wildlife which the director may designate, except for privately
owned cervid and all its subspecies that are kept pursuant to the
provisions of article two-h, chapter nineteen of this code:
Provided, That pelts of game or fur-bearing animals taken during
the legal season may be sold and live red and gray foxes and
raccoon taken by legal methods during legal and established
trapping seasons may be sold within the state: Provided, however,
That hide, head, antlers and feet of a legally killed deer and the
hide, head and skull of a legally killed black bear may be sold.
(b) No person, including a common carrier, shall transport,
carry or convey, or receive for such purposes any wildlife, the
sale of which is prohibited, if such person knows or has reason to
believe that such wildlife has been or is to be sold in violation
of this section.
(c) The Each separate act of selling or exposing for sale,
having in possession for sale, transporting or carrying in
violation of this section shall each constitute constitutes a
separate misdemeanor offense. Notwithstanding the provisions of
this or any other section of this chapter, any game birds or game
bird meats sold by licensed retailers may be served at any hotel,
restaurant or other licensed eating place in this state.
(d) The director shall have authority to promulgate may
propose rules for promulgation in accordance with article three,
chapter twenty-nine-a of this code, dealing with the sale of
wildlife and the skins thereof.
§20-2-12. Transportation of wildlife out of state; penalties.
(a) No person shall at any time may transport or have in his
or her possession with the intention of transporting beyond the
limits of the state, any species of wildlife or any part thereof
killed, taken, captured or caught within this state: Provided,
That a nonresident legally entitled to hunt and fish in this state
may take with him or her personally, when leaving the state, any
wildlife that he or she has lawfully taken or killed, not
exceeding, during the open season, the number that any person may
lawfully take or kill in any two days. This section shall not apply to persons legally entitled to propagate and sell wild
animals, wild birds, fish, amphibians and other forms of aquatic
life: Provided, however, That licensed resident hunters and
trappers and resident and nonresident fur dealers may transport
beyond the limits of the state pelts of game and fur-bearing
animals taken during the legal season: Provided further, That
hide, head, antlers and feet of a legally killed deer, and the
hide, head, skull, organs and feet of a legally killed black bear
may also be transported beyond the limits of the state. The
director shall have authority to promulgate rules and regulations
may propose rules for promulgation in accordance with article
three, chapter twenty-nine-a of this code, dealing with the
transportation and tagging of wildlife and the skins thereof.
(b) Notwithstanding any provision of this section, any person
violating who violates the provisions of this section by
transporting or possessing with the intention of transporting
beyond the limits of this state, deer or wild boar, shall be deemed
considered to have committed a separate offense for each animal so
transported or possessed: Provided, That this section does not
apply to privately owned cervid or any of its subspecies that are
kept pursuant to the provisions of article two-h, chapter nineteen
of this code. Any person violating who violates the provisions of
this section shall be is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than twenty dollars nor
more than three hundred dollars and be imprisoned in the county or
regional jail not less than ten nor more than sixty days.
Senator Fanning arose to a point of order that the amendment
offered by Senators Edgell, Sharpe, Ross, Snyder and Love was not
germane to the bill.
Which point of order, the President ruled well taken.
On motion of Senator Edgell, the following amendment to the
bill was next reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the provisions of Engrossed
Committee Substitute for Senate Bill No. 723.
The bill (Eng. Com. Sub. for H. B. No. 4167), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 4373, Making it a crime to
alter a traffic-control device with an infrared or electronic
device.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 3. TRAFFIC SIGNS, SIGNALS AND MARKINGS.
§17C-3-10. Interference with official traffic-control devices by
infrared or electronic devices.
(a) The possession or use of a mobile infrared transmitter
(MIRT), or any type of infrared or electronic device capable of
changing a traffic control signal, by anyone other than the operator of an authorized emergency vehicle is prohibited.
(b) Any person violating the provisions of subsection (a) of
this section is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not more than five hundred dollars or
confined in the county or regional jail not more than three days,
or both; and upon a second conviction thereof, shall be fined not
more than one thousand dollars or confined in the county or
regional jail not more than six days, or both; and upon a third or
subsequent conviction thereof, shall be fined not less than five
hundred dollars nor more than two thousand five hundred dollars or
confined in a county or regional jail one year, or both.
(c) Notwithstanding the provisions of subsection (a) of this
section, any person convicted of a violation of said subsection
which results in physical injury to another shall be guilty of a
felony and, upon conviction, shall be imprisoned in a state
correctional facility for not less than one nor more than three
years or fined not more than five thousand dollars, or both.
(d) The provisions of this section shall not apply to any
device which simply makes a vehicle visible or its presence known
to a sensor which triggers the changing of a traffic light after
the vehicle operator has complied with the traffic signal
indication.
The bill (Eng. Com. Sub. for H. B. No. 4373), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 4388, Creating new
misdemeanor and felony offenses and associated penalties related to the possession, creation and use of original, duplicated, altered
or counterfeit retail sales receipts and universal product code
labels with the intent to defraud.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
O
n page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-56. Possession of bogus receipts or universal product codes
with intent to defraud; penalties.
Any person who, with intent to defraud, possesses fifteen or
more fraudulently obtained or counterfeit sales receipts or
fraudulently obtained or counterfeit universal product codes, or
possesses a device the purpose of which is to manufacture
counterfeit retail sales receipts or counterfeit universal product
code labels, is guilty of a felony and, upon conviction thereof,
shall be fined not less than five hundred dollars nor more than
five thousand dollars or imprisoned in a state correctional
facility not less than one year nor more than three years, or both.
The bill (Eng. Com. Sub. for H. B. No. 4388), as amended, was
then ordered to third reading.
Eng. House Bill No. 4554, Relating to the rights, privileges
and benefits of substitute service personnel employed to fill
vacancies created by leaves of absence.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Education, were reported by the Clerk, considered simultaneously,
and adopted:
O
n page two, section fifteen, line sixteen, after the word
"employee" by inserting the words "and is employed in the position
for twenty or more working days";
On page three, section fifteen, line twenty-nine, after the
word "or" by inserting the word "the";
And,
On page six, section fifteen, line eighty-nine, by striking
out the word "deemed" and inserting in lieu thereof the word
"considered".
The bill (Eng. H. B. No. 4554), as amended, was then ordered
to third reading.
Eng. House Bill No. 4598, Restricting courts from requiring
conditions on the out of home placement of children inconsistent
with existing licensing regulations.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 1. PURPOSES; DEFINITIONS.
§49-1-5. Limitation on out-of-home placement.
Before any child may be directed for placement in a particular
facility or for services of a child welfare agency licensed by the
department, a court shall make inquiry into the bed space of the
facility available to accommodate additional children and the
ability of the child welfare agency to meet the particular needs of
the child. A court shall not order the placement of a child in a
particular facility if it has reached its licensed capacity or
order conditions on the placement of the child which conflict with
licensure regulations applicable to the facility promulgated
pursuant to the provisions of article two-b of this chapter and
articles one-a, nine and seventeen, chapter twenty-seven of this
code. Further, a child welfare agency is not required to accept
placement of a child at a particular facility if the facility
remains at licensed capacity or is unable to meet the particular
needs of the child. A child welfare agency is not required to make
special dispensation or accommodation, reorganize existing child
placement or initiate early release of children in placement to
reduce actual occupancy at the facility.
The bill (Eng. H. B. No. 4598), as amended, was then ordered
to third reading.
The Senate proceeded to the tenth order of business.
Eng. Com. Sub. for House Bill No. 2423, Awarding high school
diplomas to certain veterans.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
Eng. House Bill No. 4451, Clarifying that the economic
development authority and tax commissioner are authorized to
require certain examination and compliance actions.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
Eng. House Bill No. 4627, Honoring academic performance of
West Virginians graduating from U.S. military academies.
On first reading, coming up in regular order, was read a first
time and ordered to second reading.
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
Eng. Com. Sub. for House Bill No. 4193, Authorizing the
Department of Environmental Protection to promulgate legislative
rules.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4193) contained in
the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to
second reading.
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. 4200, Authorizing the
department of military affairs and public safety to promulgate
legislative rules.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4200) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
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. 4205, Authorizing the
department of health and human resources to promulgate legislative
rules.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4205) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
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
Eng. Com. Sub. for House Bill No. 4303, Relating to
Gramm-Leach-Bliley and reciprocity.
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 the Judiciary.
Respectfully submitted,
Joseph M. Minard,
Chair.
The bill, under the original double committee reference, was
then referred to the Committee on the Judiciary, with an amendment
from the Committee on Banking and Insurance pending.
The Senate again proceeded to the sixth order of business.
At the request of Senator Boley, unanimous consent being
granted, Senators Boley and Deem offered the following resolution
from the floor:
Senate Resolution No. 37--Recognizing the heroic efforts of
Craig Hicks.
Whereas, On the morning of Tuesday, March 2, 2004, Nathan
Pybus, a senior at St. Marys High School, Pleasants County, boarded
a bus while eating breakfast; and
Whereas, Nathan Pybus began signaling to other students that
he was choking. Craig Hicks then picked Nathan from his seat and
began performing the Heimlich maneuver, which he had learned at Boy
Scout camp; and
Whereas, After Craig performed the Heimlich maneuver several
times, Nathan's airway finally cleared; and
Whereas, All the events of this unselfish act were videotaped
by the security camera located on the bus; and
Whereas, The gallant actions of Craig Hicks became a news
event of national proportion and quickly gained the attention of
MSNBC, the Today Show, CNN, Good Morning America and the Maury
Povich Show; therefore, be it
Resolved by the Senate:
That the Senate hereby recognizes the heroic efforts of Craig
Hicks; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to Craig Hicks and Nathan Pybus.
At the request of Senator Boley, 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
proceeded to the eleventh order of business and the introduction of
guests.
The Senate then proceeded to the thirteenth order of business.
Senator Oliverio called attention to today being the birthday
of Nathan Pybus and on behalf of the Senate extended felicitations
and good wishes to Nathan Pybus, with Senator Sharpe leading the
members in singing "Happy Birthday".
Pending announcement of meetings of standing committees of the
Senate, including a majority party caucus,
On motion of Senator Chafin, the Senate recessed until 5 p.m.
today.