Upon expiration of the recess, the Senate reconvened and
proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill No. 2088, Increasing the penalty
for the manufacture, distribution or possession of certain
controlled or counterfeit substances near a park.
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, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §60A-9-5 of the code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 9. CONTROLLED SUBSTANCES MONITORING.
§60A-9-5. Confidentiality; limited access to records; period of
retention; no civil liability for required reporting.
The information required by this article to be kept by the
state board of pharmacy is confidential and is open to inspection
only by inspectors and agents of the state board of pharmacy,
members of the West Virginia state police expressly authorized by
the superintendent of the West Virginia state police to have access
to the information, authorized agents of local law-enforcement
agencies as members of a drug task force, authorized agents of the
federal drug enforcement agency, duly authorized agents of
licensing boards of practitioners in this state and other states
authorized to prescribe Schedules II, III and IV controlled substances, prescribing practitioners and pharmacists and persons
with an enforceable court order or regulatory agency administrative
subpoena: Provided, That all information released by the state
board of pharmacy must be related to a specific patient or a
specific individual or entity under investigation by any of the
above parties except that practitioners who prescribe controlled
substances may request specific data related to their drug
enforcement administration controlled substance registration number
or for the purpose of providing treatment to a patient. The board
shall maintain the information required by this article for a
period of not less than five years. Notwithstanding any other
provisions of this code to the contrary, data obtained under the
provisions of this article may be used for compilation of
educational, scholarly or statistical purposes as long as the
identities of persons or entities remain confidential. No
individual or entity required to report under section four of this
article may be subject to a claim for civil damages or other civil
relief for the reporting of information to the board of pharmacy as
required under and in accordance with the provisions of this
article.
The bill (Eng. Com. Sub. for H. B. No. 2088), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: 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, Snyder, Sprouse, Unger, Weeks and Tomblin (Mr.
President)--31.
The nays were: None.
Absent: Bailey, Smith and White--3.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2088) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2088) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, 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. 2088--A Bill to amend and
reenact §60A-9-5 of the code of West Virginia, 1931, as amended, relating to authorizing local law-enforcement officers who are
members of drug task forces to have access to prescription drug
monitoring data.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2200, Creating the felony
offense of destruction of property.
On second reading, coming up in regular order, was reported by
the Clerk.
At the request of Senator Kessler, unanimous consent being
granted, further consideration of the bill was deferred until the
conclusion of bills on today's second reading calendar, following
consideration of Engrossed House Bill No. 4280, already placed in
that position.
Eng. Com. Sub. for House Bill No. 2268, Teachers and
substitute teachers as professional educators and addressing the
critical need and shortage thereof.
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
clause and inserting in lieu thereof the following:
That §18-7A-38 of the code of West Virginia, 1931, as amended,
be amended and reenacted; that §18A-2-3 of said code be amended and
reenacted; and that §18C-4-2 of said code be amended and reenacted, all to read as follows:
CHAPTER 18. EDUCATION.
ARTICLE 7A. STATE TEACHERS RETIREMENT SYSTEM.
§18-7A-38. Maximum number of days a retired teacher may accept
employment; calculating days worked for retirants
engaged in substitute teaching.
(a) The Legislature finds that:
(1) The consolidated public retirement board has determined
that retired substitute teachers should not perform substitute
teaching without limit;
(2) The consolidated public retirement board has established,
by rule, a maximum number of days in which a retired teacher may
accept employment prior to having his or her retirement benefit
reduced; and
(3) There have been inconsistencies in the manner in which
county boards calculate the maximum number of days established by
rule.
(b) The consolidated public retirement board may not set forth
in rule a maximum number of days in which a retired teacher may
accept employment prior to having his or her retirement benefit
reduced that is less than one hundred forty days.
_____(b) (c) For the purpose of calculating whether a retired
substitute teacher has exceeded the maximum number of days in which
a substitute teacher may accept employment without incurring a
reduction in his or her retirement benefit, the number of days
worked shall be determined by:
(1) Totaling the number of hours worked; and
(2) Dividing by the standard number of hours that a full-time
teacher works per day.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 2. SCHOOL PERSONNEL.
§18A-2-3. Employment of substitute teachers and retired teachers
as substitutes in areas of critical need and shortage;
employment of prospective employable professional personnel.
(a) The county superintendent, subject to approval of the
county board, may employ and assign substitute teachers to any of
the following duties: (a) (1) To fill the temporary absence of any
teacher or an unexpired school term made vacant by resignation,
death, suspension or dismissal; (b) (2) to fill a teaching position
of a regular teacher on leave of absence; and (c) (3) to perform
the instructional services of any teacher who is authorized by law
to be absent from class without loss of pay, providing the absence
is approved by the board of education in accordance with the law.
The substitute shall be a duly certified teacher.
(b) Notwithstanding any other provision of this code to the
contrary, a substitute teacher who has been assigned as a classroom
teacher in the same classroom continuously for more than one half
of a grading period and whose assignment remains in effect two
weeks prior to the end of the grading period, shall remain in the
assignment until the grading period has ended, unless the principal
of the school certifies that the regularly employed teacher has
communicated with and assisted the substitute with the preparation of lesson plans and monitoring student progress or has been
approved to return to work by his or her physician. For the
purposes of this section, teacher and substitute teacher, in the
singular or plural, mean professional educator as defined in
section one, article one, of this chapter.
(c)(1) The Legislature hereby finds and declares that due to
a shortage of qualified substitute teachers, a compelling state
interest exists in expanding the use of retired teachers to provide
service as substitute teachers in areas of critical need and
shortage. The Legislature further finds that diverse circumstances
exist among the counties for the expanded use of retired teachers
as substitutes. For the purposes of this subsection, "area of
critical need and shortage" means an area of certification and
training in which the number of available substitute teachers in
the county who hold certification and training in that area and who
are not retired is insufficient to meet the projected need for
substitute teachers.
(2) A person receiving retirement benefits under the
provisions of article seven-a of this chapter or who is entitled to
retirement benefits during the fiscal year in which that person
retired may accept employment as a substitute teacher for an
unlimited number of days each fiscal year without affecting the
monthly retirement benefit to which the retirant is otherwise
entitled if the following conditions are satisfied:
(A) The county board adopts a policy recommended by the
superintendent to address areas of critical need and shortage;
(B) The policy sets forth the areas of critical need and
shortage in the county in accordance with the definition of area of
critical need and shortage set forth in subdivision (1) of this
subsection;
__(B) (C) The policy provides for the employment of retired
teachers as substitute teachers during the school year on an
expanded basis in areas of critical need and shortage as provided
in this subsection;
(D) The policy provides that a retired teacher may be employed
as a substitute teacher in an area of critical need and shortage on
an expanded basis as provided in this subsection only when no other
teacher who holds certification and training in the area and who is
not retired is available and accepts the substitute assignment;
(C) (E) The policy is effective for one school year only and
is subject to annual renewal by the county board;
(D) (F) The state board approves the policy and the use of
retired teachers as substitute teachers on an expanded basis in
areas of critical need and shortage as provided in this subsection;
and
(E) (G) Prior to employment of such a substitute teacher
beyond the post-retirement employment limitations established by
the consolidated public retirement board, the superintendent of the
affected county submits to the consolidated public retirement
board, in a form approved by the retirement board, an affidavit
signed by the superintendent stating the name of the county, the
fact that the county has adopted a policy to employ retired teachers as substitutes to address areas of critical need and
shortage and the name or names of the person or persons to be
employed pursuant to the policy.
(3) Any person who retires and begins work as a substitute
teacher within the same employment term shall lose those retirement
benefits attributed to the annuity reserve, effective from the
first day of employment as a retiree substitute in such that
employment term and ending with the month following the date the
retiree ceases to perform service as a substitute.
(4) With respect to the expanded substitute service provided
in this subsection, retired Retired teachers employed as such
substitutes to perform expanded substitute service pursuant to this
subsection are considered day-to-day, temporary, part-time
employees. The substitutes are not eligible for additional pension
or other benefits paid to regularly employed employees and shall
not accrue seniority.
(5) When a retired teacher is employed as a substitute to fill
a vacant position, the county board shall continue to post the
vacant position until it is filled with a regularly employed
teacher.
__(5) (6) Until this subsection is expired pursuant to
subdivision (6) (7) of this subsection, the state board, annually,
shall report to the joint committee on government and finance prior
to the first day of February of each year. Additionally, a copy
shall be provided to the legislative oversight commission on
education accountability. The report shall contain information indicating the effectiveness of the provisions of this subsection
on expanding the use of retired substitute teachers to address
areas of critical need and shortage.
(6) (7) The provisions of this subsection shall expire on the
thirtieth day of June, two thousand three six.
(d)(1) Notwithstanding any other provision of this code to the
contrary, each year a county superintendent may employ prospective
employable professional personnel on a reserve list at the county
level subject to the following conditions:
(A) The county board adopts a policy to address areas of
critical need and shortage as identified by the state board. The
policy shall include authorization to employ prospective employable
professional personnel;
(B) The county board posts a notice of the areas of critical
need and shortage in the county in a conspicuous place in each
school for at least ten working days; and
(C) There are not any potentially qualified applicants
available and willing to fill the position.
(2) Prospective employable professional personnel may only be
employed from candidates at a job fair who have or will graduate
from college in the current school year or whose employment
contract with a county board has or will be terminated due to a
reduction in force in the current fiscal year.
(3) Prospective employable professional personnel employed are
limited to three full-time prospective employable professional
personnel per one hundred professional personnel employed in a county or twenty-five full-time prospective employable professional
personnel in a county, whichever is less.
(4) Prospective employable professional personnel shall be
granted benefits at a cost to the county board and as a condition
of the employment contract as approved by the county board.
(5) Regular employment status for prospective employable
professional personnel may be obtained only in accordance with the
provisions of section seven-a, article four of this chapter.
(e) The state board annually shall review the status of
employing personnel under the provisions of subsection (d) of this
section and annually shall report to the legislative oversight
commission on education accountability on or before the first day
of November of each year. The report shall include, but not be
limited to, the following:
(A) The counties that participated in the program;
(B) The number of personnel hired;
(C) The teaching fields in which personnel were hired;
(D) The venue from which personnel were employed;
(E) The place of residency of the individual hired; and
(F) The state board's recommendations on the prospective
employable professional personnel program.
CHAPTER 18C. STUDENT LOANS; SCHOLARSHIPS AND STATE AID.
ARTICLE 4. UNDERWOOD-SMITH TEACHER SCHOLARSHIP PROGRAM.
§18C-4-2. Selection criteria and procedures.
(a) The governor shall designate an existing scholarship
selection agency or panel to select the recipients of Underwood-Smith teacher scholarships who meet the eligibility
criteria set forth in subsection (b) of this section. If no such
agency or panel exists, the governor shall appoint a scholarship
selection panel for this purpose which shall consist of seven
persons representative of public school administrators, teachers,
including preschool teachers, and parents.
(b) Eligibility for an Underwood-Smith teacher scholarship
award shall be limited to West Virginia resident students who:
(1) Have graduated or are graduating from high school and rank
in the top ten percent of their graduating class or the top ten
percent statewide of those West Virginia students taking the
American college test;
(2) Have a cumulative grade point average of at least three
and twenty-five one hundredths on a possible scale of four after
successfully completing two years of course work at an approved
institution of higher education;
(3) Are public school aides or paraprofessionals as defined in
section eight, article four, chapter eighteen-a of this code and
who have a cumulative grade point average of at least three and
twenty-five one hundredths on a possible scale of four after
successfully completing two years of course work at an approved
institution of higher education; or
(4) Are graduate students at the master's degree level who
have graduated or are graduating in the top ten percent of their
college graduating class.
(c) In accordance with the rules of the governing boards commission, the senior administrator vice chancellor for
administration shall develop criteria and procedures for the
selection of scholarship recipients that reflect the purposes of
this article and the areas in which particular efforts will be made
in the selection of scholars as set forth in section one of this
article and which also may include, but not be limited to, the
grade point average of the applicant, involvement in
extracurricular activities, financial need, current academic
standing and an expression of interest in teaching as expressed in
an essay written by the applicant. Such criteria and procedures
further may require the applicant to furnish letters of
recommendation from teachers and others. It is the intent of the
Legislature that academic abilities be the primary criteria for
selecting scholarship recipients: Provided, That the qualified
applicants with the highest academic abilities who intend to pursue
teaching careers in areas of critical need and shortage as
determined by the state board of education shall be given priority.
(d) In developing the selection criteria and procedures to be
used by the panel, the senior administrator vice chancellor for
administration shall solicit the views of public and private
education agencies and institutions and other interested parties.
These views: (1) Shall be solicited by means of written and
published selection criteria and procedures in final form for
implementation; and (2) may be solicited by means of public
hearings on the present and projected teacher needs of the state or
such any other methods as the senior administrator vice chancellor for administration may determine to be appropriate to gather such
the information.
(e) The senior administrator vice chancellor for
administration shall make application forms for Underwood-Smith
teacher scholarships available to public and private high schools
in the state and in other locations convenient to applicants,
parents and others, and shall make an effort to attract students
from low-income backgrounds, ethnic or racial minority students,
students with disabilities, and women or minority students who show
interest in pursuing teaching careers in mathematics and science
and who are under represented in those fields.
The bill (Eng. Com. Sub. for H. B. No. 2268), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2755, Creating a criminal
penalty for persons receiving stolen property that was obtained by
means other than through the commission of a theft.
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 everything after the enacting clause
and inserting in lieu thereof the following:
That §16-1-4 of the code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.
§16-1-4. Proposal of rules by the secretary.
The secretary may propose rules, in accordance with the
provisions of article three, chapter twenty-nine-a of the code,
that are necessary and proper to effectuate the purposes of this
chapter. The secretary may appoint or designate advisory councils
of professionals in the areas of hospitals, nursing homes, barbers
and beauticians, postmortem examinations, mental health and mental
retardation centers and any other areas necessary to advise the
secretary on rules.
The rules may include, but are not limited to, the regulation
of:
(a) Land usage endangering the public health: Provided, That
no rules may be promulgated or enforced restricting the subdivision
or development of any parcel of land within which the individual
tracts, lots or parcels exceed two acres each in total surface area
and which individual tracts, lots or parcels have an average
frontage of not less than one hundred fifty feet even though the
total surface area of the tract, lot or parcel equals or exceeds
two acres in total surface area, and which tracts are sold, leased
or utilized only as single family dwelling units. Notwithstanding
the provisions of this subsection, nothing in this section may be
construed to abate the authority of the department to: (1)
Restrict the subdivision or development of a tract for any more
intense or higher density occupancy than a single family dwelling
unit; (2) propose or enforce rules applicable to single family
dwelling units for single family dwelling unit sanitary sewerage
disposal systems; or (3) restrict any subdivision or development which might endanger the public health, the sanitary condition of
streams, or sources of water supply;
(b) The sanitary condition of all institutions and schools,
whether public or private, public conveyances, dairies,
slaughterhouses, workshops, factories, labor camps, all other
places open to the general public and inviting public patronage or
public assembly, or tendering to the public any item for human
consumption, and places where trades or industries are conducted;
(c) Occupational and industrial health hazards, the sanitary
conditions of streams, sources of water supply, sewerage facilities
and plumbing systems and the qualifications of personnel connected
with any of those facilities, without regard to whether the
supplies or systems are publicly or privately owned; and the design
of all water systems, plumbing systems, sewerage systems, sewage
treatment plants, excreta disposal methods and swimming pools in
this state, whether publicly or privately owned;
(d) Safe drinking water, including:
(1) The maximum contaminant levels to which all public water
systems must conform in order to prevent adverse effects on the
health of individuals, and, if appropriate, treatment techniques
that reduce the contaminant or contaminants to a level which will
not adversely affect the health of the consumer. The rule shall
contain provisions to protect and prevent contamination of
wellheads and well fields used by public water supplies so that
contaminants do not reach a level that would adversely affect the
health of the consumer;
(2) The minimum requirements for: Sampling and testing;
system operation; public notification by a public water system on
being granted a variance or exemption or upon failure to comply
with specific requirements of this section and rules promulgated
under this section; record keeping; laboratory certification; as
well as procedures and conditions for granting variances and
exemptions to public water systems from state public water systems
rules; and
(3) The requirements covering the production and distribution
of bottled drinking water and may establish requirements governing
the taste, odor, appearance and other consumer acceptability
parameters of drinking water;
(e) Food and drug standards, including cleanliness,
proscription of additives, proscription of sale and other
requirements in accordance with article seven of this chapter, as
are necessary to protect the health of the citizens of this state;
(f) The training and examination requirements for emergency
medical service attendants and emergency medical care
technician-paramedics; the designation of the health care
facilities, health care services, and the industries and
occupations in the state that must have emergency medical service
attendants and emergency medical care technician-paramedics
employed, and the availability, communications, and equipment
requirements with respect to emergency medical service attendants
and to emergency medical care technician-paramedics: Provided,
That any regulation of emergency medical service attendants and emergency medical care technician-paramedics shall not exceed the
provisions of article four-c of this chapter;
(g) The health and sanitary conditions of establishments
commonly referred to as bed and breakfast inns. For purposes of
this article, "bed and breakfast inn" means an establishment
providing sleeping accommodations and, at a minimum, a breakfast
for a fee: Provided, That the secretary may not require an owner
of a bed and breakfast providing sleeping accommodations of six or
fewer rooms to install a restaurant style or commercial food
service facility: Provided, however, That the secretary may not
require an owner of a bed and breakfast providing sleeping
accommodations of more than six rooms to install a restaurant-type
or commercial food service facility if the entire bed and breakfast
inn or those rooms numbering above six are used on an aggregate of
two weeks or less per year;
(h) Fees for services provided by the bureau for public health
including, but not limited to, laboratory service fees,
environmental health service fees, health facility fees and permit
fees;
(i) The collection of data on health status, the health system
and the costs of health care; and
(j) Opioid treatment programs duly licensed and operating
under the requirements of chapter twenty-seven of this code. The
secretary shall promulgate emergency rules to govern such programs:
Provided, That there shall be a moratorium on the licensure of new
opioid treatment programs that do not have a certificate of need as of the effective date of this subsection until such time as the
secretary files emergency rules with the secretary of state to
regulate such programs. All existing opioid treatment programs
shall be in compliance within one hundred eighty days of the
effective date of this rule; and
_____________(j) (k) Other health-related matters which the department is
authorized to supervise and for which the rule-making authority has
not been otherwise assigned.
The bill (Eng. Com. Sub. for H. B. No. 2755), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2801, Requiring the ethics
commission to furnish copies of all advisory opinions issued by the
commission to the West Virginia Legislature and the supreme court
law library.
Having been removed from the Senate second reading calendar in
earlier proceedings today, no further action thereon was taken.
Eng. House Bill No. 2991, Relating to the fee charged by
fiduciary commissioners in settling an estate.
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
clause and inserting in lieu thereof the following:
That §44-2-2 of the code of West Virginia, 1931, as amended,
be repealed; that said code be amended by adding thereto a new section, designated §41-5-1a; that §44-1-1, §44-1-6 and §44-1-14a
of said code be amended and reenacted; that said code be amended by
adding thereto a new section, designated §44-1-4a; and that §44-2-1
of said code be amended and reenacted, all to read as follows:
CHAPTER 41. WILLS.
ARTICLE 5. PRODUCTION, PROBATE AND RECORD OF WILLS.
§41-5-1a. Record notice of a person's death by filing a death
certificate and will, if any.
Notwithstanding any provision of this code to the contrary, a
death certificate and a will, if any, of a person who was a
resident of the county or who owned property in the county at the
time of death may be filed with the clerk of the county commission
for the purposes of providing record notice of the person's death.
The filing of a death certificate and a will, if any, does not
commence probate of the person's estate.
CHAPTER 44. ADMINISTRATION OF ESTATES AND TRUSTS.
ARTICLE 1. PERSONAL REPRESENTATIVES.
§44-1-1. Executor has no powers before qualifying.
(a) A person appointed by a will as executor thereof shall or
executrix of the will does not have the powers of executor or
executrix until he qualify as such by taking an oath before or she
qualifies by:
_______________(1) (A) Filing with the clerk of the county commission or
fiduciary supervisor a statement:
_______________(i) Submitting to the jurisdiction of the courts of this
state; and
_______________(ii) Containing the names and last known addresses, if known,
of any persons who would take any part of the estate as required in
section thirteen of this article;
_______________(B) The statement shall be sworn to by oath or affirmation
before a notary public or other person authorized to administer
oaths in this state; and
_______________(2) Giving bond the county court in which for his or her
service in this state unless the will or an authenticated copy
thereof of the will is admitted to record or before the clerk
thereof in vacation, except that which specifically states that the
representative shall serve without bond, and the will: Provided,
That he or she may provide for the burial of the testator funeral
arrangements of the testator, pay reasonable funeral expenses and
preserve the estate from waste.
(b) The clerk may require a person appointed by the will to
appear personally to give the oath for good cause found and
specifically stated in a letter or notice mailed to the person.
§44-1-4a. No probate of small estates.
In any estate where the probate assets of the estate,
excluding real estate, have a value of one hundred thousand dollars
or less, the personal representative in addition to qualifying
under section one-a or three of this article may file a sworn
affidavit stating that the value of the estate, exclusive of real
estate, has a value of one hundred thousand dollars or less
exclusive of real estate and all known or discovered debts are or
will be satisfied in the next immediately succeeding one hundred eighty days. If no protests or claims are filed within ninety days
after notice is published pursuant to section fourteen-a of this
article, the estate shall be closed by the clerk without further
action or administration. If a protest or claim is received within
ninety days, or if the personal representative reports to the clerk
that a debt of the estate was not satisfied, or will not be
satisfied, within the one hundred eighty-day period specified in
the affidavit, the personal representative shall begin probate of
the estate pursuant to the provisions of this chapter.
§44-1-6. Bond and oath; termination of grant in certain cases.
(a) At the time of the grant of administration upon the estate
of any intestate, the person to whom it is granted shall: in the
court or before the clerk granting it, give
(1)(A) File with the clerk of the county commission or
fiduciary supervisor a statement:
_______________(i) Submitting to the jurisdiction of the courts of this
state;
_______________(ii) Averring that the deceased left no will so far as he or
she knows;
_______________(iii) Containing the names and addresses, if known, of any
persons who would take any part of the estate as required in
section thirteen of this article; and
_______________(iv) That he or she will faithfully perform the duties of the
office to the best of his or her judgment;
_______________(B) The statement shall be sworn to by oath or affirmation
before a notary public or other person authorized to administer oaths in this state; and
_______________(2) Give bond and take an oath that the deceased has left no
will so far as he knows, and that he will faithfully perform the
duties of his office to the best of his judgment for his or her
service in this state.
(b) The clerk may require a person seeking to be appointed
under this section to appear personally to give the oath for good
cause found and specifically stated in a letter or notice mailed to
the person.
_______________(c) If a will of the deceased be is afterwards admitted to
record or if, after administration is granted to a creditor or
other person other than a distributee, any distributee who shall
not have has not before been refused shall may apply for
administration and there may shall be a grant of probate or
administration, after reasonable notice to such creditor or other
the person theretofore appointed, in like manner as if the former
grant had not been made, and such the former grant shall thereupon
cease upon paying over of the estate which came into the former's
hand to the subsequent representative.
§44-1-14a. Notice of administration of estate; time limits for
filing of objections; liability of personal
representative.
(a) Within thirty days of the filing of the appraisement of
any estate as required in section fourteen of this article, On or
before the fifteenth day of each month, the clerk of the county
commission shall publish, once a week for two successive weeks, in a newspaper of general circulation within the county of the
administration of the estate, a notice of the filing of the
appraisement of any estate as required in section fourteen of this
article which is to include:
(1) The name of the decedent;
(2) The name and address of the county commission before whom
the proceedings are pending;
(3) The name and address of the personal representative;
(4) The name and address of any attorney representing the
personal representative;
(5) The name and address of the fiduciary commissioner, if
any;
(6) The date of first publication;
(7) A statement that claims against the estate must be filed
in accordance with the provisions of article two or article three-a
of this chapter;
(8) A statement published pursuant to article four-a of this
chapter shall state that if no protest or claim on estate assets is
made within ninety days, the estate will be closed without
administration and no further protests or claims will be accepted,
except as may otherwise be permitted by law;
_____(8) (9) A statement that any person seeking to impeach or
establish a will must make a complaint in accordance with the
provisions of section eleven, twelve or thirteen, article five,
chapter forty-one of this code;
(9) (10) A statement that an interested person objecting to the qualifications of the personal representative or the venue or
jurisdiction of the court must be filed with the county commission
within three months after the date of first publication or thirty
days of service of the notice, whichever is later; and
(10) (11) If the appraisement of the assets of the estate
shows the value to be one hundred thousand dollars or less,
exclusive of real estate specifically devised and nonprobate assets
or, if it appears to the clerk that there is only one beneficiary
of the probate estate and that the beneficiary is competent at law,
a statement substantially as follows: "Settlement of the estate of
the following named decedents will proceed without reference to a
fiduciary commissioner unless within ninety days from the first
publication of this notice a reference is requested by a party in
interest or an unpaid creditor files a claim and good cause is
shown to support reference to a fiduciary commissioner".
(b) At any time an estate is to be referred to a fiduciary
commissioner, as part of the next publication as required in
subsection (a) of this section, notice that the estate has been
referred and the date by which claims against the estate must be
filed. The publication of notice shall include the information
required in subdivisions (1), (2), (3), (4), (5) and (6),
subsection (a) of this section. This publication of notice is
equivalent to personal service on the estate's creditors,
distributees or legatees.
_____(b) (c) If no appraisement is filed within the time period
established pursuant to section fourteen of this article, unless the estate is closed by the clerk pursuant to section four-a of
this article, the county clerk shall send a notice to the personal
representative by first-class mail, postage prepaid, indicating
that the appraisement has not been filed. Notwithstanding any
other provision of this code to the contrary, the county clerk
shall publish the notice required in subsection (a) of this section
within six months of the qualification of the personal
representative.
(c) (d) The personal representative shall promptly make a
diligent search to determine the names and addresses of creditors
of the decedent who are reasonably ascertainable.
(d) (e) The personal representative shall, within ninety days
after the date of first publication, serve a copy of the notice,
published pursuant to subsection (a) of this section, by first-
class mail, postage prepaid, or by personal service on the
following persons:
(1) If the personal representative is not the decedent's
surviving spouse and not the sole beneficiary or sole heir, the
decedent's surviving spouse, if any;
(2) If there is a will and the personal representative is not
the sole beneficiary, any beneficiaries;
(3) If there is not a will and the personal representative is
not the sole heir, any heirs;
(4) The trustee of any trust in which the decedent was a
grantor, if any; and
(5) All creditors identified under subsection (c) (d) of this section, other than a creditor who filed a claim as provided in
article two of this chapter or a creditor whose claim has been paid
in full.
(e) (f) Any person interested in the estate who objects to the
qualifications of the personal representative or the venue or
jurisdiction of the court shall file notice of an objection with
the county commission within ninety days after the date of the
first publication as required in subsection (a) of this section or
within thirty days after service of the notice as required by
subsection (d) (e) of this section, whichever is later. If an
objection is not timely filed, the objection is forever barred.
(f) (g) A personal representative acting in good faith is not
personally liable for serving notice under this section,
notwithstanding a determination that notice was not required by
this section. A personal representative acting in good faith who
fails to serve the notice required by this section is not
personally liable. The service of the notice in accordance with
this subsection may not be construed to admit the validity or
enforceability of a claim.
(g) (h) The clerk of the county commission shall collect a fee
of twenty dollars for the publication of the notice required in
this section.
(h) (i) For purposes of this section, the term beneficiary
means a person designated in a will to receive real or personal
property.
ARTICLE 2. PROOF AND ALLOWANCE OF CLAIMS AGAINST ESTATES OF DECEDENTS.
§44-2-1. Reference of decedents' estates; proceedings thereon.
(a) Upon the return of the appraisement by the personal
representative to the county clerk, the estate of his or her
decedent, by order of the county commission, must be referred to a
fiduciary commissioner for proof and determination of debts and
claims, establishment of their priority, determination of the
amount of the respective shares of the legatees and distributees,
and any other matter necessary for the settlement of the estate:
Provided, That in counties where there are two or more
commissioners, the estates of decedents must be referred to the
commissioners in rotation, so there may be an equal division of the
work. Notwithstanding any other provision of this code to the
contrary, a fiduciary commissioner may not charge to the estate a
fee greater than three hundred dollars and expenses for the
settlement of an estate, except upon: (i) Approval of the personal
representative; or (ii) a determination by the county commission
after a hearing that complicating issues or problems attendant to
the settlement substantiate the allowance of a greater fee that the
fee is based upon the actual time spent and actual services
rendered pursuant to a schedule of fees or rate of compensation for
fiduciary commissioners promulgated by the commission in accordance
with the provisions of section nine, article one, chapter fifty-
nine of this code.
(b) If the personal representative delivers to the clerk an
appraisement of the assets of the estate showing their value to be one hundred thousand dollars or less, exclusive of real estate
specifically devised and nonprobate assets, or if it appears to the
clerk that there is only one beneficiary of the probate estate and
that the beneficiary is competent at law, the clerk shall record
the appraisement. If an unpaid creditor files a claim against the
estate, the personal representative has twenty days after the date
of the filing of a claim against the estate of the decedent to
approve or reject the claim before the estate is referred to a
fiduciary commissioner. If the personal representative approves
all claims as filed, then no reference may be made.
The personal representative shall, within a reasonable time
after the date of recordation of the appraisement: (i) File a
waiver of final settlement in accordance with the provisions of
section twenty-nine of this article; or (ii) make a report to the
clerk of his or her receipts, disbursements and distribution and
submit an affidavit stating that all claims against the estate for
expenses of administration, taxes and debts of the decedent have
been paid in full. Upon receipt of the waiver of final settlement
or report, the clerk shall record the waiver or report and mail
copies to each beneficiary and creditor by first-class mail,
postage prepaid. The clerk shall retain the report for ten days to
allow any beneficiary or creditor to appear before the county
commission to request reference to a fiduciary commissioner. The
clerk shall collect a fee of ten dollars for recording and mailing
the waiver of final settlement or report.
If no request or objection is made to the clerk or to the county commission, the county commission may confirm the report of
the personal representative, the personal representative and his or
her surety shall be discharged; but if an objection or request is
made, the county commission may confirm and record the accounting
or may refer the estate to its fiduciary commissioners: Provided,
That the personal representative has twenty days after the date of
the filing of a claim against the estate of the decedent to approve
or reject the claim before the estate is referred to a fiduciary
commissioner and if all claims are approved as filed, then no
reference may be made.
(c) For purposes of this section, the term beneficiary means
a person designated in a will to receive real or personal property.
The bill (Eng. H. B. No. 2991), as amended, was then ordered
to third reading.
Eng. Com. Sub. for House Bill No. 4004, Establishing an
insurance fraud unit within the office of the insurance
commissioner.
On second reading, coming up in regular order, was read a
second time.
At the request of Senator Kessler, as chair of the Committee
on the Judiciary, and by unanimous consent, the unreported
Judiciary committee amendment to the bill was withdrawn.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk:
On page three, 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 section, designated §33-2-20; that §33-6A-4
of said code be amended and reenacted; that said code be amended by
adding thereto two new sections, designated §33-6A-4a and §33-6A-
4b; that said code be amended by adding thereto a new section,
designated §33-22-2a; that said code be amended by adding thereto
a new section, designated §33-23-2a; that said code be amended by
adding thereto a new section, designated §33-24-4b; that said code
be amended by adding thereto a new section, designated §33-25-6a;
that said code be amended by adding thereto a new section,
designated §33-25A-24b; that §33-41-1, §33-41-2 and §33-41-3 of
said code be amended and reenacted; and that said code be amended
by adding thereto nine new sections, designated §33-41-4, §33-41-5,
§33-41-6, §33-41-7, §33-41-8, §33-41-9, §33-41-10, §33-41-11 and
§33-41-12, all to read as follows:
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-20. Authority of commission to allow withdrawal of
insurance carriers from doing business in the
state.
(a) Notwithstanding any provision of the code to the contrary,
the commissioner may, consistent with the provisions of this
section, authorize an insurer to withdraw from the line of
authority of automobile liability insurance for personal, private
passenger automobiles covered by article six-a of this chapter from
doing business entirely in this state if:
(1) The insurer has submitted and received approval from the commissioner of a withdrawal plan; and
(2) The insurer demonstrates to the satisfaction of the
commissioner that allowing the insurer to withdraw would be in the
best interest of the insurer, its policyholders and the citizens of
this state.
(b) Any insurer that elects to nonrenew or cancel the
particular type or line of insurance coverage provided for by
section five, article seventeen-a of this chapter shall submit to
the insurance commissioner a withdrawal plan for informational
purposes only prior to cancellation or nonrenewal of all its
business in this state
(c) The commissioner shall promulgate rules pursuant to
chapter twenty-nine-a of this code setting forth the criteria for
withdrawal plans.
ARTICLE 6A. CANCELLATION OR NONRENEWAL OF AUTOMOBILE LIABILITY
POLICIES.
§33-6A-4. Advance notice of nonrenewal required; assigned risk
policies; reasons for nonrenewal; hearing and
review after nonrenewal.
(a) No insurer shall fail to renew an outstanding automobile
liability or physical damage insurance policy unless such the
nonrenewal is preceded by at least forty-five days of advance
notice to the named insured of such the insurer's election not to
renew such the policy: Provided, That subject to this section,
nothing contained in this article shall be construed so as to
prevent an insurer from refusing to issue an automobile liability or physical damage insurance policy upon application to such the
insurer, nor shall any provision of this article be construed to
prevent an insurer from refusing to renew such a policy upon
expiration, except as to the notice requirements of this section,
and except further as to those applicants lawfully submitted
pursuant to the West Virginia assigned risk plan. Provided,
however, That an
_____(b) An insurer may not fail to renew an outstanding automobile
liability or physical damage insurance policy which has been in
existence for two consecutive years or longer except for the
following reasons:
(a) (1) The named insured fails to make payments of premium
for such the policy or any installment of the premium when due;
(b) (2) The policy is obtained through material
misrepresentation;
(c) (3) The insured violates any of the material terms and
conditions of the policy;
(d) (4) The named insured or any other operator, either
residing in the same household or who customarily operates an
automobile insured under such the policy:
(1) (A) Has had his or her operator's license suspended or
revoked during the policy period; or
(2) (B) Is or becomes subject to epilepsy or heart attacks, a
physical or mental condition that prevents the insured from
operating a motor vehicle, and such the individual cannot produce
a certificate from a physician testifying to his or her ability to operate a motor vehicle;
(e) (5) The named insured or any other operator, either
residing in the same household or who customarily operates an
automobile insured under such the policy, is convicted of or
forfeits bail during the policy period for any of the following
reasons:
(1) (A) Any felony or assault involving the use of a motor
vehicle;
(2) (B) Negligent homicide arising out of the operation of a
motor vehicle;
(3) (C) Operating a motor vehicle while under the influence of
intoxicating liquor or of any narcotic drug;
(4) (D) Leaving the scene of a motor vehicle accident in which
the insured is involved without reporting it as required by law;
(5) (E) Theft of a motor vehicle or the unlawful taking of a
motor vehicle; or
_____(6) (F) Making false statements in an application for a motor
vehicle operator's license;
(7) (6) The named insured or any other operator, either
residing in the same household or who customarily operates an
automobile insured under the policy, is convicted of or forfeits
bail during the policy period for two or more moving traffic
violations committed within a period of twelve months, each of
which results in three or more points being assessed on the
driver's record by the division of motor vehicles, whether or not
the insurer renewed the policy without knowledge of all such of the violations: Provided, That an insurer may nonrenew an automobile
liability or physical damage insurance policy if the named insured,
or any other operator, either residing in the same household or who
customarily operates an automobile insured under the policy, is
convicted of or forfeits bail during the policy period for two or
more moving traffic violations committed within a period of twenty-
four months, each of which occurs on or after the first day of
July, two thousand four, and results in three or more points being
assessed on the driver's record by the division of motor vehicles,
whether or not the insurer renewed the policy without knowledge of
all of the violations. Notice of any nonrenewal made pursuant to
this subsection subdivision shall be mailed to the named insured
either during the current policy period or during the first full
policy period following the date that the second moving traffic
violation is recorded by the division of motor vehicles;
(f) (7) The named insured or any other operator either
residing in the same household or who customarily operates an
automobile insured under the policy has had a second at-fault motor
vehicle accident within a period of twelve months, whether or not
the insurer renewed the policy without knowledge of all such of the
accidents: Provided, That an insurer may nonrenew an automobile
liability or physical damage insurance policy under this subsection
if the named insured or any other operator, either residing in the
same household or who customarily operates an automobile insured
under such policy, has had two at-fault motor vehicle accidents
within a period of thirty-six months, each of which occurs after the first day of July, two thousand four, and results in a claim
paid by the insurer for each accident, whether or not the insurer
renewed the policy without knowledge of all of the accidents.
Notice of any nonrenewal made pursuant to this subsection shall be
mailed to the named insured either during the current policy period
or during the first full policy period following the date of the
second accident; or
(8) The insurer ceases writing automobile liability or
physical damage insurance policies throughout the state after
submission to and approval by the commissioner of a withdrawal plan
or discontinues operations within the state pursuant to a
withdrawal plan approved by the commissioner.
_____(c) An insurer shall not fail to renew an automobile liability
or physical damage insurance policy when an operator other than the
named insured has violated the provisions of subdivision (4) or
(5), subsection (b) of this section, if the named insured, by
restrictive endorsement, specifically excludes the operator who
violated the provision. An insurer issuing a nonrenewal notice
informing the named insured that the policy will be nonrenewed, the
reason for that an operator has violated the provisions of
subdivision (4) or (5), subsection (b) of this section, shall at
that time inform the named insured of his or her option to
specifically exclude the operator by restrictive endorsement and
shall further inform the named insured that upon obtaining the
restrictive endorsement, the insurer will renew the policy or
rescind the nonrenewal absent the existence of any other basis for nonrenewal set forth in this section.
_____(d) Nonrenewal A notice provided under subsection (a) of this
section shall state the specific reason or reasons for nonrenewal
and shall advise the named insured that nonrenewal of such the
policy for any reason is subject to a hearing and review as
provided for in section five of this article. Cost of the hearing
shall be assessed against the losing party but shall not exceed
seventy-five dollars. The notice must also advise the insured of
possible eligibility for insurance through the West Virginia
assigned risk plan.
_____(e) Notwithstanding the provisions of subsection (a) of this
section, the insurer shall renew reinstate any automobile liability
or physical damage insurance policy that has not been renewed due
to the insured's failure to pay the renewal premium when due if:
(1) None of the other grounds for nonrenewal as set forth in
subsections subsection (b) through (f), inclusive, of this section
exist; and
(2) the The insured makes an application for renewal
reinstatement within ninety forty-five days of the original
expiration date of the policy. If a policy is renewed reinstated
as provided for in this paragraph, then the coverage afforded shall
not be retroactive to the original expiration date of the policy
but: Provided, That such policy shall begin be effective on the
reinstatement date at the current premium levels offered by the
company and shall not be afforded the protections of this section
relating to renewal of an outstanding automobile liability or physical damage insurance policy that has been in existence for at
least two consecutive years.
§33-6A-4a. Alternative method for nonrenewal for automobile
liability and physical damage insurance.
(a) On or after the first day of July, two thousand four, an
insurer may nonrenew an automobile liability or physical damage
insurance policy for any reason other than race, religion,
nationality, ethnic group, age, sex, marital status or other reason
prohibited by the provisions of this chapter, notwithstanding the
provisions of section four of this article, upon forty-five days'
advance notice to the named insured of the insurer's election not
to renew the policy.
(b) The total number of nonrenewal notices issued by the
insurer pursuant to this section may not exceed one and one-half
percent of the total number of the policies of the insurer in force
at the end of the previous calendar year in this state: Provided,
That the total number of nonrenewal notices issued to insureds
within any given county in this state may not exceed one and one-
half percent of the total number of the policies of the insurer in
force in that county at the end of the previous calendar year:
Provided, however, That an insurer may nonrenew one policy in any
county if the applicable percentage limitation results in less than
one policy.
(c) Notwithstanding the provisions of subsection (b) of this
section, on or after the first day of July, two thousand seven, the
total number of nonrenewal notices issued by the insurer pursuant to this section may not exceed one percent of the total number of
the policies of the insurer in force at the end of the previous
calendar year in this state: Provided, That the total number of
nonrenewal notices issued to insureds within any given county in
this state may not exceed one percent of the total number of the
policies of the insurer in force in that county at the end of the
previous calendar year: Provided, however, That an insurer may
nonrenew one policy in any county if the applicable percentage
limitation results in less than one policy.
(d) A notice issued pursuant to this section shall state the
specific reason or reasons for refusal to renew and shall advise
the named insured that nonrenewal of the policy for any reason is
subject to a hearing and review as provided for in section five of
this article: Provided, That the hearing shall relate to whether
the nonrenewal notice was issued for a discriminatory reason, was
based upon inadequate notice or causes the insurer to exceed the
percentage limitation on nonrenewal notices set forth in this
section. Cost of the hearing shall be assessed against the losing
party but shall not exceed seventy-five dollars. The notice shall
also advise the insured of possible eligibility for insurance
through the West Virginia assigned risk plan.
(e) Each insurer licensed to write automobile liability and
physical damage insurance policies in this state shall file with
the commissioner a copy of its underwriting standards, including
any amendments or supplements. The commissioner shall review and
examine the underwriting standards to ensure compliance with this chapter. The underwriting standards filed with the commissioner
shall be considered confidential information and are exempt from
disclosure pursuant to chapter twenty-nine-b of this code. The
commissioner may promulgate rules pursuant to chapter twenty-nine-a
of this code to implement the provisions of this section.
(f) Each insurer that has elected to issue nonrenewal notices
pursuant to the percentage limitations provided in subsection (b)
or (c) of this section shall report to the commissioner on or
before the thirty-first day of March of each year the total number
of nonrenewal notices issued in this state and in each county of
this state for the preceding calendar year.
§33-6A-4b. Manner of making election relating to nonrenewals.
(a) Each insurer licensed to write automobile liability or
physical damage insurance policies in this state as of the first
day of July, two thousand four, shall make an election to issue all
nonrenewal notices either pursuant to section four or four-a of
this article. Each insurer shall notify the commissioner of its
election no later than the first day of July, two thousand four,
and shall remain bound by the election for a period of five years.
For each subsequent five-year period each insurer shall notify the
commissioner of its election to issue all nonrenewal notices either
pursuant to section four or four-a of this article.
(b) An insurer that is not licensed to write automobile
liability or physical damage insurance policies in this state as of
the first day of July, two thousand four, but becomes licensed to
write policies after that date shall, no later than two years after the date the insurer becomes licensed to write the policies, make
an election to issue all nonrenewal notices either pursuant to
section four or four-a of this article and shall notify the
commissioner of its election. If the insurer elects to issue all
nonrenewal notices pursuant to section four-a of this article, the
total number of nonrenewal notices issued by the insurer for the
subsequent three-year period may not exceed the percentage
limitation set forth in subsection (b) of said section. At the end
of the three-year period, the total number of nonrenewal notices
issued by the insurer with regard to the policies may not exceed
the percentage limitation set forth in subsection (c) of said
section. An insurer first becoming licensed to issue automobile
liability and physical damage insurance policies in this state
after the first day of July, two thousand four, shall be bound by
its election for a period of five years and, for each subsequent
five-year period shall notify the commissioner of its election to
issue all nonrenewal notices either pursuant to section four or
four-a of this article.
(c) Notwithstanding any provision of this article to the
contrary, a named insured by restrictive endorsement may
specifically exclude from automobile liability or physical damage
insurance policy an operator who has violated the provisions of
subdivision (4) or (5), subsection (b), section four of this
article.
ARTICLE 22. FARMERS' MUTUAL FIRE INSURANCE COMPANIES.
§33-22-2a. Applicability of insurance fraud prevention act.
Notwithstanding any provision of this code to the contrary,
article forty-one of this chapter is applicable to farmers' mutual
fire insurance companies.
ARTICLE 23. FRATERNAL BENEFIT SOCIETIES.
§33-23-2a. Applicability of insurance fraud prevention act.
Notwithstanding any provision of this code to the contrary,
article forty-one of this chapter is applicable to fraternal
benefit societies.
ARTICLE 24. HOSPITAL SERVICE CORPORATIONS, MEDICAL SERVICE
CORPORATIONS, DENTAL SERVICE CORPORATIONS AND
HEALTH SERVICE CORPORATIONS.
§33-24-4b. Applicability of insurance fraud prevention act.
Notwithstanding any provision of this code to the contrary,
article forty-one of this chapter is applicable to hospital service
corporations, medical service corporations, dental service
corporations and health service corporations.
ARTICLE 25. HEALTH CARE CORPORATIONS.
§33-25-6a. Applicability of insurance fraud prevention act.
Notwithstanding any provision of this code to the contrary,
article forty-one of this chapter is applicable to health care
corporations.
ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.
§33-25A-24b. Applicability of insurance fraud prevention act.
Notwithstanding any provision of this code to the contrary,
article forty-one of this chapter is applicable to health
maintenance organizations.
ARTICLE 41. INSURANCE FRAUD PREVENTION ACT.
§33-41-1. Short title; legislative findings and purpose.
(a) This article may be cited as the "West Virginia Insurance
Fraud Prevention Act".
(b) The Legislature finds that the business of insurance
involves many transactions of numerous types that have potential
for fraud and other illegal activities. This article is intended
to permit use of the expertise of the commissioner to investigate
and help prosecute insurance fraud and other crimes related to the
business of insurance more effectively and to assist and receive
assistance from state, local and federal law-enforcement and
regulatory agencies in enforcing laws prohibiting crimes relating
to the business of insurance.
§33-41-2. Definitions.
As used in this article:
(1) "Benefits" mean money payments, goods, services or other
thing of value paid in response to a claim filed with an insurer
based upon a policy of insurance;
(2) "Business of insurance" means the writing of insurance or
the reinsuring of risks by an insurer, including acts necessary or
incidental to writing insurance or reinsuring risks and the
activities of persons who act as or are officers, directors, agents
or employees of insurers or who are other persons authorized to act
on their behalf;
(3) "Claim" means an application or request for payment or
benefits provided under the terms of a policy of insurance;
(4) "Commissioner" means the insurance commissioner of West
Virginia or his or her designee;
(5) "Health care provider" means a person, partnership,
corporation, facility or institution licensed by, or certified in,
this state or another state to provide health care or professional
health care services, including, but not limited to, a physician,
osteopathic physician, hospital, dentist, registered or licensed
practical nurse, optometrist, pharmacist, podiatrist, chiropractor,
physical therapist or psychologist;
(6) "Insurance" means a contract or arrangement in which a
person undertakes to:
(A) Pay or indemnify another person as to loss from certain
contingencies called "risks", including through reinsurance;
(B) Pay or grant a specified amount or determinable benefit to
another person in connection with ascertainable risk contingencies;
(C) Pay an annuity to another person; or
(D) Act as surety;
(7) "Insurer" means a person entering into arrangements or
contracts of insurance or reinsurance. Insurer includes, but is
not limited to, any domestic or foreign stock company, mutual
company, mutual protective association, farmers' mutual fire
companies, fraternal benefit society, reciprocal or interinsurance
exchange, nonprofit medical care corporation, nonprofit health care
corporation, nonprofit hospital service association, nonprofit
dental care corporation, health maintenance organization, captive
insurance company, risk retention group or other insurer, regardless of the type of coverage written, benefits provided or
guarantees made by each. A person is an insurer regardless of
whether the person is acting in violation of laws requiring a
certificate of authority or regardless of whether the person denies
being an insurer;
(8) "Person" means an individual, a corporation, a limited
liability company, a partnership, an association, a joint stock
company, a trust, trustees, an unincorporated organization or any
similar business entity or any combination of the foregoing.
"Person" also includes hospital service corporations, medical
service corporations and dental service corporations as defined in
article twenty-four of this chapter, health care corporations as
defined in article twenty-five of this chapter or a health
maintenance organization organized pursuant to article twenty-five-
a of this chapter;
(9) "Policy" means an individual or group policy, group
certificate, contract or arrangement of insurance or reinsurance
affecting the rights of a resident of this state or bearing a
reasonable relation to this state, regardless of whether delivered
or issued for delivery in this state;
(10) "Reinsurance" means a contract, binder of coverage
(including placement slip) or arrangement under which an insurer
procures insurance for itself in another insurer as to all or part
of an insurance risk of the originating insurer;
(11) "Statement" means any written or oral representation made
to any person, insurer or authorized agency. A statement includes, but is not limited to, any oral report or representation; any
insurance application, policy, notice or statement; any proof of
loss, bill of lading, receipt for payment, invoice, account,
estimate of property damages, or other evidence of loss, injury or
expense; any bill for services, diagnosis, prescription, hospital
or doctor record, X ray, test result or other evidence of
treatment, services or expense; and any application, report,
actuarial study, rate request or other document submitted or
required to be submitted to any authorized agency. A statement
also includes any written or oral representation recorded by
electronic or other media; and
(12) "Unit" means the insurance fraud unit established
pursuant to the provisions of this article acting collectively or
by its duly authorized representatives.
§33-41-3. Fraud warning authorized; statement required of
nonadmitted insurers.
(a) Claims forms and applications for insurance, regardless of
the form of transmission, may contain the following warning or a
substantially similar caveat:
"Any person who knowingly presents a false or fraudulent claim
for payment of a loss or benefit or knowingly presents false
information in an application for insurance is guilty of a crime
and may be subject to fines and confinement in prison."
(b) The lack of a warning as authorized by the provisions of
subsection (a) of this section does not constitute a defense in any
prosecution for a fraudulent or illegal act nor shall it constitute the basis for any type of civil cause of action.
(c) Policies issued by nonadmitted insurers pursuant to
article twelve-c of this chapter shall contain a statement
disclosing the status of the insurer to do business in the state
where the policy is delivered or issued for delivery or the state
where coverage is in force. The requirement of this subsection may
be satisfied by a disclosure specifically required by section five,
article twelve-c of this chapter; section nine, article thirty-two
of this chapter; and section eighteen of said article.
§33-41-4. Authority of the commissioner; use of special assistant
prosecutors.
(a) The commissioner may investigate suspected criminal acts
relating to the business of insurance as authorized by the
provisions of this article.
(b) If the prosecuting attorney of the county in which a
criminal violation relating to the business of insurance occurs
determines that his or her office is unable to take appropriate
action, he or she may petition the appropriate circuit court for
the appointment of a special prosecutor or special assistant
prosecutor from the West Virginia prosecuting attorney institute
pursuant to the provisions of section six, article four, chapter
seven of this code. Notwithstanding the provisions of that
section, attorneys employed by the commissioner and assigned to the
insurance fraud unit created by the provisions of section eight of
this article may prosecute or assist in the prosecution of
violations of the criminal laws of this state related to the business of insurance and may act as special prosecutors or special
assistant prosecutors in those cases if assistance is sought by the
prosecuting attorney or special prosecutor assigned by the
institute to prosecute those matters.
(c) Funds allocated for insurance fraud prevention may be
dispersed by the commissioner, at his or her discretion, for the
purpose of insurance fraud enforcement as authorized by the
provisions of this code.
(d) The insurance fraud unit authorized by the provisions of
section eight of this article may assist federal law-enforcement
agencies, the West Virginia state police, the state fire marshal,
municipal police departments and the sheriffs of the counties in
West Virginia in investigating crimes related to the business of
insurance.
(e) The commissioner may conduct public outreach, education
and awareness programs on the costs of insurance fraud to the
public.
§33-41-5. Reporting of insurance fraud or criminal offenses
otherwise related to the business of insurance.
(a) A person engaged in the business of insurance having
knowledge or a reasonable belief that fraud or another crime
related to the business of insurance is being, will be or has been
committed shall provide to the commissioner the information
required by, and in a manner prescribed by, the commissioner.
(b) The commissioner may prescribe a reporting form to
facilitate reporting of possible fraud or other offenses related to the business of insurance for use by persons other than those
persons referred to in subsection (a) of this section.
§33-41-6. Immunity from liability.
(a) There shall be no civil liability imposed on and no cause
of action shall arise from a person's furnishing information
concerning suspected or anticipated fraud relating to the business
of insurance if the information is provided to or received from:
(1) The commissioner or the commissioner's employees, agents
or representatives;
(2) Federal, state or local law-enforcement or regulatory
officials or their employees, agents or representatives;
(3) A person involved in the prevention and detection of
insurance fraud or that person's agents, employees or
representatives; or
(4) The national association of insurance commissioners or its
employees, agents or representatives.
(b) The provisions of subsection (a) of this section are not
applicable to materially incorrect statements made maliciously or
fraudulently by a person designated a mandated reporter pursuant to
the provisions of subsection (a), section five of this article or
made in reckless disregard to the truth or falsity of the statement
by those not mandated to report. In an action brought against a
person for filing a report or furnishing other information
concerning an alleged insurance fraud, the party bringing the
action shall plead with specificity any facts supporting the
allegation that subsection (a) of this section does not apply because the person filing the report or furnishing the incorrect
information did so maliciously in the case of a mandated reporter
or in the case of a person not designated a mandated reporter, in
reckless disregard for the truth or falsity of the statement.
(c) Nothing in this article shall be construed to limit,
abrogate or modify existing statutes or case law applicable to the
duties or liabilities of insurers regarding bad faith or unfair
trade practices.
(d) This section does not abrogate or modify common law or
statutory privileges or immunities.
§33-41-7. Confidentiality.
(a) Documents, materials or other information in the
possession or control of the office of the insurance commissioner
that are provided pursuant to section six of this article or
obtained by the commissioner in an investigation of alleged
fraudulent acts related to the business of insurance shall be
confidential by law and privileged, shall not be subject to the
provisions of chapter twenty-nine-b of this code, shall not be open
to public inspection, shall not be subject to subpoena and shall
not be subject to discovery or admissible in evidence in any
private civil action. The commissioner may use the documents,
materials or other information in the furtherance of any regulatory
or legal action brought as a part of the commissioner's official
duties. The commissioner may use the documents, materials or other
information if they are required for evidence in criminal
proceedings or other action by the state or federal government and in such context may be discoverable as ordered by a court of
competent jurisdiction exercising its discretion.
(b) Neither the commissioner nor any person who receives
documents, materials or other information while acting under the
authority of the commissioner may be permitted or required to
testify in any private civil action concerning any confidential
documents, materials or information subject to subsection (a) of
this section except as ordered by a court of competent
jurisdiction.
(c) In order to assist in the performance of the
commissioner's duties, the commissioner:
(1) May share documents, materials or other information,
including the confidential and privileged documents, materials or
information subject to subsection (a) of this section with other
state, federal and international regulatory agencies, with the
national association of insurance commissioners and its affiliates
and subsidiaries, and with local, state, federal and international
law-enforcement authorities, provided that the recipient agrees to
maintain the confidentiality and privileged status of the document,
material or other information;
(2) May receive documents, materials or information, including
otherwise confidential and privileged documents, materials or
information, from the national association of insurance
commissioners and its affiliates and subsidiaries, and from
regulatory and law-enforcement officers of other foreign or
domestic jurisdictions, and shall maintain as confidential or privileged any document, material or information received with
notice or the understanding that it is confidential or privileged
under the laws of the jurisdiction that is the source of the
document, material or information; and
(3) May enter into agreements governing sharing and use of
information including the furtherance of any regulatory or legal
action brought as part of the recipient's official duties.
(d) No waiver of any applicable privilege or claim of
confidentiality in the documents, materials or information shall
occur as a result of disclosure to the commissioner under this
section or as a result of sharing as authorized in subsection (c)
of this section.
(e) Nothing in this section shall prohibit the commissioner
from providing information to or receiving information from any
local, state, federal or international law-enforcement authorities,
including any prosecuting authority; or from complying with
subpoenas or other lawful process in criminal actions; or as may
otherwise be provided in this article.
(f) Nothing in this article may be construed to abrogate or
limit the attorney-client or work product privileges existing at
common law or established by statute or court rule.
§33-41-8. Creation of insurance fraud unit; purpose; duties;
personnel qualifications.
(a) There is established the West Virginia insurance fraud
unit within the office of the insurance commissioner of West
Virginia. The commissioner may employ full-time supervisory, legal and investigative personnel for the unit, who shall be qualified by
training and experience in the areas of detection, investigation or
prosecution of fraud within and against the insurance industry to
perform the duties of their positions. The director of the fraud
unit shall be a full-time position and shall be appointed by the
commissioner and serve at his or her will and pleasure. The
commissioner shall provide office space, equipment, supplies,
clerical and other staff that is necessary for the unit to carry
out its duties and responsibilities under this article.
(b) The fraud unit may in its discretion:
(1) Initiate inquiries and conduct investigations when the
unit has cause to believe violations of the provisions of this
chapter or the provisions of article three, chapter sixty-one of
this code relating to the business of insurance have been or are
being committed;
(2) Review reports or complaints of alleged fraud related to
the business of insurance activities from federal, state and local
law-enforcement and regulatory agencies, persons engaged in the
business of insurance and the general public to determine whether
the reports require further investigation; and
(3) Conduct independent examinations of alleged fraudulent
activity related to the business of insurance and undertake
independent studies to determine the extent of fraudulent insurance
acts.
(c) The insurance fraud unit may:
(1) Employ and train personnel to achieve the purposes of this article and to employ legal counsel, investigators, auditors and
clerical support personnel and other personnel as the commissioner
determines necessary from time to time to accomplish the purposes
of this article;
(2) Inspect, copy or collect records and evidence;
(3) Serve subpoenas issued by grand juries and trial courts in
criminal matters;
(4) Share records and evidence with federal, state or local
law-enforcement or regulatory agencies and enter into interagency
agreements;
(5) Make criminal referrals to the county prosecutors;
(6) Conduct investigations outside this state. If the
information the insurance fraud unit seeks to obtain is located
outside this state, the person from whom the information is sought
may make the information available to the insurance fraud unit to
examine at the place where the information is located. The
insurance fraud unit may designate representatives, including
officials of the state in which the matter is located, to inspect
the information on behalf of the insurance fraud unit, and the
insurance fraud unit may respond to similar requests from officials
of other states;
(7) The fraud unit may initiate investigations and participate
in the development of and, if necessary, the prosecution of any
health care provider, including a provider of rehabilitation
services, suspected of fraudulent activity related to the business
of insurance;
(8) Specific personnel, designated by the commissioner, shall
be permitted to operate vehicles owned or leased for the state
displaying Class A registration plates;
(9) Notwithstanding any provision of this code to the
contrary, specific personnel designated by the commissioner may
carry firearms in the course of their official duties after meeting
specialized qualifications established by the governor's committee
on crime, delinquency and correction, which shall include the
successful completion of handgun training provided to law-
enforcement officers by the West Virginia state police: Provided,
That nothing in this subsection shall be construed to include any
person designated by the commissioner as a law-enforcement officer
as that term is defined by the provisions of section one, article
twenty-nine, chapter thirty of this code; and
(10) The insurance fraud unit shall not be subject to the
provisions of article nine-a, chapter six of this code and the
investigations conducted by the insurance fraud unit and the
materials placed in the files of the unit as a result of any such
investigation are exempt from public disclosure under the
provisions of chapter twenty-nine-b of this code.
§33-41-9. Other law-enforcement or regulatory authority.
This article does not:
(1) Preempt the authority or relieve the duty of other
law-enforcement or regulatory agencies to investigate, examine and
prosecute suspected violations of law;
(2) Prevent or prohibit a person from disclosing voluntarily information concerning insurance fraud to a law-enforcement or
regulatory agency other than the insurance fraud unit; or
(3) Limit the powers granted elsewhere by the laws of this
state to the commissioner or his or her agents to investigate and
examine possible violations of law and to take appropriate action
against violators of law.
§33-41-10. Rules.
The insurance commissioner shall, pursuant to the provisions
of article three, chapter twenty-nine-a of this code, promulgate
such legislative rules as are necessary or proper to carry out the
purposes of this article.
§33-41-11. Fraudulent claims to insurance companies.
(a) Any person who knowingly and willfully and with intent to
defraud submits a materially false statement in support of a claim
for insurance benefits or payment pursuant to a policy of insurance
or who conspires to do so is guilty of a crime and is subject to
the penalties set forth in the provisions of this section.
(b) Any person who commits a violation of the provisions of
subsection (a) of this section where the benefit sought exceeds one
thousand dollars in value is guilty of a felony and, upon
conviction thereof, shall be confined in a correctional facility
for not less than one nor more than ten years, fined not more than
ten thousand dollars, or both, or in the discretion of the circuit
court confined in a county or regional jail for not more than one
year and so fined.
(c) Any person who commits a violation of the provisions of subsection (a) of this section where the benefit sought is one
thousand dollars or less in value is guilty of a misdemeanor and,
upon conviction thereof, shall be confined in a county or regional
jail for not more than one year, fined not more than two thousand
five hundred dollars, or both.
(d) Any person convicted of a violation of this section is
subject to the restitution provisions of article eleven-a, chapter
sixty-one of this code.
(e) The circuit court may award to the unit or other law
enforcement agency investigating a violation of this section or
other criminal offense related to the business of insurance its
cost of investigation.
§33-41-12. Civil penalties; injunctive relief; employment
disqualification.
A person or entity engaged in the business of insurance or a
person or entity making a claim against an insurer who violates any
provision of this article may be subject to the following:
(1) Where applicable, suspension or revocation of license or
certificate of authority or a civil penalty of up to ten thousand
dollars per violation or, where applicable, both. Suspension or
revocation of license or certificate of authority or imposition of
civil penalties may be pursuant to an order of the commissioner
issued pursuant to the provisions of section thirteen, article two
of this chapter. The commissioner's order may require a person
found to be in violation of this article to make reasonable
restitution to persons aggrieved by violations of this article. The commissioner may assess a person sanctioned pursuant to the
provisions of this section the cost of investigation;
(2) Notwithstanding any other provision of law, a civil
penalty imposed pursuant to the provisions of this section is
mandatory and not subject to suspension;
(3) A person convicted of a felony violation law reasonably
related to the business of insurance shall be disqualified from
engaging in the business of insurance; and
(4) The commissioner may apply for a temporary or permanent
injunction in any appropriate circuit court of this state seeking
to enjoin and restrain a person from violating or continuing to
violate the provisions of this article or rule promulgated under
this article, notwithstanding the existence of other remedies at
law. The circuit court shall have jurisdiction of the proceeding
and have the power to make and enter an order or judgment awarding
temporary or permanent injunctive relief restraining any person
from violating or continuing to violate any provision of this
article or rule promulgated under the article as in its judgment is
proper.
On motion of Senator Sprouse, the following amendment to the
Finance committee amendment to the bill (Eng. Com. Sub. for H. B.
No. 4004) was reported by the Clerk:
On page thirty-one, after article forty-one, by inserting the
following:
ARTICLE 42. COLLATERAL SOURCE PAYMENTS.
§33-42-1. Reduction in compensatory damages for collateral sources payments.
Notwithstanding any other provision of this code, in all tort
actions, regardless of the theory of liability under which they are
commenced, the total amount of compensatory damages awarded to a
plaintiff under such action shall be reduced, in accordance with
section two of this article, by any collateral source payments made
or to be made to the plaintiff, except insurance for which the
plaintiff, spouse of the plaintiff, or parent of the plaintiff, has
paid a premium, insurance that is subject to a right of
subrogation, workers' compensation benefits that are subject to a
right of subrogation, or insurance that has any other obligation or
repayment.
§33-42-2. Post verdict determination of reduction in compensatory
damages.
The reduction in compensatory damages required under section
one of this article shall be determined by the court after the
verdict and before judgment is entered. Reduction may be made only
if the collateral source payments are compensation for the same
damages for which recovery is sought in the action. At trial no
evidence shall be admitted as to the amount of any charges,
payments, or losses for which a plaintiff has received payment from
a collateral source or the obligation for which has been assumed by
a collateral source, or is, or with reasonable certainty will be,
eligible to receive payment from a collateral source or the
obligation for which will, with reasonable certainty, be assumed by
a collateral source.
A plaintiff who has received or is to receive collateral
source payments may introduce evidence before the court, but not at
trial, of any of any amount which the plaintiff has paid or
contributed to secure his right to any such collateral source
payments, any recovery by the plaintiff is subject to a lien by a
collateral source, that a provider of such collateral source
payments has a statutory right of recovery against the plaintiff
for reimbursement of such payments, or that the provider of such
collateral source payments has a right of subrogation to the rights
of the plaintiff. After considering the evidence of collateral
source introduced by any party, the court shall make a
determination as to the amount by which a plaintiff
'
s compensatory
damages will be reduced by any such collateral source payments.
Senator Plymale arose to a point of order that Senator
Sprouse's amendment to the Finance committee amendment was not
germane to the bill.
Which point of order, the President ruled well taken.
On motions of Senators Rowe and Hunter, the following
amendment to the Finance committee amendment to the bill (Eng. Com.
Sub. for H. B. No. 4004) was next reported by the Clerk:
O
n page one, after the article heading, by inserting a new
section, designated section seventeen, to read as follows:
§33-2-17. Authority of office of consumer advocacy; retroactive
effect of authority prohibited.
(a) In addition to the authority established under the rules
promulgated by the director, the office of consumer advocacy is authorized to:
(1) Institute, intervene in, or otherwise participate in, as
an advocate for the public interest and the interests of insurance
consumers, proceedings in state and federal courts, before
administrative agencies, or before the health care cost review
authority, concerning applications or proceedings before the health
care cost review authority or the review of any act, failure to
act, or order of the health care cost review authority;
(2) At the request of one or more policyholders, or whenever
the public interest is served, to advocate the interests of those
policyholders in proceedings arising out of any filing made with
the insurance commissioner by any insurance company or relating to
any complaint alleging an unfair or deceptive act or practice in
the business of insurance, or involving any matter, including, but
not limited to, rate increases or policy exclusions proposed or
incorporated by any insurance company which relates to the issuance
or renewal of any casualty, liability, accident-related, life,
automobile, homeowner, rental, umbrella or other insurance
coverage;
(3) Institute, intervene in, or otherwise participate in, as
an advocate for the public interest and the interests of insurance
consumers, proceedings in state and federal courts, before
administrative agencies, or before the insurance commissioner,
concerning applications or proceedings before the commissioner or
the review of any act, failure to act or order of the insurance
commissioner;
(4) Review and compile information, data and studies of the
reasonable and customary rate schedules of health care providers,
and health insurers, for the purposes of reviewing, establishing,
investigating or supporting any policy regarding health care
insurance rates;
(5) Exercise all the same rights and powers regarding
examination and cross-examination of witnesses, presentation of
evidence, rights of appeal and other matters as any party in
interest appearing before the insurance commissioner or the health
care cost review authority;
(6) Hire consultants, experts, lawyers, actuaries, economists,
statisticians, accountants, clerks, stenographers, support staff,
assistants, and other personnel necessary to carry out the
provisions of this section and sections sixteen and eighteen of
this article, which personnel shall be paid from special revenue
funds appropriated for the use of the office;
(7) Contract for the services of technically qualified persons
in the area of insurance matters to assist in the preparation and
presentation of matters before the courts, the insurance
commissioner, administrative agencies, or the health care cost
review authority, which persons shall be paid from special revenue
funds appropriated for the use of the office;
(8) Make recommendations to the Legislature concerning
legislation to assist the office in the performance of its duties;
(9) Communicate and exchange data and information with other
federal or state agencies, divisions, departments, or officers, and with other interested parties including, but not limited to, health
care providers, insurance companies, consumers or other interested
parties; and
(10) Perform other duties to effect the purposes of the
office.
(b) The provisions of this section do not apply to any filing
made by an insurance company, or act or order performed or issued
by the commissioner, or complaint filed by a policyholder with the
commissioner prior to the thirtieth day of June, one thousand nine
hundred ninety-one. All proceedings and orders in connection with
these prior matters shall be governed by the law in effect at the
time of the filing, or performance or issuance of the act or order.
(c) The scope of authority granted under this section and
section sixteen of this article is restricted to matters related to
health care costs and health insurance policies, subscriber
contracts issued by organizations under article twenty-four of this
chapter, health care corporations under article twenty-five of this
chapter, health maintenance organizations under article
twenty-five-a of this chapter, contracts supplemental to health
insurance policies, and other matters related to health insurance
issues identified by rules of the commissioner promulgated under
section one of this article and chapter twenty-nine-a of this code.
Senator Sprouse arose to a point of order that the amendment
offered by Senators Rowe and Hunter to the Finance committee
amendment was not germane to the bill.
Which point of order, the President ruled well taken.
On motions of Senators Rowe and Hunter, the following
amendment to the Finance committee amendment to the bill (Eng. Com.
Sub. for H. B. No. 4004) was next reported by the Clerk:
On page thirteen, after section four-b, by inserting the
following:
ARTICLE 20. RATES AND RATING ORGANIZATIONS.
§33-20-3. Ratemaking.
All rates shall be made in accordance with the following
provisions:
(a) Due consideration shall be given to past and prospective
loss experience within and outside this state, to catastrophe
hazards, if any, to a reasonable margin for underwriting profit and
contingencies, to dividends, savings or unabsorbed premium deposits
allowed or returned by insurers to their policyholders, members or
subscribers, to past and prospective expenses both countrywide and
those specially applicable to this state, and to all other relevant
factors within and outside this state.
(b) Rates shall not be excessive, inadequate or unfairly
discriminatory.
(c) Rates for casualty and surety insurance to which this
article applies shall also be subject to the following provisions:
(1) The systems of expense provisions included in the rates
for use by any insurer or group of insurers may differ from those
of other insurers or groups of insurers to reflect the requirements
of the operating methods of any such insurer or group with respect
to any kind of insurance, or with respect to any subdivision or combination thereof for which subdivision or combination separate
expense provisions are applicable.
(2) Risks shall be grouped by classifications and by
territorial areas for the establishment of rates and minimum
premiums. Classification of rates shall be modified to produce
rates for individual risks in a territorial area in accordance with
rating plans which establish standards for measuring variations in
hazards or expense provisions, or both. Such standards may measure
any differences among risks that can be demonstrated to have a
probable effect upon losses or expenses: Provided, That such
standards shall include the establishment of at least seven
territorial rate areas within the state: Provided, further
however, That such territorial rate established by any insurer or
group of insurers may differ from those of other insurers or group
of insurers.
(3) Due consideration shall be given to such factors as
expense, management, individual experience, underwriting judgment,
degree or nature of hazard or any other reasonable considerations,
provided such factors apply to all risks under the same or
substantially the same circumstances or conditions.
(d) Rates for fire and marine insurance to which this article
applies shall also be subject to the following provisions:
(1) Manual, minimum, class rates, rating schedules or rating
plans shall be made and adopted, except in the case of specific
inland marine rates on risks specially rated.
(2) Due consideration shall be given to the conflagration hazard, and in the case of fire insurance rates consideration shall
be given to the experience of the fire insurance business during a
period of not less than the most recent five-year period for which
such experience is available.
(e) Except to the extent necessary to meet the provisions of
subdivisions (b) and (c) of this section, uniformity among insurers
in any matters within the scope of this section is neither required
nor prohibited.
(f) No premium rate or nonrenewal or cancellation of any
policy may be made or set on the basis of a credit report of the
insured or the members of the household of an insured.
_______________(f) (g) Rates made in accordance with this section may be used
subject to the provisions of this article.
The question being on the adoption of the amendment offered by
Senators Rowe and Hunter to the Finance committee amendment to the
bill, and on this question, Senator Rowe demanded the yeas and
nays.
The roll being taken, the yeas were: Caldwell, Chafin,
Dempsey, Fanning, Hunter, McCabe, Rowe and White--8.
The nays were: Boley, Bowman, Deem, Edgell, Facemyer, Guills,
Harrison, Helmick, Jenkins, Kessler, Love, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Sharpe, Smith, Snyder,
Sprouse, Unger, Weeks and Tomblin (Mr. President)--25.
Absent: Bailey--1.
So, a majority of those present and voting not having voted in
the affirmative, the President declared the amendment offered by Senators Rowe and Hunter to the Finance committee amendment to the
bill (Eng. Com. Sub. for H. B. No. 4004) rejected.
On motion of Senator Rowe, the following amendment to the
Finance committee amendment to the bill (Eng. Com. Sub. for H. B.
No. 4004) was next reported by the Clerk:
On pages eight through thirteen, by striking out all of
sections four-a and four-b.
The question being on the adoption of Senator Rowe's amendment
to the Finance committee amendment to the bill, and on this
question, Senator Rowe demanded the yeas and nays.
To which demand, Senator Chafin objected.
Thereafter, Senator Rowe's demand for a roll call was
sustained.
The roll being taken, the yeas were: Chafin, Dempsey,
Fanning, Hunter, Love, Rowe and White--7.
The nays were: Boley, Bowman, Caldwell, Deem, Edgell,
Facemyer, Guills, Harrison, Helmick, Jenkins, Kessler, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks and Tomblin (Mr.
President)--26.
Absent: Bailey--1.
So, a majority of those present and voting not having voted in
the affirmative, the President declared Senator Rowe's amendment to
the Finance committee amendment to the bill (Eng. Com. Sub. for H.
B. No. 4004) rejected.
On motion of Senator Rowe, the following amendment to the Finance committee amendment to the bill (Eng. Com. Sub. for H. B.
No. 4004) was next reported by the Clerk:
On page eleven, lines one through three, by striking out the
following: The underwriting standards filed with the commissioner
shall be considered confidential information and are exempt from
disclosure pursuant to chapter twenty-nine-b of this code.
The question being on the adoption of the Senator Rowe's
amendment to the Finance committee amendment to the bill, the same
was put and did not prevail.
The question now being on the adoption of the Finance
committee amendment to the bill (Eng. Com. Sub. for H. B. No.
4004), the same was put and prevailed.
The bill, as amended, was then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--31.
The nays were: Hunter and Rowe--2.
Absent: Bailey--1.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4004) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--32.
The nays were: Rowe--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. 4004) passed.
At the request of Senator Kessler, as chair of the Committee
on the Judiciary, and by unanimous consent, the unreported
Judiciary committee amendment to the title of the bill was
withdrawn.
The following amendment to the title of the bill, from the
Committee on Finance, was reported by the Clerk and adopted:
On pages one through three, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 4004--A Bill to amend the
code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §33-2-20; to amend and reenact §33-6A-4 of said
code; to amend said code by adding thereto two new sections,
designated §33-6A-4a and §33-6A-4b; to amend said code by adding
thereto a new section, designated §33-22-2a; to amend said code by
adding thereto a new section, designated §33-23-2a; to amend said code by adding thereto a new section, designated §33-24-4b; to
amend said code by adding thereto a new section, designated §33-25-
6a; to amend said code by adding thereto a new section, designated
§33-25A-24b; to amend and reenact §33-41-1, §33-41-2 and §33-41-3
of said code; and to amend said code by adding thereto nine new
sections, designated §33-41-4, §33-41-5, §33-41-6, §33-41-7, §33-
41-8, §33-41-9, §33-41-10, §33-41-11 and §33-41-12, all relating to
insurance generally; additional reasons for nonrenewal of
automobile liability, physical damage and property insurance;
providing that any existing policy or any policy issued or renewed
after the effective date of the bill may be nonrenewed by an
insurer for any reason with proper notice to the insured;
authorizing the commissioner of insurance to act regarding
withdrawal of insurers from the state; prevention and investigation
of insurance fraud generally; subjecting farmers' mutual insurance
companies, fraternal benefit societies, certain hospital, medical,
dental and health services corporations, health care corporations
and health maintenance organizations to insurance fraud provisions;
creating the West Virginia insurance fraud prevention act;
legislative intent; defining terms; requiring fraud warning on
forms; use of special assistant prosecutor; establishing an
insurance fraud unit within agency of insurance commissioner;
authorizing promulgation of rules; establishing powers and duties
of the unit; establishing investigative powers and procedures;
providing confidentiality of fraud unit records; immunity for
providing information provided to law enforcement regarding fraud; exceptions; creating offense of insurance fraud; establishing
penalties and fines; authorizing prosecution for insurance fraud;
authorizing fraud unit attorneys to act as special prosecutors at
request of county prosecutors; specifying duties of insurers;
creating misdemeanor and felony offenses for the commission of
fraudulent acts; creating civil penalties; granting authority to
commissioner to administratively sanction regulated persons and
insureds for violations of the article; and exceptions and
immunities.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Deem, and by unanimous consent, the
Senate returned to the second order of business and the
introduction of guests.
The Senate again proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill No. 4033, Authorizing the
issuance of new parkway revenue bonds.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 16A. WEST VIRGINIA PARKWAYS, ECONOMIC DEVELOPMENT AND
TOURISM AUTHORITY.
§17-16A-11. Parkway revenue bonds--West Virginia turnpike; related projects.
(a) The parkways authority is hereby authorized to provide by
resolution, at one time or from time to time, for the issuance of
parkway revenue bonds of the state in an aggregate outstanding
principal amount not to exceed, from time to time, two hundred
eighty-three million dollars for the purpose of paying: (i) All or
any part of the cost of the West Virginia turnpike, which cost may
include, but not be limited to, an amount equal to the state funds
used to upgrade the West Virginia turnpike to federal interstate
standards; (ii) all or any part of the cost of any one or more
parkway projects that involve improvements to or enhancements of
the West Virginia turnpike, including, without limitation,
lane-widening on the West Virginia turnpike and that are or have
been recommended by the parkways authority's traffic engineers or
consulting engineers or by both of them prior to the issuance of
parkway revenue bonds for the project or projects; and (iii) to the
extent permitted by federal law, all or any part of the cost of any
related parkway project. For purposes of this section eleven only,
a "related parkway project" means any information center, visitors'
center or rest stop, or any combination thereof, and any
expressway, turnpike, trunkline, feeder road, state local service
road or park and forest road which connects to or intersects with
the West Virginia turnpike and is located within seventy-five miles
of said the turnpike as it exists on the first day of June, one
thousand nine hundred eighty-nine, or any subsequent expressway,
trunkline, feeder road, state local service road or park and forest road constructed pursuant to this article: Provided, That nothing
herein in this section shall be construed as prohibiting the
parkways authority from issuing parkway revenue bonds pursuant to
section ten of this article for the purpose of paying all or any
part of the cost of any such related parkway project: Provided,
however, That none of the proceeds of the issuance of parkway
revenue bonds under this section shall be used to pay all or any
part of the cost of any economic development project, except as
provided in section twenty-three of this article: Provided
further, That nothing herein in this section shall be construed as
prohibiting the parkways authority from issuing additional parkway
revenue bonds to the extent permitted by applicable federal law for
the purpose of constructing, maintaining and operating any highway
constructed in whole or in part with money obtained from the
Appalachian regional commission so as long as said the highway
connects to the West Virginia turnpike as it existed as of the
first day of June, one thousand nine hundred eighty-nine: And
provided further, That, for purposes of this section, in
determining the amount of bonds outstanding, from time to time,
within the meaning of this section: Original par amount or
original stated principal amount at the time of issuance of bonds
shall be used to determine the principal amount of bonds
outstanding, except that the amount of parkway revenue bonds
outstanding under this section may not include any bonds that have
been retired through payment, defeased through the deposit of funds
irrevocably set aside for payment or otherwise refunded so that they are no longer secured by toll revenues of the West Virginia
turnpike: And provided further, That the authorization to issue
bonds under this section is in addition to the authorization and
power to issue bonds under any other section of this code: And
provided further, That, without limitation of the authorized
purposes for which parkway revenue bonds are otherwise permitted to
be issued under this section, and without increasing the maximum
principal par amount of parkway revenue bonds permitted to be
outstanding, from time to time, under this section, the authority
is specifically authorized by this section to issue, at one time or
from time to time, by resolution or resolutions under this section,
parkway revenue bonds under this section for the purpose of paying
all or any part of the cost of one or more parkway projects that:
(i) Consist of enhancements or improvements to the West Virginia
turnpike, including, without limitation, projects involving lane
widening, resurfacing, surface replacement, bridge replacement,
bridge improvements and enhancements, other bridge work, drainage
system improvements and enhancements, drainage system replacements,
safety improvements and enhancements and traffic flow improvements
and enhancements; and (ii) have been recommended by the authority's
consulting engineers or traffic engineers, or both, prior to the
issuance of the bonds. Except as otherwise specifically provided
in this section, the issuance of parkway revenue bonds pursuant to
this section, the maturities and other details thereof of the
bonds, the rights of the holders thereof of the bonds and the
rights, duties and obligations of the parkways authority in respect of the same bonds shall be governed by the provisions of this
article insofar as the same may be the provisions are applicable.
(b) Notwithstanding the provisions of subsection (a) of this
section, no additional bonds authorized by the amendments to this
section enacted during the regular session of the Legislature in
the year two thousand four may be issued until the parkways
authority has adopted by written resolution a final, irrevocable
decision to fully fund and complete the construction of a Shady
Spring connector and interchange connecting to the West Virginia
turnpike from its toll funds or from the proceeds of bonds issued
for that purpose pursuant to subsection (a) of this section, or
from both, or funded, in whole or in part, by federal highway funds
if they are available.
The bill (Eng. Com. Sub. for H. B. No. 4033), as amended, was
then ordered to third reading.
Eng. House Bill No. 4068, Allowing the hunting of coyotes by
use of amber colored artificial light with certain restrictions.
Having been removed from the Senate second reading calendar in
earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 4148, Allowing bail bondsmen
to deliver offenders to county or regional jails without bailpiece
if a magistrate or circuit clerk is inaccessible.
Having been removed from the Senate second reading calendar in
earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 4217, Authorizing the
department of tax and revenue to promulgate legislative rules.
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 three, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 7. AUTHORIZATION FOR DEPARTMENT OF TAX AND REVENUE TO
PROMULGATE LEGISLATIVE RULES.
§64-7-1. Division of banking.
The legislative rule filed in the state register on the
fifteenth day of July, two thousand three, authorized under the
authority of section three, article seventeen, chapter thirty-one
of this code, modified by the division of banking to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twentieth day of January, two
thousand four, relating to the division of banking (residential
mortgage lenders, brokers and loan originators, 106 CSR 5), is
authorized, with the following amendments:
On page three, after section 3.1, by adding a new section to
read "3.2 All records required to be maintained by section 3.1
shall be kept in the specific loan file relating to the individual
borrower or loan applicant except for those records listed in
subsections 3.1.z, 3.1.aa, 3.1.bb and 3.1.cc.";
On page four, after section 4.1, by adding a new section to
read "4.2 All records required to be maintained by section 4.1
shall be kept in the specific loan file relating to the individual borrower or loan applicant except for those records listed in
subsections 4.1.g, 4.1.h, 4.1.i, 4.1.j and 4.1.k.";
On page five, after section 5.1, by adding a new section to
read "5.2 All records required to be maintained by section 5.1
shall be kept in the specific loan file relating to the individual
borrower or loan applicant except for those records listed in
subsections 5.1.j, 5.1.k, 5.1.l, 5.1.m and 5.1.n.";
And,
On page seven, after section 6.1, by adding a new section to
read "6.2 All records required to be maintained by section 6.1
shall be kept in the specific loan file relating to the individual
borrower or loan applicant except for those records listed in
subsections 6.1.t, 6.1.u, 6.1.v, 6.1.w and 6.1.y."
§64-7-2. Insurance commissioner.
(a) The legislative rule filed in the state register on the
twenty-ninth day of July, two thousand three, authorized under the
authority of section ten, article two, chapter thirty-three of this
code, modified by the insurance commissioner to meet the objections
of the legislative rule-making review committee and refiled in the
state register on the fourth day of December, two thousand three,
relating to the insurance commissioner (licensing and conduct of
individual insurance producers, agencies and solicitors, 114 CSR
2), is authorized.
(b) The legislative rule filed in the state register on the
twenty-ninth day of July, two thousand three, authorized under the
authority of section ten, article two, chapter thirty-three of this code, modified by the insurance commissioner to meet the objections
of the legislative rule-making review committee and refiled in the
state register on the fourth day of December, two thousand three,
relating to the insurance commissioner (surplus lines insurance,
114 CSR 20), is authorized with the following amendments:
On page three, by striking out all of subdivision 4.1 and
inserting in lieu thereof the following:
"4.1 Diligent Search - In accordance with the provisions of
West Virginia code §33-12C-5(a)(3), insurance coverage written by
a surplus lines insurer and placed by a surplus lines licensee may
not be procured until a diligent search has been made by the
individual insurance producer to place the risk with an admitted
insurer. The surplus lines licensee shall submit to the
commissioner a sworn notarized affidavit, as provided in subsection
4.5 of this rule, that a diligent search has been made by the
individual insurance producer to place the risk with licensed
insurers authorized to write and actually writing the particular
risk sought to be placed in the excess lines market. This
affidavit shall be maintained, as required by West Virginia code
§33-12C-16, as part of the full and true record of each surplus
lines contract procured.";
On page three, section 4 (subdivision 4.2.a.) following the
word "rule" and the period by inserting the following:
"The affidavit shall affirm that the insured was expressly
advised prior to the placement of the insurance that:
(1) the surplus lines insurer with which the insurance is to be placed is not an admitted authorized insurer in this state and
is not subject to the commissioner's supervision; and,
(2) in the event the surplus lines insurance becomes
insolvent, claims will not be paid nor will unearned premiums be
returned by any West Virginia insurance guaranty fund.";
On pages three and four by striking out all of subdivision
4.2.b. and inserting in lieu thereof the following:
"b. No individual insurance producer may solicit, procure,
place, or renew any insurance with a nonadmitted insurer unless the
producer has been unable to procure the requested insurance from an
authorized insurer after conducting a diligent search. A diligent
search requires the individual insurance producer to contact as
many insurers as the individual insurance producer represents, that
customarily write the kind of insurance requested by the insured.
A diligent search is presumed if declinations are received from
each authorized insured contacted.";
And,
On pages eleven and twelve, by striking out all of subdivision
7.2.b. and inserting in lieu thereof the following:
"b. Insurance coverages and classes not included on the export
list may only be placed with surplus lines insurers once a diligent
search has been made."
(c) The legislative rule filed in the state register on the
twenty-first day of March, two thousand three, authorized under the
authority of section ten, article two, chapter thirty-three of this
code, relating to the insurance commissioner (Medicare supplement insurance, 114 CSR 24), is authorized.
(d) The legislative rule filed in the state register on the
twenty-ninth day of July, two thousand three, authorized under the
authority of section ten, article two, chapter thirty-three of this
code, modified by the insurance commissioner to meet the objections
of the legislative rule-making review committee and refiled in the
state register on the fourth day of December, two thousand three,
relating to the insurance commissioner (accident and sickness rate
filing, 114 CSR 26), is authorized.
(e) The legislative rule filed in the state register on the
twenty-ninth day of July, two thousand three, authorized under the
authority of section ten, article two, chapter thirty-three of this
code, modified by the insurance commissioner to meet the objections
of the legislative rule-making review committee and refiled in the
state register on the twenty-third day of January, two thousand
four, relating to the insurance commissioner (credit for
reinsurance, 114 CSR 40), is authorized, with the following
amendment:
On page one, subsection 2.2, line one, after the words "alien
ceding insurer", by inserting the words "which is";
On page one, subsection 2.2, line two, by striking out the
word "that" and inserting in lieu thereof the word "and";
On page two, subdivision 4.1.d, line four, after the words
"The accredited reinsurer", by striking out the word "shall" and
inserting in lieu thereof the word "may";
On page three, subsection 5.1, line two, after the words "insurer which", by inserting a comma:
On page three, subsection 5.1, line three, after the words "on
which", by striking out the remainder of the subsection and
inserting in lieu thereof the words "credit for reinsurance is
claimed on the domestic insurer's statutory financial statement";
On page four, subdivision 6.2.b, line two, after the word
"underwriters", by inserting a comma;
On page four, subdivision 6.2.b, line three, after the words
"United States", by inserting a period, striking out the words "and
in" and inserting in lieu thereof the word "In";
On page seven, subsection 6.6, line three, after the word
"dollars", by changing the comma to a semicolon;
On page seven, subsection 6.6, line four, after the terms "(f)
and (g)", by changing the comma to a semicolon;
On page seven, subsection 6.6, line five, after the terms "(f)
and (g)", by changing the comma to a semicolon;
On page ten, subparagraph 6.6.f.1.B, line five, by striking
out the word "shall" and inserting in lieu thereof the word "may";
On page eleven, subdivision 6.6.i, line three, by striking out
the words "shall be" and inserting in lieu thereof the word "is";
On page fifteen, subdivision 9.1.i, line three, by striking
out the words "shall have" and inserting in lieu thereof the word
"has";
And,
On page fifteen, subdivision 9.1.j, line three, by striking
out the words "shall be" and inserting in lieu thereof the word "is".
(f) The legislative rule filed in the state register on the
twenty-ninth day of July, two thousand three, authorized under the
authority of section sixteen, article twelve-a, chapter twenty-nine
of this code, relating to the insurance commissioner (self-
insurance pools for political subdivisions, 114 CSR 65), is
authorized.
§64-7-3. Lottery commission.
(a) The legislative rule filed in the state register on the
tenth day of July, two thousand three, authorized under the
authority of section five, article twenty-two, chapter twenty-nine
of this code, modified by the lottery commission to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twenty-second day of December,
two thousand three, relating to the lottery commission (state
lottery rules, 179 CSR 1), is authorized.
(b) The legislative rule filed in the state register on the
twenty-fourth day of July, two thousand three, authorized under the
authority of section four hundred two, article twenty-two-b,
chapter twenty-nine of this code, modified by the lottery
commission to meet the objections of the legislative rule-making
review committee and refiled in the state register on the twelfth
day of January, two thousand four, relating to the lottery
commission (limited video lottery, 179 CSR 5), is authorized with
the following amendments:
On page three, section two, subsection 2.13, line four, following the words "operating on", by inserting the word "that";
On page four, section two, subsection 2.15, line two,
following the word "Code", by striking out the citation "§11-14-2",
and inserting in lieu thereof the citation "§11-14C-2";
On page seven, section five, subsection 5.2, line one,
following the word "subdivision", by striking out the citation
"5.1.a", and inserting in lieu thereof the citation "5.1.b";
On page twenty-one, beginning on line four, by striking out
section 30 in its entirety and redesignating the remaining sections
and parts thereof accordingly;
And,
On page twenty-four, section 34.2, by changing the period at
the end of the sentence to a colon and inserting the words:
"Provided, That a limited video lottery retailer may display a sign
on the exterior of the establishment that states 'West Virginia
Lottery Products available here,' which sign is of uniform size and
design, no greater than twelve inches by twelve inches, produced
and distributed to retailers by the lottery commission."
§64-7-4. Racing commission.
(a) The legislative rule filed in the state register on the
thirty-first day of July, two thousand three, authorized under the
authority of section six, article twenty-three, chapter nineteen of
this code, modified by the racing commission to meet the objections
of the legislative rule-making review committee and refiled in the
state register on the fifth day of December, two thousand three,
relating to the racing commission (thoroughbred racing, 178 CSR 1), is authorized.
(b) The legislative rule filed in the state register on the
thirty-first day of July, two thousand three, authorized under the
authority of section six, article twenty-three, chapter nineteen of
this code, relating to the racing commission (greyhound racing, 178
CSR 2), is authorized.
§64-7-5. Tax commissioner.
The legislative rule filed in the state register on the
eighteenth day of February, two thousand three, authorized under
the authority of section twenty-three, article ten, chapter eleven
of this code, modified by the tax commissioner to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twenty-first day of April, two
thousand three, relating to the tax commissioner (alternative
resolution of tax disputes, 110 CSR 10g), is authorized, with the
following amendments:
On page two, subdivision 3.1.1, line two, after the word
"and", by inserting a comma;
On page two, subsection 3.5, line three, by striking out the
word "shall" and inserting the in lieu thereof the word "must";
One page two, subsection 3.5, line six, after the word
"assessment" by inserting a comma;
One page two, subsection 3.5, line six, by striking out the
word "commence" and inserting in lieu thereof the work "begin";
On page two, subdivision 3.5.1, line two, by striking out the
word "that" and inserting in lieu thereof the word "as";
On page three, subsection 4.1, line two, after the word
"coordinator" by inserting a comma;
On page three, subdivision 4.2.1, line three, after the word
"approved" by striking out the comma and inserting in lieu thereof
a period;
One page three, subdivision 4.2.1, line three, by striking out
the word "and" and inserting in lieu thereof "The conciliation
coordinator or assistant conciliation coordinator";
On page three, subdivision 4.2.1, line four, following the
word "date" by striking out the comma and inserting in lieu thereof
a period;
On page three, subdivision 4.2.1, line five, by striking out
the word "which" and inserting in lieu thereof the words "The
conference date";
On page three, subsection 4.4, line one by striking out the
words "without regard to the rules of evidence";
And,
On page three, subsection 4.4, line three after the word
"dispute" by striking out the period and inserting the words "and
without regard to the rules of evidence".
The bill (Eng. Com. Sub. for H. B. No. 4217), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 4250, Providing good faith
protection for licensed psychologists and psychiatrists acting upon
appointment by a court in child custody cases.
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, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-21. Creating presumption of good faith for court-appointed
licensed psychologists and psychiatrists conducting
a child custody evaluation; method for assigning
court and legal fees.
(a) A licensed psychologist or licensed psychiatrist who has
been appointed by a court to conduct a child custody evaluation in
a judicial proceeding shall be presumed to be acting in good faith
if the evaluation has been conducted consistent with standards
established by the American psychological association's guidelines
for child custody evaluations in divorce proceedings.
(b) No complaint to a licensing or accrediting entity against
a court-appointed licensed psychologist or psychiatrist relating to
a child custody evaluation shall be considered if it is filed
anonymously and does not include the full name, address and
telephone number of the complainant.
(c) Any action filed against a licensed psychologist or
licensed psychiatrist alleging tortious conduct related to evidence
provided while acting as a court-appointed expert in a child
custody matter shall contain a recitation of a specific allegation
of breaches of American psychological association's guidelines for child custody evaluations in divorce proceedings. Failure to
specifically plead such violations shall be cause for dismissal of
the action
(d) Any licensed psychologist or licensed psychiatrist who is
named in a civil action as a defendant because of his or her
performance of a child custody evaluation while acting as a court-
appointed expert and who prevails due to a finding that he or she
acted consistently with the American psychological association's
guidelines shall be entitled to reimbursement of all reasonable
costs and attorneys fees expended.
The bill (Eng. Com. Sub. for H. B. No. 4250), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 4271, Requiring all schools
to permit students to self-administer asthma medication.
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:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-22b. Providing for self-administration of asthma
medication; definitions; conditions; indemnity from
liability; rules.
(a) For the purposes of this section, the following words have
the meanings specified unless the context clearly indicates a different meaning:
(1) "Medication" means asthma medicine prescribed by:
(A) A physician licensed to practice medicine in all its
branches; or
(B) A physician assistant who has been delegated the authority
to prescribe asthma medications by a supervising physician; or
(C) An advanced practice registered nurse who has a written
collaborative agreement with a collaborating physician. Such
agreement shall delegate the authority to prescribe the medications
for a student that pertain to the student's asthma and that have an
individual prescription label.
(2) "Self-administration" or "self-administer" means a
student's discretionary use of prescribed asthma medication.
(b) A student enrolled in a public, private, parochial or
denominational school located within this state may self-administer
asthma medication subject to the following conditions:
(1) The parents or guardians of the student have provided to
the school:
(A) A written authorization for the self-administration of
asthma medication; and
(B) A written statement from the physician or advanced
practice registered nurse which contains the name, purpose,
appropriate usage and dosage of the student's medication and the
time or times at which, or the special circumstances under which,
the medication is to be administered;
(2) The student has demonstrated the ability and understanding to self-administer asthma medication by:
(A) Passing an assessment by the school nurse evaluating the
student's technique of self-administration and level of
understanding of the appropriate use of the asthma medication; or
(B) In the case of nonpublic schools that do not have a school
nurse, providing to the school from the student's physician or
advanced practice registered nurse written verification that the
student has passed such an assessment; and
(3) The parents or guardians of the student have acknowledged
in writing that they have read and understand a notice provided by
the county board or nonpublic school that:
(A) The school, county school board or nonpublic school and
its employees and agents are exempt from any liability, except for
willful and wanton conduct, as a result of any injury arising from
the self-administration of asthma medication by the student; and
(B) The parents or guardians indemnify and hold harmless the
school, the county board of education or nonpublic school and its
employees or guardians and agents against any claims arising out of
the self-administration of the medication by the student.
(c) The information provided to the school pursuant to
subsection (b) of this section shall be kept on file in the office
of the school nurse or, in the absence of a school nurse, in the
office of the school administrator.
(d) Permission for a student to self-administer asthma
medication is effective for the school year for which it is granted
and shall be renewed each subsequent school year if the requirements of this section are met.
(e) Permission to self-administer medication may be revoked if
the administrative head of the school finds that the student's
technique of self-administration and understanding of the use of
the asthma medication is not appropriate or is willfully
disregarded.
(f) A student with asthma who has met the requirements of this
section may possess and use asthma medication:
(1) In school;
(2) At a school-sponsored activity;
(3) Under the supervision of school personnel; or
(4) Before or after normal school activities, such as before
school or after-school care on school operated property.
(g) The state board shall promulgate rules necessary to
effectuate the provisions of this section in accordance with the
provisions of article three-b, chapter twenty-nine-a of this code.
On motion of Senator Plymale, the following amendment to the
Education committee amendment to the bill
(Eng. Com. Sub. for H. B.
No. 4271)
was reported by the Clerk and adopted:
On page two, section twenty-two-b, line two, after the word
"may" by inserting the words "possess and".
The question now being on the adoption of the Education
committee amendment to the bill, as amended, the same was put and
prevailed.
The bill (Eng. Com. Sub. for H. B. No. 4271), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 4297, Clarifying that the
county board of education and its superintendent may designate the
places where competency testing for service personnel will be held.
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-4-8e. Competency testing for service personnel.
(a) The state board of education shall develop and cause to be
made available competency tests for all of the classification
titles defined in section eight and listed in section eight-a of
this article for service personnel. Each classification title
defined and listed shall be is considered a separate classification
category of employment for service personnel and shall have has a
separate competency test, except for those class titles having
Roman numeral designations, which shall be are considered a single
classification of employment and shall have a single competency
test. The cafeteria manager class title shall be is included in
the same classification category as cooks and shall have has the
same competency test. The executive secretary class title shall be
is included in the same classification category as secretaries and
shall have has the same competency test. The classification titles
of chief mechanic, mechanic and assistant mechanic shall be are included in one classification title and shall have the same
competency test.
(b) The purpose of these tests shall be is to provide county
boards of education a uniform means of determining whether school
service personnel employees who do not hold a classification title
in a particular category of employment can meet the definition of
the classification title in another category of employment as
defined in section eight of this article. Competency tests shall
may not be used to evaluate employees who hold the classification
title in the category of their employment.
(c) The competency test shall consist consists of an objective
written and/or or performance test, or both: Provided, That
applicants shall have the opportunity of taking to take the written
test orally if requested. Oral tests shall be are recorded
mechanically and kept on file. Persons administering the oral test
shall is administered by persons who do not know the applicant
personally. The performance test for all classifications and
categories other than bus operator shall be is administered by a
vocational school which serves an employee of the county board of
education at a location designated by the superintendent and
approved by the board. The location may be a vocational school
that serves the county
. A standard passing score shall be is
established by the state department of education for each test and
shall be is used by county boards of education. The subject matter
of each competency test shall be is commensurate with the
requirements of the definitions of the classification titles as provided in section eight of this article. The subject matter of
each competency test shall be is designed in such a manner that
achieving a passing grade will does not require knowledge and skill
in excess of the requirements of the definitions of the
classification titles. Achieving a passing score shall
conclusively demonstrate demonstrates the qualification of an
applicant for a classification title. Once an employee passes the
competency test of a classification title, the applicant shall be
is fully qualified to fill vacancies in that classification
category of employment as provided in section eight-b of this
article and shall not be required to take the competency test
again.
(d) An applicant who fails to achieve a passing score shall be
is given other opportunities to pass the competency test when
making application for another vacancy within the classification
category.
(e) Competency tests shall be are administered to applicants
in a uniform manner under uniform testing conditions. County
boards of education are responsible for scheduling competency
tests, notifying applicants of the date and time of the one day of
training prior to taking the test and the date and time of the
test. County boards of education shall may not utilize use a
competency test other than the test authorized by this section.
(f) When scheduling of the competency test conflicts with the
work schedule of a school employee who has applied for a vacancy,
the employee shall be is excused from work to take the competency test without loss of pay.
(g) A minimum of one day of appropriate in-service training
shall be is provided to employees to assist them in preparing to
take the competency tests.
(h) Competency tests shall be utilized are used to determine
the qualification of new applicants seeking initial employment in
a particular classification title as either a regular or substitute
employee.
(i) Notwithstanding any provisions in this code to the
contrary, once an employee holds or has held a classification title
in a category of employment, that employee shall be is considered
qualified for the classification title even though that employee no
longer holds that classification.
(j) The requirements of this section shall not be construed to
do not alter the definitions of class titles as provided in section
eight of this article nor or the procedure and requirements of
section eight-b of this article.
The bill (Eng. Com. Sub. for H. B. No. 4297), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 4338, Providing for the
issuance of special registration plates promoting education and
using the special fee for the registration plates to fund
transportation for school trips for academic purposes.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on Transportation, was reported by the Clerk and adopted:
On page forty-seven, section fourteen, after line eight
hundred seventy-eight by inserting the following:
(43) The division may issue special registration plates to
members of the Knights of Pythias as follows:
(A) Upon appropriate application, the division may issue a
special registration plate designed by the commissioner for any
number of vehicles titled in the name of the qualified applicant.
Persons desiring the special registration plate shall offer
sufficient proof of membership in the Knights of Pythias or Pythian
sisters.
(B) The division shall charge a special initial application
fee of ten dollars in addition to all other fees required by law.
This special fee is to compensate the division of motor vehicles
for additional costs and services required in the issuing of the
special registration and shall be collected by the division and
deposited in a special revolving fund to be used for the
administration of this section.
(C) An annual fee of fifteen dollars shall be charged for each
plate in addition to all other fees required by this chapter.
(44) The commissioner may issue special registration plates
for whitewater rafting enthusiasts as follows:
(A) Upon appropriate application, the division may issue a
special registration plate designed by the commissioner for any
number of vehicles titled in the name of the qualified applicant.
(B) The division shall charge a special initial application fee of ten dollars in addition to all other fees required by law.
This special fee is to compensate the division of motor vehicles
for additional costs and services required in the issuing of the
special registration and shall be collected by the division and
deposited in a special revolving fund to be used for the
administration of this section.
(C) The division shall charge an annual fee of fifteen dollars
for each special registration plate in addition to all other fees
required by this chapter.
The bill (Eng. Com. Sub. for H. B. No. 4338), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 4357, Permitting
municipalities to impose an alternative one percent municipal sales
and service tax in the municipality in lieu of imposing the
business and occupation tax currently permitted by law.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On page two, by striking 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 §8-13C-1, §8-13C-2,
§8-13C-3, §8-13C-4, §8-13C-5, §8-13C-5a, §8-13C-6, §8-13C-7,
§8-13C-8, §8-13C-9, §8-13C-10, §8-13C-11, §8-13C-12 and §8-13C-13;
that §11-9-2, §11-9-3, §11-9-4, §11-9-5, §11-9-6, §11-9-8 and §11-9-10 of said code be amended and reenacted; and that §11-10-3
of said code be amended and reenacted, all to read as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 13C. MUNICIPAL TAX IN LIEU OF BUSINESS AND OCCUPATION TAX
AND MUNICIPAL TAXES APPLICABLE TO PENSION FUNDS.
§8-13C-1. Findings.
The Legislature finds that:
(a) Imposing additional taxes creates an extra burden on the
citizens of the state;
(b) Imposing additional taxes can be detrimental to the
economy of the state;
(c) Imposing additional taxes is only proper under certain
circumstances;
(d) For many municipalities with severe unfunded liabilities
of the police and fire pension funds, all available sources of
local revenue have been exhausted. Property taxes are at the
maximum allowed by the state constitution and local business and
occupation taxes and utility taxes are at the maximum rates allowed
by state law. Other fees have reached the economic maximum and are
causing relocation of business outside the municipal boundaries;
(e) For many municipalities with severe unfunded police and
fire pension fund liabilities, revenue from existing sources has
become stagnant over the past few years with no expectation of
significant future growth;
(f) For many municipalities with severe unfunded police and
fire pension fund liabilities, payments required under state law to fund fire and police pension funds are now close to equaling the
city payrolls for police and fire protection and will rise to
exceed those payrolls within a ten-year period;
(g) For many municipalities with severe unfunded police and
fire pension fund liabilities, payments required under state law to
fund fire and police pension funds now constitute a large
percentage of those municipalities total budget and will rise to an
even larger percentage of the available revenues in the next ten
years. Payment and benefit levels are dictated to the
municipalities by state law;
(h) As the required pension payments rise, many of the
municipalities with severe unfunded police and fire pension fund
liabilities will find it impossible to maintain at minimum levels
necessary and proper, city services including, but not limited to,
police and fire protection, street maintenance and repair and
sanitary services;
(i) For some of the municipalities with severe unfunded
liabilities of the police and fire pension funds, the combination
of the steeply rising pension obligations and the stagnant revenue
sources raise the real possibility of municipal bankruptcy in the
near and predictable future. If this happens, pensioners would
either not receive the full benefits which they have been promised
or pressure would be placed on the state to fund these programs;
(j) For a municipality that has the most severe unfunded
liability in its pension funds, paying off the unfunded liability
in a timely manner would cause tremendous financial hardship and the loss of many services that would otherwise be provided to the
municipality's citizens;
(k) Only for a municipality that has the most severe unfunded
liability in its pension funds would the imposition of the pension
relief municipal occupational tax, the pension relief municipal
sales and service tax, the pension relief municipal use tax or any
combination of those taxes be an appropriate method of addressing
the unfunded liability; and
(l) Only for a municipality that does not impose or ceases to
impose a business and occupation or privilege tax would the
imposition of an alternative municipal sales and service tax and an
alternative municipal use tax be appropriate.
§8-13C-2. Definitions.
For the purposes of this article:
(a) "Alternative municipal sales and service tax" means the
tax authorized to be imposed by subsection (b), section four of
this article only if a municipality does not impose or ceases to
impose the business and occupation or privilege tax authorized in
section five, article thirteen of this chapter;
(b) "Alternative municipal use tax" means the tax authorized
to be imposed by subsection (b), section five of this article only
if a municipality does not impose or ceases to impose the business
and occupation or privilege tax authorized in section five, article
thirteen of this chapter;
(c) "Qualifying municipality" means any municipality, as
defined in section two, article one of this chapter:
(1) In which the weighted average of the percentages to which
its policemen's and firemen's pension and relief funds are fully
funded is three percent or less on the date of adoption of the
ordinance imposing the tax; and
(2) That has satisfied the requirements set forth in section
eleven of this article;
(d) "Pension relief municipal occupational tax" means the tax
authorized to be imposed by section three of this article and for
which the use of the proceeds of the tax are restricted by section
nine of this article;
(e) "Pension relief municipal sales and service tax" means the
tax authorized to be imposed by subsection (a), section four of
this article and for which the use of the proceeds of the tax are
restricted by section nine of this article;
(f) "Pension relief municipal use tax" means the tax
authorized to be imposed by subsection (a), section five of this
article and for which the use of the proceeds of the tax are
restricted by section nine of this article; and
(g) "Taxable employee" means any individual:
(1) Who holds employment with an employer with a place of
business located within the qualifying municipality electing to
impose the municipal payroll tax pursuant to this article; and
(2) Whose salaries, wages, commissions and other earned income
that would be included in federal adjusted gross income for the
year is more than ten thousand dollars per year.
§8-13C-3. Pension relief municipal occupational tax.
(a) Effective on and after the first day of July, two thousand
five, each qualifying municipality, as defined in section two of
this article, has the plenary power and authority to impose, by
ordinance, a pension relief municipal occupational tax on taxable
employees. Any pension relief municipal occupational tax imposed
pursuant to this section shall meet the following requirements:
(1) The tax shall be imposed at a rate of one percent or less;
(2) The tax shall be imposed at a uniform rate; and
(3) The tax rate shall be applied only to salaries, wages,
commissions and other earned income of taxable employees that would
be included in federal adjusted gross income for the year. The tax
rate may not be applied to other forms of income, including, but
not limited to, intangible income and net profit from a business.
(b) Each employer with a taxable employee, during each pay
period, shall withhold from the taxable employee's salary the
amount of the tax as computed by applying the appropriate tax rate
to the taxable employee's salary during that pay period and remit
the withholdings to the appropriate municipal taxing authority.
§8-13C-4. Municipal sales and service taxes.
(a) Effective on and after the first day of July, two thousand
five, each qualifying municipality, as defined in section two of
this article, has the plenary power and authority to impose, by
ordinance, a pension relief municipal sales and service tax at a
rate not to exceed one percent, subject to the provisions of this
article.
(b) Effective on and after the first day of July, two thousand five, notwithstanding subsection (a) of this section, and in
addition thereto in the case of a qualifying municipality, any
municipality that does not impose, or ceases to impose, the
business and occupation or privilege tax authorized by section
five, article thirteen of this chapter has the plenary power and
authority to impose, by ordinance, an alternative municipal sales
and service tax at a rate not to exceed one percent, subject to the
provisions of this article.
(c) Any municipal sales and service tax imposed under the
authority granted by this section is subject to the following:
(1) The base of a municipal sales and service tax imposed
pursuant to this section shall be identical to the base of the
consumers sales and service tax imposed pursuant to article
fifteen, chapter eleven of this code on sales made and services
rendered within the boundaries of the municipality, subject to the
following:
(A) Except for the exemption provided in section nine-f,
article fifteen, chapter eleven of this code, all exemptions and
exceptions from consumers sales and service tax apply to a
municipal sales and service tax imposed pursuant to this section;
and
(B) Sales of gasoline and special fuel are not subject to a
municipal sales and service tax imposed pursuant to this section;
(2) Any municipal sales and service tax imposed pursuant to
this section applies solely to tangible personal property, custom
software and services that are sourced to the municipality. The sourcing rules set forth in article fifteen-b, chapter eleven of
this code, including any amendments thereto, apply to municipal
sales and use taxes levied pursuant to this article;
(3) Any municipality that imposes a municipal sales and
service tax pursuant to this section or changes the rate of a
municipal sales and service tax imposed pursuant to this section
shall notify the tax commissioner pursuant to section six of this
article;
(4) Any municipality that imposes a municipal sales and
service tax pursuant to this section may not administer or collect
the tax, but shall use the services of the tax commissioner to
administer, enforce and collect the tax;
(5) Any municipal sales and service tax imposed pursuant to
this section shall be imposed in addition to the consumer sales and
service tax imposed pursuant to article fifteen, chapter eleven of
this code on sales made and services rendered within the boundaries
of the municipality and, except as exempted or excepted, all sales
made and services rendered within the boundaries of the
municipality shall remain subject to the tax levied by that
article; and
(6) Any municipal sales and service tax imposed pursuant to
this section shall be imposed in addition to any tax imposed
pursuant to section one, article eighteen, chapter seven of this
code, sections six and seven, article thirteen of this chapter and
section twelve, article thirty-eight of this chapter.
§8-13C-5. Municipal use tax.
(a) Effective on and after the first day of July, two thousand
five, each qualifying municipality, as defined in section two of
this article, that imposes a pension relief municipal sales and
service tax pursuant to this article shall impose, by ordinance, a
pension relief municipal use tax at the same rate that is set for
the pension relief municipal sales and service tax.
(b) Effective on and after the first day of July, two thousand
five, each municipality that imposes an alternative municipal sales
and service tax pursuant to this article shall impose, by
ordinance, an alternative municipal use tax at the same rate that
is set for the alternative municipal sales and service tax.
(c) The base of a municipal use tax imposed pursuant to this
section shall be identical to the base of the use tax imposed
pursuant to article fifteen-a, chapter eleven of this code on the
use of tangible personal property, custom software and taxable
services within the boundaries of the municipality, subject to the
following:
(1) Except for the exemption provided in section nine-f,
article fifteen, chapter eleven of this code, all exemptions and
exceptions from the use tax apply to a municipal use tax imposed
pursuant to this section; and
(2) Uses of gasoline and special fuel are not subject to a
municipal use tax imposed pursuant to this section when the use is
subject to the tax imposed by article fourteen-c, chapter eleven of
this code.
(d) Any municipality that imposes a municipal use tax pursuant to this section or changes the rate of a municipal use tax imposed
pursuant to this section shall notify the tax commissioner pursuant
to section six of this article.
(e) Any municipality that imposes a municipal use tax pursuant
to this section may not administer or collect the tax, but shall
use the services of the tax commissioner to administer, enforce and
collect the taxes.
(f) Any municipal use tax imposed pursuant to this section
shall be imposed in addition to the use tax imposed pursuant to
article fifteen-a, chapter eleven of this code on the use of
tangible personal property, custom software or taxable services
within the boundaries of the municipality and, except as exempted
or excepted, all use of tangible personal property, custom software
or taxable services within the boundaries of the municipality shall
remain subject to the tax levied by said article.
(g) Any municipal use tax imposed pursuant to this section
shall be imposed in addition to any tax imposed pursuant to section
one, article eighteen, chapter seven of this code, sections six and
seven, article thirteen of this chapter and section twelve, article
thirty-eight of this chapter.
§8-13C-5a. Credit for sales tax paid to another municipality.
(a) Credit against municipal use tax. -- A person is entitled
to a credit against a use tax imposed by a municipality pursuant to
section five of this article on the use of a particular item of
tangible personal property, custom software or service equal to the
amount, if any, of sales tax lawfully paid to another municipality for the acquisition of that property or service: Provided, That
the amount of credit allowed may not exceed the amount of use tax
imposed on the use of the property or service in the municipality
of use.
(c) Definitions. -- For purposes of this section:
(1) "Municipality" means a municipality, as defined in section
two, article one of this chapter, or a comparable unit of local
government in another state;
(2) "Sales tax" includes a sales tax or compensating use tax
lawfully imposed on the use of tangible personal property, custom
software or a service by the municipality or county, as
appropriate, in which the sale or use occurred; and
(3) "State" includes the fifty states of the United States and
the District of Columbia but does not include any of the several
territories organized by Congress.
(d) No credit is allowed under this section for payment of any
sales or use taxes imposed by this state or any other state.
§8-13C-6. Notification to tax commissioner; responsibilities of
tax commissioner; application of state tax law.
(a) Any municipality that imposes a municipal sales and
service tax and a municipal use tax pursuant to this article or
changes the rate of the taxes shall notify the tax commissioner of
the imposition of the taxes or the change in the rate of the taxes
within thirty days of enacting the ordinance imposing the taxes or
changing the rate of the taxes. A municipal sales and service tax
and a municipal use tax imposed pursuant to this article or a change in the rate of the taxes is not effective until at least
ninety days after the ordinance imposing the taxes is enacted.
(b) The tax commissioner is responsible for collecting,
enforcing and administering any municipal sales and service tax and
any municipal use tax imposed pursuant to this article in the same
manner as the state sales and service tax imposed pursuant to
article fifteen, chapter eleven of this code and the state use tax
imposed pursuant to article fifteen-a of this code. Additionally,
the tax commissioner may charge a fee not to exceed the lesser of
the cost of the service provided or one percent of the proceeds
from the municipal sales and service tax.
(c) The state consumers sales and service tax law, set forth
in article fifteen, chapter eleven of this code, and the amendments
to that article and the rules of the tax commissioner relating to
the laws shall apply to a municipal sales and service tax imposed
pursuant to this article to the extent the rules and laws are
applicable.
(d) The state use tax law, set forth in article fifteen-a,
chapter eleven of this code, and the amendments to that article and
the rules of the tax commissioner relating to the laws shall apply
to a municipal use tax imposed pursuant to this article to the
extent the rules and laws are applicable.
(e) Any term used in this article or in an ordinance adopted
pursuant to this article that is defined in articles fifteen,
fifteen-a and fifteen-b, chapter eleven of this code, as amended,
shall have the same meaning when used in this article or in an ordinance adopted pursuant to this article, unless the context in
which the term is used clearly requires a different result.
(f) Any amendments to articles nine, ten, fifteen, fifteen-a
and fifteen-b, chapter eleven of this code, shall automatically
apply to a sales or use tax imposed pursuant to this article, to
the extent applicable.
(g) Each and every provision of the "West Virginia Tax
Procedure and Administration Act" set forth in article ten, chapter
eleven of this code applies to the taxes imposed pursuant to this
article, except as otherwise expressly provided in this article,
with like effect as if that act were applicable only to the taxes
imposed by this article and were set forth in extenso in this
article.
(h) Each and every provision of the "West Virginia Tax Crimes
and Penalties Act" set forth in article nine, chapter eleven of
this code applies to the taxes imposed pursuant to this article
with like effect as if that act were applicable only to the taxes
imposed pursuant to this article and were set forth in extenso in
this article.
§8-13C-7. Municipal sales and service tax and use tax fund;
deposit and remittance of collections.
(a) There is created a special revenue account in the state
treasury designated the "municipal sales and service tax and use
tax fund" which is an interest-bearing account and shall be
invested in the manner described in section nine-c, article six,
chapter twelve of this code with the interest and other return earned a proper credit to the fund. A separate subaccount within
the fund shall be established for each municipality that imposes a
municipal sales and service tax and use tax pursuant to this
article.
(b) The tax commissioner shall deposit all the proceeds from
a municipal sales and service tax and a municipal use tax collected
for each municipality minus any fee for collecting, enforcing and
administering taxes in the appropriate subaccount. All moneys
collected and deposited in the fund shall be remitted at least
quarterly by the state treasurer to the treasurer of the
appropriate municipality.
§8-13C-8. Printed catalogs.
Local tax rate changes made pursuant to sections four and five
of this article apply to purchases from printed catalogs where the
purchaser computed the tax based upon the local tax rate published
in the catalog only on and after the first day of a calendar
quarter after a minimum of one hundred twenty days' notice to the
seller.
§8-13C-9. Restriction on use of certain revenues.
(a) All proceeds from a pension relief municipal occupational
tax, a pension relief municipal sales and service tax and a pension
relief municipal use tax imposed pursuant to this article shall be
used solely for the purpose of reducing the unfunded actuarial
accrued liability of policemen's and firemen's pension and relief
funds of the qualifying municipality imposing the tax. The
proceeds used for this purpose shall be in addition to the minimum annual contribution required by section twenty, article twenty-two
of this chapter.
(b) A qualifying municipality loses its authority to impose a
pension relief municipal occupational tax, a pension relief
municipal sales and service tax and a pension relief municipal use
tax pursuant to this article after:
(1) The unfunded actuarial accrued liability of the qualifying
municipality's policemen's and firemen's pension and relief funds
is eliminated; or
(2) Sufficient moneys accrue from the proceeds of the pension
relief municipal occupational tax, the pension relief municipal
sales and service tax, the pension relief municipal use tax or any
combination of these taxes to eliminate the unfunded actuarial
accrued liability of the qualifying municipality's policemen's and
firemen's pension and relief funds.
§8-13C-10. Conflict; partial unconstitutionality.
(a) If a court of competent jurisdiction finds that the
provisions of this article and the provisions of articles fifteen,
fifteen-a and fifteen-b, chapter eleven of this code conflict and
cannot be harmonized, then the provisions of said articles shall
control.
(b) If any section, subsection, subdivision, paragraph,
sentence, clause or phrase of this article is for any reason held
to be invalid, unlawful or unconstitutional, that decision does not
affect the validity of the remaining portions of this article or
any part thereof: Provided, That if this article is held to be unconstitutional under section thirty-nine, article VI of the
constitution of West Virginia, this severability clause shall not
apply.
§8-13C-11. Additional requirements for authority to impose certain
taxes.
The authority to impose the pension relief municipal
occupational tax, the pension relief municipal sales and service
tax and the pension relief municipal use tax, all provided in this
article, is not effective until a municipality wishing to impose
the taxes presents to the joint committee on government and finance
a plan to remove the unfunded liabilities of its police and fire
pension funds, that plan is approved by the joint committee on
government and finance and the necessary changes in West Virginia
law have been enacted to allow for implementation of the municipal
plan.
§8-13C-12. Limited authority to impose tax.
(a) Notwithstanding any other provision of this code to the
contrary, no county, board, political subdivision or any other
agency or entity other than a municipality may impose an
alternative municipal sales and service tax, an alternative
municipal use tax, a pension relief municipal occupational tax, a
pension relief municipal sales and service tax, a pension relief
municipal use tax or any combination of these taxes.
(b) No subsequent amendment to this code shall supersede the
provisions of subsection (a) of this section unless the amendment
specifically states that the provisions of said subsection are superseded.
§8-13C-13. Study.
The chief technology officer, appointed pursuant to article
one-b, chapter five of this code, shall conduct a study on the cost
for the tax commissioner to implement the taxes that may be imposed
pursuant to this article. The chief technology officer shall
report the findings and recommendations to the joint committee on
government and finance before the first day of December, two
thousand four.
CHAPTER 11. TAXATION.
ARTICLE 9. CRIMES AND PENALTIES.
§11-9-2. Application of this article.
(a) The provisions of this article apply to the following
taxes imposed by this chapter: (1) Inheritance and transfer taxes
and estate taxes imposed by article eleven of this chapter; (2)
business registration tax imposed by article twelve of this
chapter; (3) minimum severance tax on coal imposed by article
twelve-b of this chapter; (4) corporate license tax imposed by
article twelve-c of this chapter; (5) business and occupation tax
imposed by article thirteen of this chapter; (6) severance tax
imposed by article thirteen-a of this chapter; (7)
telecommunications tax imposed by article thirteen-b of this
chapter; (8) gasoline and special fuels excise tax imposed by
article fourteen of this chapter; (9) motor fuels excise tax
imposed by article fourteen-c of this chapter; (10) motor carrier
road tax imposed by article fourteen-a of this chapter; (11) interstate fuel tax agreement authorized by article fourteen-b of
this chapter; (12) consumers sales and service tax imposed by
article fifteen of this chapter; (13) use tax imposed by article
fifteen-a of this chapter; (14) tobacco products excise tax imposed
by article seventeen of this chapter; (15) soft drinks tax imposed
by article nineteen of this chapter; (16) personal income tax
imposed by article twenty-one of this chapter; (17) business
franchise tax imposed by article twenty-three of this chapter; (18)
corporation net income tax imposed by article twenty-four of this
chapter; and (19) health care provider tax imposed by article
twenty-seven of this chapter.
(b) The provisions of this article also apply to the West
Virginia tax procedure and administration act in article ten of
this chapter and to any other articles of this chapter when
application is expressly provided for by the Legislature.
(c) The provisions of this article also apply to municipal
sales and use taxes imposed pursuant to article thirteen-c, chapter
eight of this code; the charitable bingo fee imposed by sections
six and six-a, article twenty, chapter forty-seven of this code;
the charitable raffle fee imposed by section seven, article
twenty-one of said chapter; and the charitable raffle boards and
games fees imposed by section three, article twenty-three of said
chapter.
(d) Each and every provision of this article applies to the
articles of this chapter listed in subsections (a), (b) and (c) of
this section, with like effect, as if the provisions of this article were applicable only to the tax and were set forth in
extenso in this article.
§11-9-3. Definitions.
For the purposes of this article, the term:
(1) "Person" means any individual, firm, partnership, limited
partnership, copartnership, joint venture, association,
corporation, municipal corporation, organization, receiver, estate,
trust, guardian, executor, administrator and any officer, employee
or member of any of the foregoing who, as such an officer, employee
or member, is under a duty to perform or is responsible for the
performance or nonperformance of the act in respect of which a
violation occurs under this article.
(2) "Return or report" means any return or report required to
be filed by any article of this chapter imposing any tax to which
this article applies as specified in section two of this article or
by any other article of this code pursuant to which a tax or fee is
imposed that is collected by the tax commissioner as specified in
section two of this article.
(3) "Tax" or "taxes" means any tax to which this article
applies, as specified in section two of this article, and includes
additions to tax, penalties and interest unless the intention to
give it a more limited meaning is disclosed by the context in which
the term "tax" or "taxes" is used.
(4) "Tax commissioner" or "commissioner" means the tax
commissioner of the state of West Virginia or his or her delegate.
(5) "This chapter" means chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, and
shall include only those articles of chapter eleven of this code
listed in section two of this article.
(6) "Willfully" means the intentional violation of a known
legal duty to perform any act, required to be performed by any
provision of this chapter, or article thirteen-c, chapter eight of
this code, in respect of which the violation occurs: Provided,
That the mere failure to perform any act shall not be a willful
violation under this article. A willful violation of this article
requires that the defendant had knowledge of or notice of a duty to
perform such an act and that the defendant, with knowledge of or
notice of such that duty, intentionally failed to perform such the
act.
(7) "Evade" means to willfully and fraudulently commit any act
with the intent of depriving the state of payment of any tax which
there is a known legal duty to pay under this chapter.
(8) "Fraud" means any false representation or concealment as
to any material fact made by any person with the knowledge that it
is not true and correct, with the intent that such the
representation or concealment be relied upon by the state.
§11-9-4. Failure to pay tax or file return or report.
Any person required by any provision of this chapter, or
article thirteen-c, chapter eight of this code, to pay any tax, or
to file any return or report, who willfully fails to pay such the
tax, or willfully fails to file such the return or report, more
than thirty days after the date such the tax is required to be paid by law, is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than one hundred dollars nor more than one
two thousand five hundred dollars, or imprisoned in the county jail
not more than six months, or both fined and imprisoned. Each
failure to pay tax, or file a return or report, more than thirty
days after its due date for any tax period is a separate offense
under this section and punishable accordingly: Provided, That
thirty days prior to instituting criminal proceedings under this
section, the tax commissioner shall give the person written notice
of any failure to pay a tax or to file a return or report. Such
notice Notice shall be served on the person by certified mail or by
personal service. The provisions of this section shall not apply
to the business franchise registration tax imposed by article
twelve of chapter eleven.
§11-9-5. Failure to account for and pay over another's tax.
Any person required by any provision of this chapter or
article thirteen-c, chapter eight of this code to collect, or
withhold, account for and pay over any tax, who willfully fails to
truthfully account for and pay over such the tax in the manner
required by law, more than thirty days after the date such the tax
is required to be accounted for and paid over by law, is guilty of
a felony if the amount of tax not paid over is one thousand dollars
or more and, upon conviction thereof, shall be fined not less than
five thousand dollars nor more than twenty-five thousand dollars or
imprisoned in the penitentiary a correctional facility not less
than one nor more than three years, or, in the discretion of the court be confined in the county jail not more than one year, or
both fined and imprisoned; or is guilty of a misdemeanor, if the
amount of tax not paid over is less than one thousand dollars, and,
upon conviction thereof, shall be fined not less than five hundred
dollars nor more than five thousand dollars or imprisoned in the
county jail not more than six months, or both fined and imprisoned.
Each failure to account for and pay over tax for any tax period
under this section is a separate offense and punishable
accordingly: Provided, That thirty days prior to instituting a
criminal proceeding under this section, the tax commissioner shall
give the person written notice of the failure to truthfully account
for and pay over tax. Such notice Notice shall be served on the
person by certified mail or personal service.
§11-9-6. Failure to collect or withhold tax.
Any person required by any provision of this chapter or
article thirteen-c, chapter eight of this code to collect or
withhold any tax, who willfully fails to collect or withhold such
the tax in the manner required by law, is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not less than one
hundred dollars nor more than five hundred dollars or imprisoned in
the county jail not more than six months, or both fined and
imprisoned. Each month or fraction thereof during which such the
failure continues is a separate offense under this section and
punishable accordingly.
§11-9-8. Willful failure to maintain records or supply
information; misuse of exemption certificate.
If any person: (1) Willfully fails to maintain any records,
or supply any information, in the manner required by this chapter
or article thirteen-c, chapter eight of this code or regulations
therefor promulgated in accordance with law, to compute, assess,
withhold or collect any tax imposed by this chapter; or (2)
presents to any vendor a certificate for the purpose of obtaining
an exemption from the tax imposed by article fifteen or fifteen-a
of this chapter or article thirteen-c, chapter eight of this code
and then knowingly uses the item or service purchased in a manner
that is not exempt from such the tax without remitting such the tax
in the manner required by law, such that person is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than one hundred dollars nor more than one thousand dollars or
imprisoned in the county jail not more than six months, or both
fined and imprisoned.
§11-9-10. Attempt to evade tax.
If any person: (1) Knowingly files a false or fraudulent
return, report or other document under any provision of this
chapter or article thirteen-c, chapter eight of this code; or (2)
willfully delivers or discloses to the tax commissioner any list,
return, account, statement, record or other document known by him
or her to be fraudulent or false as to any material matter with the
intent of obtaining or assisting another person in obtaining any
credit, refund, deduction, exemption or reduction in tax not
otherwise permitted by this chapter or article thirteen-c, chapter
eight of this code; or (3) willfully attempts in any other manner to evade any tax imposed by this chapter or article thirteen-c,
chapter eight of this code or the payment thereof, is guilty of a
felony and, notwithstanding any other provision of the code, upon
conviction thereof, shall be fined not less than one thousand
dollars nor more than ten thousand dollars or imprisoned in the
penitentiary a correctional facility not less than one nor more
than three years or, in the discretion of the court, be confined in
the county jail not more than one year, or both fined and
imprisoned.
ARTICLE 10. PROCEDURE AND ADMINISTRATION.
§11-10-3. Application of this article.
(a) The provisions of this article apply to inheritance and
transfer taxes, estate tax and interstate compromise and
arbitration of inheritance and death taxes, business registration
tax, annual tax on incomes of certain carriers, minimum severance
tax on coal, corporate license tax, business and occupation tax,
severance tax, telecommunications tax, interstate fuel tax,
consumers sales and service tax, use tax, tobacco products excise
tax, soft drinks tax, personal income tax, business franchise tax,
corporation net income tax, gasoline and special fuel excise tax,
motor fuels excise tax, motor carrier road tax, health care
provider tax and tax relief for elderly homeowners and renters
administered by the state tax commissioner. This article shall not
apply to ad valorem taxes on real and personal property or any
other tax not listed in this section, except that in the case of ad
valorem taxes on real and personal property, when any return, claim, statement or other document is required to be filed, or any
payment is required to be made within a prescribed period or before
a prescribed date, and the applicable law requires delivery to the
office of the sheriff of a county of this state, the methods
prescribed in section five-f of this article for timely filing and
payment to the tax commissioner or state tax department are the
same methods utilized for timely filing and payment with the
sheriff.
(b) The provisions of this article apply to beer barrel tax
levied by article sixteen of this chapter and to wine liter tax
levied by section four, article eight, chapter sixty of this code.
(c) The provisions of this article also apply to any other
article of this chapter when the application is expressly provided
for by the Legislature.
(d) The provisions of this article apply to municipal sales
and use taxes imposed under article thirteen-c, chapter eight of
this code and collected by the tax commissioner.
The bill (Eng. Com. Sub. for H. B. No. 4357), as amended, was
then ordered to third reading.
Eng. House Bill No. 4371, Extending the pilot program for the
uninsured and underinsured.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Banking and Insurance, was reported by the Clerk and adopted:
On page two, section one, line seventeen, by striking out the word "the".
The bill (Eng. H. B. No. 4371), as amended, was then ordered
to third reading.
Eng. Com. Sub. for House Bill No. 4433, Creating the crime of
abuse and neglect of an elderly person and the crime of misuse or
misappropriation of the funds or assets of an elderly person.
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, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-29. Abuse or neglect of incapacitated adult; abuse or
neglect of elder person; misappropriation or misuse
of assets or funds of elder person; misappropriation
or misuse of assets or funds of elder person through
deception, intimidation, coercion, bodily injury or
threats of bodily injury; penalties.
(a) The following words when used in this section have the
meaning ascribed, unless the context clearly indicates otherwise:
(1) "Abuse" means the infliction or threat to inflict physical
pain or injury on an incapacitated adult or elder person;
(2) "Caregiver" means an adult who has or shares actual
physical possession or care of an incapacitated adult or elder
person on a full-time or temporary basis, regardless of whether such person has been designated as a guardian of such adult by any
contract, agreement or legal proceeding. "Caregiver" includes
health care providers, family members and any person who otherwise
voluntarily accepts a supervisory role towards an incapacitated
adult or elder person;
(3) "Neglect" means: (i) The failure to provide the
necessities of life to an incapacitated adult or elder person; or
(ii) the unlawful expenditure or willful dissipation of the funds
or other assets owned or paid to or for the benefit of an
incapacitated adult or elder person; and
(4) "Incapacitated adult" means any person who by reason of
physical, mental or other infirmity is unable to physically carry
on the daily activities of life necessary to sustaining life and
reasonable health;
_____(5) "Elder" means a person age sixty-five years or older;
_____(6) "Bodily injury" means substantial physical pain, illness
or any impairment of physical condition; and
_____(7) "Custodian" means a person over the age of eighteen years
who has or shares actual physical possession of care and custody of
an elder person on a full-time or temporary basis, regardless of
whether the person has been granted custody of the elder person by
any contract, agreement or legal proceeding.
(b) Any person, caregiver, guardian or custodian who neglects
an incapacitated adult or elder person, or who knowingly permits
another person to neglect said adult, is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not less than five hundred dollars nor more than fifteen hundred dollars, or
imprisoned in the county or regional jail for not less than ninety
days nor more than one year, or both fined and imprisoned.
(c) Any person, caregiver, guardian or custodian who
intentionally abuses or neglects an incapacitated adult or elder
person is guilty of a felony and, upon conviction thereof, shall,
in the discretion of the court, be confined in the penitentiary a
state correctional facility for not less than two nor more than ten
years. or be confined in the county jail for not more than twelve
months and fined not more than fifteen hundred dollars
_____(d) If any person, caregiver, guardian or custodian of an
elder person or incapacitated adult willfully misappropriates or
misuses the funds or assets of an incapacitated adult or elder
person for the person's, caregiver's, guardian's or custodian's
personal use, advantage or wrongful profit or to the advantage or
wrongful profit of another, he or she is guilty of a felony and,
upon conviction thereof, shall be fined not more than five thousand
dollars and incarcerated in a correctional facility not less than
two nor more than ten years.
_____(e) If any person, caregiver, guardian or custodian of an
elder person or incapacitated adult, by means of deception,
intimidation, coercion, infliction of bodily injury or threats of
the infliction of bodily injury, willfully misappropriates or
misuses the funds or assets of an incapacitated adult or elder
person for the person's, caregiver's, guardian's or custodian's
personal use, advantage or wrongful profit or to the advantage or wrongful profit of another, he or she is guilty of a felony and,
upon conviction thereof, shall be fined not more than five thousand
dollars and incarcerated in a correctional facility not less than
five nor more than fifteen years.
_____(d) (f) Nothing in this article shall be construed to mean an
adult is abused or neglected for the sole reason that his or her
independent decision is to rely upon treatment by spiritual means
in accordance with the tenets and practices of a recognized church
or religious denomination or organization in lieu of medical
treatment.
The bill (Eng. Com. Sub. for H. B. No. 4433), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 4455, Extending the term of
the waste tire remediation funds.
On second reading, coming up in regular order, was read a
second time.
At the request of Senator Helmick, as chair of the Committee
on Finance, and by unanimous consent, the unreported Finance
committee amendments to the bill were withdrawn.
The bill (Eng. Com. Sub. for H. B. No. 4455) was then ordered
to third reading.
Eng. Com. Sub. for House Bill No. 4492, Creating the criminal
offense of soliciting a minor via computer.
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, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 3C. WEST VIRGINIA COMPUTER CRIME AND ABUSE ACT.
§61-3C-14b. Soliciting, etc., a minor via computer; penalty.
Any person over the age of eighteen who knowingly uses a
computer to solicit, entice, seduce or lure, or attempt to solicit,
entice, seduce or lure, a minor known or believed to be at least
four years younger than the person using the computer or a person
he or she believes to be such a minor to commit any illegal act
proscribed by the provisions of article eight, eight-b, eight-c or
eight-d of this chapter, or any felony offense under section four
hundred one, article four, chapter sixty-a of this code, is guilty
of a felony and, upon conviction thereof, shall be fined not more
than five thousand dollars or imprisoned in a state correctional
facility not less than two nor more than ten years, or both.
The bill (Eng. Com. Sub. for H. B. No. 4492), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 4566, Allowing continued
employment of a spouse of a newly elected county commissioner with
tenured service with a county agency to keep their job.
Having been removed from the Senate second reading calendar in
earlier proceedings today, no further action thereon was taken.
Eng. House Bill No. 4582, Limiting the division of labor
elevator inspectors to inspection of elevators in state owned
buildings.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Labor, were reported by the Clerk, considered simultaneously, and
adopted:
On page two, section one, lines four through six, by striking
out the words "National Standards Institute (ANSI) Code A17.1-3,
'Safety Code for Elevators'" and inserting in lieu thereof the
words "Society of Mechanical Engineers Safety Code for Elevators
and Escalators (ASME) A17.1-3, 'Safety Code for Elevators' and ASME
A18.1, 'Safety Code for Platform Lifts and Stairway Chairlifts'";
On page five, section two, line sixteen, by striking out the
words "a written" and inserting in lieu thereof the word "an";
On page six, section two, line forty-one, by striking out the
word "shall" and inserting in lieu thereof the word "may";
On page eight, section five, lines eighteen and nineteen, by
striking out the words "National Standards Institute (ANSI) Code
A17.1-3, 'Safety Code for Elevators'" and inserting in lieu thereof
the words "Society of Mechanical Engineers Safety Code for
Elevators and Escalators (ASME) A17.1-3, 'Safety Code for
Elevators' and ASME A18.1, 'Safety Code for Platform Lifts and
Stairway Chairlifts'";
And,
On page nine, section six, line fourteen, by striking out the
words "a passenger" and inserting in lieu thereof the word "an".
The bill (Eng. H. B. No. 4582), as amended, was then ordered to third reading.
Eng. House Bill No. 4624, Relating generally to tax increment
financing.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 11B. WEST VIRGINIA TAX INCREMENT FINANCING ACT.
§7-11B-2. Findings and legislative purpose.
(a) It is found and declared to be the policy of this state to
promote and facilitate the orderly development and economic
stability of its communities. County commissions need the ability
to raise revenue to finance public capital improvements and
facilities that are designed to encourage economic growth and
development in geographic areas characterized by high levels of
unemployment, stagnate stagnant employment, slow income growth,
contaminated property or inadequate infrastructure. The
construction of necessary public capital improvements in accordance
with local economic development plans will encourage investing in
job-producing private development and expand the public tax base.
(b) It is also found and declared that capital improvements or
facilities in any area that result in the increase in the value of
property located in the area or encourage increased employment
within the area will serve a public purpose for each taxing unit possessing the authority to impose ad valorem taxes in the area.
(c) It is the purpose of this article:
(1) To encourage local levying bodies to cooperate in the
allocation of future tax revenues that are used to finance public
capital improvements and facilities designed to encourage private
development in selected areas; and
(2) To assist local governments that have a competitive
disadvantage in their ability to attract business, private
investment or commercial development due to their location; to
encourage remediation of contaminated property; to prevent or
arrest the decay of selected areas due to the inability of existing
financing methods to provide public capital improvements and
facilities; and to encourage private investment designed to promote
and facilitate the orderly development or redevelopment of selected
areas.
§7-11B-3. Definitions.
(a) General. -- When used in this article, words and phrases
defined in this section shall have the meanings ascribed to them in
this section, unless a different meaning is clearly required either
by the context in which the word or phrase is used or by specific
definition in this article.
(b) Words and phrases defined. --
(1) "Agency" includes a municipality, a county or municipal
development agency established pursuant to authority granted in
section one, article twelve of this chapter, a port authority, an
airport authority or any other entity created by this state or an agency or instrumentality of this state that engages in economic
development activity.
(2) "Base assessed value" means:
(A) The taxable assessed value of real and tangible personal
property of a project developer having a tax situs within a
development or redevelopment project area or district as shown upon
the landbook and personal property records of the assessor on the
first day of July of the year preceding the effective date of the
order authorizing the tax increment financing plan; or
(B) The taxable assessed value of all real and tangible
personal property, excluding personal motor vehicles having a tax
situs within a development or redevelopment project area or
district as shown upon the landbooks and personal property books of
the assessor on the first day of July of the calendar year
preceding the formation of effective date of the order or ordinance
creating and establishing the development or redevelopment project
area or district.
(3) "Blighted area" means an area within the boundaries of a
development or redevelopment district located within the
territorial limits of a municipality or county in which the
structures, buildings or improvements, by reason of dilapidation,
deterioration, age or obsolescence, inadequate provision for
access, ventilation, light, air, sanitation, or open spaces, high
density of population and overcrowding or the existence of
conditions which endanger life or property, are detrimental to the
public health, safety, morals or welfare. "Blighted area" includes any area which, by reason of the presence of a substantial number
of substandard, slum, deteriorated or deteriorating structures,
predominance of defective or inadequate street layout, faulty lot
layout in relation to size, adequacy, accessibility, or usefulness,
unsanitary or unsafe conditions, deterioration of site or other
improvements, diversity of ownership, defective or unusual
conditions of title, or the existence of conditions which endanger
life or property by fire and other causes, or any combination of
such factors, substantially impairs or arrests the sound growth of
a municipality, retards the provision of housing accommodations, or
constitutes an economic or social liability and is a menace to the
public health, safety, morals or welfare in its present condition
and use, or any area which is predominantly open and which because
of lack of accessibility, obsolete platting, diversity of
ownership, deterioration of structures or of site improvements, or
otherwise, substantially impairs or arrests the sound growth of the
community.
(4) "Conservation area" means any improved area within the
boundaries of a development or redevelopment project area or
district located within the territorial limits of a municipality or
county in which fifty percent or more of the structures in the area
have an age of thirty-five years or more. A conservation area is
not yet a blighted area but is detrimental to the public health,
safety, morals or welfare and may become a blighted area because of
any one or more of the following factors: Dilapidation;
obsolescence; deterioration; illegal use of individual structures; presence of structures below minimum code standards; abandonment;
excessive vacancies; overcrowding of structures and community
facilities; lack of ventilation, light or sanitary facilities;
inadequate utilities; excessive land coverage; deleterious land use
or layout; depreciation of physical maintenance; and lack of
community planning. A conservation area shall meet at least three
of the factors provided in this subdivision.
(5) "County commission" means the governing body of a county
of this state and, for purposes of this article only, includes the
governing body of a Class I or II municipality in this state.
(6) "Current assessed value" means:
(A) The annual taxable assessed value of all real and tangible
personal property of a project developer having a tax situs within
a development project area as shown upon the landbook and personal
property records of the assessor; or
(B) The annual taxable assessed value of all real and tangible
personal property, excluding personal motor vehicles having a tax
situs within a development or redevelopment project area or
district as shown upon the landbook and personal property records
of the assessor.
(7) "Development office" means the West Virginia development
office created in section one, article two, chapter five-b of this
code.
(8) "Development project" or "redevelopment project" means a
project undertaken by a county commission or the governing body of
a municipality in a development or redevelopment project area or district for eliminating or preventing the development or spread of
slums or deteriorated, deteriorating or blighted areas, for
discouraging the loss of commerce, industry or employment, for
increasing employment, or for any combination thereof in accordance
with a tax increment financing plan. A development or
redevelopment project may include one or more of the following:
(A) The acquisition of land and improvements, if any within
the development or redevelopment project area district and
clearance of the land so acquired; or
(B) The development, redevelopment, revitalization or
conservation of the project area whenever necessary to provide land
for needed public facilities, public housing, or industrial or
commercial development or revitalization, to eliminate unhealthful,
unsanitary or unsafe conditions, to lessen density, mitigate or
eliminate traffic congestion, reduce traffic hazards, eliminate
obsolete or other uses detrimental to public welfare, or otherwise
remove or prevent the spread of blight or deterioration;
(C) The financial or other assistance in the relocation of
persons and organizations displaced as a result of carrying out the
development or redevelopment project and other improvements
necessary for carrying out the project plan, together with those
site improvements that are necessary for the preparation of any
sites and making any land or improvements acquired in the project
area available, by sale or lease, for public housing or for
development, redevelopment or rehabilitation by private enterprise
for commercial or industrial uses in accordance with the plan;
(D) The construction of capital improvements within a
development or redevelopment project area or district designed to
increase or enhance the development of commerce, industry or
housing within the development project area; or
(E) Any other projects the county commission or the agency
deems appropriate to carry out the purposes of this article.
(9) "Development or redevelopment project area or district"
means an area proposed by one or more agencies as a development or
redevelopment project area or district, which may include one or
more counties, one or more municipalities or any combination
thereof, that has been approved by the county commission of each
county in which the project area is located if the project is
located outside the corporate limits of a municipality, or by the
governing body of a municipality if the project area is located
within a municipality, or by both the county commission and the
governing body of the municipality when the development or
redevelopment project area or district is located both within and
without a municipality.
(10) "Economic development area" means any area or portion of
an area within the boundaries of a development or redevelopment
district located within the territorial limits of a municipality or
county that does not meet the requirements of subdivisions (3) and
(4) of this subsection and for which the county commission finds
that development or redevelopment will not be solely used for
development of commercial businesses that will unfairly compete in
the local economy and that development or redevelopment is in the public interest because it will:
(A) Discourage commerce, industry or manufacturing from moving
their operations to another state;
(B) Result in increased employment in the municipality or
county, whichever is applicable; or
(C) Result in preservation or enhancement of the tax base of
the county or municipality.
(11) "Governing body of a municipality" means the city council
of a Class I or Class II municipality in this state.
(12) "Incremental value," for any development or redevelopment
project area or district, means the difference between the base
assessed value and the current assessed value. The incremental
value will be positive if the current value exceeds the base value,
and the incremental value will be negative if the current value is
less than the base assessed value.
(13) "Includes" and "including" when used in a definition
contained in this article shall not be deemed to exclude other
things otherwise within the meaning of the term being defined.
(14) "Local levying body" means the county board of education,
and the county commission, and includes the governing bodies body
of a municipality when the development or redevelopment project
area or district is located, in whole or in part, within the
boundaries of the municipality.
(15) "Obligations" or "tax increment financing obligations"
means bonds, loans, debentures, notes, special certificates, or
other evidences of indebtedness issued by a county commission or municipality pursuant to this article to carry out a development or
redevelopment project or to refund outstanding obligations under
this article.
(16) "Order" means an order of the county commission adopted
in conformity with the provisions of this article and as provided
in chapter seven of this code.
(17) "Ordinance" means a law adopted by the governing body of
a municipality in conformity with the provisions of this article
and as provided in chapter eight of this code.
(18) "Payment in lieu of taxes" means those estimated revenues
from real property and tangible personal property having a tax
situs in the area selected for a development or redevelopment
project, which revenues according to the development or
redevelopment project or plan are to be used for a private use,
which levying bodies would have received had a county or
municipality not adopted one or more tax increment financing plans,
and which would result from levies made after the date of adoption
of a tax increment financing plan during the time the current
assessed value of all taxable real and tangible personal property
in the area selected for the development or redevelopment project
exceeds the total base assessed value of all taxable real and
tangible personal property in the development or redevelopment
project area or district until the designation is terminated as
provided in this article.
(19) "Person" means any natural person, and any corporation,
association, partnership, limited partnership, limited liability company or other entity, regardless of its form, structure or
nature, other than a government agency or instrumentality.
(20) "Private project" means any project that is subject to ad
valorem property taxation in this state or to a payment in lieu of
tax agreement that is undertaken by a project developer in
accordance with a tax increment financing plan in a development or
redevelopment project area or district.
(21) "Project" means any capital improvement, facility, or
both, as specifically set forth and defined in the project plan,
requiring an investment of capital, including, but not limited to,
extensions, additions or improvements to existing facilities
including water or wastewater facilities, and the remediation of
contaminated property as provided for in article twenty-two,
chapter twenty-two of this code, but does not include performance
of any governmental service by a county or municipal government.
(22) "Project area" means an area within the boundaries of a
development or redevelopment district in which a development or
redevelopment project is undertaken, as specifically set forth and
defined in the project plan.
_____(22) (23) "Project costs" means expenditures made in
preparation of the development or redevelopment project plan and
made, or estimated to be made, or monetary obligations incurred, or
estimated to be incurred, by the county commission which are listed
in the project plan as costs of public works or capital
improvements within a development or redevelopment project area or
district, plus any costs incidental thereto. "Project costs" include, but are not limited to:
(A) Capital costs, including, but not limited to, the actual
costs of the construction of public works or improvements, capital
improvements and facilities, new buildings, structures and
fixtures, the demolition, alteration, remodeling, repair or
reconstruction of existing buildings, structures and fixtures,
environmental remediation, parking and landscaping, the acquisition
of equipment, and site clearing, grading and preparation;
(B) Financing costs, including, but not limited to, a an
interest paid to holders of evidences of indebtedness issued to pay
for project costs, all costs of issuance and any redemption
premiums, credit enhancement or other related costs;
(C) Real property assembly costs, meaning any deficit incurred
resulting from the sale or lease as lessor by the county commission
of real or personal property having a tax situs within a
development or redevelopment project area or district for
consideration that is less than its cost to the county commission;
(D) Professional service costs, including, but not limited to,
those costs incurred for architectural planning, engineering and
legal advice and services;
(E) Imputed administrative costs, including, but not limited
to, reasonable charges for time spent by county employees or
municipal employees in connection with the implementation of a
project plan;
(F) Relocation costs, including, but not limited to, those
relocation payments made following condemnation and job training and retraining;
(G) Organizational costs, including, but not limited to, the
costs of conducting environmental impact and other studies, and the
costs of informing the public with respect to the creation of a
project development area or redevelopment district and the
implementation of project plans;
(H) Payments made, in the discretion of the county commission
or the governing body of a municipality, which are found to be
necessary or convenient to creation of development or redevelopment
project areas or districts or the implementation of project plans;
and
(I) That portion of costs related to the construction of
environmental protection devices, storm or sanitary sewer lines,
water lines, amenities or streets or the rebuilding or expansion of
streets, or the construction, alteration, rebuilding or expansion
of which is necessitated by the project plan for a development or
redevelopment project area or district, whether or not the
construction, alteration, rebuilding or expansion is within the
area or on land contiguous thereto.
(23) (24) "Project developer" means any person who engages in
the development of projects in the state.
(24) "Project development or redevelopment area" means a
contiguous geographic area within a county, or within two
contiguous counties, in which a development or redevelopment
project will be undertaken, as defined and created by order of the
county commission, or county commissions in the case of an area located in two counties.
(25) "Project plan" means the plan for a development or
redevelopment project that is adopted by a county commission or
governing body of a municipality in conformity with the
requirements of this article and chapter seven or eight of this
code.
(26) "Real property" means all lands, including improvements
and fixtures on them and property of any nature appurtenant to them
or used in connection with them and every estate, interest, and
right, legal or equitable, in them, including terms of years and
liens by way of judgment, mortgage or otherwise, and indebtedness
secured by the liens.
(27) "Redevelopment area" means an area designated by a county
commission, or the governing body of a municipality, in respect to
which the commission or governing body has made a finding that
there exist conditions which cause the area to be classified as a
blighted area, a conservation area, an economic development area or
a combination thereof, which area includes only those parcels of
real property directly and substantially benefitted by the proposed
redevelopment project located within the development or
redevelopment project area or district, or land contiguous thereto.
(28) "Redevelopment plan" means the comprehensive program
under this article of a county or municipality for redevelopment
intended by the payment of redevelopment costs to reduce or
eliminate those conditions, the existence of which qualified the
redevelopment project area or district as a blighted area, conservation area, economic development area or combination
thereof, and to thereby enhance the tax bases of the levying bodies
which extend into the redevelopment project area or district. Each
redevelopment plan shall conform to the requirements of this
article.
(29) "Tax increment" means:
(A) The amount of regular levy property taxes attributable to
the amount by which the current assessed value of a private project
in a development or redevelopment project area or district exceeds
the base assessed value, if any, of the private project; or
(B) The amount of regular levy property taxes attributable to
the amount by which the current assessed value of real and tangible
personal property having a tax situs in a development or
redevelopment project area or district exceeds the base assessed
value of the property.
(30) "Tax increment financing fund" means a separate fund for
a development or redevelopment project or for a development or
redevelopment project area or district established by the county
commission, or governing body of the municipality, that issues tax
increment financing obligations into which all tax increment
revenues and other pledged revenues are deposited and from which
projected project costs, debt service and other expenditures
authorized by this article are paid.
(31) "This code" means the code of West Virginia, one thousand
nine hundred thirty-one, as amended by the Legislature.
(32) "Total ad valorem property tax regular levy rate" means the aggregate levy rate of all levying bodies on all taxable
property having a tax situs within a development or redevelopment
project area or district in a tax year but does not include excess
levies, levies for general obligation bonded indebtedness or any
other levies that are not regular levies.
§7-11B-4. Powers generally.
In addition to any other powers conferred by law, a county
commission or governing body of a Class I or II municipality may
exercise any powers necessary and convenient to carry out the
purpose of this article, including the power to:
(1) Create development and redevelopment areas or districts
and to define the boundaries of those areas or districts;
(2) Cause project plans to be prepared, to approve the project
plans, and to implement the provisions and effectuate the purposes
of the project plans;
_____(3) Establish tax increment financing funds for each
development or redevelopment district;
_____(3) (4) Issue tax increment financing obligations and pledge
tax increments and other revenues for repayment of the obligations;
(4) (5) Deposit moneys into the tax increment financing fund
for any development or redevelopment project area or district, or
project;
(5) (6) Enter into any contracts or agreements, including, but
not limited to, agreements with project developers, consultants,
professionals, financing institutions, trustees, bondholders,
determined by the county commission to be necessary or convenient to implement the provisions and effectuate the purposes of project
plans;
(6) (7) Receive from the federal government or the state loans
and grants for, or in aid of, a development or redevelopment
project and to receive contributions from any other source to
defray project costs;
(7) (8) Exercise the right of eminent domain to condemn
property for the purposes of implementing the project plan. The
rules and procedures set forth in chapter fifty-four of this code
shall govern all condemnation proceedings authorized in this
article;
(8) (9) Make relocation payments to those persons, businesses,
or organizations that are displaced as a result of carrying out the
development or redevelopment project;
(9) (10) Clear and improve property acquired by the county
commission pursuant to the project plan and construct public
facilities on it or contract for the construction, development,
redevelopment, rehabilitation, remodeling, alteration or repair of
the property;
(10) (11) Cause parks, playgrounds or water, sewer or drainage
facilities, or any other public improvements, including, but not
limited to, fire stations, community centers and other public
buildings, which the county commission is otherwise authorized to
undertake, to be laid out, constructed, or furnished in connection
with the development or redevelopment project. When the public
improvement of the county commission is to be located, in whole or in part, within the corporate limits of a municipality, the county
commission shall consult with the mayor and the governing body of
the municipality regarding the public improvement and shall pay for
the cost of the public improvement from the tax increment financing
fund;
(11) (12) Lay out and construct, alter, relocate, change the
grade of, make specific repairs upon, or discontinue public ways
and construct sidewalks in, or adjacent to, the development or
redevelopment project area: Provided, That when the public way or
sidewalk is located within a municipality, the governing body of
the municipality shall consent to the same and if the public way is
a state road, the consent of the commissioner of highways shall be
necessary;
(12) (13) Cause private ways, sidewalks, ways for vehicular
travel, playgrounds or water, sewer or drainage facilities and
similar improvements to be constructed within the development or
redevelopment project area for the particular use of the
development or redevelopment project area or district, or those
dwelling or working in it;
(13) (14) Construct any capital improvements of a public
nature;
(14) (15) Construct capital improvements to be leased or sold
to private entities in connection with the goals of the development
or redevelopment project;
_____(16) Cause capital improvements owned by one or more private
entities to be constructed within the development or redevelopment district;
_____(15) (17) Designate one or more official or employee of the
county commission to make decisions and handle the affairs of
development and redevelopment project areas or districts created by
the county commission pursuant to this article;
(16) (18) Adopt orders, ordinances or bylaws or repeal or
modify such ordinances or bylaws or establish exceptions to
existing ordinances and bylaws regulating the design, construction,
and use of buildings within the development or redevelopment
project area or district created by a county commission or
governing body of a municipality under this article;
(17) (19) Enter orders, adopt bylaws or repeal or modify such
orders or bylaws or establish exceptions to existing orders and
bylaws regulating the design, construction, and use of buildings
within the development or redevelopment project area or district
created by a county commission or governing body of a municipality
under this article;
(18) (20) Sell, mortgage, lease, transfer, or dispose of any
property or interest therein, by contract or auction, acquired by
it pursuant to the project plan for development, redevelopment or
rehabilitation in accordance with the project plan;
(19) (21) Expend project revenues as provided in this article;
and
(20) (22) Do all things necessary or convenient to carry out
the powers granted in this article.
§7-11B-6. Application for development or redevelopment plan.
(a) An agency or a project developer may apply to a county
commission or the governing body of a municipality for adoption of
a development or redevelopment plan with respect to a development
or redevelopment project plan to be developed in conjunction with
a private project of a project developer. The application shall
state the project's economic impact, viability, estimated revenues
and potential for job creation and such other information as the
county commission or the governing body of the municipality may
require.
(b) Copies of the application shall be made available to the
public in the county clerk's office, or the municipal recorder's
office when the application is filed with the governing body of a
municipality.
§7-11B-7. Creation of a development or redevelopment or district.
(a) County commissions and the governing bodies of Class I and
II municipalities, upon their own initiative or upon application of
an agency or a developer, may propose creation of a development or
redevelopment project area or district and designate the boundaries
of the area or district: Provided, That an area or a district may
not include noncontiguous land.
(b) The county commission or municipality proposing creation
of a development or redevelopment area or district shall then hold
a public hearing at which interested parties are afforded a
reasonable opportunity to express their views on the proposed
creation of a development or redevelopment project area or district
and its proposed boundaries.
(1) Notice of the hearing shall be published once each week
for three successive weeks immediately preceding the public hearing
as a Class III II legal advertisement in accordance with section
two, article three, chapter fifty-nine of this code.
(2) The notice shall include the time, place and purpose of
the public hearing, describe in sufficient detail the tax increment
financing plan, the proposed boundaries of the development or
redevelopment project area or district and, when a development or
redevelopment project plan is being proposed, the proposed tax
increment financing obligations to be issued to finance the
development or redevelopment project costs.
(3) Prior to the first day of publication, a copy of the
notice shall be sent by first-class mail to the director of the
development office and to the chief executive officer of all other
local levying bodies having the power to levy taxes on real and
tangible personal property located within the proposed development
or redevelopment project area or district.
(4) All parties who appear at the hearing shall be afforded an
opportunity to express their views on the proposal to create the
development or redevelopment district and, if applicable, the
development or redevelopment project plan and proposed tax
increment financing obligations undertake and finance the project.
(c) After the public hearing, the county commission, or the
governing body of the municipality, shall finalize the development
or redevelopment project plan and the boundaries of the development
or redevelopment project area or district, the development or redevelopment project plan, or both and submit it the same to the
director of the development office for his or her review and
approval. The director, within sixty days after receipt of the
plan application, shall approve the plan application as submitted,
reject the plan application, or return the plan application to the
county commission or governing body of the municipality for further
development or review in accordance with instructions of the
director of the development office. A plan development or
redevelopment district or development or redevelopment project plan
may not be adopted by the county commission or the governing body
of a municipality until after it has been approved by the executive
director of the development office.
(d) Upon approval of the development or redevelopment plan
application by the development office, the county commission may
enter an order, and the governing body of the municipality
proposing the plan district or development or redevelopment project
plan may adopt an ordinance, that:
(1) Describes the boundaries of a development or redevelopment
project area or district sufficiently to identify with ordinary and
reasonable certainty the territory included in the area or
district, which boundaries shall create a contiguous area or
district;
(2) Creates the development or redevelopment project area or
district as of a date provided in the order or ordinance;
(3) Assigns a name to the development or redevelopment project
area or district for identification purposes.
(A) The name may include a geographic or other designation,
shall identify the county or municipality authorizing the area or
district, and shall be assigned a number, beginning with the number
one.
(B) Each subsequently created area or district in the county
or municipality shall be assigned the next consecutive number;
(4) Contains findings that the real property within the
development or redevelopment project area or district will be
benefitted by eliminating or preventing the development or spread
of slums or blighted, deteriorated or deteriorating areas,
discouraging the loss of commerce, industry or employment,
increasing employment, or any combination thereof;
(5) Approves the development or redevelopment project plan, if
applicable;
(6) Establishes a tax increment financing fund as a separate
fund into which all tax increment revenues and other revenues
designated by the county commission, or governing body of the
municipality, for the benefit of the development or redevelopment
project area or district shall be deposited, and from which all
project costs shall be paid, which may be assigned to and held by
a trustee for the benefit of bondholders if tax increment financing
obligations are issued by the county commission, or the governing
body of the municipality; and
(7) Provides that ad valorem property taxes on real and
tangible personal property having a tax situs in the development or
redevelopment project area or district shall be assessed, collected and allocated in the following manner, commencing upon the date of
adoption of such order or ordinance and continuing for so long as
any tax increment financing obligations are payable from the tax
increment financing fund, hereinafter authorized, are outstanding
and unpaid:
(A) For each tax year, the county assessor shall record in the
land and personal property books both the base assessed value and
the current assessed value of the real and tangible personal
property having a tax situs in the development or redevelopment
project area or district;
(B) Ad valorem taxes collected from regular levies upon real
and tangible personal property having a tax situs in the area or
district that are attributable to the lower of the base assessed
value or the current assessed value of real and tangible personal
property located in the development project area shall be allocated
to the levying bodies in the same manner as applicable to the tax
year in which the development or redevelopment project plan is
adopted by order of the county commission or by ordinance adopted
by the governing body of the municipality;
(C) The tax increment with respect to real and tangible
personal property in the development or redevelopment project area
or district shall be allocated and paid into the tax increment
financing fund and shall be used to pay the principal of and
interest on tax increment financing obligations issued to finance
the costs of the development or redevelopment projects in the
development or redevelopment project area or district. Any levying body having a development or redevelopment project area or district
within its taxing jurisdiction shall not receive any portion of the
annual tax increment except as otherwise provided in this article;
and
(D) In no event shall the tax increment include any taxes
collected from excess levies, levies for general obligation bonded
indebtedness or any levies other than the regular levies provided
for in article eight, chapter eleven of this code.
(e) Proceeds from tax increment financing obligations issued
under this article may only be used to pay for costs of development
and redevelopment projects to foster economic development in the
development or redevelopment project area or district, or land
contiguous thereto, including infrastructure and other public
improvements prerequisite to private improvements, when such
development or redevelopment project or projects would not
reasonably be expected to occur without tax increment financing.
(f) Notwithstanding subsection (e) of this section, a county
commission may not enter an order approving a development or
redevelopment project plan unless the county commission expressly
finds and states in the order that the primary development or
redevelopment project is not reasonably expected to occur without
the use of tax increment financing.
(g) Notwithstanding subsection (e) of this section, the
governing body of a municipality may not adopt an ordinance
approving a development or redevelopment project plan unless the
governing body expressly finds and states in the ordinance that the primary development or redevelopment project is not reasonably
expected to occur without the use of tax increment financing.
(h) No county commission shall establish a development or
redevelopment project area or district any portion of which is
within the boundaries of a Class I, Class II, Class III or Class IV
municipality without the formal consent of the governing body of
the such municipality.
(i) A tax increment financing plan that has been approved by
a county commission or the governing body of a municipality may be
amended by following the procedures set forth in this article for
adoption of a new development or redevelopment project plan.
(j) The county commission may modify the boundaries of the
development or redevelopment project area or district from time to
time by entry of an order modifying the order creating the
development or redevelopment project area or district.
(k) The governing body of a municipality may modify the
boundaries of the development or redevelopment project area or
district from time to time by amending the ordinance establishing
the boundaries of the area or district.
(l) Before a county commission or the governing body of a
municipality may enter amend such an order or amend the ordinance,
the county commission or municipality shall give the public notice,
hold a public hearing and obtain the approval of the director of
the development office, following the procedures for establishing
a new development or redevelopment project area or district. In
the event any tax increment financing obligations are outstanding with respect to the development or redevelopment project area or
district, any change in the boundaries shall not reduce the amount
of tax increment available to secure the outstanding tax increment
financing obligations.
§7-11B-8. Project plan - Approval.
(a) Upon the creation of the development or redevelopment area
or district, the The county commission or municipality creating the
area or district shall cause the preparation of a project plan for
each development or redevelopment area or district, and the project
plan shall be adopted by order of the county commission, or
ordinance adopted by the governing body of the municipality, after
it is approved by the executive director of the development office.
This process shall conform to the procedures set forth in this
section.
(b) Each project plan shall include:
(1) A statement listing the kind, number, and location of all
proposed public works or other improvements within the area or
district and on land outside but contiguous to the area or
district;
(2) A cost-benefit analysis showing the economic impact of the
plan on each levying body that is at least partially within the
boundaries of the development or redevelopment project area or
district. This analysis shall show the impact on the economy if
the project is not built, and is built pursuant to the development
or redevelopment plan under consideration. The cost-benefit
analysis shall include a fiscal impact study on every affected levying body, and sufficient information from the developer for the
agency, if any proposing the plan, the county commission be asked
to approve the project and the development office to evaluate
whether the project as proposed is financially feasible.
(3) An economic feasibility study;
(4) A detailed list of estimated project costs;
(5) A description of the methods of financing all estimated
project costs, including the issuance of tax increment obligations,
and the time when the costs or monetary obligations related thereto
are to be incurred;
(6) A certification by the county assessor of the base
assessed value of real and tangible personal property having a tax
situs in a development or redevelopment project area or district:
Provided, That if such certification is made during the months of
January or February of each year, the county assessor may certify
an estimated base assessed value of real and tangible personal
property having a tax situs in a development or redevelopment
district: Provided, however, That prior to issuance of tax
increment obligations, the county assessor shall certify a final
base assessed value for the estimated base assessed value permitted
by this section;
(7) The type and amount of any other revenues that are
expected to be deposited to the tax increment financing fund of the
development or redevelopment project area or district;
(8) A map showing existing uses and conditions of real
property in the development or redevelopment project area or district;
(9) A map of proposed improvements and uses in the area or
district;
(10) Proposed changes of zoning ordinances, if any;
(11) Appropriate cross-references to any master plan, map,
building codes, and municipal ordinances or county commission
orders affected by the project plan;
(12) A list of estimated nonproject costs; and
(13) A statement of the proposed method for the relocation of
any persons, businesses or organizations to be displaced.;
_____(14) A certificate from the executive director of the workers'
compensation commission, the commissioner of the bureau of
employment programs and the state tax commissioner, that the
project developer is in good standing with the workers'
compensation commission, the bureau of employment programs and the
state tax division; and
_____(15) A certificate from the sheriff of the county or counties
in which the development or redevelopment district is located, that
the project developer is not delinquent on payment of any real and
personal property taxes in such county.
(c) If the project plan is to include tax increment financing,
the tax increment financing portion of the plan shall set forth:
(1) The amount of indebtedness to be incurred pursuant to this
article;
(2) An estimate of the tax increment to be generated as a
result of the project;
(3) The method for calculating the tax increment, which shall
be in conformance with the provisions of this article, together
with any provision for adjustment of the method of calculation;
(4) Any other revenues, such as payment in lieu of tax
revenues, to be used to secure the tax increment financing; and
(5) Any other provisions as may be deemed necessary in order
to carry out any tax increment financing to be used for the
development or redevelopment project.
(d) If less than all of the tax increment is to be used to
fund a development or redevelopment project or to pay project costs
or retire tax increment financing, the project plan shall set forth
the portion of the tax increment to be deposited in the tax
increment financing fund of the development or redevelopment
project area or district, and provide for the distribution of the
remaining portion of the tax increment to the levying bodies in
whose jurisdiction the area or district lies.
(e) The county commission or governing body of the
municipality that established the tax increment financing fund
shall hold a public hearing at which interested parties shall be
afforded a reasonable opportunity to express their views on the
proposed project plan being considered by the county commission or
the governing body of the municipality.
(1) Notice of the hearing shall be published in a newspaper of
general circulation in the county or the municipality, if the
development or redevelopment project is located in a municipality,
at least fifteen days prior to the hearing as a Class II legal advertisement in accordance with section two, article three,
chapter fifty-nine of this code.
(2) Prior to this publication, a copy of the notice shall be
sent by first-class mail to the chief executive officer of all
other levying bodies having the power to levy taxes on property
located within the proposed development or redevelopment area or
district.
(f) Approval by the county commission or the governing body of
a municipality of a an initial development or redevelopment project
plan must be within one year after the date of the county
assessor's certification required by subdivision (5) (6),
subsection (b) of this section: Provided, That additional
development or redevelopment project plans may be approved by the
county commission or the governing body of a municipality in
subsequent years, so long as the development or redevelopment
district continues to exist. The approval shall be by order of the
county commission or ordinance of the municipality, which shall
contain a finding that the plan is economically feasible.
§7-11B-9. Project plan - amendment.
(a) The county commission may by order, or the governing body
of a municipality by ordinance, adopt an amendment to a project
plan.
(b) Adoption of an amendment to a project plan shall be
preceded by a public hearing held by the county commission, or
governing body of the municipality, at which interested parties
shall be afforded a reasonable opportunity to express their views on the amendment.
(1) Notice of the hearing shall be published in a newspaper of
general circulation in the county or municipality in which the
project is to be located once a week for three consecutive weeks
prior to the date of the public hearing as a Class II legal
advertisement in accordance with section two, article three,
chapter fifty-nine of this code.
(2) Prior to publication, a copy of the notice shall be sent
by first-class mail to the chief executive officer of all other
local levying bodies having the power to levy taxes on property
within the development or redevelopment project area or district.
(3) Copies of the proposed plan amendments shall be made
available to the public at the county clerk's office, or municipal
clerk's office, at least fifteen days prior to the hearing.
(c) One or more existing development or redevelopment areas or
districts may be combined pursuant to lawfully adopted amendments
to the original plans for each area or district: Provided, That
the county commission, or governing body of the municipality, finds
that the combination of the areas or districts will not impair the
security for any tax increment financing obligations previously
issued pursuant to this article.
§7-11B-10. Termination of development or redevelopment district.
(a) No development or redevelopment project area or district
may be in existence for a period longer than thirty years and no
tax increment financing obligations may have a final maturity date
later than the termination date of the area or district.
(b) The county commission or governing body of the
municipality creating the development or redevelopment area or
district may set a shorter period for the existence of the area or
district. In this event, no tax increment financing obligations
may have a final maturity date later than the termination date of
the area or district.
(c) Upon termination of the area or district, no further ad
valorem tax revenues shall be distributed to the tax increment
financing fund of the area or district.
(d) The county commission shall adopt, upon the expiration of
the time periods set forth in this section, an order terminating
the development or redevelopment project area or district created
by the county commission: Provided, That no area or district shall
be terminated so long as bonds with respect to the area or district
remain outstanding.
(e) The governing body of the county commission shall repeal,
upon the expiration of the time periods set forth in this section,
the ordinance establishing the development or redevelopment project
area or district: Provided, That no area or district shall be
terminated so long as bonds with respect to the area or district
remain outstanding.
§7-11B-11. Costs of formation of development or redevelopment
district.
(a) The county commission, or the governing body of a
municipality, may pay, but shall have no obligation to pay, the
costs of preparing the project plan or forming the development or redevelopment project area or district created by them.
(b) If the county commission, or the governing body of the
municipality, elects not to incur those costs, they shall be made
project costs of the area or district and reimbursed from bond
proceeds or other financing, or may be paid by developers, property
owners or other persons interested in the success of the
development or redevelopment project.
§7-11B-12. Overlapping districts prohibited.
The boundaries of any development and redevelopment project
areas or districts shall not overlap with any other development or
redevelopment project area or district.
§7-11B-13. Conflicts of interest; required disclosures and
abstention.
(a) If any member of the governing body of the an agency
applying for a development or redevelopment project district or a
development or redevelopment project plan, a member of the county
commission considering the application, or a member of the
governing body of a municipality considering the application, or an
employee or consultant of the agency, county commission or
municipality involved in the planning and preparation of a
development or redevelopment plan, or a development or
redevelopment project for a development or redevelopment project
area or district, or a proposed development or redevelopment
project area or district, owns or controls an interest, direct or
indirect, in any property included in any the development or
redevelopment project area or district, or a proposed development or redevelopment project area or district, he or she shall disclose
the same in writing to the clerk of the county commission, or to
recorder of the municipality if he or she is an official or
employee of the municipality, and shall also so disclose the dates,
terms, and conditions of any disposition of any such interest,
which disclosures shall be acknowledged by county commission, or
the governing body of the municipality if he or she is an official
or employee of the municipality, and entered upon the minutes books
of the county commission, or the governing body of the
municipality, acknowledging the disclosure.
(b) If an individual holds or held an interest required to be
disclosed under subsection (a) of this section, then that
individual shall refrain from any further official involvement in
regard to the development or redevelopment plan, the development or
redevelopment project or the development or redevelopment project
area or district such application, shall abstain from voting on any
matter pertaining to the development or redevelopment plan, the
development or redevelopment project or the development or
redevelopment project area or district such application, and shall
abstain from communicating with other members concerning any matter
pertaining to that plan, project or area such application.
(b) With respect to development or redevelopment projects, the
provisions of subsection (a), section fifteen, article ten, chapter
sixty-one of this code do not apply to any person who, or person
whose spouse, is a salaried employee of a project developer under
a contract subject to the provisions of said subsection if the employee, his or her spouse or child:
__(1) Is not a party to the contract;
__(2) Is not an owner, a shareholder, a director or an officer
of a private entity under the contract;
__(3) Receives no commission, bonus or other direct remuneration
or thing of value by virtue of the contract;
__(4) Does not participate in the deliberations or awarding of
the contract; and
__(5) Does not approve, vote for or otherwise authorize the
payment of public funds, including but not limited to tax increment
revenues, pursuant to or as a result of the contract.
(c) Additionally, no member of the county commission or
governing body of a municipality considering a development or
redevelopment district or project or plan, no member of the
governing body of an agency proposing a development or
redevelopment district or project or plan, or any employee of the
county, municipality or agency shall acquire any interest, direct
or indirect, in any property in a development or redevelopment
project area or district or project area, or a proposed development
or redevelopment project area or district or project area, after
either: (1) The during the period of time between when the
individual first obtains personal knowledge of the development or
redevelopment district or project plan or project; or (2) and the
first published public notice of the plan, public hearing regarding
the development or redevelopment district or project or area,
whichever first occurs plan.
§7-11B-15. Reports by county commissions and municipalities,
contents, and publication; procedure to determine
progress of project; reports by development office,
content of reports; rule-making authority;
development office to provide manual and assistance.
(a) Each year, the county commission, or its designee, and the
governing body of a municipality, or its designee, that has
approved a development or redevelopment project plan shall prepare
a report giving the status of each plan and each development and
redevelopment project included in the plan and file it with the
executive director of the development office by the first day of
October each year. The report shall include the following
information:
(1) The aggregate amount and the amount by source of revenue
in the tax increment financing fund;
(2) The amount and purpose of expenditures from the tax
increment financing fund;
(3) The amount of any pledge of revenues, including principal
and interest on any outstanding tax increment financing
indebtedness;
(4) The base assessed value of the development or
redevelopment project, or the development or redevelopment project
area or district, as appropriate;
(5) The assessed value for the current tax year of the
development or redevelopment project property, or of the taxable
property having a tax situs in the development or redevelopment project area or district, as appropriate;
(6) The assessed value added to base assessed value of the
development or redevelopment project, or the taxable property
having a tax situs in the development or redevelopment area or
district, as the case may be;
(7) Payments made in lieu of taxes received and expended;
(8) Reports on contracts made incidental to the implementation
and furtherance of a development or redevelopment plan or project;
(9) A copy of any development or redevelopment plan, which
shall include the required findings and cost-benefit analysis;
(10) The cost of any property acquired, disposed of,
rehabilitated, reconstructed, repaired or remodeled;
(11) The number of parcels of land acquired by or through
initiation of eminent domain proceedings;
(12) The number and types of jobs projected by the project
developer to be created, if any, and the estimated annualized wages
and benefits paid or to be paid to persons filling those jobs;
(13) The number, type and duration of the jobs created, if
any, and the annualized wages and benefits paid;
(14) The amount of disbursements from the tax increment
financing fund during the most recently completed fiscal year, in
the aggregate and in such detail as the executive director of the
development office may require;
(15) An annual statement showing payments made in lieu of
taxes received and expended during the fiscal year;
(16) The status of the development or redevelopment plan and projects therein;
(17) The amount of outstanding tax increment financing
obligations; and
(18) Any additional information the county commission or the
municipality preparing the report deems necessary or that the
executive director of the development office may by procedural rule
require.
(b) Data contained in the report required by subsection (a) of
this section shall be deemed a public record, as defined in article
one, chapter twenty-nine-b of this code.
(1) The county commission's annual report shall be published
on its web site, if it has a web site. If the county does not have
a web site, the annual report shall be published on the web site of
the development office.
(2) The municipality's annual report shall be published on its
web site, if it has a web site. If the municipality does not have
a web site, the annual report shall be published on the web site of
the development office.
(c) After the close of the fiscal year, but on or before the
first day of October each year, the county commission and the
governing body of a municipality that approved a development or
redevelopment plan shall publish in a newspaper of general
circulation in the county or municipality, as appropriate, an
annual statement showing for each development or redevelopment
project or plan for which tax increment financing obligations have
been issued:
(1) A summary of receipts and disbursements, by major
category, of moneys in the tax increment financing fund during that
fiscal year;
(2) A summary of the status of the development or
redevelopment plan and each project therein;
(3) The amount of tax increment financing principal
outstanding as of the close of the fiscal year; and
(4) Any additional information the county commission or
municipality deems necessary or appropriate to publish.
(d) Five years after the establishment of a development or
redevelopment plan, and every five years thereafter, the county
commission or municipality that approved the plan shall hold a
public hearing regarding that development or redevelopment plan and
the projects created or to be created in the development or
redevelopment project area or district pursuant to this article.
(1) The purpose of the public hearing is to determine if the
development or redevelopment plan and the proposed project or
projects are making satisfactory progress under the proposed time
schedule contained within the approved plans for completion of the
projects.
(2) Notice of this public hearing shall be given in a
newspaper of general circulation in the county, or in the
municipality for a municipal plan, once each week for four
successive weeks immediately prior to the hearing.
(3) Public hearings on development and redevelopment plans and
projects may be held as part of a regular or special meeting of the county commission, or governing body of the municipality, that
adopted the plan.
(e) The executive director of the development office shall
submit a report to the governor, the speaker of the House of
Delegates and the president of the Senate no later than February
first of each year. The report shall contain a summary of all
information received by the executive director pursuant to this
section.
(f) For the purpose of facilitating and coordinating the
reports required by this section, the executive director of the
development office may promulgate procedural rules in the manner
provided in article three, chapter twenty-nine-a of this code, to
ensure compliance with this section.
(g) The executive director of the development office shall
provide information and technical assistance, as requested by a
county commission or the governing body of a municipality, on the
requirements of this article. The information and technical
assistance shall be provided in the form of a manual, written in an
easy-to-follow manner, and through consultations with staff of the
development office.
(h) By the first day of October each year, each agency that
proposed a development or redevelopment plan that was approved by
a county commission, or the governing body of a municipality, and
each county commission, or governing body of a municipality, that
approved a development or redevelopment plan that was not proposed
by an agency shall report to the executive director of the development office the name, address, phone number and primary line
of business of any business that relocates to the development or
redevelopment project area or district during the immediately
preceding fiscal year of the state. The executive director shall
compile and report the same to the governor, the speaker of the
House of Delegates and the president of the Senate by the first day
of February of the next calendar year.
§7-11B-16. Valuation of real property.
(a) Upon and after the effective date of the creation of a
development or redevelopment project area or district, the county
assessor of the county in which the area or district is located
shall transmit to the county clerk a certified statement of the
base assessed value, total ad valorem regular levy rate, total
general obligation bond debt service ad valorem rate, and total
excess levy rate applicable for the development or redevelopment
area or district.
(1) The assessor shall undertake, upon request of the county
commission, or the governing body of the municipality, creating the
development or redevelopment project area or district, an
investigation, examination, and inspection of the taxable real and
tangible personal property having a tax situs in the area or
district and shall reaffirm or revalue the base value for
assessment of the property in accordance with the findings of the
investigation, examination and inspection.
(2) The county assessor shall determine, according to his or
her best judgment from all sources available to him or her, the full aggregate assessed value of the taxable property in the area
or district, which aggregate assessed valuation, upon certification
thereof by the assessor to the clerk, constitutes the base value of
the development or redevelopment project area or district.
(b) The county assessor shall give notice annually to the
designated finance officer of each levying body having the power to
levy taxes on property within each area or district of the current
value and the incremental value of the property in the development
or redevelopment project area or district.
(c) The assessor shall also determine the tax increment by
applying the applicable ad valorem regular levy rates to the
incremental value.
(d) The notice shall also explain that the entire amount of
the tax increment allocable to property within the development or
redevelopment project area or district will be paid to the tax
increment financing fund of the development or redevelopment
project area or district until it is terminated.
(e) The assessor shall identify upon the landbooks those
parcels of property that are within each existing development or
redevelopment project area or district, specifying on landbooks the
name of each area or district.
§7-11B-17. Division of ad valorem real property tax revenue.
(a) For so long as the development or redevelopment project
area or district exists, the county sheriff shall divide the ad
valorem tax revenue collected, with respect to taxable property in
the area or district, as follows:
(1) The assessor shall determine for each tax year:
(A) The amount of ad valorem property tax revenue that should
be generated by multiplying the assessed value of the property for
the then current tax year by the aggregate of applicable levy rates
for the tax year;
(B) The amount of ad valorem tax revenue that should be
generated by multiplying the base assessed value of the property by
the applicable regular ad valorem levy rates for the tax year;
(C) The amount of ad valorem tax revenue that should be
generated by multiplying the assessed value of the property for the
current tax year by the applicable levy rates for general
obligation bond debt service for the tax year;
(D) The amount of ad valorem property tax revenue that should
be generated by multiplying the assessed value of the property for
the current tax year by the applicable excess levy rates for the
tax year; and
(E) The amount of ad valorem property tax revenue that should
be generated by multiplying the incremental value by the applicable
regular levy rates for the tax year.
(2) The sheriff shall determine from the calculations set
forth in subdivision (1), subsection (a) of this section the
percentage share of total ad valorem revenue for each levying body
according to paragraphs (B) through (D), inclusive, subdivision
(1), subsection (a) of this section, by dividing each of such
amounts by the total ad valorem revenue figure determined by the
calculation in paragraph (A), subdivision (1), subsection (a) of this section; and
(3) On each date on which ad valorem tax revenue is to be
distributed to the levying bodies, such revenue shall be
distributed by:
(A) Applying the percentage share determined according to
paragraph (B), subdivision (1), subsection (a) of this section to
the revenues received and distributing such share to the levying
bodies entitled to such distribution pursuant to current law;
(B) Applying the percentage share determined according to
paragraph (C), subdivision (1), subsection (a) of this section to
the revenues received and distributing such share to the levying
bodies entitled to such distribution by reason of having general
obligation bonds outstanding;
(C) Applying the percentage share determined according to
paragraph (D), subdivision (1), subsection (a) of this section to
the revenues received and distributing such share to the levying
bodies entitled to such distribution by reason of having excess
levies in effect for the tax year; and
(D) Applying the percentage share determined according to
paragraph (E), subdivision (1), subsection (a) of this section to
the revenues received and distributing such share to the tax
increment financing fund of the development or redevelopment
project area or district.
(b) In each year for which there is a positive tax increment,
the county sheriff shall remit to the tax increment financing fund
of the development or redevelopment project area or district that portion of the ad valorem property taxes collected that consists of
the tax increment.
(c) Any additional moneys appropriated to the development or
redevelopment project area or district pursuant to an appropriation
by the county commission that created the district and any
additional moneys dedicated to the fund from other sources shall be
deposited to the tax increment financing fund for the development
or redevelopment project area or district by the sheriff.
(d) Any funds deposited into the tax increment financing fund
of the development or redevelopment project area or district may be
used to pay project costs, principal and interest on bonds, and the
cost of any other improvements in the development or redevelopment
project area or district deemed proper by the county commission.
(e) Unless otherwise directed pursuant to any agreement with
the holders of tax increment financing obligations, moneys in the
tax increment financing fund may be temporarily invested in the
same manner as other funds of the county commission, or the
municipality, that established the fund.
(f) If less than all of the tax increment is to be used for
project costs or pledged to secure tax increment financing as
provided in the plan for the development or redevelopment project
area or district, the sheriff shall account for that fact in
distributing the ad valorem property tax revenues.
§7-11B-18. Payments in lieu of taxes and other revenues.
(a) The county commission or municipality that created the
development or redevelopment project area or district shall deposit in the tax increment financing fund of the development or
redevelopment project area or district all payments in lieu of
taxes received pursuant to any agreement entered into on or
subsequent to the date of creation of a development or
redevelopment district on tax exempt property located within the
development or redevelopment project area or district.
(b) As a condition of receiving tax increment financing, the
The lessee of property that is exempt from property taxes because
it is owned by this state, a political subdivision of this state or
an agency or instrumentality thereof, the lessee which is the
lessee of any facilities financed in whole or in part with tax
increment financing obligations shall execute a payment in lieu of
tax agreement that shall remain in effect until the tax increment
financing obligations are paid, during which period of time the
lessee agrees to pay to the county sheriff an amount equal to the
amount of ad valorem property taxes that would have been levied
against the assessed value of the property were it owned by the
lessee rather than a tax exempt entity. The portion of the payment
in lieu of taxes attributable to the incremental value shall be
deposited in the tax increment financing fund. The remaining
portion of the in lieu payment shall be distributed among the
levying bodies as follows:
(1) The portion of the in lieu tax payment attributable to the
base value of the property shall be distributed to the levying
bodies in the same manner as taxes attributable to the base value
of other property in the area or district are distributed; and
(2) The portions of the in lieu tax payment attributable to
levies for bonded indebtedness and excess levies shall be
distributed in the same manner as those levies on other property in
the area or district are distributed.
(c) Other revenues to be derived from the development or
redevelopment project area or district may also be deposited in the
tax increment financing fund at the direction of the county
commission.
§7-11B-19. Tax increment obligations generally.
(a) Tax increment obligations may be issued by a county
commission, or the governing body of the municipality, to pay
project costs for projects included in the development or
redevelopment plan approved by the development office and adopted
by the county commission, or the governing body of the
municipality, that are located in a development or redevelopment
project area or district, or on land not in the district that is
contiguous to the area or district and which contain infrastructure
or other facilities which serve the district.
(1) Tax increment financing obligations may be issued for
project costs, as defined in section three of this article, which
may include interest prior to and during the carrying out
acquisition, construction and equipping of a project and for a
reasonable time thereafter, with such reserves as may be required
by any agreement securing the obligations and all other expenses
incidental to planning, carrying out and financing the project.
(2) The proceeds of tax increment financing obligations may also be used to reimburse the costs of any interim financing or
cash expenditures entered on behalf of projects in the development
or redevelopment project area or district.
(b) Tax increment financing obligations issued under this
article shall be payable solely from the tax increment or other
revenues deposited to the credit of the tax increment financing
fund of the development or redevelopment project area or district.
(c) Under no event shall tax increment financing obligations
be secured or be deemed to be secured by the full faith and credit
of the county commission or the municipality issuing the tax
increment financing obligations.
(d) Every tax increment financing bond, note or other
obligation issued under this article shall recite on its face that
it is a special obligation payable solely from the tax increment
and other revenues pledged for its repayment.
§7-11B-20. Tax increment financing obligations -- authority to
issue.
For the purpose of paying project costs, or for the purpose of
refunding notes issued under this article for the purpose of paying
project costs, the county commission or municipality creating the
development or redevelopment project area or district may issue tax
increment financing obligations payable out of positive tax
increments and other revenues deposited to the tax increment
financing fund of the development or redevelopment project area or
district.
§7-11B-21. Tax increment financing obligations -- authorizing resolution.
(a) Issuance of tax increment financing obligations shall be
authorized by order of the county commission, or resolution of the
municipality, that created the development or redevelopment project
area or district.
(b) The order, or resolution, shall state the name of the
development or redevelopment project area or district, the amount
of tax increment financing obligations authorized, the type of
obligation authorized, and the interest rate or rates to be borne
by the bonds, notes or other tax increment financing obligations.
(c) The order or ordinance may prescribe the terms, form, and
content of the tax increment financing obligations and other
particulars or information the county commission, or governing body
of the municipality, issuing the obligations deems useful, or it
may include by reference the terms and conditions set forth in a
trust indenture or other document securing the development or
redevelopment project tax increment financing obligations.
§7-11B-22. Tax increment financing obligations -- terms,
conditions.
(a) Tax increment financing obligations may not be issued in
an amount exceeding the estimated aggregate project costs,
including all costs of issuance of the tax increment financing
obligations.
(b) Tax increment financing obligations shall not be included
in the computation of the constitutional debt limitation of the
county commission or municipality issuing the tax increment financing obligations.
(c) Tax increment financing obligations shall mature over a
period not exceeding thirty years from the date of entry of the
county commission's order, or the effective date of the municipal
ordinance, creating the development or redevelopment project area
or district and approving the development or redevelopment plan, or
a period terminating with the date of termination of the
development or redevelopment project area or district, whichever
period terminates earlier.
(d) Tax increment financing obligations may contain a
provision authorizing their redemption, in whole or in part, at
stipulated prices, at the option of the county commission or
municipality issuing the obligations, on any interest payment date
and, if so, the obligations shall provide the method of selecting
the tax increment financing obligations to be redeemed.
(e) The principal and interest on tax increment financing
obligations may be payable at any place set forth in the
resolution, trust indenture, or other document governing the
obligations.
(f) Bonds or notes shall be issued in registered form.
(g) Bonds or notes may be issued in any denomination.
(h) Each tax increment financing obligation issued under this
article is declared to be a negotiable instrument.
(i) The tax increment financing obligations may be sold at
public or private sale.
(j) Insofar as they are consistent with subdivision (1), subsection (a) and subsections (a), (b) and (c) of this section,
the procedures for issuance, form, contents, execution,
negotiation, and registration of county and municipal industrial or
commercial revenue bonds set forth in article two-c, chapter
thirteen of this code are incorporated by reference herein.
(k) The bonds may be refunded or refinanced and refunding
bonds may be issued in any principal amount: Provided, That the
last maturity of the refunding bonds shall not be later than the
last maturity of the bonds being refunded.
§7-11B-23. Tax increment financing obligations -- security --
marketability.
To increase the security and marketability of tax increment
financing obligations, the county commission or municipality
issuing the obligations may:
(1) Create a lien for the benefit of the holders of the
obligations upon any public improvements or public works capital
improvements, facilities or both financed by the obligations; or
(2) Make such covenants and do any and all such actions, not
inconsistent with the constitution of this state, which may be
necessary, convenient or desirable in order to additionally secure
the obligations, or which tend to make the obligations more
marketable according to the best judgment of the county commission
or municipality issuing the tax increment financing obligations.
§7-11B-24. Tax increment financing obligations -- special fund for
repayment.
(a) Tax increment financing obligations issued by a county commission or municipality are payable out of the tax increment
financing fund created for each development and redevelopment
project area or district created under this article.
(b) The county commission or municipality issuing the tax
increment financing obligations shall irrevocably pledge all or
part of the tax increment financing fund to the payment of the
obligations. The tax increment financing fund, or the designated
part thereof, may thereafter be used only for the payment of the
obligations and their interest until they have been fully paid.
(c) A holder of the tax increment financing obligations shall
have a lien against the tax increment financing fund for payment of
the obligations and interest on them and may bring suit to enforce
the lien.
__(d) A county commission or municipality may issue and secure
additional bonds payable out of the tax increment fund created for
each development or redevelopment district created under this
article, which bonds may rank on a parity with, or be subordinate
or superior to, other bonds issued by the county commission or
municipality from each such tax increment fund.
§7-11B-26. Excess funds.
(a) Moneys received in the tax increment financing fund of the
development or redevelopment project area or district in excess of
amounts needed to pay project costs and debt service may be used by
the county commission or municipality that created the development
or redevelopment project area or district for other projects within
the area or district, or distributed to the levying bodies as provided in this article.
(b) Upon termination of the area or district, all amounts in
the tax increment financing fund of the area or district shall be
paid over to the levying bodies in the same proportion that ad
valorem property taxes on the base value was paid over to those
levying bodies for the tax year in which the area or district is
terminated.
On motion of Senator Bowman, the following amendments to the
Finance committee amendment to the bill (Eng. H. B. No. 4624) were
reported by the Clerk, considered simultaneously, and adopted:
On page thirty-eight, section thirteen, line seventeen, by
striking out the words "first published notice" and inserting in
lieu thereof the word "completion";
And,
On page thirty-eight, section thirteen, line nineteen, after
the word "plan" by inserting the words "or on a date which the
county commission or governing body of a municipality publicly
announces that the development or redevelopment district or project
plan is no longer under consideration".
The question now being on the adoption of the Finance
committee amendment to the bill, as amended, the same was put and
prevailed.
The bill (Eng. H. B. No. 4624), as amended, was then ordered
to third reading.
Eng. House Bill No. 4658, Relating to defense of self, others
and property and providing limited immunity from civil liability.
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 7. ACTIONS FOR INJURIES.
§55-7-21. Civil immunity to persons resisting criminal activities.
(a) Any person who unlawfully enters upon the property of
another for purposes of engaging in criminal conduct assumes the
risk for any injury caused to him or her by the reasonable and
proportionate acts of the owner or his agent in resisting the
commission of the criminal conduct.
(b) The provisions of this section do not apply to the creation
of a hazardous or dangerous condition on the property designed to
prevent criminal conduct or cause injury to a person engaging in
criminal conduct.
The bill (Eng. H. B. No. 4658), as amended, was then ordered
to third reading.
Eng. House Bill No. 4669, Providing for establishment of
special five-year demonstration professional development school
project.
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:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 2E. HIGH QUALITY EDUCATIONAL PROGRAMS.
§18-2E-3f. Special demonstration professional development school
project for improving academic achievement.
(a) The Legislature makes the following findings:
(1) Well-educated children and families are essential for
maintaining safe and economically sound communities;
(2) Low student achievement is associated with increased
delinquent behavior, higher drug use and pregnancy rates, and higher
unemployment and adult incarceration rates;
(3) Each year, more students enter school with circumstances
in their lives that schools are ill-prepared to accommodate;
(4) Ensuring access for all students to the rigorous curriculum
they deserve requires effective teaching strategies that include,
but are not limited to, using a variety of instructional approaches,
using varied curriculum materials, engaging parent and community
involvement and support in the educational process and providing the
professional development, support and leadership necessary for an
effective school; and
(5) The achievement of all students can be dramatically
improved when schools focus on factors within their control, such
as the instructional day, curriculum and teaching practices.
(b) The purpose of this section is to provide for the
establishment of a special five-year demonstration professional
development school project to improve the academic achievement of all children. The program shall be under the direction of the state
superintendent and shall be for a period of five years beginning
with the two thousand four--two thousand five school year. The
intent of this section is to provide a special demonstration
environment wherein the public schools included in the demonstration
project may work in collaboration with higher education, community
organizations and the state board to develop and implement
strategies that may be replicated in other public schools with
significant enrollments of disadvantaged, minority and
underachieving students to improve academic achievement. For this
purpose, the state superintendent has the following powers and
duties with respect to the demonstration project:
(1) To select for participation in the demonstration project
three public elementary or middle schools with significant
enrollments of disadvantaged, minority and underachieving students
in each county in which the number of the African-American students
is five percent or more of the total second month enrollment;
(2) To require cooperation from the county board of the county
wherein a demonstration project school is located to facilitate
program implementation and avoid any reallocation of resources for
the schools that are disproportionate with those for other schools
of the county of similar classification, accreditation status and
federal Title I identification;
(3) To require specialized training and knowledge of the needs,
learning styles and strategies that will most effectively improve
the performance of disadvantaged, minority and underachieving students in demonstration project schools. These powers include,
but are not limited to, the authority to craft job descriptions with
requirements regarding training and experience and the right to
specify job duties which are related to job performance that reflect
the mission of the demonstration project school;
(4) To provide specifications and direct the county board to
post the positions for school personnel employed at the
demonstration project school that encompass the special
qualifications and any additional duties that will be required of
the personnel as established in the job descriptions authorized
pursuant to subdivision (3) of this section. The assertion that the
job descriptions and postings are narrowly defined may not be used
as the basis for the grievance of an employment decision for
positions at a demonstration project school;
(5) To make decisions with respect to the employment, promotion
and transfer of personnel employed at a demonstration project school
to reflect any special qualifications and additional duties that
will be required by virtue of the demonstration project,
notwithstanding the provisions of sections seven-a and eight-b,
article four, chapter eighteen-a of this code: Provided, That all
the personnel shall retain all rights, privileges and benefits under
the sections with respect to other positions in the county for which
they meet the qualifications;
(6) To direct the department of education, the center for
professional development and the regional educational service agency
to provide any technical assistance and professional development necessary for successful implementation of the demonstration school
programs, including, but not limited to, any early intervention or
other programs of the department to assist low-performing schools;
(7) To collaborate and enter into agreements with colleges and
universities willing to assist with efforts at a demonstration
school to improve student achievement, including, but not limited
to, the operation of a professional development school program
model: Provided, That the expenditure of any funds appropriated for
the state board or department for this purpose shall be subject to
approval of the state board;
(8) To require collaboration with local community organizations
to improve student achievement and increase the involvement of
parents and guardians in improving student achievement;
(9) To provide for an independent evaluation of the
demonstration school project, its various programs and their
effectiveness on improving student academic achievement; and
(10) To recommend to the state board and the county board the
waiver of any of their respective policies that impede the
implementation of demonstration school programs.
(c) The state superintendent shall make status reports to the
legislative oversight commission on education accountability and to
the state board annually and may include in those reports any
recommendations based on the progress of the demonstration project
that he or she considers either necessary for improving the
operations of the demonstration project or prudent for improving
student achievement in other public schools through replication of successful demonstration school programs. The state superintendent
shall make a recommendation to the Legislature not later than its
regular session, two thousand ten, for continuation or termination
of the program, which recommendation shall be accompanied by the
findings and recommendations of the independent evaluation and these
findings and recommendations shall be a major factor considered by
the superintendent in making his or her recommendation.
(d) Nothing in this section shall require any specific level
of appropriation by the Legislature.
On motion of Senator Plymale, the following amendment to the
Education committee amendment to the bill (Eng. H. B. No. 4669) was
next reported by the Clerk and adopted:
On pages three and four, section three-f, by striking out all
of subdivision (5) in its entirety;
And,
By renumbering the remaining subdivisions.
On motion of Senator Chafin, the following amendment to the
Education committee amendment to the bill (Eng. H. B. No. 4669) was
reported by the Clerk:
On page one, before the article heading, by inserting the
following:
ARTICLE 2. STATE BOARD OF EDUCATION.
§18-2-35. Dress codes requiring school uniforms for students.
(a) The Legislature hereby finds that the clothing and footwear
worn by students in public schools often preoccupy and distract
students from their major purpose for being in school, which is obtaining an education. The Legislature finds that in schools that
have adopted a dress code requiring students to wear school
uniforms, disparities in student socioeconomic levels are less
obvious and disruptive incidents are less likely to occur.
(b) The state board shall promulgate rules in accordance with
article three-b, chapter twenty-nine-a of this code that allow a
require every county board to implement a dress code requiring
students to wear a school uniform. The uniforms may shall be
required by the county board for either a school district or for any
certain school within the district. The rules shall provide at
least the following:
(1) The county board may create an advisory committee comprised
of parents, school employees and students for the purpose of
considering whether the board should adopt a dress code requiring
school the type of uniforms for students in the district;
(2) The county board may create an advisory committee comprised
of parents, school employees and students for the purpose of
considering whether the board should adopt a dress code requiring
different school uniforms for students in any certain school
different schools within the district; and
(3) If the The advisory committee recommends to the board that
a dress code requiring school uniforms for students be adopted
either for the district or for any certain school within the
district, the advisory committee also shall may make recommendations
on alternative methods of paying for the school uniforms. and
(4) If the advisory committee recommends to the board that a dress code requiring school uniforms for students be adopted either
for the district or for any certain school within the district and
if the advisory committee reports its recommendations on alternative
methods of paying for the school uniforms to the board, the board
may adopt a dress code requiring school uniforms for students.
(c) Nothing in this section requires a county board to adopt
a dress code requiring school uniforms for students.
(d) (c) Nothing in this section requires any level of funding
by the Legislature, boards of education or any other agency of
government.
The question being on the adoption of Senator Chafin's
amendment to the Education committee amendment to the bill (Eng. H.
B. No. 4669), the same was put.
The result of the voice vote being inconclusive, Senator
Plymale demanded a division of the vote.
A standing vote being taken, there were seventeen "yeas" and
thirteen "nays.
Whereupon, the President declared Senator Chafin's amendment
to the Education committee amendment to the bill adopted.
The question now being on the adoption of the Education
committee amendment to the bill (Eng. H. B. No. 4669), as amended,
the same was put and prevailed.
On motion of Senator Chafin, the following amendment to the
bill was next reported by the Clerk and adopted:
On page two, by striking out the enacting section and inserting
in lieu thereof a new enacting section, to read as follows:
That §18-2-35
of the code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto a new section, designated §18-2E-3f, all to read as
follows:.
The bill (Eng. H. B. No. 4669), as amended, was then ordered
to third reading.
Eng. Com. Sub. for House Bill No. 2914, Relating to the
rehabilitation and liquidation of insurers subject to the regulatory
authority of the West Virginia insurance commissioner.
On second reading, coming up out of regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4291, Continuing education
requirements for licensed healthcare professionals on the subject
of end-of-life care training.
On second reading, coming up out of regular order, was read a
second time and ordered to third reading.
At the request of Senator Plymale, and by unanimous consent,
the Senate returned to the consideration of
Eng. House Bill No. 4669, Providing for establishment of
special five-year demonstration professional development school
project.
Having been read a second time, amended and ordered to third
reading in earlier proceedings today.
Senator Plymale moved that the bill be referred to the
Committee on Finance.
Following discussion,
At the request of Senator Plymale, and by unanimous consent,
his aforestated motion was withdrawn.
The Senate then resumed consideration of its second reading
calendar, the next bill coming up in numerical sequence being
Eng. Com. Sub. for House Bill No. 4412, Requiring the
children's health insurance board to submit a modification of its
benefit plan.
On second reading, coming up out of regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4450, Permitting the sale of
timber severed in a state park incidental to construction
activities.
On second reading, coming up out of regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4478, Lengthening the time period which
county boards are required to publish a year-end financial
statement.
On second reading, coming up out of regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4546, Supplemental appropriation to the
department of health and human resources, family protection services
board, domestic violence legal services fund.
On second reading, coming up out of regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4547, Supplemental appropriation to the
bureau of commerce, division of miners' health, safety and training.
On second reading, coming up out of regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4548, Supplemental appropriation to the
department of transportation, division of motor vehicles, driver's
license reinstatement fund.
On second reading, coming up out of regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4549, Supplemental appropriation to the
bureau of commerce, division of labor, elevator safety act.
On second reading, coming up out of regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4550, Supplemental appropriation to the
department of health and human resources, division of health,
central office.
On second reading, coming up out of regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4551, Supplemental appropriation to the
department of health and human resources, division of human
services.
On second reading, coming up out of regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4745, Relating to administration of repairs
to vehicles and equipment by the division of highways.
On second reading, coming up out of regular order, was read a
second time and ordered to third reading.
The end of today's second reading calendar having been reached, the Senate returned to the consideration of
Eng. House Bill No. 4280, Making available to retired
participants in PEIA the optional dental, vision, and audiology and
hearing-aid services insurance plans that are available to current
participants.
Having been read a third time today in earlier proceedings, and
now coming up in deferred order, was again reported by the Clerk.
At the request of Senator Chafin, unanimous consent being
granted, the bill was laid over one day, retaining its place on the
calendar.
Action as to Engrossed House Bill No. 4280 having been
concluded, the Senate proceeded to the consideration of
Eng. Com. Sub. for House Bill No. 2200, Creating the felony
offense of destruction of property.
On second reading, coming up in deferred 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. CRIMES AGAINST PROPERTY.
§61-3-30. Removal, injury to or destruction of property, monuments
designating land boundaries and of certain no
trespassing signs; penalties.
(a) If any person unlawfully, but not feloniously, take and
carry away, or destroy, injure or deface takes and carries away, or destroys, injures or defaces any property, real or personal, not his
own of another, he shall be or she is guilty of a misdemeanor and,
upon conviction thereof, shall be fined not more than five hundred
dollars, or imprisoned confined in the county or regional jail not
more than one year, or both fined and imprisoned.
(b) Any person who unlawfully, willfully and intentionally
destroys, injures or defaces the real or personal property of one
or more other persons or entities during the same transaction or
course of conduct causing a loss in the value of the property in an
amount of two thousand five hundred dollars or more, is guilty of
the felony offense of destruction of property and, upon conviction
thereof, shall be fined not more than two thousand five hundred
dollars or imprisoned in the state correctional facility for not
less than one year nor more than ten years, or in the discretion of
the court, confined in the county or regional jail not more than one
year, or both fined and imprisoned.
_____(c) If any person shall break down, destroy, injure, deface or
remove breaks down, destroys, injures, defaces or removes any
monument erected for the purpose of designating the boundaries of
a municipality, tract or lot of land, or any tree marked for that
purpose, or any sign or notice upon private property designating no
trespassing upon such the property, except signs or notices posted
in accordance with the provisions and purposes of sections seven,
eight and ten, article two, chapter twenty of this code, he shall
be or she is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than twenty dollars nor more than two hundred dollars, or imprisoned confined in the county or regional
jail not less than one nor more than six months, or both fined and
imprisoned. Justices of the peace and magistrates shall Magistrates
have concurrent jurisdiction of all offenses arising under the
provisions of this section. The provisions of this paragraph shall
do not apply to the owner, or his or her agent, of the lands on
which such signs or notices are posted.
The bill (Eng. Com. Sub. for H. B. No. 2200), as amended, was
then ordered to third reading.
Without objection, the Senate returned to the third order of
business.
Executive Communications
Senator Tomblin (Mr. President) laid before the Senate the
following proclamation from His Excellency, the Governor, extending
this current legislative session until and including the twenty-
first day of March, two thousand four, which was received and read
by the Clerk:
STATE OF WEST VIRGINIA
EXECUTIVE DEPARTMENT
CHARLESTON
A P R O C L A M A T I O N
By the Governor
WHEREAS, The Constitution of West Virginia delineates the
respective powers, duties and responsibilities of the three separate
branches of government; and
WHEREAS, Article VI, Section 22 of the Constitution of West Virginia provides that this regular session of the Legislature not
exceed sixty calendar days computed from and including the second
Wednesday of January; and
WHEREAS, Pursuant to Article VI, Section 22 of the Constitution
of West Virginia, the 2004 regular session of the Legislature
concludes on March 13, 2004; and
WHEREAS, Article VI, Section 51 of the Constitution of West
Virginia sets forth the legal authority of the Governor and the
Legislature relating to the preparation and enactment of the Budget
Bill; and
WHEREAS, Subsection D of said section requires the Governor to
issue a proclamation to extend the regular session of the
Legislature if the Budget Bill shall not have been fully acted upon
by the Legislature three days before the expiration of its regular
session; and
WHEREAS, The Legislature has not finally acted upon the Budget
Bill three days before the expiration of this current regular
session of the state Legislature.
NOW, THEREFORE, I, BOB WISE, GOVERNOR of the State of West
Virginia, do hereby issue this Proclamation, in accordance with
Article VI, Section 51, Subsection D(8) of the Constitution of West
Virginia, extending this regular session of the state Legislature
for consideration of the Budget Bill for a period not to exceed
eight days beyond the conclusion of this regular session, including
any extension thereof, under the provisions of Article VI, Section
22 of the Constitution of West Virginia; but no matters other than the Budget Bill and a provision for the cost of said extended
session shall be considered during this extension of the session.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the
Great Seal of the State of West Virginia to be affixed.
DONE at the Capitol in the City of
Charleston, State of West
Virginia, on this the tenth day
of March, in the year of our
Lord, Two Thousand Four, and in
the One Hundred Forty-First
year of the State.
BOB WISE,
Governor.
By the Governor:
JOE MANCHIN III,
Secretary of State.
The Senate again proceeded to the fourth order of business.
Senator Rowe, from the Joint Committee on Enrolled Bills,
submitted the following report, which was received:
Your Joint Committee on Enrolled Bills has examined, found
truly enrolled, and on the 10th day of March, 2004, presented to His
Excellency, the Governor, for his action, the following bills,
signed by the President of the Senate and the Speaker of the House
of Delegates:
(H. B. No. 4286), Repealing the section of the code relating
to coverage for alcoholic treatment because it is superseded by another part of the code.
(H. B. No. 4449), Allowing both residents and nonresidents to
apply for and obtain a Class Q permit for disabled persons.
And,
(H. B. No. 4560), Requiring that firefighters and security
guards employed by the adjutant general of the national guard be
members of the national guard.
Respectfully submitted,
Larry L. Rowe,
Chair, Senate Committee.
Sharon Spencer,
Chair, House Committee.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Eng. Com. Sub. for House Bill No. 2706, Relating to
compensation paid to members of the education and state employees
grievance board.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original double committee reference
first be referred to the Committee on Finance.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2706) contained in
the preceding report from the Committee on Government Organization
was taken up for immediate consideration, read a first time and
ordered to second reading.
On motion of Senator Kessler, the bill was referred to the
Committee on the Judiciary; and then, under the original double
committee reference, to the Committee on Finance, with amendments
from the Committee on the Government Organization pending.
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. 4123, Authorizing the supreme
court of appeals to create a panel of senior magistrate court
clerks.
And,
Eng. House Bill No. 4468, Allowing housing development
authorities to pay for persons of eligible income the costs of
preparation and recording of any title instrument, deed of trust,
note or security instrument and the amount of impact fees imposed.
And reports the same back with the recommendation that they
each do pass; but under the original double committee references
first be referred to the Committee on the Finance.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Helmick, as chair of the Committee
on Finance, unanimous consent was granted to dispense with the
second committee references of the bills contained in the foregoing
report from the Committee on the Judiciary.
At the request of Senator Kessler, unanimous consent being
granted, the bills (Eng. Com. Sub. for H. B. No. 4123 and Eng. H.
B. No. 4468) were each taken up for immediate consideration, read
a first time and ordered to second reading.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Eng. House Bill No. 4330, Revising the law governing vital
records.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original triple committee reference
first be referred to the Committee on the Judiciary; and then to the
Committee on Finance.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Kessler, as chair of the Committee
on the Judiciary, unanimous consent was granted to dispense with the
second committee reference of the bill contained in the foregoing
report from the Committee on Government Organization.
At the request of Senator Helmick, as chair of the Committee
on Finance, unanimous consent was granted to dispense with the third
committee reference of the bill contained in the foregoing report
from the Committee on Government Organization.
At the request of Senator Bowman, unanimous consent being
granted, the bill (Eng. H. B. No. 4330) was taken up for immediate
consideration, read a first time and ordered to second reading.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Eng. House Bill No. 4351, Continuing the waste tire remediation
program.
And reports the same back with the recommendation that it do
pass; but under the original double committee reference first be
referred to the Committee on Finance.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Helmick, as chair of the Committee
on Finance, unanimous consent was granted to dispense with the
second committee reference of the bill contained in the foregoing
report from the Committee on Government Organization.
At the request of Senator Bowman, unanimous consent being
granted, the bill (Eng. H. B. No. 4351) 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. House Bill No. 4634, Requiring persons incarcerated in
county and regional jails who have been convicted of a misdemeanor
reimburse the county for the cost incurred for his or her
incarceration.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original double committee reference
first be referred to the Committee on Finance.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. H. B. No. 4634) contained in the preceding
report from the Committee on the Judiciary was taken up for
immediate consideration, read a first time, ordered to second
reading and, under the original double committee reference, was then
referred to the Committee on Finance, with amendments from the
Committee on the Judiciary pending.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Eng. House Bill No. 4746, Relating generally to the state treasurer's office.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original double committee reference
first be referred to the Committee on Finance.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being
granted, the bill (Eng. H. B. No. 4746) contained in the preceding
report from the Committee on Government Organization was taken up
for immediate consideration, read a first time, ordered to second
reading and, under the original double committee reference, was then
referred to the Committee on Finance, with amendments from the
Committee on Government Organization pending.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 735 (originating in the Committee on Finance)--
A Bill supplementing, amending, reducing and increasing items of the
existing appropriations from the state fund, general revenue, to the
department of military affairs and public safety - West Virginia
parole board, fund 0440, fiscal year 2004, organization 0605, all
supplementing and amending the appropriation for the fiscal year
ending the thirtieth day of June, two thousand four.
And,
Senate Bill No. 736 (originating in the Committee on Finance)--
A Bill expiring funds to the unappropriated balance in the state
fund, general revenue, for the fiscal year ending the thirtieth day
of June, two thousand five, in the amount of ten million dollars
from the higher education improvement fund, fund 4297, fiscal year
2003, organization 0441, activity 096, and in the amount of seven
million five hundred six thousand forty-one dollars from the higher
education improvement fund, fund 4297, fiscal year 2002,
organization 0441, activity 096.
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 (S. B. Nos. 735 and 736) 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 Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Senate Concurrent Resolution No. 89 (originating in the
Committee on Government Organization)--Requesting the Joint
Committee on Government and Finance study the structure, activities and board responsibilities of nonprofit and not-for-profit entities
in this state that receive state and federal funds.
Whereas, Nonprofit entities and not-for-profit entities that
receive state and federal funds have increased in number in recent
years; and
Whereas, Some nonprofit and not-for-profit entities that
receive state and federal funds have suffered "mission creep", in
that these entities have changed and expanded their activities far
beyond the original scope and mission; and
Whereas, Some nonprofit and not-for-profit entities that
receive state and federal funds appear to have expanded their
activities so as to compete with for-profit entities; and
Whereas, Some nonprofit and not-for-profit entities that
receive state and federal funds may have inappropriately used their
tax-advantaged status to improperly enrich individuals both within
and without this state; and
Whereas, Boards of directors of some nonprofit and not-for-
profit entities that receive state and federal funds are not aware
of or are ignoring their fiduciary and legal responsibilities;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the structure, activities and board
responsibilities of nonprofit and not-for-profit entities in this
state that receive state and federal funds; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2005, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations; and,
be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Edwin J. Bowman,
Chair.
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. 4019, Prohibiting the
division of motor vehicles' sale of personal information for bulk
distribution of surveys, marketing and solicitations.
And has amended same.
And,
Eng. Com. Sub. for House Bill No. 4354, Authorizing county
commissions to adopt ordinances to reduce false alarms.
And has amended same.
And reports the same back with the recommendation that they
each do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bills (Eng. Com. Sub. for H. B. Nos. 4019 and 4354)
contained in the preceding report from the Committee on the
Judiciary were each taken up for immediate consideration, read a
first time and ordered to second reading.
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. 4043, Establishing the
priority for early childhood education in the basic skills of
reading, mathematics and English language arts.
With amendments from the Committee on Education pending;
And has also amended same.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 5, 2004;
And reports the same back with the recommendation that it do
pass as last amended by the Committee on Finance.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4043) contained in
the preceding report from the Committee on Finance was taken up for immediate consideration and read a second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
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 two new sections, designated §2-1-3 and §18-2E-3f,
all to read as follows:
CHAPTER 2. COMMON LAW, STATUTES, LEGAL HOLIDAYS,
DEFINITIONS AND LEGAL CAPACITY.
ARTICLE 1. COMMON LAW.
§2-1-3. English designated as official state language; instruction
in English language.
English is hereby designated as the official language of the
state of West Virginia. Except as provided by law, no state agency
or political subdivision shall be required to provide, and no state
agency or political subdivision shall be prohibited from providing,
any documents, information, literature or other written materials
in any language other than English. The basic skills of the English
language shall be taught in the schools of this state.
CHAPTER 18. EDUCATION.
ARTICLE 2E. HIGH QUALITY EDUCATIONAL PROGRAMS.
§18-2E-3f. Building the basics early childhood curriculum;
legislative findings; state board rule.
(a) Legislative findings. -- The Legislature makes the
following findings:
(1) Children entering early childhood education programs have
significant differences in their cognitive development, mastery of
the early basic skills and readiness for instruction in a formal
setting;
(2) Mastery of the basic skills of reading, mathematics and
English language arts is the foundation for all further learning
and, therefore, providing the instruction necessary for each child
to attain mastery in these basic skills must be the priority for
early childhood education programs;
(3) Deficiencies in the basic skills of reading, mathematics
and English language arts that persist in children beyond the early
childhood years become more difficult to overcome as they retard
further progress in building the basics and lead to significant gaps
in the basic knowledge needed to comprehend more advanced content
in other subject areas; and
(4) Intensive instruction, early detection and intervention to
correct student deficiencies in the basic skills of reading,
mathematics and English language arts during early childhood
education are more effective strategies for improving student
performance than the alternatives such as grade level retention,
social promotion and referral for special services and can lessen
the prevalence of low basic skills as a contributing factor in
student truancy, delinquency and dropout rates.
(b) Intent and purpose. -- The intent and purpose of this
section are to establish that the priorities for early childhood
education are to:
(1) Provide intensive instruction in the basic skills of
reading, mathematics and English language arts;
(2) Provide early detection and intervention strategies to
correct student deficiencies; and
(3) Address the findings set forth in subsection (a) of this
section.
(c) State board rule. -- On or before the first day of July,
two thousand four, the state board shall promulgate a rule in
accordance with the provisions of article three-b, chapter twenty-
nine-a of this code to effectuate the intent and purpose of this
section, including, but not limited to, provisions that address the
following:
(1) Reading, mathematics and English language arts are the only
subjects that are required to be taught daily in kindergarten
through grade two early childhood education programs;
(2) Instruction in other subject matter in kindergarten through
grade two shall be oriented to reinforce instruction in reading,
mathematics and English language arts;
(3) Strategies for the early detection and intervention to
correct student deficiencies in reading, mathematics and English
language arts shall be employed throughout the instructional term
in each of the early childhood grades to help students achieve
mastery in these subjects, including allowing flexibility in student
schedules to provide additional time and instruction for students
who are below mastery in these subjects in grades three and four;
(4) Accountability for student performance on the statewide assessment of student performance in the early childhood grades
shall only include the basic skills of reading, mathematics and
English language arts; and
(5) Any other provisions considered necessary by the state
board to achieve the intent and purpose of this section.
The bill (Eng. Com. Sub. for H. B. No. 4043), as amended, was
then ordered to third reading.
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. 4047, Creating a high growth
business investment tax credit to encourage investment by state
citizens and businesses in certain companies started by fellow West
Virginians.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4047) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration, read a first time and ordered to second
reading.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Eng. House Bill No. 4083, Continuing the veterans' council.
Eng. House Bill No. 4134, Substituting the governor's chief
technology officer as a member of the employee suggestion award
program.
Eng. House Bill No. 4418, Continuing the board of architects.
Eng. House Bill No. 4419, Continuing the board of landscape
architects.
Eng. House Bill No. 4480, Continuing West Virginia's
participation in the interstate commission on the Potomac River
basin.
Eng. House Bill. No. 4531, Continuing the public employees
insurance agency finance board.
Eng. House Bill No. 4532, Continuing the state fire commission.
And,
Eng. House Bill No. 4581, Continuing the division of protective
services.
And reports the same back with the recommendation that they
each do pass.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being
granted, the bills (Eng. H. B. Nos. 4083, 4134, 4418, 4419, 4480,
4531, 4532 and 4581) contained in the preceding report from the Committee on Government Organization were each taken up for
immediate consideration, read a first time and ordered to second
reading.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Eng. Com. Sub. for House Bill No. 4086, Including Gulf War and
Afghanistan conflict veterans on the veterans' council.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4086) contained in
the preceding report from the Committee on Government Organization
was taken up for immediate consideration, read a first time and
ordered to second reading.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Eng. Com. Sub. for House Bill No. 4259, Revising the
composition, powers and duties of the Governor's Cabinet on Children and Families.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4259) contained in
the preceding report from the Committee on Government Organization
was taken up for immediate consideration, read a first time and
ordered to second reading.
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. 4318, Imposing personal
income tax on funds withdrawn from a prepaid college tuition
contract or other college savings plans.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4318) contained in
the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second
reading.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Eng. House Bill No. 4456, Extending the time for the Harrison
County commission to submit a proposed levy to the Harrison County
voters for approval or rejection intended to finance vital public
services.
And,
Eng. House Bill No. 4464, Extending the time for the county
commission of Cabell County to present to the voters an election to
consider an excess levy for fire protection services, firefighting
training and economic development.
And reports the same back with the recommendation that they
each do pass.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being
granted, the bills (Eng. H. B. Nos. 4456 and 4464) contained in the
preceding report from the Committee on Government Organization were
each taken up for immediate consideration, read a first time and
ordered to second reading.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 4737, Providing options for members of
teachers retirement to make contributions for periods of temporary
total disability.
With an amendment from the Committee on Pensions pending;
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 8, 2004;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Pensions to which the bill was
first referred.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 4737) contained in the preceding
report from the Committee on Finance was taken up for immediate
consideration and read a second time.
The following amendment to the bill, from the Committee on
Pensions, was reported by the Clerk and adopted:
On page two, section fourteen-b, lines sixteen and seventeen,
by striking out the words "date of the of the end of the one hundred
four week period" and inserting in lieu thereof the words "end of
the disability period for which credit is sought to be purchased".
The bill (Eng. H. B. No. 4737), as amended, was then ordered
to third reading.
Pending announcement of meetings of standing committees of the
Senate, including the Committee on Rules,
On motion of Senator Chafin, the Senate adjourned until
tomorrow, Thursday, March 11, 2004, at 11 a.m.
____________