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.