Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 554, Continuing
guardianship or conservatorship of deceased protected persons.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 574, Allowing commissioner to sell liquor
warehouse under certain circumstances.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 596, Relating to powers and
duties of board of directors of state board of risk and insurance
management.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 675, Relating to outdoor
advertising revenues.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 28, Exempting certain
personal property from levy, forced sale, attachment or execution.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §38-8-1 of the code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 8. EXEMPTIONS FROM LEVY.
§38-8-1. Exemptions of personal property.
(a) Any individual residing in this state or the dependent of
such individual may set apart and hold as exempt from execution or
other process the following personal property:
(1) Such individual's interest, not to exceed five thousand
dollars in value, in one motor vehicle;
(2) Such individual's interest not to exceed eight thousand
dollars in aggregate value, in household goods, furniture, toys,
animals, appliances, books and wearing apparel that are held
primarily for the personal, family or household use of such
individual;
(3) Such individual's aggregate interest, not to exceed three
thousand dollars, in any implements, professional books or tools of
such individual's trade;
(4) Such individual's funds on deposit in a federally insured
financial institution, wages or salary, not to exceed the greater
of: (i) One thousand dollars; or (ii) one hundred twenty-five percent of the amount of the annualized federal poverty level of
such individual's household divided by the number of pay periods
for such individual per year; and
(5) Funds on deposit in an individual retirement account
(IRA), including a simplified employee pension (SEP), in the name
of such individual: Provided, That the amount is exempt only to
the extent it is not or has not been subject to an excise or other
tax on excess contributions under Section 4973 or 4979 of the
Internal Revenue Code of 1986, or both sections, or any successor
provisions, regardless of whether the tax is or has been paid.
(b) Notwithstanding the foregoing, in no case may an
individual residing in this state or the dependent of such
individual exempt from execution or other process more than fifteen
thousand dollars in the aggregate in personal property listed in
subdivisions (1), (2), (3) and (4), subsection (a) of this section.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 28, as
amended by the House of Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 28) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 143, Relating
to small employer accident and sickness insurance policies.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page eight, section sixteen, line one hundred thirty-eight,
by striking out the word "eighty" and inserting in lieu thereof the
word "seventy-seven".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 143, as amended by the House of Delegates, was then
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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 143) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 148, Creating Tax Amnesty Program of
2004.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page three, after the enacting section, by inserting the
following chapter heading:
CHAPTER 11. TAXATION.;
On page eighteen, by striking out all of section eleven;
And renumbering the remaining sections;
On page twenty, after section twelve, by adding the following:
ARTICLE 12. BUSINESS REGISTRATION TAX.
§11-12-5. Time for which registration certificate granted; power
of tax commissioner to suspend or cancel certificate; refusal
to renew.
(a) Registration period. -- All business registration
certificates issued under the provisions of section four of this
article shall be are for the period of one year beginning the first
day of July and ending the thirtieth day of the following June:
Provided, That beginning on or after the first day of July, one
thousand nine hundred ninety-nine, all business registration
certificates issued under the provisions of section four of this
article shall be issued for two fiscal years of this state, subject
to the following transition rule. If the first year for which a
business was issued a business registration certificate under this
article began on the first day of July of an even-numbered calendar
year, then the tax commissioner may issue a renewal certificate to
that business for the period beginning the first day of July, one
thousand nine hundred ninety-nine, and ending the thirtieth day of
June, two thousand, upon receipt of fifteen dollars for each such
one-year certificate. Thereafter, only certificates covering two
fiscal years of this state shall be issued.
(b) Revocation or suspension of certificate. --
(1) The tax commissioner may cancel or suspend a business
registration certificate at any time during a registration period
if:
(A) The registrant filed an application for a business
registration certificate, or an application for renewal thereof,
for the registration period that was false or fraudulent.
(B) The registrant willfully refused or neglected to file a
tax return or to report information required by the tax
commissioner for any tax imposed by or pursuant to this chapter.
(C) The registrant willfully refused or neglected to pay any
tax, additions to tax, penalties or interest, or any part thereof,
when they became due and payable under this chapter, determined
with regard to any authorized extension of time for payment.
(D) The registrant neglected to pay over to the tax
commissioner on or before its due date, determined with regard to
any authorized extension of time for payment, any tax imposed by
this chapter which the registrant collects from any person and
holds in trust for this state.
(E) The registrant abused the privilege afforded to it by
article fifteen or fifteen-a of this chapter to be exempt from
payment of the taxes imposed by such articles on some or all of the
registrant's purchases for use in business upon issuing to the
vendor a properly executed exemption certificate, by failing to
timely pay use tax on taxable purchase for use in business, or by
failing to either pay the tax or give a properly executed exemption
certificate to the vendor.
(F) The registrant has failed to pay in full delinquent
personal property taxes owing for the calendar year immediately
preceding the calendar year in which the application is made.
(2) Before canceling or suspending any such business
registration certificate, the tax commissioner shall give written
notice of his or her intent to suspend or cancel the business
registration certificate of the taxpayer, the reason for the
suspension or cancellation, the effective date of the cancellation
or suspension and the date, time and place where the taxpayer may
appear and show cause why such business registration certificate
should not be canceled or suspended. This written notice shall be
served on the taxpayer in the same manner as a notice of assessment
is served under article ten of this chapter, not less than twenty
days prior to the date of such the show cause informal hearing.
The taxpayer may appeal cancellation or suspension of its business
registration certificate in the same manner as a notice of
assessment is appealed under article ten ten-a of this chapter:
Provided, That the filing of a petition for appeal shall does not
stay the effective date of the suspension or cancellation. A stay
may be granted only after a hearing is held on a motion to stay
filed by the registrant, upon finding that state revenues will not
be jeopardized by the granting of the stay. The tax commissioner
may, in his or her discretion and upon such terms as he or she may
specify, agree to stay the effective date of the cancellation or
suspension until another date certain.
(3) On or before the first day of August, two thousand four,
the tax commissioner shall propose for promulgation legislative
rules establishing ancillary procedures for the tax commissioner's
suspension of business registration certificates for failure to pay delinquent personal property taxes pursuant to paragraph (F),
subdivision (1) of this subsection. The rules shall, at a minimum,
establish any additional requirements for the provision of notice
deemed necessary by the tax commissioner to meet requirements of
law; establish protocols for the communication and verification of
information exchanged between the tax commissioner, sheriffs and
others; and establish fees to be assessed against delinquent
taxpayers that shall be deposited into a special fund which is
hereby created and expended for general tax administration by the
tax division of the department of tax and revenue and for operation
of the tax division. Upon authorization of the Legislature, the
rules shall have the same force and effect as if set forth herein.
No provision of this subdivision may be construed to restrict in
any manner the authority of the tax commissioner to suspend such
certificates for failure to pay delinquent personal property taxes
under paragraph (C) or (F), subdivision (1) of this subsection or
under any other provision of this code prior to the authorization
of the rules.
(c) Refusal to renew. -- The tax commissioner may refuse to
issue or renew a business registration certificate if the
registrant is delinquent in the payment of any tax administered by
the tax commissioner under article ten of this chapter or the
corporate license tax imposed by article twelve-c of this chapter,
until the registrant pays in full all such the delinquent taxes
including interest and applicable additions to tax and penalties.
In his or her discretion and upon such terms as he or she may specify, the tax commissioner may enter into an installment payment
agreement with such the taxpayer in lieu of the complete payment.
Failure of the taxpayer to fully comply with the terms of the
installment payment agreement shall render the amount remaining due
thereunder immediately due and payable and the tax commissioner may
suspend or cancel the business registration certificate in the
manner hereinbefore provided in this section.
(d) Refusal to renew due to delinquent personal property tax.
-- The tax commissioner shall refuse to issue or renew a business
registration certificate when informed in writing, signed by the
county sheriff, that personal property owned by the applicant and
used in conjunction with the business activity of the applicant is
subject to delinquent property taxes. The tax commissioner shall
forthwith notify the applicant that the commissioner will not act
upon the application until information is provided evidencing that
the taxes due are either exonerated or paid.
CHAPTER 11A. COLLECTION AND ENFORCEMENT OF PROPERTY TAXES.
ARTICLE 1. ACCRUAL AND COLLECTION OF TAXES.
§11A-1-7. No collection of current taxes until delinquent taxes
are paid.
The sheriff, in preparing his or her tax receipts for any
current year shall examine and compare them with the delinquent
list for the preceding year in his or her hands, and if any tract
or personal property is found to be delinquent for the preceding
year, he or she shall note the fact on his or her current receipts
and shall decline to receive current taxes on any land or personal property where it appears to his or her office that a prior year's
taxes are unpaid. Acceptance of current taxes through oversight
shall not relieve the owner of any land or personal property of the
liability to pay prior taxes and penalties imposed for nonpayment.
ARTICLE 2. DELINQUENCY AND METHODS OF ENFORCING PAYMENT.
§11A-2-11. Delinquent lists; oath.
The sheriff, after ascertaining which of the taxes assessed in
his or her county are delinquent, shall, on or before the first day
of May next succeeding the year for which the taxes were assessed,
prepare the following delinquent lists, arranged by districts and
alphabetically by name of the person charged, and showing in
respect to each the amount of taxes remaining delinquent on the
thirtieth day of April: (1) A list of property in the landbook
improperly entered or not ascertainable; (2) a list of other
delinquent real estate; and (3) a list of all other delinquent
taxes: Provided, That the list shall conclude with a notice,
substantially as follows: "Any person holding a West Virginia
business registration certificate under the authority of article
twelve, chapter eleven of this code who does not pay all delinquent
personal property taxes shall have his or her license to do
business in this state suspended until the delinquency is cured."
The sheriff on returning each list shall, at the foot thereof,
subscribe an oath, which shall be subscribed before and certified
by some person duly authorized to administer oaths, in from form or
effect as follows:
I, ........, sheriff (or deputy sheriff or collector) of the County of ........., do swear that the foregoing list is, to the
best of my knowledge and belief, complete and accurate, and that I
have received none of the taxes listed therein.
Except for the oath, the tax commissioner auditor shall
prescribe the form of the delinquent lists.;
On pages two and three, by striking out the enacting section
and inserting in lieu thereof a new enacting section, to read as
follows:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §11-10D-1, §11-10D-2,
§11-10D-3, §11-10D-4, §11-10D-5, §11-10D-6, §11-10D-7, §11-10D-8,
§11-10D-9, §11-10D-10, §11-10D-11 and §11-10D-12; that §11-12-5 of
said code be amended and reenacted; that §11A-1-7 of said code be
amended and reenacted; and that §11A-2-11 of said code be amended
and reenacted, all to read as follows:;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 148--A Bill to amend the code of West
Virginia, 1931, as amended, by adding thereto a new article,
designated §11-10D-1, §11-10D-2, §11-10D-3, §11-10D-4, §11-10D-5,
§11-10D-6, §11-10D-7, §11-10D-8, §11-10D-9, §11-10D-10, §11-10D-11
and §11-10D-12; to amend and reenact §11-12-5 of said code; to
amend and reenact §11A-1-7 of said code; and to amend and reenact
§11A-2-11 of said code, all relating generally to the collection of
delinquent taxes; granting persons who owe but have not paid one or more taxes administered under West Virginia tax procedure and
administration act an amnesty period during which past-due taxes
may be paid or payment agreements acceptable to tax commissioner
executed; providing for waiver of additions to tax, money penalties
and fifty percent of accrued interest on past-due taxes when taxes
for which amnesty is granted are paid within one month after tax
amnesty period closes or paid pursuant to payment agreements
executed during amnesty period; prohibiting criminal prosecution
for default for which tax amnesty is granted; setting forth
legislative findings and declarations; establishing requirements of
and exceptions and limitations to tax amnesty program; defining
certain terms; authorizing tax commissioner to do all things
necessary to implement two-month tax amnesty program during current
calendar year, including, but not limited to, issuance of emergency
legislative rules; suspending language of code that is inconsistent
or conflicts with language creating tax amnesty program; requiring
tax commissioner to report certain information to Legislature and
governor after conclusion of tax amnesty program; authorizing tax
commissioner to suspend a business registration certificate for
failure to pay delinquent personal property taxes; requiring the
tax commissioner to refuse to issue or renew a business
registration certificate upon certain notice from the sheriff that
the registrant has not paid delinquent personal property taxes;
requiring tax commissioner to propose legislative rules
establishing ancillary procedures for the tax commissioner's
suspension of business registration certificates; requiring sheriff to decline to receive current taxes due on any personal property
where a prior year's taxes are unpaid; and providing language for
inclusion in publication giving notice of that license to do
business in state will be suspended for failure to pay delinquent
personal property taxes.
On motion of Senator Helmick, the following amendments to the
House of Delegates amendments to the bill (Eng. S. B. No. 148) were
reported by the Clerk and adopted:
On page eighteen, article ten-d, after section ten, by
inserting the following:
§11-10D-11. Penalty on liabilities eligible for amnesty for which
taxpayer did not apply for amnesty.
(a) If a taxpayer has a liability that would be eligible for
amnesty under this article but the taxpayer fails to apply for
amnesty within the designated amnesty period as determined in this
article or, after applying for amnesty, fails to satisfy all of the
requirements for amnesty, then a penalty in the amount of ten
percent of the unpaid liability shall be added to the amount of any
unpaid taxes eligible for amnesty.
(b) The tax commissioner shall assess the penalty provided in
subsection (a) of this section unless:
(1) Taxpayer provides evidence satisfactory to the
commissioner which demonstrates that taxpayer's failure to apply
for amnesty or his or her failure to satisfy all of the
requirements for amnesty was not an intentional attempt to avoid
the payment of taxes and was based on the taxpayer's mistaken belief that he or she did not have any liability eligible for
amnesty; or
(2) Taxpayer's failure to apply for amnesty, in the case of an
assessment issued before the start of or during the amnesty period,
is due to taxpayer contesting in an administrative or judicial
forum the disputed liability.;
And renumbering the remaining sections;
On page four, article twelve, section five, subsection (b),
subdivision (3), by striking out the words "August, two thousand
four" and inserting in lieu thereof the words "July, two thousand
five";
On pages two and three, by striking out the enacting section
and inserting in lieu thereof a new enacting section, to read as
follows:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §11-10D-1, §11-10D-2,
§11-10D-3, §11-10D-4, §11-10D-5, §11-10D-6, §11-10D-7, §11-10D-8,
§11-10D-9, §11-10D-10, §11-10D-11, §11-10D-12 and §11-10D-13; to
amend and reenacted §11-12-5 of said code; to amend and reenact
§11A-1-7 of said code; and to amend and reenact §11A-2-11 of said
code, all to read as follows:;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 148--A Bill to amend the code of West
Virginia, 1931, as amended, by adding thereto a new article, designated §11-10D-1, §11-10D-2, §11-10D-3, §11-10D-4, §11-10D-5,
§11-10D-6, §11-10D-7, §11-10D-8, §11-10D-9, §11-10D-10, §11-10D-11,
§11-10D-12 and §11-10D-13; to amend and reenact §11-12-5 of said
code; to amend and reenact §11A-1-7 of said code; and to amend and
reenact §11A-2-11 of said code, all relating generally to the
collection of delinquent taxes; granting persons who owe but have
not paid one or more taxes administered under West Virginia tax
procedure and administration act an amnesty period during which
past-due taxes may be paid or payment agreements acceptable to tax
commissioner executed; providing for waiver of additions to tax,
money penalties and fifty percent of accrued interest on past-due
taxes; prohibiting criminal prosecution for default for which tax
amnesty is granted; providing a penalty of ten percent for failure
to take advantage of this amnesty program; setting forth
legislative findings and declarations; establishing requirements of
and exceptions and limitations to tax amnesty program; defining
certain terms; authorizing tax commissioner to do all things
necessary to implement two-month tax amnesty program during current
calendar year; requiring tax commissioner to report certain
information to Legislature and governor after conclusion of tax
amnesty program; authorizing tax commissioner to suspend a business
registration certificate for failure to pay delinquent personal
property taxes; requiring the tax commissioner to refuse to issue
or renew a business registration certificate upon certain notice
from the sheriff that the registrant has not paid delinquent
personal property taxes; requiring tax commissioner to propose legislative rules establishing ancillary procedures for the tax
commissioner's suspension of business registration certificates;
requiring sheriff to decline to receive current taxes due on any
personal property where a prior year's taxes are unpaid; and
providing language for inclusion in publication giving notice of
that license to do business in state will be suspended for failure
to pay delinquent personal property taxes.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as amended.
Engrossed Senate Bill No. 148, as amended, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 148) passed with its Senate amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of Delegates amended title, to take effect July 1, 2004, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 161, Creating Model Health
Plan for Uninsurable Individuals Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §33-47-1, §33-47-2,
§33-47-3, §33-47-4, §33-47-5, §33-47-6, §33-47-7, §33-47-8,
§33-47-9, §33-47-10, §33-47-11 and §33-47-12, all to read as
follows:
ARTICLE 47. MODEL HEALTH PLAN FOR UNINSURABLE INDIVIDUALS ACT.
§33-47-1. Definitions.
For purposes of this article:
(a) "Board" means the board of directors of the plan.
(b) "Church plan" has the meaning given such term under
Section 3(33) of the federal Employee Retirement Income Security
Act of 1974.
(c) "Commissioner" means the insurance commissioner of this
state.
(d) (1) "Creditable coverage" means, with respect to an individual, coverage of the individual provided under any of the
following:
(A) A group health plan;
(B) Health insurance coverage;
(C) Part A or Part B of Title XVIII of the Social Security
Act;
(D) Title XIX of the Social Security Act, other than coverage
consisting solely of benefits under Section 1928;
(E) Chapter 55 of Title 10, U. S. C.;
(F) A medical care program of the federal Indian health
service or of a tribal organization:
(G) A state health benefits risk pool;
(H) A health plan offered under Chapter 89 of Title 5, U. S.
C.;
(I) A public health plan as defined in federal regulations; or
(J) A health benefit plan under Section 5(e) of the federal
Peace Corps Act (22 U. S. C. 2504 (e)).
(2) A period of creditable coverage shall not be counted, with
respect to the enrollment of an individual who seeks coverage under
this article, if, after such period and before the enrollment date,
the individual experiences a significant break in coverage.
(e) "Department" means the insurance commissioner of West
Virginia.
(f) "Dependent" means a resident spouse or resident unmarried
child under the age of nineteen years, a child who is a student
under the age of twenty-three years and who is financially dependent upon the parent, or a child of any age who is disabled
and dependent upon the parent.
(g) "Federally defined eligible individual" means an
individual:
(1) For whom, as of the date on which the individual seeks
coverage under this article, the aggregate of the periods of
creditable coverage as defined in subdivision (d) of this section
is eighteen or more months;
(2) Whose most recent prior creditable coverage was under a
group health plan, governmental plan, church plan or health
insurance coverage offered in connection with such a plan;
(3) Who is not eligible for coverage under a group health
plan, Part A or Part B of Title XVIII of the Social Security Act
(Medicare), or a state plan under Title XIX of the Act (Medicaid)
or any successor program, and who does not have other health
insurance coverage;
(4) With respect to whom the most recent coverage within the
period of aggregate creditable coverage was not terminated based on
a factor relating to nonpayment of premiums or fraud;
(5) Who, if offered the option of continuation coverage under
a COBRA continuation provision or under a similar state program,
elected this coverage; and
(6) Who has exhausted the continuation coverage under this
provision or program, if the individual elected the continuation
coverage described in paragraph (5) of this subdivision.
(h) "Governmental plan" has the meaning given such term under Section 3(32) of the federal Employee Retirement Income Security
Act of 1974 and any federal government plan.
(i) "Group health plan" means an employee welfare benefit plan
as defined in Section 3(1) of the federal Employee Retirement
Income Security Act of 1974 to the extent that the plan provides
medical care as defined in subdivision (m) of this section and
including items and services paid for as medical care to employees
or their dependents as defined under the terms of the plan directly
or through insurance, reimbursement or otherwise.
(j) (1) "Health insurance coverage" means any hospital and
medical expense incurred policy, nonprofit health care service plan
contract, health maintenance organization subscriber contract or
any other health care plan or arrangement that pays for or
furnishes medical or health care services whether by insurance or
otherwise.
(2) "Health insurance coverage" shall not include one or more,
or any combination, of the following:
(A) Coverage only for accident or disability income insurance,
or any combination thereof;
(B) Coverage issued as a supplement to liability insurance;
(C) Liability insurance, including general liability insurance
and automobile liability insurance;
(D) Workers' compensation or similar insurance;
(E) Automobile medical payment insurance;
(F) Credit-only insurance;
(G) Coverage for on-site medical clinics; and
(H) Other similar insurance coverage, specified in federal
regulations issued pursuant to PL 104-191, under which benefits for
medical care are secondary or incidental to other insurance
benefits.
(3) "Health insurance coverage" shall not include the
following benefits if they are provided under a separate policy,
certificate or contract of insurance or are otherwise not an
integral part of the coverage:
(A) Limited scope dental or vision benefits;
(B) Benefits for long-term care, nursing home care, home
health care, community-based care or any combination thereof; or
(C) Other similar, limited benefits specified in federal
regulations issued pursuant to PL 104-191.
(4) "Health insurance coverage" shall not include the
following benefits if the benefits are provided under a separate
policy, certificate or contract of insurance, there is no
coordination between the provision of the benefits and any
exclusion of benefits under any group health plan maintained by the
same plan sponsor, and the benefits are paid with respect to an
event without regard to whether benefits are provided with respect
to such an event under any group health plan maintained by the same
plan sponsor:
(A) Coverage only for a specified disease or illness; or
(B) Hospital indemnity or other fixed indemnity insurance.
(5) "Health insurance coverage" shall not include the
following if offered as a separate policy, certificate or contract of insurance:
(A) Medicare supplemental health insurance as defined under
Section 1882(g)(1) of the Social Security Act;
(B) Coverage supplemental to the coverage provided under
Chapter 55 of Title 10, U. S. C. (Civilian Health and Medical
Program of the Uniformed Services (CHAMPUS)); or
(C) Similar supplemental coverage provided to coverage under
a group health plan.
(k) "Health maintenance organization" means an organization
licensed in this state pursuant to the provisions of article
twenty-five-a of this chapter.
(l) "Insurer" means any entity that provides health insurance
coverage in this state. For the purposes of this article, insurer
includes an insurance company, a prepaid limited health service
organization as operating under a certificate of authority pursuant
to article twenty-five-d of this chapter, a fraternal benefit
society, a health maintenance organization and any other entity
providing a plan of health insurance coverage or health benefits
subject to state insurance regulation.
(m) "Medical care" means amounts paid for:
(1) The diagnosis, care, mitigation, treatment or prevention
of disease, or amounts paid for the purpose of affecting any
structure or function of the body;
(2) Transportation primarily for and essential to medical care
referred to in paragraph (1) of this subdivision; and
(3) Insurance covering medical referred to in paragraphs (1) and (2) of this subdivision.
(n) "Medicare" means coverage under both Parts A and B of
Title XVIII of the Social Security Act, 42 U. S. C. 1395 et seq.,
as amended.
(o) "Participating insurer" means any insurer providing health
insurance coverage to residents of this state.
(p) "Plan" means the West Virginia health insurance plan as
created in section two of this article.
(q) "Plan of operation" means the articles, bylaws and
operating rules and procedures adopted by the board pursuant to
section two of this article.
(r) "Resident" means an individual who has been legally
domiciled in this state for a period of at least thirty days,
except that for a federally defined eligible individual, there
shall not be a thirty-day requirement. "Resident" also means an
individual who is legally domiciled in this state on the date of
application to the plan and is eligible for the credit for health
insurance costs under Section 35 of the Internal Revenue Code of
1986.
(s) "Significant break in coverage" means a period of
sixty-three consecutive days during all of which the individual
does not have any creditable coverage, except that neither a
waiting period nor an affiliation period is taken into account in
determining a significant break in coverage.
Terms within this article with meaning ascribed by federal law
shall have the meaning as in effect in federal law the thirty-first day of December, two thousand three.
§33-47-2. Operation of the plan.
(a) There is hereby created within the West Virginia
department of tax and revenue a body corporate and politic to be
known as the West Virginia health insurance plan which shall be
deemed to be an instrumentality of the state and a public
corporation. The West Virginia health insurance plan shall have
perpetual existence and any change in the name or composition of
the plan shall in no way impair the obligations of any contracts
existing under this chapter.
(b) The plan shall operate subject to the supervision and
control of the board. The board shall consist of the commissioner
or his or her designated representative, who shall serve as an ex
officio member of the board and shall be its chairperson, and six
members appointed by the governor. At least two board members
shall be individuals, or the parent, spouse or child of
individuals, reasonably expected to qualify for coverage by the
plan. At least two board members shall be representatives of
insurers. At least one board member shall be a hospital
administrator. A majority of the board shall be composed of
individuals who are not representatives of insurers or health care
providers.
(c) The initial board members shall be appointed as follows:
One third of the members to serve a term of two years; one third of
the members to serve a term of four years; and one third of the
members to serve a term of six years. Subsequent board members shall serve for a term of three years. A board member's term shall
continue until his or her successor is appointed.
(d) Vacancies in the board shall be filled by the governor.
Board members may be removed by the governor for cause.
(e) Board members shall not be compensated in their capacity
as board members but shall be reimbursed for reasonable expenses
incurred in the necessary performance of their duties.
(f) The board shall submit to the commissioner a plan of
operation for the plan and any amendments thereto necessary or
suitable to assure the fair, reasonable and equitable
administration of the plan. The plan of operation shall become
effective upon approval in writing by the commissioner consistent
with the date on which the coverage under this article must be made
available. If the board fails to submit a suitable plan of
operation within one hundred eighty days after the appointment of
the board of directors, or at any time thereafter fails to submit
suitable amendments to the plan of operation, the commissioner
shall adopt and promulgate such rules as are necessary or advisable
to effectuate the provisions of this section. Such rules shall
continue in force until modified by the commissioner or superseded
by a plan of operation submitted by the board and approved by the
commissioner.
(g) The plan of operation shall:
(1) Establish procedures for operation of the plan: Provided,
That the plan shall be operated so as to qualify as an acceptable
alternative mechanism under the federal Health Insurance Portability and Accountability Act, and as an option to provide
health insurance coverage for individuals eligible for the federal
health care tax credit established by the federal Trade Adjustment
Assistance Reform Act of 2002 (Section 35 of the Internal Revenue
Code of 1986);
(2) Establish procedures for selecting an administrator in
accordance with section six of this article;
(3) Establish procedures to create a fund, under management of
the board, for administrative expenses;
(4) Establish procedures for the handling, accounting and
auditing of assets, moneys and claims of the plan and the plan
administrator;
(5) Develop and implement a program to publicize the existence
of the plan, the eligibility requirements and procedures for
enrollment and to maintain public awareness of the plan;
(6) Establish procedures under which applicants and
participants may have grievances reviewed by a grievance committee
appointed by the board. The grievances shall be reported to the
board after completion of the review. The board shall retain all
written complaints regarding the plan for at least three years; and
(7) Provide for other matters as may be necessary and proper
for the execution of the board's powers, duties and obligations
under this article.
(h) The plan shall have the general powers and authority
granted under the laws of this state to health insurers and, in
addition thereto, the specific authority to:
(1) Enter into contracts as are necessary or proper to carry
out the provisions and purposes of this article, including the
authority, with the approval of the commissioner, to enter into
contracts with similar plans of other states for the joint
performance of common administrative functions, or with persons or
other organizations for the performance of administrative
functions;
(2) Sue or be sued, including taking any legal actions
necessary or proper to recover or collect assessments due the plan;
(3) Take such legal action as necessary:
(A) To avoid the payment of improper claims against the plan
or the coverage provided by or through the plan;
(B) To recover any amounts erroneously or improperly paid by
the plan;
(C) To recover any amounts paid by the plan as a result of
mistake of fact or law; or
(D) To recover other amounts due the plan;
(4) Establish, and modify, from time to time, as appropriate,
rates, rate schedules, rate adjustments, expense allowances,
agents' referral fees, claim reserve formulas and any other
actuarial function appropriate to the operation of the plan. Rates
and rate schedules may be adjusted for appropriate factors such as
age, sex and geographic variation in claim cost and shall take into
consideration appropriate factors in accordance with established
actuarial and underwriting practices;
(5) Issue policies of insurance in accordance with the requirements of this article;
(6) Appoint appropriate legal, actuarial and other committees
as necessary to provide technical assistance in the operation of
the plan, policy and other contract design and any other function
within the authority of the pool;
(7) Borrow money to effect the purposes of the plan. Any
notes or other evidence of indebtedness of the plan not in default
shall be legal investments for insurers and may be carried as
admitted assets;
(8) Establish rules, conditions and procedures for reinsuring
risks of participating insurers desiring to issue plan coverages in
their own name. Provision of reinsurance shall not subject the
plan to any of the capital or surplus requirements, if any,
otherwise applicable to reinsurers;
(9) Employ and fix the compensation of employees;
(10) Prepare and distribute certificate of eligibility forms
and enrollment instruction forms to insurance procedures and to the
general public;
(11) Provide for reinsurance of risks incurred by the plan;
(12) Issue additional types of health insurance policies to
provide optional coverages, including medicare supplemental
insurance;
(13) Provide for and employ cost containment measures and
requirements including, but not limited to, preadmission screening,
second surgical opinion, concurrent utilization review and
individual case management for the purpose of making the benefit plan more cost effective;
(14) Design, utilize, contract or otherwise arrange for the
delivery of cost-effective health care services, including
establishing or contracting with preferred provider organizations,
health maintenance organizations and other limited network provider
arrangements; and
(15) Adopt bylaws, policies and procedures as may be necessary
or convenient for the implementation of this article and the
operation of the plan.
(i) The board shall make an annual report to the governor
which shall also be filed with the Legislature. The report shall
summarize the activities of the plan in the preceding calendar
year, including the net written and earned premiums, plan
enrollment, the expense of administration, and the paid and
incurred losses.
(j) Study and recommend to the Legislature in January, two
thousand six, alternative funding mechanisms for the continuation
of the health plan for uninsurable individuals.
(k) Neither the board nor its employees shall be liable for
any obligations of the plan. No member or employee of the board
shall be liable, and no cause of action of any nature may arise
against them, for any act or omission related to the performance of
their powers and duties under this article, unless such act or
omission constitutes willful or wanton misconduct. The board may
provide in its bylaws or rules for indemnification of, and legal
representation for, its members and employees.
§33-47-3. Establishment of rules.
The board may promulgate rules, in accordance with article
three, chapter twenty-nine-a of this code, as may be necessary to
implement the provisions of this article.
§33-47-4. Eligibility.
(a) (1) Any individual person who is and continues to be a
resident shall be eligible for plan coverage if evidence is
provided:
(A) Of a notice of rejection or refusal to issue substantially
similar insurance for health reasons by one insurer; or
(B) Of a refusal by an insurer to issue insurance except at a
rate exceeding the plan rate.
(C) That the individual is legally domiciled in this state and
is eligible for the credit for health insurance costs under Section
35 of the Internal Revenue Code of 1986.
(2) Any federally defined eligible individual who has not
experienced a significant break in coverage and who is and
continues to be a resident shall be eligible for plan coverage.
(3) A rejection or refusal by an insurer offering only stop
loss, excess of loss or reinsurance coverage with respect to an
applicant under subdivision (1) of this subsection shall not be
sufficient evidence under this subsection.
(b) The board shall promulgate a list of medical or health
conditions for which a person shall be eligible for plan coverage
without applying for health insurance coverage pursuant to
subdivision (1), subsection (a) of this section. Persons who can demonstrate the existence or history of any medical or health
conditions on the list promulgated by the board shall not be
required to prove the evidence specified in said subdivision. The
list shall be effective on the first day of the operation of the
plan and may be amended, from time to time, as may be appropriate.
(c) Each resident dependent of a person who is eligible for
plan coverage shall also be eligible for plan coverage.
(d) A person shall not be eligible for coverage under the plan
if:
(1) The person has or obtains health insurance coverage
substantially similar to or more comprehensive than a plan policy
or would be eligible to have coverage if the person elected to
obtain it; except that:
(A) A person may maintain other coverage for the period of
time the person is satisfying any preexisting condition waiting
period under a plan policy; and
(B) A person may maintain plan coverage for the period of time
the person is satisfying a preexisting condition waiting period
under another health insurance policy intended to replace the plan
policy;
(2) The person is determined to be eligible for health care
benefits under the state medicaid law;
(3) The person has previously terminated plan coverage unless
twelve months have lapsed since such terminations, except that this
subdivision shall not apply with respect to an applicant who is a
federally defined eligible individual;
(4) The plan has paid out one million dollars in benefits on
behalf of the person;
(5) The person is an inmate or resident of a public
institution, except that this subdivision shall not apply with
respect to an applicant who is a federally defined eligible
individual; or
(6) The person's premiums are paid for or reimbursed under any
government sponsored program or by any government agency or health
care provider, except as an otherwise qualifying full-time
employee, or dependent thereof, of a government agency or health
care provider.
(e) Coverage shall cease:
(1) On the date a person is no longer a resident of this
state;
(2) On the date a person requests coverage to end;
(3) Upon the death of the covered person;
(4) On the date state law requires cancellation of the policy;
or
(5) At the option of the plan, thirty days after the plan
makes any inquiry concerning the person's eligibility or place of
residence to which the person does not reply.
(f) Except under the circumstance described in subsection (d)
of this section, a person who ceases to meet the eligibility
requirements of this section may be terminated at the end of the
policy period for which the necessary premiums have been paid.
§33-47-5. Unfair referral to plan.
It shall constitute an unfair trade practice for the purposes
of article eleven of this chapter for an insurer, insurance agent
or insurance broker to refer an individual employee to the plan, or
arrange for an individual employee to apply to the plan, for the
purpose of separating that employee from group health insurance
coverage provided in connection with the employee's employment.
§33-47-6. Plan administrator.
(a) The board shall select a plan administrator through a
competitive bidding process to administer the plan. The board
shall evaluate bids submitted based on criteria established by the
board which shall include:
(1) The plan administrator's proven ability to handle health
insurance coverage to individuals;
(2) The efficiency and timeliness of the plan administrator's
claim processing procedures;
(3) An estimate of total charges for administering the plan;
(4) The plan administrator's ability to apply effective cost
containment programs and procedures and to administer the plan in
a cost efficient manner; and
(5) The financial condition and stability of the plan
administrator.
(b) (1) The plan administrator shall serve for a period
specified in the contract between the plan and the plan
administrator subject to removal for cause and subject to any
terms, conditions and limitations of the contract between the plan
and the plan administrator.
(2) At least one year prior to the expiration of each period
of service by a plan administrator, the board shall invite eligible
entities, including the current plan administrator to submit bids
to serve as the plan administrator. Selection of the plan
administrator for the succeeding period shall be made at least six
months prior to the end of the current period.
(c) The plan administrator shall perform such functions
relating to the plan as may be assigned to it, including:
(1) Determination of eligibility;
(2) Payment of claims;
(3) Establishment of a premium billing procedure for
collection of premium from persons covered under the plan; and
(4) Other necessary functions to assure timely payment of
benefits to covered persons under the plan.
(d) The plan administrator shall submit regular reports to the
board regarding the operation of the plan. The frequency, content
and form of the report shall be specified in the contract between
the board and the plan administrator.
(e) Following the close of each calendar year, the plan
administrator shall determine net written and earned premiums, the
expense of administration and the paid and incurred losses for the
year and report this information to the board and the commission on
a form prescribed by the commissioner.
(f) Notwithstanding any other provision in this section to the
contrary, the board may elect to designate the public employees
insurance agency as the plan administrator. If so designated, the public employees insurance agency shall provide the services set
forth in subsection (c) of this section and shall be subject to the
reporting requirements of subsections (d) and (e) of this section.
The plan shall, if the public employees insurance agency is
designated by the board as the plan administrator, reimburse health
care providers at the same health care reimbursement rates then in
effect for the West Virginia public employees insurance agency.
§33-47-7. Funding of the plan.
(a) Premiums. --
(1) The plan shall establish premium rates for plan coverage
as provided in subdivision (2) of this subsection. Separate
schedules of premium rates based on age, sex and geographical
location may apply for individual risks. Premium rates and
schedules shall be submitted to the commissioner for approval prior
to use.
(2) The plan, with the assistance of the commissioner, shall
determine a standard risk rate by considering the premium rates
charged by other insurers offering health insurance coverage to
individuals. The standard risk rate shall be established using
reasonable actuarial techniques, and shall reflect anticipated
experience and expenses for such coverage. Initial rates for plan
coverage shall not be less than one hundred twenty-five percent of
rates established as applicable for individual standard risks.
Subject to the limits provided in this subdivision, subsequent
rates shall be established to provide fully for the expected costs
of claims including recovery of prior losses, expenses of operation, investment income of claim reserves, and any other cost
factors subject to the limitations described herein. In no event
shall plan rates exceed one hundred fifty percent of rates
applicable to individual standard risks.
(b) Sources of additional revenue. --
The plan may be additionally funded by an assessment on
hospitals. Notwithstanding the provisions of subsection (c),
section eight, article twenty-nine-b, chapter sixteen of this code
and not to be construed as in conflict therewith, the health care
authority is authorized to increase the assessment obligation of
hospitals. The increase shall not exceed a maximum of twenty-five
percent above the one tenth of one percent specified in this code
section. The entire assessment, including the increase, shall be
collected as specified in subsection (c), section eight, article
twenty-nine-b, chapter sixteen of this code. Upon receipt of the
assessment fees, the health care authority shall transfer all
proceeds generated from the new fee collected to a special revenue
account established in the state treasury by the commissioner and
designated the "West Virginia Health Insurance Plan Account" for
the sole purpose of providing additional funding for the plan.
§33-47-8. Benefits.
(a) The plan shall offer health care coverage consistent with
comprehensive coverage to every eligible person who is not eligible
for medicare. The coverage to be issued by the plan, its schedule
of benefits, exclusions and other limitations shall be established
by the board and subject to the approval of the commissioner.
(b) In establishing the plan coverage, the board shall take
into consideration the levels of health insurance coverage provided
in the state and medical economic factors as may be deemed
appropriate; and promulgate benefit levels, deductibles,
coinsurance factors, exclusions and limitations determined to be
generally reflective of and commensurate with health insurance
coverage provided through a representative number of large
employers in the state.
(c) The board may adjust any deductibles and coinsurance
factors annually according to the medical component of the consumer
price index.
(d) Preexisting conditions. --
(1) Plan coverage shall exclude charges or expenses incurred
during the first six months following the effective date of
coverage as to any condition for which medical advice, care or
treatment was recommended or received as to such conditions during
the six-month period immediately preceding the effective date of
coverage, except that no preexisting condition exclusion shall be
applied to a federally defined eligible individual.
(2) Subject to subdivision (1) of this subsection, the
preexisting condition exclusions shall be waived to the extent that
similar exclusions, if any, have been satisfied under any prior
health insurance coverage which was involuntarily terminated;
provided, that:
(A) Application for pool coverage is made not later than
sixty-three days following such involuntary termination and, in such case, coverage in the plan shall be effective from the date on
which such prior coverage was terminated; and
(B) The applicant is not eligible for continuation or
conversion rights that would provide coverage substantially similar
to plan coverage.
(e) Nonduplication of benefits. --
(1) The plan shall be payer of last resort of benefits
whenever any other benefit or source of third-party payment is
available. Benefits otherwise payable under plan coverage shall be
reduced by all amounts paid or payable through any other health
insurance coverage and by all hospital and medical expense benefits
paid or payable under any workers' compensation coverage,
automobile medical payment or liability insurance whether provided
on the basis of fault or nonfault, and by any hospital or medical
benefits paid or payable under or provided pursuant to any state or
federal law or program.
(2) The plan shall have a cause of action against an eligible
person for the recovery of the amount of benefits paid that are not
for covered expenses. Benefits due from the plan may be reduced or
refused as a set-off against any amount recoverable under this
subdivision.
§33-47-9. Collective action.
Neither the participation in the plan as participating
insurers, the establishment of rates, forms or procedures nor any
other joint or collective action required by this article shall be
the basis of any legal action, criminal or civil liability or penalty against the plan or any participating insurer.
§33-47-10. Taxation.
The plan established pursuant to this article shall be exempt
from the premium taxes assessed under sections fourteen and
fourteen-a, article three of this chapter.
§33-47-11. Continuation of model health plan for uninsurable
individuals
.
The model health plan for uninsurable individuals shall
continue to exist, pursuant to the provisions of article ten,
chapter four of this code, until the first day of July, two
thousand seven, unless sooner terminated, continued or
reestablished pursuant to the provisions of that article.
§33-47-12. Effective date.
The provisions of this article shall become effective on the
first day of July, two thousand four.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 161--A Bill to amend the
code of West Virginia, 1931, as amended, by adding thereto a new
article, designated §33-47-1, §33-47-2, §33-47-3, §33-47-4, §33-47-
5, §33-47-6, §33-47-7, §33-47-8, §33-47-9, §33-47-10, §33-47-11 and
§33-47-12, all relating to creating a West Virginia insurance plan;
defining terms; creating a body corporate and politic to be known
as the West Virginia health insurance plan; providing for its
supervision and control by a board of directors to be appointed by the governor; providing the board of directors administrative
requirements; requiring a plan of operation to be approved by the
insurance commissioner; requiring the plan to be operated so as to
qualify as an acceptable alternative mechanism under the federal
Health Insurance Portability and Accountability Act and as an
option to provide health insurance coverage for individuals
eligible for the federal Health Care Tax Credit; describing
procedural requirements for the plan; describing powers of the
plan; requiring the board to annually report to the governor
summarizing preceding year activities; shielding the board and its
employees from any liability resulting from obligations of the
plan; authorizing the board of directors to promulgate rules to
implement the act; defining eligibility for persons seeking
coverage from the plan and when such coverage shall cease; making
it an unfair trade practice to arrange for an employee to apply for
coverage with the plan for the purpose of separating that employee
from group health insurance coverage provided in connection with
the employee's employment; providing for the selection of a plan
administrator; providing for funding for the plan; defining the
benefits to be offered; providing that participation in the plan by
an insurer is not the basis of any legal action against the
participating insurer; providing that the plan is exempt from
taxes; and providing an effective date.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 161, as amended by the House of Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 161) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect July 1, 2004.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 161) takes effect July 1, 2004.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 163, Establishing Water
Resources Protection Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page three, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 1. WATER RESOURCES PROTECTION ACT.
§22-25-1. Short title; legislative findings.
(a) Short title. -- This article may be known and cited as the
"Water Resources Protection Act".
(b) Legislative findings. --
(1) The West Virginia Legislature finds that it is the public
policy of the state of West Virginia to protect and conserve the
water resources for the state and to provide for the public
welfare. The state's water resources are vital natural resources
of the state that are essential to maintain, preserve and promote
quality of life and economic vitality of the state.
(2) The West Virginia Legislature further finds that it is the
public policy of the state that the water resources of the state be available for the benefit of the people of West Virginia,
consistent with and preserving all other existing rights and
remedies recognized in common law or by statute, while also
preserving this resource within its sovereign powers for the common
good.
§22-25-2. Definitions.
For purposes of this article, the following words have the
meanings assigned unless the context indicates otherwise:
(a) "Beneficial use" means uses that include, but are not
limited to, public or private water supplies, agriculture, tourism,
commercial, industrial, coal, oil and gas and other mineral
extraction, preservation of fish and wildlife habitat, maintenance
of waste assimilation, recreation, navigation and preservation of
cultural values.
(b) "Consumptive withdrawal" means any withdrawal of water
which returns less water to the water body than is withdrawn.
(c) "Farm use" means irrigation of any land used for general
farming, forage, aquiculture, pasture, orchards, nurseries, the
provision of water supply for farm animals, poultry farming or any
other activity conducted in the course of a farming operation.
(d) "Interbasin transfer" means the permanent removal of water
from the watershed from which it is withdrawn.
(e) "Maximum potential" means the maximum designed capacity of
a facility to withdraw water under its physical and operational
design.
(f) "Person", "persons" or "people" means an individual, public and private business or industry, public or private water
service and governmental entity.
(g) "Nonconsumptive withdrawal" means any withdrawal of water
which is not a consumptive withdrawal as defined in this section.
(h) "Secretary" means the secretary of the department of
environmental protection or his or her designee.
(i) "Water resources", "water" or "waters" means any and all
water on or beneath the surface of the ground, whether percolating,
standing, diffused or flowing, wholly or partially within this
state, or bordering this state and within its jurisdiction, and
includes, without limiting the generality of the foregoing, natural
or artificial lakes, rivers, streams, creeks, branches, brooks,
ponds, impounding reservoirs, springs, wells, watercourses and
wetlands: Provided, That farm ponds, industrial settling basins
and ponds and waste treatment facilities are excluded from the
waters of the state.
(j) "Watershed" means a hydrologic unit utilized by the United
States department of interior's geological survey, adopted in 1974,
as a framework for detailed water and related land-resource
planning, denoted by an eight digit hydrologic unit code, and by
which West Virginia is as of the effective date of the act is
divided into thirty-two separate hydrologic units.
(k) "Withdrawal" means the removal or capture of water from a
water resource of the state regardless of whether it is consumptive
or nonconsumptive: Provided, That water encountered during coal,
oil, gas or other mineral extraction and diverted but not used for any purpose is not deemed a withdrawal.
§22-25-3. Waters claimed by state; water resources protection
survey; need for study; registration requirements; agency
cooperation; information gathering.
(a) The waters of the state of West Virginia are hereby
claimed as valuable public natural resources held by the state for
the use and benefit of its citizens. The state shall manage the
quantity of its waters effectively for present and future use and
enjoyment and for the protection of the environment. Therefore, it
is necessary for the state to determine the nature and extent of
its water resources, the quantity of water being withdrawn or
otherwise used and the nature of the withdrawals or other uses:
Provided, That no provisions of this article may be construed to
amend or limit riparian rights, the right of capture, the right of
possession or any other rights and remedies created by statute or
common law in existence on the date of the enactment of this
article.
(b) The secretary shall conduct a water resources survey of
consumptive and nonconsumptive surface water and groundwater
withdrawals in this state. The secretary shall determine the form
and format of the information submitted, including the use of
electronic submissions. The survey shall collect information
covering the years two thousand three, two thousand four and two
thousand five. The secretary shall establish a statewide
registration program to monitor large quantity users of water
resources of this state beginning in two thousand six.
(c) Beginning in the year two thousand three, every person
utilizing the state's water resources whose withdrawal from a water
resource during any month exceeds seven hundred fifty thousand
gallons, except those who purchase water from a public or private
water utility or other service that is reporting its total
withdrawal, shall provide all requested information regarding
withdrawals of the water resource. Multiple withdrawals of water
from a particular water resource that are made or controlled by a
single person and used at one facility or location shall be
considered a single withdrawal of water. Water withdrawals for
self-supplied farm use and private households will be estimated.
Water utilities regulated by the public service commission pursuant
to article two, chapter twenty-four of the code are exempted from
providing information on interbasin transfers to the extent those
transfers are necessary to provide water utility services within
the state.
(d) The secretary shall make a good faith effort to obtain
survey and registration information from persons who are
withdrawing water from an in-state water resource but who are
located outside the state borders.
(e) All state agencies that have a regulatory, research or
other function relating to water resources, including, but not
limited to, the state geological and economic survey, the division
of natural resources, the public service commission, the bureau for
public health, the commissioner of the department of agriculture,
the office of emergency services, Marshall university and West Virginia university may enter into interagency agreements with the
secretary and shall cooperate by: (i) Providing information
relating to the water resources of the state; and (ii) providing
any necessary assistance to the secretary in effectuating the
purposes of this article. The secretary shall determine the form
and format of the information submitted by these agencies.
(f) Persons required to participate in the survey and
registration shall provide any reasonably available information on
stream flow conditions that impact withdrawal rates.
(g) Persons required to participate in the survey and
registration shall provide the most accurate information available
on water withdrawal during seasonal conditions and future potential
maximum withdrawals or other information that the secretary
determines is necessary for the completion of the survey or
registration: Provided, That a coal-fired electric generating
facility shall also report the nominal design capacity of the
facility, which is the quantity of water withdrawn by the
facility's intake pumps necessary to operate the facility during a
calendar day.
(h) The secretary shall, to the extent reliable water
withdrawal data is reasonably available from sources other than
persons required to provide data and participate in the survey and
registration, utilize that data to fulfill the requirements of this
section. If the data is not reasonably available to the secretary,
persons required to participate in the survey and registration are
required to provide the data. Registered persons that report withdrawals on an annual basis for a period of three consecutive
years are not required to register further withdrawals unless the
amount withdrawn annually varies by more than ten percent from the
three-year average. Altering locations of intakes and discharge
points that result in an impact of the withdrawal of the watershed
by an amount of ten percent or more from the consecutive three-year
average shall also be reported.
(i) The secretary shall report regularly to the joint
legislative oversight commission on state water resources to advise
the commission of the progress of the survey as well as any
problems that may be encountered in conducting the survey and to
make recommendations on policy and statutory changes that may be
needed.
(j) Upon completion of the survey, the secretary shall file a
final report with the joint committee on government and finance no
later than the thirty-first day of December, two thousand six. In
preparing the final report the secretary shall consult with the
commissioner of the department of agriculture, the bureau for
public health, the division of natural resources and the public
service commission. The final report shall include the following:
(1) To the extent the information is available, the location
and quantity of all surface water and groundwater resources in this
state;
(2) A discussion of the consumptive and nonconsumptive
withdrawals of surface water and groundwater in this state;
(3) A listing of each person whose consumptive or nonconsumptive withdrawal during any single month during the
calender year exceeds seven hundred fifty thousand gallons,
including the amount of water used, location of the water resource,
the nature of the use, location of each intake and discharge point
by longitude and latitude where available and, if the use involves
more than one watershed or basin, the watersheds or basins involved
and the amount transferred;
(4) A discussion of any area of concern regarding historical
or current conditions that indicate a low-flow condition or where
a drought or flood has occurred or is likely to occur that
threatens the beneficial use of the surface water or groundwater in
the area;
(5) Current or potential in-stream or off-stream uses that
contribute to or are likely to exacerbate natural low-flow
conditions to the detriment of the water resource;
(6) Discussion of a potential groundwater well network that
provides indicators that groundwater levels in an area are
declining or are expected to decline excessively;
(7) Potential growth areas where competition for water
resources may be expected;
(8) Any occurrence of two or more withdrawals that are
interfering or may reasonably be expected to interfere with one
another;
(9) Discussion of practices or methods persons have
implemented to reduce water withdrawals; and
(10) Any other information that may be beneficial in adequately assessing water availability and withdrawal and in
determining the need for and the preparation of water resources
plans.
(k) In addition to any requirements for completion of the
survey established by the secretary, the survey must accurately
reflect both actual and maximum potential water withdrawal. Actual
withdrawal shall be established through metering, measuring or
alternative accepted scientific methods to obtain a reasonable
estimate or indirect calculation of actual use.
(l) Upon completion of the survey, the secretary shall make
recommendations to the joint legislative oversight commission
created in section five of this article relating to the need to
implement a water quantity management strategy for the state or
regions of the state where the quantity of water resources are
found to be currently stressed or likely to be stressed due to
emerging beneficial or other uses, ecological conditions or other
factors requiring the development of a strategy for management of
these water resources. The report shall include an analysis on the
costs and benefits upon persons potentially impacted by the
implementation of a water quantity management strategy.
(m) The secretary may propose rules pursuant to article three,
chapter twenty-nine-a of this code as necessary to implement the
survey and registration requirements of this article.
(n) The secretary is authorized to enter into cooperative
agreements with the United States geological survey to obtain
federal matching funds, conduct research and analyze survey and registration data and other agreements as may be necessary to carry
out his or her duties under this article.
§22-25-4. Confidentiality.
(a) Information required to be submitted by a person as part
of the water withdrawal survey and registration that may be a trade
secret, or contain protected information relating to homeland
security, or be subject to another exemption provided by the state
freedom of information act, may be deemed confidential. Each such
document shall be identified by that person as confidential
information. The person claiming confidentiality shall provide
written justification to the secretary at the time the information
is submitted stating the reasons for confidentiality and why the
information should not be released or made public. The secretary
has the discretion to approve or deny requests for confidentiality
as prescribed by this section.
(b) In addition to records or documents that may be considered
confidential under article one, chapter twenty-nine-b of this code,
confidential information means records, reports or information, or
a particular portion thereof, that if made public would:
(1) Divulge production or sales figures or methods, processes
or production unique to the submitting person;
(2) Otherwise tend to adversely affect the competitive
position of a person by revealing trade secrets, including
intellectual property rights; or
(3) Present a threat to the safety and security of any water
supply, including information concerning water supply vulnerability assessments.
(c) Information designated as confidential and the written
justification shall be maintained in a file separate from the
general records related to the person.
(d) Information designated as confidential may be released
when the information is contained in a report in which the identity
of the person has been removed and the confidential information is
aggregated by hydrologic unit or region.
(e) Information designated as confidential may be released to
governmental entities, their employees and agents when compiling
and analyzing survey and registration information and as may be
necessary to develop the legislative report required by this
section or to develop water resources plans. Any governmental
entity or person receiving information designated confidential
shall protect the information as confidential.
(f) Upon receipt of a request for information that has been
designated confidential and prior to making a determination to
grant or deny the request, the secretary shall notify the person
claiming confidentiality of the request and may allow the person an
opportunity to respond to the request in writing within five days.
(g) All requests to inspect or copy documents shall state with
reasonable specificity the documents or type of documents sought to
be inspected or copied. Within ten business days of the receipt of
a request, the secretary shall: (1) Advise the person making the
request in writing of the time and place where the person may
inspect and copy the documents which, if the request addresses information claimed as confidential, may not be sooner than twenty
days following the date of the determination to disclose, unless an
earlier disclosure date is agreed to by the person claiming
confidentiality; or (2) deny the request, stating in writing the
reasons for denial. If the request addresses information claimed
as confidential, then notice of the action taken pursuant to this
subsection shall also be provided to the person asserting the claim
of confidentiality.
(h) Any person adversely affected by a determination regarding
confidential information under this article may appeal the
determination to the appropriate circuit court pursuant to the
provisions of article five, chapter twenty-nine-a of this code.
The filing of a timely notice of appeal shall stay any
determination to disclose confidential information pending a final
decision on appeal. The scope of review is limited to the question
of whether the portion of the records, reports, data or other
information sought to be deemed confidential, inspected or copied
is entitled to be treated as confidential under this section. The
secretary shall afford evidentiary protection in appeals as
necessary to protect the confidentiality of the information at
issue, including the use of in camera proceedings and the sealing
of records when appropriate.
§22-25-5. Joint legislative oversight commission on state water
resources.
(a) The president of the Senate and the speaker of the House
of Delegates shall each designate five members of their respective houses, at least one of whom shall be a member of the minority
party, to serve on a joint legislative oversight commission charged
with immediate and ongoing oversight of the water resources survey
and registration. This commission shall be known as the "Joint
Legislative Oversight Commission on State Water Resources" and
shall regularly investigate and monitor all matters relating to the
water resources survey and the need for a water resources strategy
and policy.
(b) The expenses of the commission, including the cost of
conducting the survey and monitoring any subsequent strategy and
those incurred in the employment of legal, technical,
investigative, clerical, stenographic, advisory and other
personnel, are to be approved by the joint committee on government
and finance and paid from legislative appropriations.
(c) The secretary shall report, at a minimum of quarterly, in
sufficient detail for the commission to monitor the water resources
survey and to develop recommendations resulting from the survey.
The secretary shall submit an annual report to the commission by
the thirty-first day of December each year. The secretary shall
also file a final report on the water resources survey no later
than the thirty-first day of December, two thousand six.
§22-25-6. Mandatory survey and registration compliance.
(a) The water resources survey and subsequent registry will
provide critical information for protection of the state's water
resources and, thus, mandatory compliance with the survey and
registry is necessary.
(b) Any person who fails to complete the survey or register,
provides false or misleading information on the survey or
registration, fails to provide other information as required by
this article may be subject to a civil administrative penalty not
to exceed five thousand dollars to be collected by the secretary
consistent with the secretary's authority pursuant to this chapter.
Every thirty days after the initial imposition of the civil
administrative penalty, another penalty may be assessed if the
information is not provided. The secretary shall provide written
notice of failure to comply with this section thirty days prior to
assessing the first administrative penalty.;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 163--A Bill to amend the
code of West Virginia, 1931, as amended, by adding thereto a new
article, designated §22-25-1, §22-25-2, §22-25-3, §22-25-4, §22-25-
5 and §22-25-6, all relating to establishing the water resources
protection act; providing legislative findings; finding that the
state reserves a sovereign interest in the waters of the state as
a valuable public resource; defining terms; declaring the state
shall claim and protect state waters for the use and benefit of its
citizens; providing for preservation of common law rights;
providing that a water use survey and registration of large users
of state waters be undertaken by the secretary of the department of
environmental protection; requiring the secretary to coordinate survey with state agencies and report to a legislative oversight
commission; requiring persons making withdrawals exceeding seven
hundred fifty thousand gallons per month to participate in survey
and registration; requiring the secretary to use reasonable
alternatives for estimating usage; requiring persons participating
in survey and registration to submit accurate information;
providing limited exceptions to survey and registration
participation; authorizing the secretary to coordinate with other
state agencies and the United States geological survey; directing
the division of environmental protection to propose a strategy for
water management; authorizing secretary of division of
environmental protection to promulgate rules; establishing
confidentiality of submitted information and exceptions; providing
criteria for requesting and receiving confidentiality designation;
establishing requirements for requesting confidential documents and
appeal process; establishing a joint legislative oversight
commission to monitor survey and develop policies; and providing
civil penalties for noncompliance.
On motion of Senator Fanning, the following amendment to the
House of Delegates amendments to the bill (Eng. Com. Sub. for S. B.
No. 163) was reported by the Clerk and adopted:
On page one, by striking out everything after the article
heading and inserting in lieu thereof the following:
§22-25-1. Short title; legislative findings.
(a) Short title. -- This article may be known and cited as the
"Water Resources Protection Act".
(b) Legislative findings. --
(1) The West Virginia Legislature finds that it is the public
policy of the state of West Virginia to protect and conserve the
water resources for the state and to provide for the public
welfare. The state's water resources are vital natural resources
of the state that are essential to maintain, preserve and promote
quality of life and economic vitality of the state.
(2) The West Virginia Legislature further finds that it is the
public policy of the state that the water resources of the state be
available for the benefit of the citizens of West Virginia,
consistent with and preserving all other existing rights and
remedies recognized in common law or by statute, while also
preserving this resource within its sovereign powers for the common
good.
§22-25-2. Definitions.
For purposes of this article, the following words have the
meanings assigned unless the context indicates otherwise:
(a) "Beneficial use" means uses that include, but are not
limited to, public or private water supplies, agriculture, tourism,
commercial, industrial, coal, oil and gas and other mineral
extraction, preservation of fish and wildlife habitat, maintenance
of waste assimilation, recreation, navigation and preservation of
cultural values.
(b) "Consumptive withdrawal" means any withdrawal of water
which returns less water to the water body than is withdrawn.
(c) "Farm use" means irrigation of any land used for general farming, forage, aquiculture, pasture, orchards, nurseries, the
provision of water supply for farm animals, poultry farming or any
other activity conducted in the course of a farming operation.
(d) "Interbasin transfer" means the permanent removal of water
from the watershed from which it is withdrawn.
(e) "Maximum potential" means the maximum designed capacity of
a facility to withdraw water under its physical and operational
design.
(f) "Person", "persons" or "people" means an individual,
public and private business or industry, public or private water
service and governmental entity.
(g) "Nonconsumptive withdrawal" means any withdrawal of water
which is not a consumptive withdrawal as defined in this section.
(h) "Secretary" means the secretary of the department of
environmental protection or his or her designee.
(i) "Water resources", "water" or "waters" means any and all
water on or beneath the surface of the ground, whether percolating,
standing, diffused or flowing, wholly or partially within this
state, or bordering this state and within its jurisdiction, and
includes, without limiting the generality of the foregoing, natural
or artificial lakes, rivers, streams, creeks, branches, brooks,
ponds, impounding reservoirs, springs, wells, watercourses and
wetlands: Provided, That farm ponds, industrial settling basins
and ponds and waste treatment facilities are excluded from the
waters of the state.
(j) "Watershed" means a hydrologic unit utilized by the United States department of interior's geological survey, adopted in 1974,
as a framework for detailed water and related land-resource
planning, denoted by an eight digit hydrologic unit code, and by
which West Virginia is, as of the effective date of the act,
divided into thirty-two separate hydrologic units.
(k) "Withdrawal" means the removal or capture of water from a
water resource of the state regardless of whether it is consumptive
or nonconsumptive: Provided, That water encountered during coal,
oil, gas or other mineral extraction and diverted, but not used for
any purpose and not a factor in low flow conditions for any surface
water or groundwater is not deemed a withdrawal.
§22-25-3. Waters claimed by state; water resources protection
survey; need for study; registration requirements; agency
cooperation; information gathering.
(a) The waters of the state of West Virginia are hereby
claimed as valuable public natural resources held by the state for
the use and benefit of its citizens. The state shall manage the
quantity of its waters effectively for present and future use and
enjoyment and for the protection of the environment. Therefore, it
is necessary for the state to determine the nature and extent of
its water resources, the quantity of water being withdrawn or
otherwise used and the nature of the withdrawals or other uses:
Provided, That no provisions of this article may be construed to
amend or limit any other rights and remedies created by statute or
common law in existence on the date of the enactment of this
article.
(b) The secretary shall conduct a water resources survey of
consumptive and nonconsumptive surface water and groundwater
withdrawals in this state. The secretary shall determine the form
and format of the information submitted, including the use of
electronic submissions. The survey shall collect information
covering the years two thousand three, two thousand four and two
thousand five. The secretary shall establish a statewide
registration program to monitor large quantity users of water
resources of this state beginning in two thousand six.
(c) Beginning in the year two thousand three, every person
utilizing the state's water resources whose withdrawal from a water
resource during any month exceeds seven hundred fifty thousand
gallons, except those who purchase water from a public or private
water utility or other service that is reporting its total
withdrawal, shall provide all requested information regarding
withdrawals of the water resource. Multiple withdrawals of water
from a particular water resource that are made or controlled by a
single person and used at one facility or location shall be
considered a single withdrawal of water. Water withdrawals for
self-supplied farm use and private households will be estimated.
Water utilities regulated by the public service commission pursuant
to article two, chapter twenty-four of the code are exempted from
providing information on interbasin transfers to the extent those
transfers are necessary to provide water utility services within
the state.
(d) The secretary shall make a good faith effort to obtain survey and registration information from persons who are
withdrawing water from an in-state water resource but who are
located outside the state borders.
(e) All state agencies that have a regulatory, research or
other function relating to water resources, including, but not
limited to, the state geological and economic survey, the division
of natural resources, the public service commission, the bureau for
public health, the commissioner of the department of agriculture,
the office of emergency services, Marshall university and West
Virginia university may enter into interagency agreements with the
secretary and shall cooperate by: (i) Providing information
relating to the water resources of the state; and (ii) providing
any necessary assistance to the secretary in effectuating the
purposes of this article. The secretary shall determine the form
and format of the information submitted by these agencies.
(f) Persons required to participate in the survey and
registration shall provide any reasonably available information on
stream flow conditions that impact withdrawal rates.
(g) Persons required to participate in the survey and
registration shall provide the most accurate information available
on water withdrawal during seasonal conditions and future potential
maximum withdrawals or other information that the secretary
determines is necessary for the completion of the survey or
registration: Provided, That a coal-fired electric generating
facility shall also report the nominal design capacity of the
facility, which is the quantity of water withdrawn by the facility's intake pumps necessary to operate the facility during a
calendar day.
(h) The secretary shall, to the extent reliable water
withdrawal data is reasonably available from sources other than
persons required to provide data and participate in the survey and
registration, utilize that data to fulfill the requirements of this
section. If the data is not reasonably available to the secretary,
persons required to participate in the survey and registration are
required to provide the data. Registered persons that report
withdrawals on an annual basis for a period of three consecutive
years are not required to register further withdrawals unless the
amount withdrawn annually varies by more than ten percent from the
three-year average. Altering locations of intakes and discharge
points that result in an impact to the withdrawal of the water
resource by an amount of ten percent or more from the consecutive
three-year average shall also be reported.
(i) The secretary shall report regularly to the joint
legislative oversight commission on state water resources to advise
the commission of the progress of the survey as well as any
problems that may be encountered in conducting the survey and to
make recommendations on policy and statutory changes that may be
needed.
(j) Upon completion of the survey, the secretary shall file a
final report with the joint committee on government and finance no
later than the thirty-first day of December, two thousand six. In
preparing the final report the secretary shall consult with the commissioner of the department of agriculture, the bureau for
public health, the division of natural resources and the public
service commission. The final report shall include the following:
(1) To the extent the information is available, the location
and quantity of all surface water and groundwater resources in this
state;
(2) A discussion of the consumptive and nonconsumptive
withdrawals of surface water and groundwater in this state;
(3) A listing of each person whose consumptive or
nonconsumptive withdrawal during any single month during the
calender year exceeds seven hundred fifty thousand gallons,
including the amount of water used, location of the water resource,
the nature of the use, location of each intake and discharge point
by longitude and latitude where available and, if the use involves
more than one watershed or basin, the watersheds or basins involved
and the amount transferred;
(4) A discussion of any area of concern regarding historical
or current conditions that indicate a low-flow condition or where
a drought or flood has occurred or is likely to occur that
threatens the beneficial use of the surface water or groundwater in
the area;
(5) Current or potential in-stream or off-stream uses that
contribute to or are likely to exacerbate natural low-flow
conditions to the detriment of the water resource;
(6) Discussion of a potential groundwater well network that
provides indicators that groundwater levels in an area are declining or are expected to decline excessively;
(7) Potential growth areas where competition for water
resources may be expected;
(8) Any occurrence of two or more withdrawals that are
interfering or may reasonably be expected to interfere with one
another;
(9) Discussion of practices or methods persons have
implemented to reduce water withdrawals; and
(10) Any other information that may be beneficial in
adequately assessing water availability and withdrawal and in
determining the need for and the preparation of water resources
plans.
(k) In addition to any requirements for completion of the
survey established by the secretary, the survey must accurately
reflect both actual and maximum potential water withdrawal. Actual
withdrawal shall be established through metering, measuring or
alternative accepted scientific methods to obtain a reasonable
estimate or indirect calculation of actual use.
(l) Upon completion of the survey, the secretary shall make
recommendations to the joint legislative oversight commission
created in section five of this article relating to the need to
implement a water quantity management strategy for the state or
regions of the state where the quantity of water resources are
found to be currently stressed or likely to be stressed due to
emerging beneficial or other uses, ecological conditions or other
factors requiring the development of a strategy for management of these water resources. The report shall include an analysis of the
costs and benefits upon persons potentially impacted by the
implementation of a water quantity management strategy.
(m) The secretary may propose rules pursuant to article three,
chapter twenty-nine-a of this code as necessary to implement the
survey and registration requirements of this article.
(o) The secretary is authorized to enter into cooperative
agreements with the United States geological survey to obtain
federal matching funds, conduct research and analyze survey and
registration data and other agreements as may be necessary to carry
out his or her duties under this article.
§22-25-4. Confidentiality.
(a) Information required to be submitted by a person as part
of the water withdrawal survey and registration that may be a trade
secret, contain protected information relating to homeland security
or be subject to another exemption provided by the state freedom of
information act may be deemed confidential. Each such document
shall be identified by that person as confidential information.
The person claiming confidentiality shall provide written
justification to the secretary at the time the information is
submitted stating the reasons for confidentiality and why the
information should not be released or made public. The secretary
has the discretion to approve or deny requests for confidentiality
as prescribed by this section.
(b) In addition to records or documents that may be considered
confidential under article one, chapter twenty-nine-b of this code, confidential information means records, reports or information, or
a particular portion thereof, that if made public would:
(1) Divulge production or sales figures or methods, processes
or production unique to the submitting person;
(2) Otherwise tend to adversely affect the competitive
position of a person by revealing trade secrets, including
intellectual property rights; or
(3) Present a threat to the safety and security of any water
supply, including information concerning water supply vulnerability
assessments.
(c) Information designated as confidential and the written
justification shall be maintained in a file separate from the
general records related to the person.
(d) Information designated as confidential may be released
when the information is contained in a report in which the identity
of the person has been removed and the confidential information is
aggregated by hydrologic unit or region.
(e) Information designated as confidential may be released to
governmental entities, their employees and agents when compiling
and analyzing survey and registration information and as may be
necessary to develop the legislative report required by this
section or to develop water resources plans. Any governmental
entity or person receiving information designated confidential
shall protect the information as confidential.
(f) Upon receipt of a request for information that has been
designated confidential and prior to making a determination to grant or deny the request, the secretary shall notify the person
claiming confidentiality of the request and may allow the person an
opportunity to respond to the request in writing within five days.
(g) All requests to inspect or copy documents shall state with
reasonable specificity the documents or type of documents sought to
be inspected or copied. Within ten business days of the receipt of
a request, the secretary shall: (1) Advise the person making the
request in writing of the time and place where the person may
inspect and copy the documents which, if the request addresses
information claimed as confidential, may not be sooner than twenty
days following the date of the determination to disclose, unless an
earlier disclosure date is agreed to by the person claiming
confidentiality; or (2) deny the request, stating in writing the
reasons for denial. If the request addresses information claimed
as confidential, then notice of the action taken pursuant to this
subsection shall also be provided to the person asserting the claim
of confidentiality.
(h) Any person adversely affected by a determination regarding
confidential information under this article may appeal the
determination to the appropriate circuit court pursuant to the
provisions of article five, chapter twenty-nine-a of this code.
The filing of a timely notice of appeal shall stay any
determination to disclose confidential information pending a final
decision on appeal. The scope of review is limited to the question
of whether the portion of the records, reports, data or other
information sought to be deemed confidential, inspected or copied is entitled to be treated as confidential under this section. The
secretary shall afford evidentiary protection in appeals as
necessary to protect the confidentiality of the information at
issue, including the use of in camera proceedings and the sealing
of records when appropriate.
§22-25-5. Joint legislative oversight commission on state water
resources.
(a) The president of the Senate and the speaker of the House
of Delegates shall each designate five members of their respective
houses, at least one of whom shall be a member of the minority
party, to serve on a joint legislative oversight commission charged
with immediate and ongoing oversight of the water resources survey
and registration. This commission shall be known as the "Joint
Legislative Oversight Commission on State Water Resources" and
shall regularly investigate and monitor all matters relating to the
water resources survey and the need for a water resources strategy
and policy.
(b) The expenses of the commission, including the cost of
conducting the survey and monitoring any subsequent strategy and
those incurred in the employment of legal, technical,
investigative, clerical, stenographic, advisory and other
personnel, are to be approved by the joint committee on government
and finance and paid from legislative appropriations.
(c) The secretary shall report, at a minimum of quarterly, in
sufficient detail for the commission to monitor the water resources
survey and to develop recommendations resulting from the survey. The secretary shall submit an annual report to the commission by
the thirty-first day of December each year. The secretary shall
also file a final report on the water resources survey no later
than the thirty-first day of December, two thousand six.
§22-25-6. Mandatory survey and registration compliance.
(a) The water resources survey and subsequent registry will
provide critical information for protection of the state's water
resources and, thus, mandatory compliance with the survey and
registry is necessary.
(b) Any person who fails to complete the survey or register,
provides false or misleading information on the survey or
registration, fails to provide other information as required by
this article may be subject to a civil administrative penalty not
to exceed five thousand dollars to be collected by the secretary
consistent with the secretary's authority pursuant to this chapter.
Every thirty days after the initial imposition of the civil
administrative penalty, another penalty may be assessed if the
information is not provided. The secretary shall provide written
notice of failure to comply with this section thirty days prior to
assessing the first administrative penalty.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as amended.
Engrossed Committee Substitute for Senate Bill No. 163, as
amended, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 163) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the adoption by that body of the committee of conference report,
passage as amended by the conference report with its Senate amended
title, and requested the concurrence of the Senate in the adoption
thereof, as to
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.
Whereupon, Senator White, from the committee of conference on
matters of disagreement between the two houses, as to
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.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendments of the Senate to Engrossed
Committee Substitute for House Bill No. 2088 having met, after full
and free conference, have agreed to recommend and do recommend to
their respective houses, as follows:
That the House agree to the amendments of the Senate to the
bill and its title.
Respectfully submitted,
Richard Thompson, Chair, William F. Stemple, Tim Armstead,
Conferees on the part of the House of Delegates.
C. Randy White, Chair, Anita Skeens Caldwell, J. Frank Deem,
Conferees of the part of the Senate.
Senator White, Senate cochair of the committee of conference,
was recognized to explain the report.
Thereafter, on motion of Senator White, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for House Bill No. 2088, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, 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 with its Senate amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the adoption by that body of the committee of conference report,
passage as amended by the conference report with its conference
amended title, to take effect from passage, and requested the
concurrence of the Senate in the adoption thereof, as to
Eng. House Bill No. 4084, West Virginia Pharmaceutical
Availability and Affordability Act.
Whereupon, Senator Prezioso, from the committee of conference
on matters of disagreement between the two houses, as to
Eng. House Bill No. 4084, West Virginia Pharmaceutical
Availability and Affordability Act.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendments of the Senate to Engrossed House
Bill No. 4084 having met, after full and free conference, have
agreed to recommend to their respective houses, as follows:
That both houses recede from their respective positions as to
the amendment of the Senate, striking out everything after the
enacting clause, and agree to the same as follows:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §5A-3C-1, §5A-3C-2, §5A-3C-3, §5A-3C-4, §5A-3C-5, §5A-3C-6, §5A-3C-7, §5A-3C-8,
§5A-3C-9, §5A-3C-10, §5A-3C-11, §5A-3C-12, §5A-3C-13, §5A-3C-14,
§5A-3C-15, §5A-3C-16 and §5A-3C-17, all to read as follows:
ARTICLE 3C. PHARMACEUTICAL AVAILABILITY AND AFFORDABILITY ACT OF
2004.
§5A-3C-1. Title.
The provisions of this article shall be known as and referred
to as the "West Virginia Pharmaceutical Availability and
Affordability Act".
§5A-3C-2. Purpose.
(a) The Legislature finds:
(1) That the rising cost of prescription drugs has imposed a
significant hardship on individuals who have limited budgets, are
uninsured or who have prescription coverage that is unable to
control costs successfully due to cost shifting and disparate
pricing policies;
(2) That the average cost per prescription for seniors rose
significantly between one thousand nine hundred ninety-two and two
thousand and is expected to continue increasing significantly
through two thousand ten;
(3) That there is an increasing need for citizens of West
Virginia to have affordable access to prescription drugs; and
(4) That the Legislature does not intend the imposition of the
programs under this article to penalize or otherwise jeopardize the
benefits of veterans and other recipients of federal supply
schedule drug prices.
(b) In an effort to promote healthy communities and to protect
the public health and welfare of West Virginia residents, the
Legislature finds that it is its responsibility to make every
effort to provide affordable prescription drugs for all residents
of West Virginia.
§5A-3C-3. Definitions.
In this article:
(1) "Advertising" or "marketing" means any manner of
communication of information, either directly or indirectly, that
is paid for and usually persuasive in nature about products,
services or ideas related to pharmaceuticals by identified sponsors
through various media, persons or other forms as further defined by
legislative rule.
(2) "AWP" or "average wholesale price" means the amount
determined from the latest publication of the blue book, a
universally subscribed pharmacist reference guide annually
published by the Hearst corporation. "AWP" or "average wholesale
price" may also be derived electronically from the drug pricing
database synonymous with the latest publication of the blue book
and furnished in the national drug data file (NDDF) by first data
bank (FDB), a service of the Hearst corporation.
(3) "Dispensing fee" means the fee charged by a pharmacy to
dispense pharmaceuticals.
(4) "Drug manufacturer" or "pharmaceutical manufacturer" means
any entity which is engaged in: (A) The production, preparation,
propagation, compounding, conversion or processing of prescription drug products, either directly or indirectly by extraction from
substances of natural origin, or independently by means of chemical
synthesis or by a combination of extraction and chemical synthesis;
or (B) in the packaging, repackaging, labeling, relabeling or
distribution of prescription drug products. "Drug manufacturer" or
"pharmaceutical manufacturer" does not include a wholesale
distributor of drugs or a retail pharmacy licensed under state law.
(5) "Federal supply schedule" or "FSS" means the price
available to all federal agencies for the purchase of
pharmaceuticals authorized in the Veterans Health Care Act of 1992,
PL 102-585. FSS prices are intended to equal or better the prices
manufacturers charge their "most-favored" nonfederal customers
under comparable terms and conditions.
(6) "Multiple-source drug", "innovator drug" and "noninnovator
drug" mean the following:
(A) The term "multiple-source drug" means, for which there are
two or more drug products which are: Rated as therapeutically
equivalent (under the food and drug administration's most recent
publication of "Approved Drug Products with Therapeutic Equivalence
Evaluations"), except as provided in paragraph (B) of this
subdivision, are pharmaceutically equivalent and bioequivalent, as
determined by the food and drug administration, and the term
"innovator drug" shall hereinafter be referred to as "brand". The
term "innovator drug" means a drug which is produced or distributed
under an original new drug application approved by the food and
drug administration, including a drug product marketed by any cross-licensed producers or distributors operating under the new
drug application and any multiple-source drug that was originally
marketed under an original new drug application approved by the
food and drug administration. The term "noninnovator drug" shall
hereinafter be referred to as "generic". The term "noninnovator
drug" means a multiple-source drug that is not an "innovator drug".
(B) Paragraph (A) of this subdivision shall not apply if the
food and drug administration changes by regulation the requirement
that, for purposes of the publication described in paragraph (A) of
this subdivision, in order for drug products to be rated as
therapeutically equivalent, they must be pharmaceutically
equivalent and bioequivalent.
(7) "Labeler" means an entity or person that receives
prescription drugs from a manufacturer or wholesaler and repackages
those drugs for later retail sale and that has a labeler code from
the federal food and drug administration pursuant to 21 C. F. R.
§207.20 (1999).
(8) "Person" means any natural person or persons or any
corporation, partnership, company, trust or association of persons.
(9) "Pharmaceutical drug detailing" or "detailing" means the
function performed by a sales representative who is employed by a
pharmaceutical manufacturer for the purpose of: Promotion of
pharmaceutical drugs or related products; education about
pharmaceutical drugs or related products; or to provide samples of
pharmaceutical drugs, related products or related materials, gifts,
food or meals.
(10) "Savings" means the difference between the previous price
of a prescription drug including any discounts, rebates or price
containments and the current price after the effective date of this
article for the public employees insurance agency, children's
health insurance program, medicaid and workers' compensation
programs or other programs which are payors for prescription drugs.
(11) "Sole source" means a pharmaceutical that provides a
unique and powerful advantage available in the market to a broad
group of patients established under federal law.
(12) "West Virginia Pharmaceutical Cost Management Council" or
"council" means the council created pursuant to section eight of
this article.
§5A-3C-4. Creation of clearinghouse program.
(a) There is hereby created the state prescription drug
assistance clearinghouse program. The brand pharmaceutical
manufacturers shall create and implement a program to assist state
residents of who are low income or uninsured to gain access to
prescription medications through existing private and public sector
programs and prescription drug assistance programs offered by
manufacturers, including discount and coverage programs. The brand
pharmaceutical manufacturers shall use available computer software
programs that access an eligible individual with the appropriate
private or public programs relating to the individual's medically
necessary drugs. The brand pharmaceutical manufacturers shall
provide education to individuals and providers to promote the
program and to expand enrollment and access to necessary medications for low-income or uninsured individuals qualifying for
the programs. The participating brand pharmaceutical manufacturers
shall be responsible for the cost of the establishment of the
program, and be responsible for running the program, regardless of
the date of transfer of the program to the state, for the period of
time until a date no earlier than the thirtieth day of June, two
thousand five, and ownership of the technology, website and other
program features shall be transferred to the state on the same
date. The secretary of the department of health and human resources
and the director of the public employees insurance agency shall
provide joint oversight over the establishment and construction of
the program and program features for the period of time prior to
the transfer of ownership to the state. The pharmaceutical council
shall recommend the state agency to own, control and operate the
program, technology and program features, and shall include such
recommendation in its report on or before the first day of
September, two thousand four, to the joint committee on government
and finance, as provided for in section eight of this article. In
addition, the pharmaceutical manufacturers shall report to the
joint committee on government and finance on a monthly basis all
activities related to the implementation of this program including
the number of citizens serviced and the services provided.
(b) The participating brand pharmaceutical manufacturers shall
contribute the funding for the promotion of the public relations
program attendant to the establishment of the program. The
participating brand pharmaceutical manufacturers shall be responsible for the cost of the establishment of the program and
the cost of the ongoing program, regardless of the date of transfer
of ownership of the program to the state, for the period of time
until the thirty-first day of December, two thousand four.
§5A-3C-5. Pharmaceutical discount program; establishment; eligible
individuals; discount pass through; terms.
There is hereby established a discount drug program to provide
low-income, uninsured individuals with access to prescription drugs
from participating brand pharmaceutical companies and pharmacists
through either a state-sponsored discount card program or a program
that extends current brand pharmaceutical manufacturer prescription
drug assistance programs:
(a) The state hereby establishes a state-sponsored
prescription drug discount card program for certain eligible
residents of West Virginia:
(1) Eligible individuals include uninsured residents of West
Virginia up to two hundred percent of the federal poverty guideline
who have not been covered by a prescription drug program, whether
public or private, at least six months prior to applying to the
discount card program;
(2) The state may negotiate voluntary discounts with brand
pharmaceutical manufacturers and pharmacists: Provided, That the
total discount received from the manufacturer shall pass through to
the eligible resident;
(3) Failure of a brand pharmaceutical manufacturer to
participate in the voluntary discount card program will not result in prior authorization on drugs in the medicaid program which would
not otherwise be subject to prior authorization but for the failure
of the manufacturer to participate in this program; and
(4) The state shall not establish a formulary or preferred
drug list as part of the discount card program.
(b) The brand pharmaceutical manufacturers may extend existing
prescription drug assistance programs to eligible residents of West
Virginia. Eligible individuals include uninsured residents of West
Virginia up to two hundred percent of the federal poverty level who
have not been covered by a prescription drug program, whether
public or private, at least six months prior to applying to the
program.
(c) The program established under this section shall be
structured so that a member presenting a discount card at a
participating pharmacy will receive the full benefit of the
pharmacy discount, as well as the manufacturer's discount, at a
point of sale transaction. The program, or the pharmacy benefit
manager contracted by the program, shall coordinate the drug
discount information provided by participating pharmacies and
manufacturers so that the available drug discounts are provided to
the member at the point of sale.
(d) Manufacturers participating in the voluntary program
established under this section shall cooperate with the program, or
the pharmacy benefit manager contracted by the program, to provide
the current list of drugs and the percentage of discount from the
AWP for such drugs, or the rebates that the manufacturer will provide under the program. It is the intent of this program that
adequate drug price and discount or rebate information be provided
by the manufacturer, such that the program and participating
pharmacies will have available such drug prices and discounts or
rebates at a point of sale pharmaceutical drug transaction. Retail
pharmacies will be responsible for no more than fifty percent of
the discount offered by the manufacturer to the participant.
(1) Pharmacies participating in the voluntary program(s)
established under this section will be responsible for no more than
fifty percent of the discount offered by the manufacturer to the
participant and be paid a dispensing fee of no more than three
dollars and fifty cents per prescription with regard to
prescriptions filled under the program(s).
(2) Upon the presentation of a valid discount card, payment
for the prescription and otherwise meeting appropriate criteria to
have their prescription filled, the cardholder will have their
prescription filled by a participating pharmacy. To accomplish the
transaction, the participating pharmacy shall electronically
transmit the transaction to the program or pharmacy benefit manager
contracted by the program for processing. The program, or the
program's pharmacy benefit manager, shall determine the discounted
cost of the drug, including the discount provided, the discount
provided by the pharmacy, the discount or rebate provided by the
manufacturer, the pharmacy dispensing fee and any pharmacy benefit
manager transaction fee. The program, or the program's pharmacy
benefit manager, shall then transmit to the manufacturer an electronic statement of the amount the manufacturer owes on the
transaction to cover the manufacturer's discount or rebate and the
program's or the pharmacy benefit manager's processing fee. The
manufacturer shall, in turn, at least every fourteen days, transmit
such monetary amounts for the transaction to the program, or the
program's pharmacy benefit manager, and the program, or the
program's pharmacy benefit manager, shall pass such discount or
rebate amounts back to the participating pharmacy which originated
the transaction immediately.
(e) The pharmaceutical manufacturers shall report to the joint
committee on government and finance on a monthly basis all
activities related to the implementation of this program including
the number of citizens serviced and the services provided, as well
as, the benefits, the costs and the discounts obtained.
§5A-3C-6. Creation of program; administrative support; medicaid
and chip program.
(a) There is hereby created in the state a program to obtain
favorable pharmaceutical prices for state agencies and other
qualified entities pursuant to this article.
(b) The medicaid program and the West Virginia children's
health insurance program may be exempt from participation in this
program until approval by the center for medicare and medicaid
services has been granted if it is determined to be required by the
council.
(c) Administrative staff support for the council created by
this article shall be provided by the departments represented on the council.
(d) The council shall establish a pricing schedule using or
referencing the FSS prices, or using or referencing to the price,
as adjusted for currency valuations, set by Canada patented
medicine prices review board (PMPRB) or any other appropriate
referenced price that will maximize savings to the broadest
percentage of the population of this state.
(e) By the fifteenth day of September, two thousand four, the
council shall report back to the Legislature the pricing schedule
developed and a strategic plan for implementation. The council
shall implement the proposed pricing schedule and strategic plan
upon concurrent resolution of the Legislature. If, at the time of
the acceptance or rejection of the concurrent resolution to
implement the proposed pricing schedule and strategy, the
concurrent resolution is not passed due to the Legislature's lack
of acceptance of the same, the Legislature shall accept or reject
a concurrent resolution to implement the pricing schedule and
strategy using or referencing the FSS: Provided, That acceptance
or rejection of the above-referenced resolutions shall occur prior
to the end of the regular session of the Legislature in two
thousand five.
(f) If neither of the above-referenced resolutions pass during
the regular session of the Legislature in two thousand five, the
Legislature may, at any time in the future, pass a concurrent
resolution to implement the above-referenced pricing schedule and
strategy or any subsequent recommendation of the council to the Legislature and the Legislature determines that the proposed
pricing schedule and strategy are the most effective method of
reducing pharmaceutical prices for the citizens of the state.
(g) Qualified entities, including, but not limited to,
licensed private insurers, self-insured employers, free clinics and
other entities who provide pharmaceuticals either directly or
through some form of coverage to the citizens of West Virginia,
shall have an option to apply for participation in the program
established by this article in the form and manner established by
the council. The council, in its sole discretion, shall approve or
deny participation through review of documentation determined to be
necessary for full consideration and as established by rule. The
council shall consider, but not be limited to, the fiscal stability
and the size of each applicant.
(h) Pharmaceutical manufacturers may request a waiver from the
pricing schedule to be granted by the council for a particular drug
in which the development, production, distribution costs, other
reasonable costs and reasonable profits, but exclusive of all
marketing and advertising costs as determined by the council, is
more than the pricing schedule rate of the pharmaceutical or in
those cases in which the pharmaceutical in question has a sole
source. The determination of reasonable costs and reasonable
profits may fluctuate between different pharmaceuticals under
consideration by the council. The council shall determine by
legislative rule fees to be paid by the applicant at the time a
waiver request is made and documentation required to be submitted at the time of the waiver request.
§5A-3C-7. Multistate discussion group.
For the purposes of reviewing or amending the program
establishing the process for making pharmaceuticals more available
and affordable to the citizens of West Virginia, the state may
continue to enter into multistate discussions and agreements. For
purposes of participating in these discussions, the state shall be
represented by members of the council created in section eight of
this article.
§5A-3C-8. West Virginia pharmaceutical cost management council.
(a) There is hereby created the West Virginia pharmaceutical
cost management council which consists of the secretary of the
department of administration or his or her designee, the director
of the public employees insurance agency or his or her designee,
the commissioner of the bureau of medical services of the
department of health and human resources or his or her designee,
the secretary of the department of health and human resources or
his or her designee, the executive director of the workers'
compensation commission or his or her designee, bureau of senior
services or his or her designee and five members from the public
who shall be appointed by the governor with the advice and consent
of the Senate. One public member shall be a licensed pharmacist
employed by a community retail pharmacy, one public member shall be
a representative of a pharmaceutical manufacturer with substantial
operations located in the state of West Virginia that has at least
seven hundred fifty employees, one public member shall be a primary care physician, one public member shall represent those who will
receive benefit from the establishment of this program and one
public member shall have experience in the financing, development
or management of a health insurance company which provides
pharmaceutical coverage. Each public member shall serve for a term
of four years. Of the public members of the council first
appointed, one shall be appointed for a term ending the thirtieth
day of June, two thousand six, and two each for terms of three and
four years. Each public member shall serve until his or her
successor is appointed and has qualified. A member of the council
may be removed by the governor for cause.
(b) The secretary of the department of administration shall
serve as chairperson of the council, which shall meet at times and
places specified by the chairperson or upon the request of two
members of the council.
(c) Authority members shall not be compensated in their
capacity as members but shall be reimbursed for reasonable expenses
incurred in the performance of their duties.
(d) The council has the power and authority to:
(1) Contract for the purpose of implementing the cost
containment provisions of this article;
(2) File suit;
(3) Execute as permitted by applicable federal law,
prescription drug purchasing agreements with:
(A) All departments, agencies, authorities, institutions,
programs, any agencies or programs of the federal government, quasi-public corporations and political subdivisions of this state,
including, but not limited to, the children's health insurance
program, the division of corrections, the division of juvenile
services, the regional jail and correctional facility authority,
the workers' compensation fund, state colleges and universities,
public hospitals, state or local institutions, such as nursing
homes, veterans' homes, the division of rehabilitation, public
health departments, state programs, including, but not limited to,
programs established in sections four and five of this article, and
the bureau of medical services: Provided, That any contract or
agreement executed with or on behalf of the bureau of medical
services shall contain all necessary provisions to comply with the
provisions of Title XIX of the Social Security Act, 42 U. S. C.
§1396 et seq., dealing with pharmacy services offered to recipients
under the medical assistance plan of West Virginia;
(B) Governments of other states and jurisdictions and their
individual departments, agencies, authorities, institutions,
programs, quasi-public corporations and political subdivisions; and
(C) Regional or multistate purchasing alliances or consortia,
formed for the purpose of pooling the combined purchasing power of
the individual members in order to increase bargaining power;
(4) Consider strategies by which West Virginia may manage the
increasing costs of prescription drugs and increase access to
prescription drugs for all of the state's citizens, including the
authority to:
(A) Explore the enactment of fair prescription drug pricing policies;
(B) Explore discount prices or rebate programs for seniors and
persons without prescription drug coverage;
(C) Explore programs offered by pharmaceutical manufacturers
that provide prescription drugs for free or at reduced prices;
(D) Explore requirements and criteria, including the level of
detail, for prescription drug manufacturers to disclose to the
council expenditures for advertising, marketing and promotion,
based on aggregate national data;
(E) Explore the establishment of counter-detailing programs
aimed at educating health care practitioners authorized to
prescribe prescription drugs about the relative costs and benefits
of various prescription drugs, with an emphasis on generic
substitution for brand name drugs when available and appropriate;
prescribing older, less costly drugs instead of newer, more
expensive drugs, when appropriate; and prescribing lower dosages of
prescription drugs, when available and appropriate;
(F) Explore disease state management programs aimed at
enhancing the effectiveness of treating certain diseases identified
as prevalent among this state's population with prescription drugs;
(G) Explore prescription drug purchasing agreements with large
private sector purchasers of prescription drugs and including those
private entities in pharmacy benefit management contracts:
Provided, That no private entity may be compelled to participate in
a purchasing agreement;
(H) Explore the feasibility of using or referencing, the federal supply schedule or referencing to the price, as adjusted
for currency valuations, set by the Canada patented medicine prices
review board ("PMPRB"), or any other appropriate referenced price
to establish prescription drug pricing for brand name drugs in the
state; and to review and determine the dispensing fees for
pharmacies in such as established in section six of this article;
(I) Explore, if possible, joint negotiations for drug
purchasing and a shared prescription drug pricing schedule and
shared preferred drug list for use by the public employees
insurance agency, the medicaid program, other state payors and
private insurers;
(J) Explore coordination between the medicaid program, the
public employees insurance agency and, to the extent possible, in-
state hospitals and private insurers toward the development of a
uniform preferred prescription drug list which is clinically
appropriate and which leverages retail prices;
(K) Explore policies which promote the use of generic drugs,
where appropriate;
(L) Explore a policy that precludes a drug manufacturer from
reducing the amounts of drug rebates or otherwise penalize an
insurer, health plan or other entity which pays for prescription
drugs based upon the fact that the entity uses step therapy or
other clinical programs before a drug is covered or otherwise
authorized for payment;
(M) Explore arrangements with entities in the private sector,
including self-funded benefit plans and nonprofit corporations, toward combined purchasing of health care services, health care
management services, pharmacy benefits management services or
pharmaceutical products on the condition that no private entity be
compelled to participate in the prescription drug purchasing pool;
and
(N) Explore other strategies, as permitted under state and
federal law, aimed at managing escalating prescription drug prices
and increasing affordable access to prescription drugs for all West
Virginia citizens;
(5) Contract with appropriate legal, actuarial and other
service providers required to accomplish any function within the
powers of the council;
(6) Develop other strategies, as permitted under state and
federal law, aimed at managing escalating prescription drug prices
and increasing affordable access to prescription drugs for all West
Virginia citizens;
(7) Explore the licensing and regulation of pharmaceutical
detailers, including the requirement of continuing professional
education, the imposition of fees for licensing and continuing
education, the establishment of a special revenue account for
deposit of the fees and the imposition of penalties for
noncompliance with licensing and continuing education requirements,
and rules to establish procedures to implement the provisions of
the subdivision;
(8) The council shall report to the Legislature's joint
committee on government and finance on or before the first day of September, two thousand four, and report on or before the thirty-
first day of December, two thousand four, and annually thereafter
to the Legislature, and provide recommendations to the Legislature
on needed legislative action and other functions established by the
article or requested by the joint committee on government and
finance of the Legislature;
(9) The council shall, upon the passage of this article,
immediately commence to study the fiscal impact to this state of
the federal "Medicare Prescription Drug Improvement and
Modernization Act of 2003" and shall report to the Legislature's
joint committee on government and finance on or before the
fifteenth day of October, two thousand four, as to the findings of
the council;
(10) The council shall develop an evaluation methodology to
certify and audit savings in the discount savings program by
determining the impact on growth and profit of the pharmaceutical
manufacturers to ensure that prices have not been inflated to
offset the discount card value;
(11) The council shall evaluate the clearinghouse established
by this article and the discount card program established by this
article to report to the joint committee on government and finance,
and the legislative oversight commission on health and human
resources accountability, their findings and recommendations for
further action by the Legislature;
(12) The council shall further: (1) Review determine that the
implementation of the programs under this article will not jeopardize, reduce or penalize the benefits of veterans or other
recipients of FSS drug prices, considering their respective co-pay
structures, and the pricing mechanisms of their respective
programs; (2) commence negotiations to obtain independent
agreements or multistate agreements as many as ten states to use or
reference a pricing schedule as set forth in section six of this
article; (3) and determine the ability to establish a savings of
forty-two percent of the retail cost to be reported to the joint
committee on government and finance and the legislative oversight
commission on health and human resources accountability, as
established in this section.
§5A-3C-9. Investigation of Canadian drugs; wholesaling; federal
waivers.
The council created in section eight of this article and the
director of the public employees insurance agency are authorized to
investigate the feasibility of purchasing prescription drugs from
sources in Canada, which may include the feasibility of the state
or an instrumentality thereof serving as a wholesale distributor of
prescription drugs in the state.
(a) Upon a determination by the council or the director of the
public employees insurance agency that the same is feasible and in
the best interests of the citizens of the state, the council or the
director is authorized to pursue waivers from the federal
government, including, but not limited to, from the United States
food and drug administration, as necessary for the state to
accomplish prescription drug purchasing from sources in Canada provided, however, if a waiver is not granted, the council is
authorized to take necessary legal action.
(b) Upon a favorable finding by the appropriate federal
agencies or courts, notwithstanding any provision of this code to
the contrary, the council or the director of the public employees
insurance agency may establish and implement a methodology to
provide wholesale drugs to licensed pharmacies located within West
Virginia, provided, however, prior to the implementation, the
Legislature must adopt a concurrent resolution authorizing such
action.
§5A-3C-10. Director's powers; ability to enter drug purchasing
contracts.
Notwithstanding any provision of this code to the contrary,
nothing contained in this article shall be construed to limit the
powers and authority granted to the director of the public
employees insurance agency pursuant to article sixteen-c, chapter
five of this code. Notwithstanding any provision of this code to
the contrary and specifically subdivision (4), subsection (a),
section four, article five-c of said chapter, the director is
authorized to execute prescription drug purchasing agreements
without further enactment of the Legislature.
§5A-3C-11. Agency's management ability continued.
Nothing contained in this article shall be construed to limit
the ability of the various state agencies to enter into contracts
or arrangements or to otherwise manage their pharmacy programs
until such time as the programs created or authorized pursuant to this article are implemented.
§5A-3C-12. Restraint of trade; civil and criminal violations
defined.
(a) The following are considered to restrain trade or commerce
unreasonably and shall be unlawful:
(1) A contract, combination or conspiracy between two or more
persons:
(A) For the purpose or with the intent to fix, control or
maintain the market price, rate or fee of pharmaceuticals; or
(B) Allocate or divide customers or markets, functional or
geographic, for any pharmaceutical.
(2) The establishment, maintenance or use of a monopoly or an
attempt to establish a monopoly of trade or commerce, any part of
which is within this state, by any persons for the purpose of or
with the intent to exclude competition or control, fix or maintain
pharmaceutical prices.
(b) Any person violating the provisions of this section is
guilty of a felony and, upon conviction thereof, shall be confined
in a state correctional facility for not less than one nor more
than ten years, or fined in an amount consistent with the Clayton
Act 15 U. S. C. §15 et seq., which may include treble damages, or
both fined and confined.
(c) Any person violating the provisions of this section is
liable for a civil penalty and fine in an amount consistent with
the Clayton Act 15 U. S. C. §15 et seq., which may include treble
damages, for each violation.
(d) The county prosecutor shall investigate suspected
violations of, and institute criminal proceedings pursuant to, the
provisions of this section.
(e) The attorney general or special counsel appointed by the
governor, in his or her discretion, shall represent the state in
all civil proceedings brought on behalf of the state to enforce the
provisions of this section. After payment of all attorney fees and
costs, no less than fifty percent of all judgments or settlements
shall be placed in the general revenue fund of the state.
§5A-3C-13. Advertising costs; reporting of same.
(a) Advertising costs for prescription drugs, based on
aggregate national data, must be reported to the state council by
all manufacturers and labelers of prescription drugs dispensed in
this state that employ, direct or utilize marketing
representatives. The reporting shall assist this state in its role
as a purchaser of prescription drugs and an administrator of
prescription drug programs, enabling this state to determine the
scope of prescription drug advertising costs and their effect on
the cost, utilization and delivery of health care services and
furthering the role of this state as guardian of the public
interest.
(b) The council shall establish, by legislative rule, the
reporting requirements of information by labelers and manufacturers
which shall include all national aggregate expenses associated with
advertising and direct promotion of prescription drugs through
radio, television, magazines, newspapers, direct mail and telephone communications as they pertain to residents of this state.
(c) The following shall be exempt from disclosure
requirements:
(1) All free samples of prescription drugs intended to be
distributed to patients;
(2) All payments of reasonable compensation and reimbursement
of expenses in connection with a bona fide clinical trial. As used
in this subdivision, "clinical trial" means an approved clinical
trial conducted in connection with a research study designed to
answer specific questions about vaccines, new therapies or new ways
of using known treatments; or
(3) All scholarship or other support for medical students,
residents and fellows to attend significant educational, scientific
or policy-making conference of national, regional or specialty
medical or other professional association if the recipient of the
scholarship or other support is selected by the association.
(d) The council is further authorized to establish time lines,
the documentation, form and manner of reporting required as the
council determines necessary to effectuate the purpose of this
article. The council shall report to the joint committee on
government and finance, in an aggregate form, the information
provided in the required reporting.
(e) Notwithstanding any provision of law to the contrary,
information submitted to the council pursuant to this section is
confidential and is not a public record and is not available for
release pursuant to the West Virginia freedom of information act. Data compiled in aggregate form by the council for the purposes of
reporting required by this section is a public record as defined in
the West Virginia freedom of information act, as long as it does
not reveal trade information that is protected by state or federal
law.
§5A-3C-14. State role.
For purpose of implementing this article, the state
represented by the council shall have authority to negotiate
pharmaceutical prices to be paid by program participants. These
negotiated prices shall be available to all programs.
§5A-3C-15. Rulemaking.
The council may promulgate emergency rules pursuant to the
provisions of section fifteen, article three, chapter twenty-nine-a
of this code to implement any section of this article.
§5A-3C-16. Sunset provision.
The council shall continue to exist, pursuant to the
provisions of article ten, chapter four of this code, until the
first day of July, two thousand eight, unless sooner terminated,
continued or reestablished pursuant to the provisions of that
article.
§5A-3C-17. Potential use of savings.
Savings identified by all program participants shall be
quantified and certified to the council and included in the annual
report of the council to the Legislature provided for in section
eight of this article. Savings, or any part thereof, created by the
implementation of this program may, in the sole discretion of the Legislature, be directed towards the maintenance of existing state
health programs and the expansion of insurance programs for the
uninsured and underinsured.;
And,
That both houses recede from their positions as to the title
of the bill and agree to the same as follows:
Eng. House Bill No. 4084--A Bill to amend the code of West
Virginia, 1931, as amended, by adding thereto a new article,
designated §5A-3C-1, §5A-3C-2, §5A-3C-3, §5A-3C-4, §5A-3C-5,
§5A-3C-6, §5A-3C-7, §5A-3C-8, §5A-3C-9, §5A-3C-10, §5A-3C-11,
§5A-3C-12, §5A-3C-13, §5A-3C-14, §5A-3C-15, §5A-3C-16 and §5A-3C-
17, all relating generally to the creation of a pharmaceutical
program for the state; legislative findings; definitions; creation
of the prescription drug assistance clearinghouse program;
requiring costs of program to be paid by drug manufacturers;
transfer of ownership of the program to the state; establishment of
pharmaceutical discount program; eligibility for participation in
the pharmaceutical discount program; discount pass through;
creation of a West Virginia pharmaceutical cost management council;
establishing membership; establishing powers and responsibilities;
reporting requirements; authority to investigate the feasibility of
purchasing Canadian drugs; authority to establish a pricing
schedule to be implemented upon concurrent resolution of the
Legislature; authority to explore numerous strategies, policies and
programs, including, but not limited to, referenced prices for
prescription drug purchases and pricing in the state; authority to implement certain designated programs; state responsibilities;
prohibiting restraint of trade; providing civil and criminal
penalties for restraint of trade; advertising costs and reporting;
rule-making authority; sunset provisions; and identifying potential
use of savings.
Respectfully submitted,
Thomas W. Campbell, Chair, John Doyle, Dan Foster, Don C.
Perdue, Mike Hall, Conferees on the part of the House of Delegates.
Roman W. Prezioso, Jr., Chair, John R. Unger II, Brooks F.
McCabe, Jr., Mike Ross, Lisa Smith, Conferees on the part of the
Senate.
On motions of Senator Prezioso, severally made, the report of
the committee of conference was taken up for immediate
consideration.
The question being on the adoption of the report of the
committee of conference for Engrossed House Bill No. 4084.
Following discussion,
Senator Ross moved the previous question, which motion
prevailed.
The previous question having been ordered, that being on the
adoption of the report of the committee of conference as to
Engrossed House Bill No. 4084, the same was put and prevailed.
Engrossed House Bill No. 4084, as amended by the conference
report, was then put upon its passage.
On the passage of the bill, as amended, 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, White and Tomblin (Mr.
President)--32.
The nays were: Weeks--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. H.
B. No. 4084) passed with its conference amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, White and Tomblin (Mr. President)--32.
The nays were: Weeks--1.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4084) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the adoption by that body of the committee of conference report,
passage as amended by the conference report with its conference
amended title, to take effect from passage, and requested the concurrence of the Senate in the adoption thereof, as to
Eng. House Bill No. 4601, Relating to public education
generally.
Whereupon, Senator Plymale, from the committee of conference
on matters of disagreement between the two houses, as to
Eng. House Bill No. 4601, Relating to public education
generally.
Submitted the following report, which was received.
Your committee of conference on the disagreeing votes of the
two houses as to the amendments of the Senate to Engrossed House
Bill No. 4601 having met, after full and free conference, have
agreed to recommend and do recommend to their respective houses, as
follows:
That both houses recede from their respective positions as to
the amendment of the Senate, striking out everything after the
enacting clause, and agree to the same as follows:
That §18-9A-7 of the code of West Virginia, 1931, as amended,
be amended and reenacted; and that §18-9D-2, §18-9D-6, §18-9D-8,
§18-9D-15 and §18-9D-16 of said code be amended and reenacted, all
to read as follows:
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-7. Foundation allowance for transportation cost.
The allowance in the foundation school program for each county
for transportation shall be the sum of the following computations:
(1) Eighty-five percent of the transportation cost within each
high-density county and ninety percent of the transportation cost within each low-density county for maintenance, operation and
related costs, exclusive of all salaries: Provided, That for the
school year beginning the first day of July, one thousand nine
hundred ninety-eight, and thereafter, in the event a any county
that uses an alternative fuel such as compressed natural gas or
other acceptable alternative fuel for the operation of all or any
portion of its school bus system, then the allowance in the
foundation school program for each such the county for that portion
of its school bus system shall be ninety-five percent of the
transportation cost for maintenance, operation and related costs,
exclusive of all salaries, incurred by the use of the alternatively
fueled school buses: Provided, however, That any county using an
alternative fuel and qualifying for the additional allowance shall
submit a plan regarding the intended future use of alternatively
fueled school buses;
(2) The total cost, within each county, of insurance premiums
on buses, buildings and equipment used in transportation:
Provided, That such the premiums were procured through competitive
bidding;
(3) For the school year beginning the first day of July, one
thousand nine hundred ninety-nine, and thereafter, an An amount
equal to eight and one-third percent of the current replacement
value of the bus fleet within each county as determined by the
state board. such The amount to be used only shall only be used
for the replacement of buses. Buses purchased after the first day
of July, one thousand nine hundred ninety-nine, that are driven one hundred eighty thousand miles, regardless of year model, will be
subject to the replacement value of eight and one-third percent as
determined by the state board: Provided, That for the school year
beginning on the first day of July, two thousand four, only, the
allowance in the foundation school program for each county for
transportation shall not include an amount for the replacement of
buses. In addition, in any school year in which its net enrollment
increases when compared to the net enrollment the year immediately
preceding, a school district may apply to the state superintendent
for funding for an additional bus. The state superintendent shall
make a decision regarding each application based upon an analysis
of the individual school district's net enrollment history and
transportation needs: Provided, however, That the superintendent
shall not consider any application which fails to document that the
county has applied for federal funding for additional buses. If
the state superintendent finds that a need exists, a request for
funding shall be included in the budget request submitted by the
state board for the upcoming fiscal year;
(4) Eighty-five percent of the cost of contracted
transportation services and public utility transportation within
each high-density county and ninety percent of the cost of
contracted transportation services and public utility
transportation within each low-density county;
(5) Aid in lieu of transportation equal to the state average
amount per pupil for each pupil receiving such the aid within each
county; and
(6) Ninety-five percent of the transportation cost for
maintenance, operation and related costs, exclusive of all
salaries, for transporting students to and from classes at a
multicounty vocational center.
The total state share for this purpose shall be the sum of the
county shares: Provided, That no county shall receive an allowance
which is greater than one-third above the computed state average
allowance per transportation mile multiplied by the total
transportation mileage in the county: Provided, however, That one
half of one percent of the transportation allowance distributed to
each county shall be for the purpose of trips related to academic
classroom curriculum and not related to any extracurricular
activity: Provided further, That for the school year beginning on
the first day of July, two thousand four, only, the transportation
allowance of each county shall include an allocation for the
purpose of trips related to academic classroom curriculum and not
related to any extracurricular activity. The allocation shall
equal the amount distributed to the county for this purpose in the
school year beginning on the first day of July, two thousand three:
And provided further, That any remaining funds credited to a county
for the purpose of trips related to academic classroom curriculum
during the fiscal year shall be carried over for use in the same
manner the next fiscal year and shall be separate and apart from,
and in addition to, the appropriation for the next fiscal year:
And provided further, That the state board may request a county to
document the use of funds for trips related to academic classroom curriculum if the board deems it determines that it is necessary.
The state department of education shall cause a comprehensive
study to be made relating to student transportation. The study
shall examine, but is not limited to, the issues of funding,
timeliness of data used for formula distribution, service personnel
needed, inter-county service, regionalization of services, bus
routes, amount of time students spend on buses, maintenance, safety
training, and alternative transportation systems. The state
department of education shall submit a report of the study to the
legislative oversight commission on education accountability by the
fifteenth day of January, one thousand nine hundred ninety-nine.
ARTICLE 9D. SCHOOL BUILDING AUTHORITY.
§18-9D-2. Definitions.
The following terms, wherever used or referred to in this
article, have the following meanings unless a different meaning
clearly appears from the context:
(1) "Authority" means the school building authority of West
Virginia or, if said the authority shall be is abolished, any board
or officer succeeding to the principal functions thereof of the
school building authority or to whom the powers given to said the
authority shall be are given by law;
(2) "Bonds" means bonds issued by the authority pursuant to
this article;
(3) "Construction project" means a project in the furtherance
of a facilities plan with a cost of the project greater than five
hundred thousand dollars for the new construction, expansion or major renovation of facilities, buildings and structures for school
purposes, including the acquisition of land for current or future
use in connection therewith with the construction project, as well
as new or substantial upgrading of existing equipment, machinery,
furnishings, installation of utilities and other similar items
convenient in connection with placing the foregoing construction
project into operation: Provided, That a construction project may
not include such items as books, computers or equipment used for
instructional purposes, fuel, supplies, routine utility services
fees, routine maintenance costs, ordinary course of business
improvements and other items which are customarily deemed
considered to result in a current or ordinary course of business
operating charge: Provided, however, That a construction project
may not include a major improvement project;
(4) "Cost of project" means the cost of construction,
expansion, renovation, repair and safety upgrading of facilities,
buildings and structures for school purposes; the cost of land,
equipment, machinery, furnishings, installation of utilities and
other similar items convenient in connection with placing the
foregoing project into operation; and the cost of financing,
interest during construction, professional service fees and all
other charges or expenses necessary, appurtenant or incidental to
the foregoing, including the cost of administration of this
article;
(5) "Facilities plan" means the a ten-year countywide
comprehensive educational facilities plan for school facilities required established by the county board in accordance with
guidelines adopted by the authority to meet the goals and
objectives of this article that: (i) Addresses the existing school
facilities and facility needs of the county to provide a thorough
and efficient education in accordance with the provisions of this
code and policies of the state board; (ii) best serves the needs of
the individual student, the general school population and the
communities served by the facilities; (iii) includes a school major
improvement plan as defined in this section; (iv) is updated
annually to reflect projects completed, current enrollment
projections and new or continuing needs; and (v) is approved by the
state board and the authority prior to the distribution of state
funds pursuant to this article to any county board pursuant to
subsection (a), section sixteen of this article or other entity
applying for funds;
(6) "Project" means a construction project or a major
improvement project;
(7) "Region" means the area encompassed within and serviced by
a regional educational service agency established pursuant to
section twenty-six, article two of this chapter;
(8) "Revenue" or "revenues" means moneys deposited in the
school building capital improvements fund pursuant to the operation
of section ten, article nine-a of this chapter; moneys deposited in
the school construction fund pursuant to the operation of section
thirty, article fifteen, chapter eleven of this code and pursuant
to the operation of section eighteen, article twenty-two, chapter twenty-nine of this code; moneys deposited in the school building
debt service fund pursuant to said section; moneys deposited in the
school major improvement fund pursuant to the operation of section
thirty, article fifteen, chapter eleven of this code; any moneys
received, directly or indirectly, from any source for use in any
project completed pursuant to this article; and any other moneys
received by the authority for the purposes of this article;
(9) "School major improvement plan" means the a ten-year
school maintenance plan to be that: (i) Is prepared by each a
county board of education in accordance with the guidelines
established by the authority and incorporated in its countywide
comprehensive educational facilities plan or is prepared by the
state board of education or the administrative council of an area
vocational educational center in accordance with the guidelines if
such entity seeks the entities seek funding from the authority for
a major improvement project; which school major improvement plan
(ii) addresses the regularly scheduled maintenance for all school
facilities of the county or under the jurisdiction of the entity
seeking funding; (iii) includes a projected repair and replacement
schedule for all school facilities of the county or of entity
seeking funding; (iv) addresses the major improvement needs of each
school within the county or under the jurisdiction of the entity
seeking funding; and (v) is required prior to the distribution of
state funds for a major improvement project pursuant to subsection
(b), section sixteen of this article to the county board, state
board or administrative council; and
(10) "School major improvement project" means a project with
a cost greater than fifty thousand dollars and less than five
hundred thousand dollars for the renovation, expansion, the repair
and safety upgrading of existing school facilities, buildings and
structures, including the substantial repair or upgrading of
equipment, machinery, building systems, utilities and other similar
items convenient in connection with such renovation, repair or
upgrading in the furtherance of a school major improvement plan:
Provided, That a major improvement project may not include such
items as books, computers or equipment used for instructional
purposes, fuel, supplies, routine utility services fees, routine
maintenance costs, ordinary course of business improvements and
other items which are customarily deemed considered to result in a
current or ordinary course of business operating charge.
§18-9D-6. School building capital improvements fund in state
treasury; school construction fund in state treasury; school
building debt service fund in state treasury; school
improvement fund in state treasury; collections to be paid
into special funds; authority to pledge the collections as
security for refunding revenue bonds; authority to finance
projects on a cash basis.
(a) There is continued in the state treasury a school building
capital improvements fund to be expended by the authority as
provided in this article. The school building capital improvements
fund shall be an interest-bearing account with interest credited to
and deposited in the school building capital improvements fund and expended in accordance with the provisions of this article.
The school building authority may pledge all or any part of
the revenues paid into the school building capital improvements
fund that are needed to meet the requirements of any revenue bond
issue or issues authorized by this article prior to the twentieth
day of July, one thousand nine hundred ninety-three, or revenue
bonds issued to refund revenue bonds issued prior to that date,
including the payment of principal of, interest and redemption
premium, if any, on the revenue bonds and the establishing and
maintaining of a reserve fund or funds for the payment of the
principal of, interest and redemption premium, if any, on the
revenue bond issue or issues when other moneys pledged may be
insufficient for the payment of the principal, interest and
redemption premium, including any additional protective pledge of
revenues that the authority in its discretion has provided by
resolution authorizing the issuance of the bonds or in any trust
agreement made in connection with the bond issue. Additionally,
the authority may provide in the resolution and in the trust
agreement for priorities on the revenues paid into the school
building capital improvements fund that are necessary for the
protection of the prior rights of the holders of bonds issued at
different times under the provisions of this article.
Any balance remaining in the school building capital
improvements fund after the authority has issued bonds authorized
by this article and after the requirements of all funds, including
reserve funds established in connection with the bonds issued prior to the twentieth day of July, one thousand nine hundred
ninety-three, pursuant to this article have been satisfied may be
used for the redemption of any of the outstanding bonds issued
under this article which by their terms are then redeemable, or for
the purchase of the bonds at the market price, but not exceeding
the price, if any, at which the bonds are in the same year
redeemable and all bonds redeemed or purchased shall immediately be
canceled and shall not again be issued.
The school building authority, in its discretion, may use the
moneys in the school building capital improvements fund to finance
the cost of projects authorized in accordance with the provisions
of section sixteen of this article on a cash basis. Any pledge of
moneys in the fund for revenue bonds issued prior to the twentieth
day of July, one thousand nine hundred ninety-three, is a prior and
superior charge on the fund over the use of any of the moneys in
the fund to pay for the cost of any project on a cash basis:
Provided, That any expenditures from the fund, other than for the
retirement of revenue bonds, may only be made by the authority in
accordance with the provisions of this article.
(b) There is continued in the state treasury a special revenue
fund named the school building debt service fund into which shall
be deposited the amounts specified in section eighteen, article
twenty-two, chapter twenty-nine of this code. All amounts
deposited in the fund shall be pledged to the repayment of the
principal, interest and redemption premium, if any, on any revenue
bonds or refunding revenue bonds authorized by this article: Provided, That deposited moneys may not be pledged to the repayment
of any revenue bonds issued prior to the first day of January, one
thousand nine hundred ninety-four, or with respect to revenue bonds
issued for the purpose of refunding revenue bonds issued prior to
the first day of January, one thousand nine hundred ninety-four.
Additionally, the authority may provide in the resolution and in
the trust agreement for priorities on the revenues paid into the
school building debt service fund that are necessary for the
protection of the prior rights of the holders of bonds issued at
different times under the provisions of this article. On or prior
to the first day of May of each year, the authority shall certify
to the state lottery director the principal and interest and
coverage ratio requirements for the following fiscal year on any
revenue bonds issued on or after the first day of January, one
thousand nine hundred ninety-four, and for which moneys deposited
in the school building debt service fund have been pledged, or will
be pledged, for repayment pursuant to this section.
After the authority has issued bonds authorized by this
article and after the requirements of all funds have been
satisfied, including coverage and reserve funds established in
connection with the bonds issued pursuant to this article, any
balance remaining in the school building debt service fund may be
used for the redemption of any of the outstanding bonds issued
under this article which, by their terms, are then redeemable or
for the purchase of the outstanding bonds at the market price, but
not to exceed the price, if any, at which the bonds are redeemable and all bonds redeemed or purchased shall be immediately canceled
and shall not again be issued: Provided, That after the authority
has issued bonds authorized by this article and after the
requirements of debt service and all associated funds have been
satisfied for the fiscal year, including coverage and reserve funds
established in connection with the bonds issued pursuant to this
article, any remaining balance in the school building debt service
fund may be transferred to the school construction fund created in
subsection (c) of this section and used by the school building
authority in its discretion to finance the cost of school
construction or improvement projects authorized in accordance with
the provisions of section sixteen of this article on a cash basis.
(c) There is continued in the state treasury a special revenue
fund named the school construction fund into which shall be
deposited the amounts specified in section thirty, article fifteen,
chapter eleven of this code and section eighteen-a, article twenty-
two, chapter twenty-nine of this code, together with any moneys
appropriated to the fund by the Legislature: Provided, That for the
school year beginning the first day of July, two thousand four,
only, funds from the excess lottery allocated in said section shall
not be transferred to the school construction fund and, in lieu
thereof, made available for legislative appropriation: Provided,
however, That for the school year beginning the first day of July,
two thousand four, only, up to five million dollars of the amounts
in the fund may be appropriated by the Legislature for budget
shortfalls. Expenditures from the school construction fund shall be for the purposes set forth in this article, including
lease-purchase payments under agreements made pursuant to
subsection (e), section fifteen of this article and section nine,
article five of this chapter and are authorized from collections in
accordance with the provisions of article three, chapter twelve of
this code and from other revenues annually appropriated by the
Legislature from lottery revenues as authorized by section
eighteen, article twenty-two, chapter twenty-nine of this code
pursuant to the provisions set forth in article two, chapter five-a
of this code. Amounts collected which are found, from time to
time, to exceed the funds needed for purposes set forth in this
article may be transferred to other accounts or funds and
redesignated for other purposes by appropriation of the
Legislature. The school construction fund shall be an
interest-bearing account, with the interest credited to and
deposited in the school construction fund and expended in
accordance with the provisions of this article. Deposits to and
expenditures from the school construction fund are subject to the
provisions of subsection (i) (k), section fifteen of this article.
(d) There is continued in the state treasury a special revenue
fund named the school major improvement fund into which shall be
deposited the amounts specified in section thirty, article fifteen,
chapter eleven of this code, together with any moneys appropriated
to the fund by the Legislature. Expenditures from the school major
improvement fund shall be for the purposes set forth in this
article and are authorized from collections in accordance with the provisions of article three, chapter twelve of this code and from
other revenues annually appropriated by the Legislature from
lottery revenues as authorized by section eighteen, article
twenty-two, chapter twenty-nine of this code pursuant to the
provisions set forth in article two, chapter five-a of this code.
Amounts collected which are found, from time to time, to exceed the
funds needed for purposes set forth in this article may be
transferred to other accounts or funds and redesignated for other
purposes by appropriation of the Legislature. The school major
improvement fund shall be an interest-bearing account, with
interest being credited to and deposited in the school major
improvement fund and expended in accordance with the provisions of
this article.
(e) The Legislature finds and declares that the supreme court
of appeals of West Virginia has held that the issuance of
additional revenue bonds authorized under the school building
authority act, as enacted in this article prior to the twentieth
day of July, one thousand nine hundred ninety-three, constituted an
indebtedness of the state in violation of section four, article X
of the constitution of West Virginia, but that revenue bonds issued
under this article prior to the twentieth day of July, one thousand
nine hundred ninety-three, are not invalid. The Legislature
further finds and declares that the financial capacity of a county
to construct, lease and improve school facilities depends upon the
county's bonding capacity (local property wealth), voter
willingness to pass bond issues and the county's ability to reallocate other available county funds instead of criteria related
to educational needs or upon the ability of the school building
authority created in this article to issue bonds that comply with
the holding of the West Virginia supreme court of appeals or
otherwise assist counties with the financing of facilities
construction and improvement. The Legislature further finds and
declares that this section, as well as section eighteen, article
twenty-two, chapter twenty-nine of this code, have been reenacted
during the first extraordinary session of the West Virginia
Legislature in the year one thousand nine hundred ninety-four in an
attempt to comply with the holding of the supreme court of appeals
of West Virginia.
The Legislature further finds and declares that it intends,
through the reenactment of this section and section eighteen,
article twenty-two, chapter twenty-nine of this code, to dedicate
a source of state revenues to special revenue funds for the
purposes of paying the debt service on bonds and refunding bonds
issued subsequent to the first day of January, one thousand nine
hundred ninety-four, the proceeds of which will be used for the
construction and improvement of school building facilities. The
Legislature further finds and declares that it intends, through the
reenactment of this section and section thirty, article fifteen,
chapter eleven of this code and section eighteen, article
twenty-two, chapter twenty-nine of this code, to appropriate
revenues to two special revenue funds for the purposes of
construction and improvement of school building facilities. Furthermore, the Legislature intends to encourage county boards to
maintain existing levels of county funding for construction,
improvement and maintenance of school building facilities and to
generate additional county funds for those purposes through bonds
and special levies whenever possible. The Legislature further
encourages the school building authority, the state board and
county boards of education to propose uniform project
specifications for comparable projects whenever possible to meet
county needs at the lowest possible cost.
The Legislature further finds and declares that it intends,
through the reenactment of this section and section eighteen,
article twenty-two, chapter twenty-nine of this code, to comply
with the provisions of sections four and six, article X of the
constitution of West Virginia; and section one, article XII of said
constitution.
§18-9D-8. Use of proceeds of bonds; bonds exempt from taxation.
(a) The maximum aggregate face value of bonds that may be
issued by the authority, for which the moneys in the school
building debt service fund are to be pledged, is four hundred
million dollars. The issuance of revenue bonds under the
provisions of this article shall be authorized, from time to time,
by resolution or resolutions of the school building authority which
shall set forth the proposed projects authorized in accordance with
the provisions of section sixteen of this article and provide for
the issuance of bonds in amounts sufficient, when sold as
hereinafter provided in this section, to provide moneys considered sufficient by the authority to pay the costs, less the amounts of
any other funds available for the costs or from any appropriation,
grant or gift for the costs: Provided, That bond issues from which
bond revenues are to be distributed in accordance with section
fifteen of this article shall for projects authorized pursuant to
the provisions of section sixteen of this article are not be
required to set forth the proposed projects in the resolution. The
resolution shall prescribe the rights and duties of the bondholders
and the school building authority and, for that purpose, may
prescribe the form of the trust agreement hereinafter referred to
in this section. The bonds may be issued, from time to time, in
such amounts; shall be of such series; bear such date or dates;
mature at such time or times not exceeding forty years from their
respective dates; bear interest at such rate or rates; be in such
denominations; be in such form, either coupon or registered,
carrying such registration, exchangeability and interchangeability
privileges; be payable in such medium of payment and at such place
or places within or without the state; be subject to such terms of
redemption at such prices not exceeding one hundred five percent of
the principal amount of the bonds; and be entitled to such
priorities on the revenues paid into the fund pledged for repayment
of the bonds as may be provided in the resolution authorizing the
issuance of the bonds or in any trust agreement made in connection
with the bonds: Provided, however, That revenue bonds issued on or
after the first day of January, one thousand nine hundred ninety-
four, which are secured by lottery proceeds shall mature at such time or times not exceeding ten years from their respective dates.
(b) The bonds shall be signed by the governor, and by the
president or vice president of the authority, under the great seal
of the state, attested by the secretary of state, and the coupons
attached to the bonds shall bear the facsimile signature of the
president or vice president of the authority. In case any of the
officers whose signatures appear on the bonds or coupons cease to
be officers before the delivery of the bonds, the signatures shall
nevertheless be valid and sufficient for all purposes the same as
if such the officers had remained in office until such the
delivery. The revenue bonds shall be sold in the manner determined
by the authority to be for the best interests of the state.
(c) Any pledge of revenues made by the school building
authority for revenue bonds issued prior to the twentieth day of
July, one thousand nine hundred ninety-three, pursuant to this
article is valid and binding between the parties from the time the
pledge is made; and the revenues pledged shall immediately be
subject to the lien of the pledge without any further physical
delivery thereof of the revenues pledged or further act. The lien
of the pledge is valid and binding against all parties having
claims of any kind in tort, contract or otherwise, irrespective of
whether the parties have notice of the lien of the pledge, and the
pledge shall be a prior and superior charge over any other use of
the revenues pledged.
(d) The proceeds of any bonds shall be used solely for the
purpose or purposes as may be generally or specifically set forth in the resolution authorizing those bonds and shall be disbursed in
the manner and with the restrictions, if any, that the authority
provides in the resolution authorizing the issuance of the bonds or
in the trust agreement hereinafter referred to in this section
securing the same bonds. If the proceeds of the bonds, by error in
calculations or otherwise, are less than the cost of any projects
specifically set forth in the resolution, additional bonds may in
like manner be issued to provide the amount of the deficiency; and
unless otherwise provided for in the resolution or trust agreement
hereinafter mentioned, the additional bonds shall be considered to
be of the same issue and are entitled to payment from the same
fund, without preference or priority, as the bonds before issued
for the projects. If the proceeds of bonds issued for the projects
specifically set forth in the resolution authorizing the bonds
issued by the authority exceed the cost of the bonds, the surplus
may be used for any other projects determined by the school
building authority authorized in accordance with the provisions of
section sixteen of this article or in any other manner that the
resolution authorizing the bonds provides. Prior to the
preparation of definitive bonds, the authority may, under like
restrictions, issue temporary bonds with or without coupons,
exchangeable for definitive bonds upon the issuance of the
definitive bonds.
(e) After the issuance of any of revenue bonds, the revenues
pledged for the revenue bonds shall not be reduced as long as any
of the revenue bonds are outstanding and unpaid except under the terms, provisions and conditions that are contained in the
resolution, trust agreement or other proceedings under which the
revenue bonds were issued.
(f) The revenue bonds and the revenue refunding bonds and
bonds issued for combined purposes, together with the interest on
the bonds, are exempt from all taxation by the state of West
Virginia, or by any county, school district, municipality or
political subdivision thereof.
(g) To meet the operational costs of the school building
authority, the school building authority may transfer to a special
revenue account in the state treasury interest on any debt service
reserve funds created within any resolution authorizing the issue
of bonds or any trust agreement made in connection with the bonds
for expenditure in accordance with legislative appropriation or
allocation of appropriation.
(h) Any school construction bonds issued under this section
shall be issued on parity with any existing school building
authority bonds previously issued under this article.
§18-9D-15. Legislative intent; allocation of money among
categories of projects; lease-purchase options; limitation on
time period for expenditure of project allocation; county
maintenance budget requirements; project disbursements over
period of years; preference for multicounty arrangements;
submission of project designs; set-aside to encourage local
participation; etc.
(a) It is the intent of the Legislature to empower the school building authority to facilitate and provide state funds and to
administer all federal funds provided for the construction and
major improvement of school facilities so as to meet the
educational needs of the people of this state in an efficient and
economical manner. The authority shall make funding determinations
in accordance with the provisions of this article and shall assess
existing school facilities and each facility's school major
improvement plan in relation to the needs of the individual
student, the general school population, the communities served by
the facilities and facility needs statewide.
(b) An amount that is no more than three percent of the sum of
moneys that are determined by the authority to be available for
distribution during the then current fiscal year from: (1) Moneys
paid into the school building capital improvements fund pursuant to
section ten, article nine-a of this chapter; (2) the issuance of
revenue bonds for which moneys in the school building debt service
fund are pledged as security; (3) moneys paid into the school
construction fund pursuant to section six of this article; and (4)
any other moneys received by the authority, except moneys paid into
the school major improvement fund pursuant to section six of this
article, may be allocated and may be expended by the authority for
projects authorized in accordance with the provisions of section
sixteen of this article that service the educational community
statewide or, upon application by the state board, for educational
programs that are under the jurisdiction of the state board. In
addition, upon application by the state board or the administrative council of an area vocational educational center established
pursuant to article two-b of this chapter, the authority may
allocate and expend under this subsection moneys for school major
improvement projects authorized in accordance with the provisions
of section sixteen of this article proposed by the state board or
an administrative council for school facilities under the direct
supervision of the state board or an administrative council,
respectively. Furthermore, upon application by a county board, the
authority may allocate and expend under this subsection moneys for
school major improvement projects for vocational programs at
comprehensive high schools, vocational schools cooperating with
community and technical college programs, or both. Each county
board is encouraged to cooperate with community and technical
colleges in the use of existing or development of new vocational-
technical facilities. All projects eligible for funds from this
subsection shall be submitted directly to the authority which shall
be solely responsible for the project's evaluation: Provided, That
the authority may not expend any moneys for a school major
improvement project proposed by the state board or the
administrative council of an area vocational educational center
unless the state board or an administrative council has submitted
a ten-year school major improvement plan, to be updated annually,
pursuant to section sixteen of this article: facilities plan:
Provided, however, That the authority shall, before allocating any
moneys to the state board or the administrative council of an area
vocational educational center for a school improvement project, consider all other funding sources available for the project.
(c) An amount that is no more than two percent of the moneys
that are determined by the authority to be available for
distribution during the current fiscal year from: (1) Moneys paid
into the school building capital improvements fund pursuant to
section ten, article nine-a of this chapter; (2) the issuance of
revenue bonds for which moneys in the school building debt service
fund are pledged as security; (3) moneys paid into the school
construction fund pursuant to section six of this article; and (4)
any other moneys received by the authority, except moneys deposited
into the school major improvement fund, shall be set aside by the
authority as an emergency fund to be distributed in accordance with
the guidelines adopted by the authority.
(d) An amount that is no more than five percent of the moneys
that are determined by the authority to be available for
distribution during the current fiscal year from: (1) Moneys paid
into the school building capital improvements fund pursuant to
section ten, article nine-a of this chapter; (2) the issuance of
revenue bonds for which moneys in the school building debt service
fund are pledged as security; (3) moneys paid into the school
construction fund pursuant to section six of this article; and (4)
any other moneys received by the authority, except moneys deposited
into the school major improvement fund, may be reserved by the
authority for multiuse vocational-technical education facilities
projects that may include post-secondary programs as a first
priority use. The authority may allocate and expend under this subsection moneys for any purposes authorized in this article on
multiuse vocational-technical education facilities and for
equipment and equipment updates at the facilities projects,
including equipment and equipment updates at the facilities,
authorized in accordance with the provisions of section sixteen of
this article. If the projects approved under this subsection do
not require the full amount of moneys reserved, moneys above the
amount required may be allocated and expended in accordance with
other provisions of this article. A county board, the state board,
an administrative council or the joint administrative board of a
vocational-technical education facility which includes post-
secondary programs may propose projects for facilities or
equipment, or both, which are under the direct supervision of the
respective body: Provided, That the authority shall, before
allocating any moneys for a project under this subsection, consider
all other funding sources available for the project.
(e) The remaining moneys determined by the authority to be
available for distribution during the then current fiscal year
from: (1) Moneys paid into the school building capital
improvements fund pursuant to section ten, article nine-a of this
chapter; (2) the issuance of revenue bonds for which moneys in the
school building debt service fund are pledged as security; (3)
moneys paid into the school construction fund pursuant to section
six of this article; and (4) any other moneys received by the
authority, except moneys deposited into the school major
improvement fund, shall be allocated and expended on the basis of need and efficient use of resources the basis to be determined by
the authority for projects funded in accordance with the provisions
of section sixteen of this article.
(f) If a county board of education proposes to finance a
project that is approved pursuant to authorized in accordance with
section sixteen of this article through a lease with an option to
purchase leased premises upon the expiration of the total lease
period pursuant to an investment contract, the authority may
allocate no moneys to the county board in connection with the
project: Provided, That the authority may transfer moneys to the
state board of education which, with the authority, shall lend the
amount transferred to the county board to be used only for a one-
time payment due at the beginning of the lease term, made for the
purpose of reducing annual lease payments under the investment
contract, subject to the following conditions:
(1) The loan shall be secured in the manner required by the
authority, in consultation with the state board, and shall be
repaid in a period and bear interest at a rate as determined by the
state board and the authority and shall have such any terms and
conditions as that are required by the authority, all of which
shall be set forth in a loan agreement among the authority, the
state board and the county board;
(2) The loan agreement shall provide for the state board and
the authority to defer the payment of principal and interest upon
any loan made to the county board during the term of the investment
contract, and annual renewals of the investment contract, among the state board, the authority, the county board and a lessor:
Provided, That in the event a county board which has received a
loan from the authority for a one-time payment at the beginning of
the lease term does not renew the subject lease annually until
performance of the investment contract in its entirety is
completed, the county board is in default and the principal of the
loan, together with all unpaid interest accrued to the date of the
default, shall, at the option of the authority, in consultation
with the state board, become due and payable immediately or subject
to renegotiation among the state board, the authority and the
county board: Provided, however, That if a county board renews the
lease annually through the performance of the investment contract
in its entirety, the county board shall exercise its option to
purchase the leased premises: Provided further, That the failure
of the county board to make a scheduled payment pursuant to the
investment contract constitutes an event of default under the loan
agreement: And provided further, That upon a default by a county
board, the principal of the loan, together with all unpaid interest
accrued to the date of the default, shall, at the option of the
authority, in consultation with the state board, become due and
payable immediately or subject to renegotiation among the state
board, the authority and the county board: And provided further,
That if the loan becomes due and payable immediately, the
authority, in consultation with the state board, shall use all
means available under the loan agreement and law to collect the
outstanding principal balance of the loan, together with all unpaid interest accrued to the date of payment of the outstanding
principal balance; and
(3) The loan agreement shall provide for the state board and
the authority to forgive all principal and interest of the loan
upon the county board purchasing the leased premises pursuant to
the investment contract and performance of the investment contract
in its entirety.
(g) To encourage county boards to proceed promptly with
facilities planning and to prepare for the expenditure of any state
moneys derived from the sources described in this subsection
section, any county board failing or other entity to whom moneys
are allocated by the authority that fails to expend the money
within three years of the allocation to the county board shall
forfeit the allocation and thereafter is ineligible for further
allocations pursuant to this subsection section until the county
board it is ready to expend funds in accordance with an approved
facilities plan: Provided, That the authority may authorize an
extension beyond the three-year forfeiture period not to exceed an
additional two years. Any amount forfeited shall be added to the
total funds available in the school construction fund of the
authority for future allocation and distribution. Funds may not be
distributed to any county board that does not have a comprehensive
educational facility for any project under this article unless the
responsible entity has a facilities plan approved by the state
board and the school building authority or to any county board that
is not and is prepared to commence expenditure of the funds during the fiscal year in which the moneys are distributed.
(h) The remaining moneys that are determined by the authority
to be available for distribution during the then current fiscal
year from moneys paid into the school major improvement fund
pursuant to section six of this article shall be allocated and
distributed on the basis of need and efficient use of resources the
basis to be determined by the authority for projects authorized in
accordance with the provisions of section sixteen of this article:
Provided, That the moneys may not be distributed to any county
board that does not have an approved school major improvement for
any project under this section unless the responsible entity has a
facilities plan or to any county board that is not prepared
approved by the state board and the authority and is to commence
expenditures of the funds during the fiscal year in which the
moneys are distributed: Provided, however, That any moneys
allocated to a county board project and not distributed to that
county board for that project shall be deposited in an account to
the credit of that county board the project, the principal amount
to remain to the credit of and available to the county board
project for a period of two years. Any moneys which are unexpended
after a two-year period shall be redistributed on the basis of need
from the school major improvement fund in that fiscal year.
(i) No local matching funds may be required under the
provisions of this section. However, the responsibilities of the
county boards of education to maintain school facilities are not
negated by the provisions of this article. To be eligible to receive an allocation of school major improvement funds from the
authority, a county board must have expended in the previous fiscal
year an amount of county moneys equal to or exceeding the lowest
average amount of money included in the county board's maintenance
budget over any three of the previous five years and must have
budgeted an amount equal to or greater than the average in the
current fiscal year: Provided, That the state board of education
shall promulgate rules relating to county boards' maintenance
budgets, including items which shall be included in the budgets.
(j) Any county board may use moneys provided by the authority
under this article in conjunction with local funds derived from
bonding, special levy or other sources. Distribution to a county
board, or to the state board or the administrative council of an
area vocational educational center pursuant to subsection (b) of
this section, may be in a lump sum or in accordance with a schedule
of payments adopted by the authority pursuant to guidelines adopted
by the authority.
(k) Funds in the school construction fund shall first be
transferred and expended as follows:
Any funds deposited in the school construction fund shall be
expended first in accordance with an appropriation by the
Legislature. To the extent that funds are available in the school
construction fund in excess of that amount appropriated in any
fiscal year, the excess funds may be expended for projects
authorized in accordance with the provisions of section sixteen of
this article. Any projects which the authority identified and announced for funding on or before the first day of August, one
thousand nine hundred ninety-five, or identified and announced for
funding on or before the thirty-first day of December, one thousand
nine hundred ninety-five, shall be funded by the authority in an
amount which is not less than the amount specified when the project
was identified and announced.
(l) It is the intent of the Legislature to encourage county
boards to explore and consider arrangements with other counties
that may facilitate the highest and best use of all available
funds, which may result in improved transportation arrangements for
students or which otherwise may create efficiencies for county
boards and the students. In order to address the intent of the
Legislature contained in this subsection, the authority shall grant
preference to those projects which involve multicounty arrangements
as the authority shall determine reasonable and proper.
(m) County boards shall submit all designs for construction of
new school buildings to the school building authority for review
and approval prior to preparation of final bid documents:
Provided, That a vendor who has been debarred pursuant to the
provisions of sections thirty-three-a through thirty-three-f,
inclusive, article three, chapter five-a of this code may not bid
on or be awarded a contract under this section.
(n) The authority may elect to disburse funds for approved
construction projects over a period of more than one year subject
to the following:
(1) The authority may not approve the funding of a school construction project for over a period of more than three years;
(2) The authority may not approve the use of more than fifty
percent of the revenue available for distribution in any given
fiscal year for projects that are to be funded over a period of
more than one year; and
(3) In order to encourage local participation in funding
school construction projects, the authority may set aside limited
funding, not to exceed five hundred thousand dollars, in reserve
for one additional year to provide a county the opportunity to
complete financial planning for a project prior to the allocation
of construction funds. Any such funding shall be on a reserve
basis and converted to a part of the construction grant only after
all project budget funds have been secured and all county
commitments have been fulfilled. Failure of the county to solidify
the project budget and meet its obligations to the state within
eighteen months of the date the funding is set aside by the
authority will result in expiration of the reserve and the funds
shall be reallocated by the authority in the succeeding funding
cycle.
§18-9D-16. Authority to establish guidelines and procedures for
facilities and major improvement plans; guidelines for
modifications and updates, etc.; guidelines for project
evaluation; submission of certified list of projects to be
funded; department on-site inspection of facilities;
enforcement of required changes or additions to project plans.
(a) The authority shall establish guidelines and procedures to promote the intent and purposes of this article and assure the
prudent and resourceful expenditure of state funds for projects
under this article including, but not limited to, the following:
(1) Guidelines and procedures for the facilities plans, school
major improvement plans and projects submitted in the furtherance
of the plans that address, but are not limited to, the following:
(A) All of the elements of the respective plans as defined in
section two of this article;
(B) The procedures for a county to submit a preliminary plan,
a plan outline or a proposal for a plan to the authority prior to
the submission of the facilities plan. The preliminary plan, plan
outline or proposal for a plan shall be the basis for a
consultation meeting between representatives of the county and
members of the authority, including at least one citizen member,
which shall be held promptly following submission of the
preliminary plan, plan outline or proposal for a plan to assure
understanding of the general goals of this article and the
objective criteria by which projects will be evaluated, to discuss
ways the plan may be structured to meet those goals, and to assure
efficiency and productivity in the project approval process;
(C) The manner, time line and process for the submission of
each plan and annual plan updates to the authority;
(D) The requirements for public hearings, comments or other
means of providing broad-based input on plans and projects under
this article within a reasonable time period as the authority may
consider appropriate. The submission of each plan must be accompanied by a synopsis of all comments received and a formal
comment by the county board, the state board or the administrative
council of an area vocational educational center submitting the
plan;
(E) Any project specifications and maintenance specifications
considered appropriate by the authority including, but not limited
to, such matters as energy efficiency, preferred siting,
construction materials, maintenance plan and any other matter
related to how the project is to proceed;
(F) A prioritization by the county board, the state board or
the administrative council submitting the plan of each project
contained in the plan. In prioritizing the projects, the county
board, the state board or the administrative council submitting the
plan shall make determinations in accordance with the objective
criteria formulated by the school building authority in accordance
with this section. The priority list is one of the criteria that
shall be considered by the authority deciding how the available
funds should be expended;
(G) The objective means to be set forth in the plan and used
in evaluating implementation of the overall plan and each project
included in the plan. The evaluation must measure how the plan
addresses the goals of this article and any guidelines adopted
under this article, and how each project is in furtherance of the
facilities plan and school major improvement plan, as applicable,
as well as the importance of the project to the overall success of
the facilities plan or school major improvement plan and the overall goals of the authority; and
(H) Any other matters considered by the authority to be
important reflections of how a construction project or a major
improvement project or projects will further the overall goals of
this article.
(2) Guidelines and procedures which may be adopted by the
authority for requiring that a county board modify, update,
supplement or otherwise submit changes or additions to an approved
facilities plan or for requiring that a county board, the state
board or the administrative council of an area vocational
educational center modify, update, supplement or otherwise submit
changes or additions to an approved school major improvement plan.
The authority shall provide reasonable notification and sufficient
time for the change or addition as delineated in guidelines
developed by the authority.
(3) Guidelines and procedures for evaluating project proposals
that are submitted to the authority that address, but are not
limited to, the following:
(A) Any project funded by the authority must be in furtherance
of the facilities plan or school major improvement plan and in
compliance with the guidelines established by the authority;
(B) If a project is to benefit more than one county in the
region, the facilities plan must state the manner in which the cost
and funding of the project will be apportioned among the counties;
(C) If a county board proposes to finance a construction
project through a lease with an option to purchase pursuant to an investment contract as described in subsection (f), section fifteen
of this article, the specifications for the project must include
the term of the lease, the amount of each lease payment, including
the payment due upon exercise of the option to purchase, and the
terms and conditions of the proposed investment contract; and
(D) The objective criteria for the evaluation of projects
which shall include, but are not limited to, the following:
(i) How the current facilities do not meet and how the plan
and any project under the plan meets the following:
(I) Student health and safety including, but not limited to,
critical health and safety needs;
(II) Economies of scale, including compatibility with similar
schools that have achieved the most economical organization,
facility use and pupil-teacher ratios;
(III) Reasonable travel time and practical means of addressing
other demographic considerations;
(IV) Multicounty and regional planning to achieve the most
effective and efficient instructional delivery system;
(V) Curriculum improvement and diversification, including the
use of instructional technology, distance learning and access to
advanced courses in science, mathematics, language arts and social
studies;
(VI) Innovations in education;
(VII) Adequate space for projected student enrollments;
(VIII) The history of efforts taken by the county board to
propose or adopt local school bond issues or special levies to the extent constitutionally permissible; and
(IX) Regularly scheduled preventive maintenance; and
(ii) How the project will assure the prudent and resourceful
expenditure of state funds and achieve the purposes of this article
for constructing, expanding, renovating or otherwise improving and
maintaining school facilities for a thorough and efficient
education.
(4) Guidelines and procedures for evaluating projects for
funding that address, but are not limited to, the following:
(A) Requiring each county board's facilities plan and school
major improvement plan to prioritize all the construction projects
or major improvement projects, respectively, within the county. A
school major improvement plan submitted by the state board or the
administrative council of an area vocational educational center
shall prioritize all the school improvement projects contained in
the plan. The priority list shall be one of the criteria to be
considered by the authority in determining how available funds
shall be expended. In prioritizing the projects, the county board,
the state board or the administrative council submitting a plan
shall make determinations in accordance with the objective criteria
formulated by the school building authority;
(B) The return to each county submitting a project proposal an
explanation of the evaluative factors underlying the decision of
the authority to fund or not to fund the project; and
(C) The allocation and expenditure of funds in accordance with
this article, subject to the availability of funds.
(b) Prior to final action on approving projects for funding
under this article, the authority shall submit a certified list of
the projects to the joint committee on government and finance.
(c) The state department of education shall conduct on-site
inspections, at least annually, of all facilities which have been
funded wholly or in part by moneys from the authority or state
board to ensure compliance with the county board's facilities plan
and school major improvement plan as related to the facilities; to
preserve the physical integrity of the facilities to the extent
possible; and to otherwise extend the useful life of the
facilities: Provided, That the state board shall submit reports
regarding its on-site inspections of facilities to the authority
within thirty days of completion of the on-site inspections:
Provided, however, That the state board shall promulgate rules
regarding the on-site inspections and matters relating thereto, in
consultation with the authority, as soon as practical and shall
submit proposed rules for legislative review no later than the
first day of December, one thousand nine hundred ninety-four.
(d) Based on its on-site inspection or notification by the
authority to the state board that the changes or additions to a
county board's facilities plan or school major improvement plan
required by the authority have not been implemented within the time
period prescribed by the authority, the state board shall restrict
the use of the necessary funds or otherwise allocate funds from
moneys appropriated by the Legislature for those purposes set forth
in section nine, article nine-a of this chapter.;
And,
That both houses recede from their respective positions as to
the title of the bill and agree to the same as follows:
Eng. House Bill No. 4601--A Bill to amend and reenact §18-9A-7
of the code of West Virginia, 1931, as amended; and to amend and
reenact §18-9D-2, §18-9D-6, §18-9D-8, §18-9D-15 and §18-9D-16 of
said code, all relating to public education; suspending basic
foundation allocation for bus replacement and providing allocation
for academic trips for one school year; school building authority;
redefining certain terms; correcting references; allowing
expenditure of certain moneys for vocational programs at
comprehensive high schools and vocational schools cooperating with
community and technical college programs; encouraging cooperation
relating to vocational-technical facilities; authorizing
appropriation of up to certain amount of school construction funds
for budget purposes for next school year only; providing that
excess lottery revenues not be transferred to school construction
fund for the next school year only, with funds made available for
legislative appropriation; project submission and evaluation;
requiring facilities plan as condition of receiving funds;
providing for certain guidelines and procedures by authority for
plans, plan modifications and evaluating projects; clarifying that
certain revenues can only be expended on projects authorized in
accordance with the guidelines and procedures section; and
providing for certified list of projects to joint committee.
Respectfully submitted,
Larry A. Williams, Chair, Randy Swartzmiller, Everette W.
Anderson, Jr., Conferees of the part of the House of Delegates.
Robert H. Plymale, Chair, Larry J. Edgell, Donna J. Boley,
Conferees on the part of the Senate.
Senator Plymale, Senate cochair of the committee of
conference, was recognized to explain the report.
Thereafter, on motion of Senator Plymale, the report was taken
up for immediate consideration and adopted.
Engrossed House Bill No. 4601, as amended by the conference
report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were: Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, Minard, Minear,
Plymale, Prezioso, Ross, Rowe, Sharpe, Snyder, Unger, White and
Tomblin (Mr. President)--26.
The nays were: Guills, Harrison, McKenzie, Oliverio, Smith,
Sprouse and Weeks--7.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4601) passed with its conference amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Helmick, Hunter,
Jenkins, Kessler, Love, McCabe, Minard, Minear, Plymale, Prezioso,
Ross, Rowe, Sharpe, Snyder, Unger, White and Tomblin (Mr. President)--26.
The nays were: Guills, Harrison, McKenzie, Oliverio, Smith,
Sprouse and Weeks--7.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4601) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the adoption by that body of the committee of conference report,
passage as amended by the conference report with its conference
amended title, to take effect from passage, and requested the
concurrence of the Senate in the adoption thereof, as to
Eng. House Bill No. 4107, Allowing licensees of charitable
bingo and raffle games to transfer game proceeds between their
bingo and raffle operations.
Whereupon, Senator Fanning, from the committee of conference
on matters of disagreement between the two houses, as to
Eng. House Bill No. 4107, Allowing licensees of charitable
bingo and raffle games to transfer game proceeds between their
bingo and raffle operations.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendments of the Senate to Engrossed House
Bill No. 4107 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as
follows:
That both houses recede from their respective positions as to
the amendment of the Senate, striking out everything after the
enacting clause, and agree to the same as follows:
That §47-20-11, §47-20-12a and §47-20-16 of the code of West
Virginia, 1931, as amended, be amended and reenacted; and that
§47-21-12 and §47-21-16 of said code be amended and reenacted, all
to read as follows:
ARTICLE 20. CHARITABLE BINGO.
§47-20-11. Operator of bingo games and related concessions.
(a) Except as provided in sections thirteen and twenty-two of
this article, the only persons, as defined in section two of this
article, who are residents that may participate in any manner in
the conduct of any bingo game or operate any concession in
conjunction with a bingo occasion are either:
_____(1) Residents of this state and who are active members of the
licensee organization or its authorized auxiliary organization and
who have been active members in good standing of the licensee
organization or its authorized auxiliary for at least two years
prior to the date of filing of the application for a charitable
bingo license or the most recent filing of an application for
renewal of the license; may participate in any manner in the
conduct of any bingo game or operate any concession in conjunction
with a bingo occasion: Provided, That notwithstanding or
_____(2) Employees of the licensee organization or its authorized auxiliary organization who are:
_____(A) Residents of this state;
_____(B) Residents of a state bordering this state if the county of
his or her residence is contiguous to the county in this state in
which the bingo operation is conducted; or
_____(C) Residents of a bordering state who reside within thirty-
five miles of the county in which the bingo operation is conducted.
_____(b) Notwithstanding anything contained in this article to the
contrary, no individual under the age of eighteen years may,
directly or indirectly, participate in the conduct of a bingo game,
except for junior firefighters, in accordance with the provisions
of this article.
§47-20-12a. Compensation of bingo operator; number of employees.
(a) Within the guidelines set forth in subsections (b), (c)
and (d) of this section, a licensee may pay a salary, the minimum
of which shall be established at is the federal minimum wage and
the maximum being of which is six dollars and fifty cents per hour,
to operators of bingo games who are active either:
_____(1) Active members of the licensee organization and who have
been active members in good standing for at least two years prior
to the date of filing of the application for a charitable bingo
license or the most recent filing of an application for renewal of
the license; or
_____(2) Employees of the licensee organization or its authorized
auxiliary organization who are:
_____(A) Residents of this state;
_____(B) Residents of a state bordering this state if the county of
his or her residence is contiguous to the county in this state in
which the bingo operation is conducted; or
_____(C) Residents of a bordering state who reside within thirty-
five miles of the county in which the bingo operation is conducted.
(b) If the licensee's gross receipts from bingo occasions
equal or exceed one hundred thousand dollars for the licensee's
most recently filed annual financial report, a salary may be paid
to not more than eight operators.
(c) If the licensee's gross receipts from bingo occasions are
less than one hundred thousand dollars, but equal or exceed fifty
thousand dollars for the licensee's most recently filed annual
financial report, a salary may be paid to not more than five
operators.
(d) If the licensee's gross receipts from bingo occasions are
less than fifty thousand dollars for the licensee's most recently
filed annual financial report, a salary may be paid to not more
than three operators.
(e) If the licensee also possesses a super bingo license, it
may pay a salary to not more than fifteen operators during the
super bingo occasion.
(f) In the case of a licensee lawfully holding a charitable
bingo occasion simultaneously with a charitable raffle occasion,
the number of paid charitable bingo operator employees allowed
under this limitation for bingo licensees shall be is in addition
to the number of charitable raffle operator employees allowed under section fifteen, article twenty-one of this chapter. Licensees
holding simultaneous occasions shall pay bingo operators from the
proceeds of bingo operations and shall pay raffle operators from
the proceeds of raffle operations and the charitable bingo fund and
the charitable raffle fund and payments from the funds shall may
not be commingled.
(g) For purposes of the limitations set forth in this section,
the term "operator" or "bingo operator" or "raffle operator" shall
does not include concession stand workers. Wages paid to
concession workers shall may not exceed six dollars and fifty cents
per hour.
§47-20-16. Records; commissioner audit.
Any licensee which holds a bingo occasion as provided by this
article shall maintain a separate checking account and separate
book-keeping procedure for its bingo operations: Provided, That
nothing in this article restricts a licensee from transferring
moneys in the account from a bingo occasion to an account created
under section sixteen, article twenty-one of this chapter in an
amount not to exceed the actual loss of the raffle occasion
receiving the transfer: Provided, however, That money transferred
shall be withdrawn only by checks having preprinted consecutive
numbers and made payable to the account created under said section.
Money for expenses shall be withdrawn only by checks having
preprinted consecutive numbers and made payable to a specific
person, firm or corporation and at no time shall a check be made
payable to cash. A licensee shall maintain all records required by this article for at least three years and the records shall be open
to the commissioner for reasonable inspection. Whenever the tax
commissioner has reasonable cause to believe a licensee has
violated any of the provisions of this article, he or she may
perform or cause to be performed an audit of the licensee's books
and records: Provided further, That the tax commissioner shall
perform or cause to be performed an audit of the books and records
of any licensee that has awarded total prizes in excess of one
hundred seventy-five thousand dollars. The tax commissioner shall
file a copy of the completed audit with the county commission of
the county wherein the licensee holds bingo occasions.
ARTICLE 21. CHARITABLE RAFFLES.
§47-21-12. Compensation.
(a) A licensee may pay a salary, the minimum of which shall be
established at is the federal minimum wage and the maximum of which
shall be is six dollars and fifty cents per hour, to operators of
charitable raffle games who are active either:
_____(1) Active members of the licensee organization and who have
been active members in good standing for at least two years prior
to the date of filing of the application for a charitable raffle
license or the most recent filing of an application for renewal of
the license; or
_____(2) Employees of the licensee organization or its authorized
auxiliary organization who are:
_____(A) Residents of this state;
_____(B) Residents of a state bordering this state if the county of his or her residence is contiguous to the county in this state in
which the raffle operation is conducted; or
_____(C) Residents of a bordering state who reside within thirty-
five miles of the county in which the raffle operation is
conducted.
(b) If the licensee's gross receipts from raffle occasions
equal or exceed one hundred thousand dollars for the licensee's
most recently filed annual financial report, a salary may be paid
to not more than eight operators.
(c) If the licensee's gross receipts from charitable raffle
occasions are less than one hundred thousand dollars, but equal or
exceed fifty thousand dollars for the licensee's most recently
filed annual financial report, a salary may be paid to not more
than five operators.
(d) If the licensee's gross receipts from charitable raffle
occasions are less than fifty thousand dollars for the licensee's
most recently filed annual financial report, a salary may be paid
to no more than three operators.
(e) In the case of a licensee lawfully holding a charitable
bingo occasion simultaneously with a charitable raffle occasion,
the number of paid charitable raffle operator employees allowed
under this limitation for charitable raffle licensees is in
addition to the number of charitable bingo operator employees
allowed under section twelve-a, article twenty of this chapter.
Licensees holding simultaneous occasions shall pay bingo operators
from the proceeds of bingo operations and shall pay raffle operators from the proceeds of raffle operations and the charitable
bingo fund and the charitable raffle fund and payments from the
funds shall may not be commingled.
(f) For purposes of the limitations set forth in this section,
the term "operator" or "bingo operator" or "raffle operator" shall
does not include concession stand workers. Wages paid to
concession workers shall may not exceed six dollars and fifty cents
per hour.
§47-21-16. Records; commissioner audit.
Any licensee which holds a raffle occasion as provided by this
article shall maintain a separate account and separate book-keeping
procedure for its raffle operations: Provided, That nothing in
this article restricts a licensee from transferring moneys in the
account from a raffle occasion to an account created under section
sixteen, article twenty of this chapter in an amount not to exceed
the actual loss of the raffle occasion receiving the transfer:
Provided, however, That money transferred shall be withdrawn only
by checks having preprinted consecutive numbers and made payable to
the account created under said section. All records required by
this article shall be maintained for at least three years and shall
be open to the commissioner for reasonable inspection. Whenever
the commissioner has reasonable cause to believe a licensee has
violated any of the provisions of this article, he may perform or
cause to be performed an audit of the licensee's books and
records.;
And,
That both houses recede from their respective positions as to
the title of the bill and agree to the same as follows:
Eng. House Bill No. 4107--A Bill to amend and reenact
§47-20-11, §47-20-12a and §47-20-16 of the code of West Virginia,
1931, as amended; and to amend and reenact §47-21-12 and §47-21-16
of said code, all relating to charitable bingo and charitable
raffles; allowing certain employees to operate bingo and raffle
games; allowing game proceeds to be transferred, by check, between
raffle and bingo accounts to offset losses; and allowing certain
residents of other states to be employed by charitable bingo and
charitable raffle operations.
Respectfully submitted,
K. Steven Kominar, Chair, William F. Stemple, Robert A.
Schadler, Conferees on the part of the House of Delegates.
John Pat Fanning, Chair, Joseph M. Minard, Andy McKenzie,
Conferees on the part of the Senate.
On motions of Senator Fanning, severally made, the report of
the committee of conference was taken up for immediate
consideration and adopted.
Engrossed House Bill No. 4107, as amended by the conference
report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Snyder,
Unger, White and Tomblin (Mr. President)--27.
The nays were: Boley, Guills, Harrison, Smith, Sprouse and
Weeks--6.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4107) passed with its conference amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bowman, Caldwell, Chafin,
Deem, Dempsey, Edgell, Facemyer, Fanning, Helmick, Hunter, Jenkins,
Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Ross, Rowe, Sharpe, Snyder, Unger, White and Tomblin (Mr.
President)--27.
The nays were: Boley, Guills, Harrison, Smith, Sprouse and
Weeks--6.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4107) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the adoption by that body of the committee of conference report,
passage as amended by the conference report with its conference
amended title, to take effect from passage, and requested the
concurrence of the Senate in the adoption thereof, as to
Eng. Com. Sub. for House Bill No. 4377, Assessing a penalty on those physicians who fail to pay the special assessment.
Whereupon, Senator Kessler, from the committee of conference
on matters of disagreement between the two houses, as to
Eng. Com. Sub. for House Bill No. 4377, Assessing a penalty on
those physicians who fail to pay the special assessment.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendments of the Senate to Engrossed
Committee Substitute for House Bill No. 4377 having met, after full
and free conference, have agreed to recommend and do recommend to
their respective houses, as follows:
That both houses recede from their respective positions as to
the amendment of the Senate, striking out everything after the
enacting clause, and agree to the same as follows:
That §30-3-12 of the code of West Virginia, 1931, as amended,
be amended and reenacted; that §30-14-10 of said code be amended
and reenacted; and that §33-20F-4, §33-20F-5 and §33-20F-7 of said
code be amended and reenacted, all to read as follows:
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-12. Biennial renewal of license to practice medicine and
surgery or podiatry; continuing education; rules; fee;
inactive license.
(a) A license to practice medicine and surgery or podiatry in
this state is valid for a term of two years and shall be renewed
upon a receipt of a reasonable fee, as set by the board, submission of an application on forms provided by the board and, beginning
with the biennial renewal application forms completed by licensees
and submitted to the board in one thousand nine hundred
ninety-three, a certification in accordance with rules and
regulations promulgated by the board in accordance with chapter
twenty-nine-a of this code of participation in and successful
completion of a minimum of fifty hours of continuing medical or
podiatric education satisfactory to the board, as appropriate to
the particular license, during the preceding two-year period.
Continuing medical education satisfactory to the board is
continuing medical education designated as Category I by the
American medical association or the academy of family physicians
and continuing podiatric education satisfactory to the board is
continuing podiatric education approved by the council on podiatric
education.
In addition, the Legislature hereby finds and declares that it
is in the public interest to encourage alternate categories of
continuing education satisfactory to the board for physicians and
podiatrists. In order to provide adequate notice of the same to
physicians and podiatrists, no later than the first day of June,
one thousand nine hundred ninety-one, the board shall file rules
under the provisions of section fifteen, article three, chapter
twenty-nine-a of this code, delineating any alternate categories of
continuing medical or podiatric education which may be considered
satisfactory to the board and any procedures for board approval of
such continuing education.
Notwithstanding any provision of this chapter to the contrary,
failure to timely submit to the board a certification in accordance
with rules and regulations promulgated by the board in accordance
with chapter twenty-nine-a of this code of successful completion of
a minimum of fifty hours of continuing medical or podiatric
education satisfactory to the board, as appropriate to the
particular license, shall, beginning the first day of July, one
thousand nine hundred ninety-three, result in the automatic
suspension of any license to practice medicine and surgery or
podiatry until such time as the certification in accordance with
rules and regulations promulgated by the board in accordance with
chapter twenty-nine-a of this code, with all supporting written
documentation, is submitted to and approved by the board.
Any individual who accepts the privilege of practicing
medicine and surgery or podiatry in this state is required to
provide supporting written documentation of the continuing
education represented as received within thirty days of receipt of
a written request to do so by the board. If a licensee fails or
refuses to provide supporting written documentation of the
continuing education represented as received as required in this
section, such failure or refusal to provide supporting written
documentation is prima facie evidence of renewing a license to
practice medicine and surgery or podiatry by fraudulent
misrepresentation.
(b) The board may renew, on an inactive basis, the license of
a physician or podiatrist who is currently licensed to practice medicine and surgery or podiatry in, but is not actually
practicing, medicine and surgery or podiatry in this state. A
physician or podiatrist holding an inactive license shall not
practice medicine and surgery or podiatry in this state. His or
her inactive license may be converted by the board to an active one
upon a written request to the board that accounts for his or her
period of inactivity to the satisfaction of the board: Provided,
That beginning on the first day of July, one thousand nine hundred
ninety-three, such licensee submits written documentation of
participation in and successful completion of a minimum of fifty
hours of continuing medical or podiatric education satisfactory to
the board, as appropriate to the particular license, during each
preceding two-year period. An inactive license may be obtained
upon receipt of a reasonable fee, as set by the board, and
submission of an application on forms provided by the board on a
biennial basis.
(c) The board shall not require any physician or podiatrist
who is retired or retiring from the active practice of medicine and
surgery or the practice of podiatry and who is voluntarily
surrendering their license to return to the board the license
certificate issued to them by the board.
ARTICLE 14. OSTEOPATHIC PHYSICIANS AND SURGEONS.
§30-14-10. Annual renewal of license; fee; refresher training a
prerequisite; effect of failure to renew; reinstatement.
(a) All holders of certificates of license to practice as
osteopathic physicians and surgeons in this state shall renew them biennially on or before the first day of July, by the payment of a
reasonable renewal fee, the amount of such reasonable fee to be set
by the board rules to the secretary of the board. The secretary of
the board shall notify each certificate holder by mail of the
necessity of renewing his or her certificate at least thirty days
prior to the first day of July of each year.
(b) As a prerequisite to renewal of a certificate of license
issued by the board, each holder of such a certificate shall
furnish biennially to the secretary of the board satisfactory
evidence of having completed thirty-two hours of educational
refresher course training, of which the total amount of hours must
be AOA approved, and fifty percent of the required thirty-two hours
shall be category (1).
(c) The failure to renew a certificate of license shall
operate as an automatic suspension of the rights and privileges
granted by its issuance. The board may propose rules for
legislative approval, pursuant to the provisions of article three,
chapter twenty-nine-a of this code, providing that an osteopathic
physician may renew a certificate of license on an inactive basis.
_____(d) A certificate of license suspended by a failure to make a
biennial renewal thereof may be reinstated by the board upon
compliance of the certificate holder with the following
requirements:
(a) (1) Presentation to the board of satisfactory evidence of
educational refresher training of quantity and standard approved by
the board for the previous two years;
(b) (2) Payment of all fees for the previous two years that
would have been paid had the certificate holder maintained his or
her certificate in good standing; and
(c) (3) Payment to the board of a reasonable reinstatement
fee, the amount of such reasonable fee to be set by the board
rules.
CHAPTER 33. INSURANCE.
ARTICLE 20F. PHYSICIANS' MUTUAL INSURANCE COMPANY.
§33-20F-4. Authorization for creation of company; requirements and
limitations.
(a) Subject to the provisions of this article, a physicians'
mutual insurance company may be created as a domestic, private,
nonstock, nonprofit corporation. As an incentive for its creation,
the company may be eligible for funds from the Legislature in
accordance with the provisions of section seven of this article.
The company must remain for the duration of its existence a
domestic mutual insurance company owned by its policyholders and
may not be converted into a stock corporation, a for-profit
corporation or any other entity not owned by its policyholders.
The company may not declare any dividend to its policyholders;
sell, assign or transfer substantial assets of the company; or
write coverage outside this state, except for counties adjoining
this state, until after any and all debts owed by the company to
the state have been fully paid.
(b) For the duration of its existence, the company is not and
may not be considered a department, unit, agency or instrumentality of the state for any purpose. All debts, claims, obligations and
liabilities of the company, whenever incurred, shall be the debts,
claims, obligations and liabilities of the company only and not of
the state or of any department, unit, agency, instrumentality,
officer or employee of the state.
(c) The moneys of the company are not and may not be
considered part of the general revenue fund of the state. The
debts, claims, obligations and liabilities of the company are not
and may not be considered a debt of the state or a pledge of the
credit of the state.
(d) The company is not subject to provisions of article nine-
a, chapter six of this code or the provisions of article one,
chapter twenty-nine-b of this code.
(e) (1) All premiums collected by the company are subject to
the premium taxes, additional premium taxes, additional fire and
casualty insurance premium taxes and surcharges contained in
sections fourteen, and fourteen-a, fourteen-d and thirty-three,
article three of this chapter: Provided, That while the loan to
the company of moneys from the West Virginia tobacco settlement
medical trust fund pursuant to section nine of this article remains
outstanding, the commissioner may waive the company's premium
taxes, and surcharges additional premium taxes and additional fire
and casualty insurance premium taxes if payment would render the
company insolvent or otherwise financially impaired.
(2) On and after the first day of July, two thousand three,
any premium taxes and surcharges additional premium taxes paid by the company and by any insurer on its medical malpractice line
pursuant to sections fourteen and fourteen-a, article three of this
chapter shall be temporarily applied toward replenishing the moneys
appropriated from the West Virginia tobacco settlement medical
trust fund pursuant to subsection (c), section two, article eleven-
a, chapter four of this code pending repayment of the loan of such
moneys by the company.
(3) The state treasurer shall notify the commissioner when the
moneys appropriated from the West Virginia tobacco settlement
medical trust have been fully replenished, at which time the
commissioner shall resume depositing premium taxes and surcharges
additional premium taxes diverted pursuant to subdivision (2) of
this subsection in accordance with the provisions of sections
fourteen and fourteen-a, article three of this chapter.
(4) Payments received by the treasurer from the company in
repayment of any outstanding loan made pursuant to section nine of
this article shall be deposited in the West Virginia tobacco
settlement medical trust fund and dedicated to replenishing the
moneys appropriated therefrom under subsection (c), section two,
article eleven-a, chapter four of this code. Once the moneys
appropriated from the West Virginia tobacco settlement medical
trust fund have been fully replenished, the treasurer shall deposit
any payments from the company in repayment of any outstanding loan
made pursuant to section nine of this article in said fund and
transfer a like amount from said fund to the commissioner for
disbursement in accordance with the provisions of sections fourteen and fourteen-a, article three of this chapter.
§33-20F-5. Governance and organization.
(a) (1) The board of risk and insurance management shall
implement the initial formation and organization of the company as
provided by this article.
(2) From the first day of July, two thousand three, until the
thirtieth day of June, two thousand four, the company shall be
governed by a provisional board of directors consisting of the
members of the board of risk and insurance management, the dean of
the West Virginia university school of medicine or a physician
representative designated by him or her, and five physician
directors, elected by the policyholders whose policies are to be
transferred to the company pursuant to section nine of this
article.
(3) Only physicians who are licensed to practice medicine in
this state pursuant to article three or fourteen, chapter thirty of
this code and who have purchased medical professional liability
coverage from the board of risk and insurance management are
eligible to serve as physician directors on the provisional board
of directors. One of the physician directors shall be selected
from a list of three physicians nominated by the West Virginia
medical association. The board of risk and insurance management
shall develop procedures for the nomination of the remaining
physician directors and for the conduct of the election, to be held
no later than the first day of June, two thousand three, of all of
the physician directors, including, but not limited to, giving notice of the election to the policyholders. These procedures shall
be exempt from the provisions of article three, chapter twenty-nine
twenty-nine-a of this code.
(b) From the first day of July, two thousand four, the company
shall be governed by a board of directors consisting of eleven
directors, as follows:
(1) Five directors who are physicians licensed to practice
medicine in this state by the board of medicine or the board of
osteopathy, including at least one general practitioner and one
specialist: Provided, That only physicians who have purchased
medical professional liability coverage from the board of risk and
insurance management are eligible to serve as physician
representatives on the company's first board of directors;
(2) Three directors who have substantial experience as an
officer or employee of a company in the insurance industry;
(3) Two directors with general knowledge and experience in
business management who are officers and employees of the company
and are responsible for the daily management of the company; and
(4) One director who is a dean of a West Virginia school of
medicine or osteopathy or his or her designated physician
representative. This director's position shall rotate annually
among the dean of the West Virginia university school of medicine,
the dean of the Marshall university Joan C. Edwards school of
medicine and the dean of the West Virginia school of osteopathic
medicine. This director shall serve until such time as the moneys
loaned to the company from the West Virginia tobacco settlement medical trust fund have been replenished as provided in subsection
(e), section four of this article. After the moneys have been
replenished to the West Virginia tobacco settlement medical trust
fund, this director shall be a physician licensed to practice
medicine in this state by the board of medicine or the board of
osteopathy.
(c) In addition to the eleven directors required by subsection
(b) of this section, the bylaws of the company may provide for the
addition of at least two directors who represent an entity or
institution which lends or otherwise provides funds to the company.
(d) The directors and officers of the company are to be chosen
in accordance with the articles of incorporation and bylaws of the
company. The initial board of directors selected in accordance
with the provisions of subdivision (3), subsection (a) of this
section shall serve for the following terms: (1) Three for four-
year terms; (2) three for three-year terms; (3) three for two-year
terms; and (4) two for one-year terms. Thereafter, the directors
shall serve staggered terms of four years. If an additional
director is added to the board as provided in subsection (c) of
this section, his or her initial term shall be for four years. No
director chosen pursuant to subsection (b) of this section may
serve more than two consecutive terms.
(e) The incorporators are to prepare and file articles of
incorporation and bylaws in accordance with the provisions of this
article and the provisions of chapters thirty-one and thirty-three
of this code.
§33-20F-7. Initial capital and surplus; special assessment; failure
to pay assessment; disposition of civil penalty collected.
(a) There is hereby created in the state treasury a special
revenue account designated as the "Board of Risk and Insurance
Management Physicians' Mutual Insurance Company Account" solely for
the purpose of receiving moneys transferred from the West Virginia
tobacco medical trust fund pursuant to subsection (c), section two,
article eleven-a, chapter four of this code for the company's use
as initial capital and surplus.
(b) On the first day of July, two thousand three, a special
one-time assessment, in the amount of one thousand dollars, shall
be imposed on every physician licensed by the board of medicine or
by the board of osteopathy for the privilege of practicing medicine
in this state: Provided, That the following physicians shall be
exempt from the assessment:
(1) A faculty physician who meets the criteria for full-time
faculty under subsection (f), section one, article eight, chapter
eighteen-b of this code, who is a full-time employee of a school of
medicine or osteopathic medicine in this state, and who does not
maintain a private practice;
(2) A resident physician who is a graduate of a medical school
or college of osteopathic medicine enrolled and who is
participating in an accredited full-time program of post-graduate
medical education in this state;
(3) A physician who has presented suitable proof that he or
she is on active duty in armed forces of the United States and who will not be reimbursed by the armed forces for the assessment;
(4) A physician who receives more than fifty percent of his or
her practice income from providing services to federally qualified
health center as that term is defined in 42 U. S. C. § 1396d(l)(2);
and
(5) A physician who practices solely under a special volunteer
medical license authorized by section ten-a, article three, chapter
thirty of this code or section twelve-b, article fourteen of said
chapter. The assessment is to be imposed and collected by the
board of medicine and the board of osteopathy on forms prescribed
by each licensing board; and
_____(6) A physician who is licensed on an inactive basis pursuant
to subsection (b), section twelve, article three, chapter thirty of
this code or section ten, article fourteen of said chapter or a
physician who voluntarily surrenders his license: Provided, That a
retired osteopathic physician, who submits to the board of
osteopathy an affidavit asserting that he or she receives no
monetary remuneration for any medical services provided, executed
under the penalty of perjury and if executed outside the state of
West Virginia, verified, may be considered to be licensed on an
inactive basis: Provided, however, That if a physician elects to
resume an active license to practice in the state and the physician
has never paid the assessment, then as a condition of receiving an
active status license, the physician must pay the special one-time
assessment.
(c) The entire proceeds of the special assessment collected pursuant to subsection (b) of this section shall be dedicated to
the company. The board of medicine and the board of osteopathy
shall promptly pay over to the company all amounts collected
pursuant to this section to be used as policyholder surplus for the
company.
(d) Any physician who applies to purchase insurance from the
company and who has not paid the assessment pursuant to subsection
(b) of this section shall pay one thousand dollars to the company
as a condition of obtaining insurance from the company.
(e) A physician who fails to pay the special one-time
assessment imposed on the first day of July, two thousand three,
pursuant to subsection (b) of this section, on or before the
thirtieth day of June, two thousand four, or when the license is
due for renewal, whichever is earlier, and has received written
notice of the assessment and option to elect inactive status, at
least thirty days before the licensure renewal date or by the
thirtieth day of May, two thousand four, is subject to a civil
penalty in the amount of two hundred fifty dollars payable to
either the board of medicine or the board of osteopathy.
Furthermore, and notwithstanding any provision of chapter thirty to
the contrary, the board of medicine or the board of osteopathy
shall immediately suspend the license to practice medicine or
podiatry of any physician who received notice and failed to pay the
special assessment by the first day of July, two thousand four.
Any license to practice medicine suspended pursuant to this section
shall remain suspended until both the special assessment and the civil penalty are paid in full.
_____(f) The entire proceeds of the civil penalty collected
pursuant to subsection (e) of this section shall be dedicated to
the company. The board of medicine and the board of osteopathy
shall promptly pay over to the company all amounts collected
pursuant to said subsection to be used as policyholder surplus for
the company.
_____(g) The requirements of subsections (b), (c), (d), (e) and (f)
of this section shall terminate on the first day of January, two
thousand eight, unless continued or reestablished.;
And,
That both houses recede from their respective positions as to
the title of the bill and agree to the same as follows:
Eng. Com. Sub. for House Bill No. 4377--A Bill to amend and
reenact §30-3-12 of the code of West Virginia, 1931, as amended; to
amend and reenact §30-14-10 of said code; and to amend and reenact
§33-20F-4, §33-20F-5 and §33-20F-7 of said code, all relating to
physicians generally; permitting a physician who allows his or her
medical license to expire upon retirement to retain the license
certificate issued by the board of medicine; requiring the board of
osteopathy to propose legislative rules; clarifying and correcting
the premium taxes that the physicians' mutual insurance company
will be subject to; physicians exempt from the special assessment;
providing for suspension and a civil penalty for failure to pay the
special assessment; and sunset provision.
Respectfully submitted,
Virginia Mahan, Chair, Bonnie Brown, John N. Ellem, Conferees
on the part of the House of Delegates.
Jeffrey V. Kessler, Chair, Evan H. Jenkins, Steve Harrison
(Did not sign), Conferees on the part of the Senate.
Senator Kessler, Senate cochair of the committee of
conference, was recognized to explain the report.
Thereafter, on motion of Senator Kessler, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for House Bill No. 4377, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, 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. 4377) passed with its conference amended
title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4377) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate again proceeded to the sixth order of business.
Senator White presented a petition from Christi M. Viney and
twenty-five West Virginia residents, supporting Senate Bill No. 74
(Relating to racial profiling by police during traffic stop).
Referred to the Committee on the Judiciary.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 176, Relating to
investments and investment practices of insurance companies.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page three, after the enacting section, by inserting the
following:
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-2. Compensation and expenses of commissioner and employees;
location of office.
The
Notwithstanding any other provisions in the code to the
contrary, the commissioner shall receive an annual salary of forty-
seven thousand eight hundred seventy-five thousand dollars and
actual expenses incurred in the performance of official business,
which compensation shall be in full for all services. The office
of the commissioner shall be maintained in the capitol or other
suitable place in Charleston. The commissioner may employ such
persons and incur such expenses as may be necessary in the
discharge of his or her duties and shall fix the compensation of
such employees, but such compensation shall not exceed the
appropriation therefor. The commissioner may reimburse employees
for reasonable expenses incurred for job-related training and
educational seminars and courses. All compensation for salaries
and expenses of the commissioner and his or her employees shall be
paid monthly out of the state treasury by requisition upon the
auditor, properly certified by the commissioner.;
On page seventy, section thirteen, lines fourteen and fifteen,
by striking out the words "may not be subject to this section but
are" and inserting in lieu thereof the words "is not subject to
this section but is";
On page one hundred nineteen, section twenty-six, line ten,
after the word "policyholders" by changing the period to a colon
and inserting the following proviso: Provided, That the aggregate
investments of a health maintenance organization may not exceed the
greater of thirty percent of its admitted assets or one hundred
percent of its total capital and surplus.;
On page one hundred forty-eight, section ten, line three, by
striking out the words "Fifty percent" and inserting in lieu
thereof the words "The first two million dollars";
On pages two and three, by striking out the enacting section
and inserting in lieu thereof a new enacting section, to read as
follows:
That §33-2-2 of the code of West Virginia, 1931, as amended,
be amended and reenacted; that §33-3-6 of said code be amended and
reenacted; that §33-8-1, §33-8-2, §33-8-3, §33-8-4, §33-8-5,
§33-8-6, §33-8-7, §33-8-8, §33-8-9, §33-8-10, §33-8-11, §33-8-12,
§33-8-13, §33-8-14, §33-8-15, §33-8-16, §33-8-17, §33-8-18,
§33-8-19, §33-8-20, §33-8-21, §33-8-22, §33-8-23, §33-8-24 and
§33-8-25 of said code be amended and reenacted; that said code be
amended by adding thereto seven new sections, designated §33-8-26,
§33-8-27, §33-8-28, §33-8-29, §33-8-30, §33-8-31 and §33-8-32; that
§33-9-3 of said code be amended and reenacted; that §33-22-11 of
said code be amended and reenacted; that §33-23-31 of said code be
amended and reenacted; that §33-24-10 of said code be amended and
reenacted; that §33-25A-4 of said code be amended and reenacted;
that §33-25D-5 of said code be amended and reenacted; and that §33-27-2a of said code be amended and reenacted, all to read as
follows:
;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 176--A Bill
to amend and
reenact §33-2-2
of the code of West Virginia, 1931, as amended; to
amend and reenact §33-3-6 of said code; to amend and reenact
§33-8-1, §33-8-2, §33-8-3, §33-8-4, §33-8-5, §33-8-6, §33-8-7,
§33-8-8, §33-8-9, §33-8-10, §33-8-11, §33-8-12, §33-8-13, §33-8-14,
§33-8-15, §33-8-16, §33-8-17, §33-8-18, §33-8-19, §33-8-20,
§33-8-21, §33-8-22, §33-8-23, §33-8-24 and §33-8-25 of said code;
to amend said code by adding thereto seven new sections, designated
§33-8-26, §33-8-27, §33-8-28, §33-8-29, §33-8-30, §33-8-31 and
§33-8-32; to amend and reenact §33-9-3 of said code; to amend and
reenact §33-22-11 of said code; to amend and reenact §33-23-31 of
said code; to amend and reenact §33-24-10 of said code; to amend
and reenact §33-25A-4 of said code; to amend and reenact §33-25D-5
of said code; and to amend and reenact §33-27-2a of said code, all
relating generally to insurance; increasing the salary of the
insurance commissioner; modernizing investment standards and
practices of insurance companies; and correcting references to
amended sections of this chapter.
On motion of Senator Minard, the following amendments to the
House of Delegates amendments to the bill were reported by the
Clerk, considered simultaneously, and adopted:
On page two, by striking out all of section two in its
entirety;
On page two, by striking out the enacting section and
inserting in lieu thereof a new enacting section, to read as
follows:
That §33-3-6 of the code of West Virginia, 1931, as amended,
be amended and reenacted; that §33-8-1, §33-8-2, §33-8-3, §33-8-4,
§33-8-5, §33-8-6, §33-8-7, §33-8-8, §33-8-9, §33-8-10, §33-8-11,
§33-8-12, §33-8-13, §33-8-14, §33-8-15, §33-8-16, §33-8-17,
§33-8-18, §33-8-19, §33-8-20, §33-8-21, §33-8-22, §33-8-23,
§33-8-24 and §33-8-25 of said code be amended and reenacted; that
said code be amended by adding thereto seven new sections,
designated §33-8-26, §33-8-27, §33-8-28, §33-8-29, §33-8-30,
§33-8-31 and §33-8-32; that §33-9-3 of said code be amended and
reenacted; that §33-22-11 of said code be amended and reenacted;
that §33-23-31 of said code be amended and reenacted; that
§33-24-10 of said code be amended and reenacted; that §33-25A-4 of
said code be amended and reenacted; that §33-25D-5 of said code be
amended and reenacted; and that §33-27-2a of said code be amended
and reenacted, all to read as follows:;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 176--A Bill to amend and
reenact §33-3-6 of the code of West Virginia, 1931, as amended; to
amend and reenact §33-8-1, §33-8-2, §33-8-3, §33-8-4, §33-8-5, §33-8-6, §33-8-7, §33-8-8, §33-8-9, §33-8-10, §33-8-11, §33-8-12,
§33-8-13, §33-8-14, §33-8-15, §33-8-16, §33-8-17, §33-8-18,
§33-8-19, §33-8-20, §33-8-21, §33-8-22, §33-8-23, §33-8-24 and
§33-8-25 of said code; to amend said code by adding thereto seven
new sections, designated §33-8-26, §33-8-27, §33-8-28, §33-8-29,
§33-8-30, §33-8-31 and §33-8-32; to amend and reenact §33-9-3 of
said code; to amend and reenact §33-22-11 of said code; to amend
and reenact §33-23-31 of said code; to amend and reenact §33-24-10
of said code; to amend and reenact §33-25A-4 of said code; to amend
and reenact §33-25D-5 of said code; and to amend and reenact §33-
27-2a of said code, all relating to investments and investment
practices of insurance companies; and correcting references to
amended sections of article eight, chapter thirty-three of said
code.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as amended.
Engrossed Committee Substitute for Senate Bill No. 176, as
amended, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 176) passed with its Senate amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect July 1, 2004, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 204, Relating
to strategic research and development tax credit.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page six, section six, line eighty-seven, by striking out
the word "is" and inserting in lieu thereof the word "if";
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 204--A Bill
to amend and reenact §11-13R-6, §11-13R-11 and §11-13R-12 of the
code of West Virginia, 1931, as amended, all relating to the
strategic research and development tax credit; providing that the
credit may be refundable for small qualified research and development companies; specifying limitations on credit; requiring
certain reporting; and providing an effective date.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 204, as amended by the House of Delegates, was then
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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 204) passed with its House of
Delegates amended title.
Senator Chafin moved that the bill take effect July 1, 2004.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 204) takes effect July 1,
2004.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 230, Relating to
definitions of casualty insurance and federal flood insurance;
other provisions.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On
page seventeen, section fourteen, line ninety-nine, after
the word "treasurer" by striking out the remainder of the bill and
inserting in lieu thereof the words "is restricted to and shall
distribute from the flood insurance tax fund for activities which
promote and enhance floodplain management issues and for subgrants
to local units of government and other eligible entities after full
consideration of the recommendations of the office of emergency services.".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 230, as
amended by the House of Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 230) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 271, Relating to racial
profiling data collection.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
CHAPTER 17F. RACIAL PROFILING DATA COLLECTION ACT.
ARTICLE 1. RACIAL PROFILING DATA COLLECTION.
§17F-1-1. Definitions.
The following words and phrases, when used in this chapter,
shall, for the purposes of this chapter, have the meanings
respectively ascribed to them in this article:
(a) "Gross data" means aggregate data regarding the
information obtained under section two of this article.
(b) "Law-enforcement agency" means every state, county or
municipal agency with officers who are authorized to direct or
regulate traffic or to make arrests or issue citations or warnings
for violations of traffic laws and ordinances.
(c) "Minority group" means individuals of any ethnic descent,
including, but not limited to, African-American, Hispanic, native
American, middle eastern, Asian or Pacific islander.
§17F-1-2.
Information obtained by law-enforcement officers during
a traffic stop.
Each time a law-enforcement officer stops a driver of a motor
vehicle for a violation of any motor vehicle statute or ordinance,
other than for a nonviolation stop, including, but not limited to,
a checkpoint for driving under the influence, license, registration
or seat belts, the officer shall obtain and prepare a brief report based on the officer's visual observation and perception of basic
information about the nature, duration and outcome of the stop,
including, but not limited to, information relating to the
perceived racial characteristics of each operator stopped. The
report is to be provided to the West Virginia law-enforcement
agency which employs the law-enforcement officer: Provided, That
the failure of the law-enforcement officer to obtain and report
racial profiling data shall not affect the validity of the
underlying traffic citation or warning.
The information to be collected shall include:
(a) The identifying characteristics of the operator stopped,
including perceived race, ethnicity or national origin, gender and
age;
(b) The location and duration of the stop;
(c) The traffic violation or violations alleged to have been
committed that led to the stop;
(d) Whether or not a warning or citation was issued as a
result of the stop and, if so, the specific violation, if any,
charged or warning given;
(e) Whether a search was performed as a result of the stop;
(f) If a search was performed, whether the person consented to
the search, the probable cause or reasonable suspicion for the
search, whether the person was searched, whether the person's
property was searched and the duration of the search;
(g) If a search was of a passenger in the motor vehicle, the
perceived age, gender and race or minority group of the passenger;
(h) Whether any contraband was discovered or seized in the
course of the search and the type of any contraband discovered or
seized;
(i) Identify whether the search involved canine units or
advanced technology; and
(j) Any additional information which the law-enforcement
agency considers appropriate.
§17F-1-3. Law-enforcement officer exemption from civil liability.
Any law-enforcement officer who, in good faith, records
traffic stop information under the requirements of section two of
this article may not be held civilly liable for the act of
inaccurately recording the information unless the officer's conduct
was unconstitutional, unreasonable, intentional or reckless.
ARTICLE 2. ANALYSIS OF TRAFFIC STOPS STUDY AND ANNUAL REPORT BY
DIRECTOR OF THE GOVERNOR'S COMMITTEE ON CRIME,
DELINQUENCY AND CORRECTION.
§17F-2-1. Format of traffic stops data collection forms.
The division of motor vehicles shall provide a form as
required by section three of this article, in both printed and
electronic format, to be used by law-enforcement officers when
making a traffic stop to record the information listed in section
two, article one of this chapter.
§17F-2-2. Law-enforcement agency traffic stops data collection and
submission.
(a) Each law-enforcement agency shall report its data
described in section two, article one of this chapter to the division of motor vehicles in a report format as prescribed by the
division.
(b) If a law-enforcement agency fails to comply with the
provisions of this section, the division of motor vehicles shall
notify the agency by certified mail of its failure to comply. If
the agency continues to fail to comply, the governor may withhold
state-controlled funds appropriated to the noncompliant
law-enforcement agency until reports are made as required by this
article.
§17F-2-3. Analysis of traffic stop statistics, annual report and
legislative rules.
(a) To facilitate the commencement of data collection on the
first day of January, two thousand five, the director of the
governor's committee on crime, delinquency and correction, in
consultation with the division of motor vehicles, shall propose
emergency and legislative rules in accordance with article three,
chapter twenty-nine-a of this code. These rules shall include, but
are not limited to:
(1) The manner of reporting the information to the division of
motor vehicles;
(2) Promulgation of a form or forms for reporting purposes by
various law-enforcement agencies;
(3) A means of reporting the information required in section
two, article one of this chapter on warning citations to the
division of motor vehicles;
(4) In consultation with the fraternal order of police, the sheriff's association, the deputy sheriff's association and
representatives of law-enforcement agencies, a means of providing
training to law-enforcement officers on completion and submission
of the data on the proposed form;
(5) A means of reporting back to individual law-enforcement
agencies, from time to time, at the request of a law-enforcement
agency on findings specific to that agency in an agreed-upon format
to allow the agency to evaluate independently the data provided;
(6) A limitation that the data is to be used solely for the
purposes of this chapter;
(7) Safeguards to protect the identity of individual law-
enforcement officers collecting data required by section two,
article one of this chapter when no citation or warning is issued;
(8) Methodology for collection of gross data by law-
enforcement agencies and the analysis of the data;
(9) The number of motor vehicle stops and searches of motor
vehicles occupied by members of a perceived minority group; the
number of motor vehicle stops and searches of motor vehicles
occupied by persons who are not members of a minority group; the
population of minorities in the areas where the stops occurred;
estimates of the number of all vehicles traveling on the public
highways where the stops occurred; factors to be included in any
evaluation that the data may indicate racial profiling, racial
stereotyping or other race-based discrimination or selective
enforcement; and other data deemed appropriate by the governor's
committee on crime, delinquency and correction for the analysis of the protection of constitutional rights; and
(10) Protocols for reporting collected data by the division of
motor vehicles to the governor's committee on crime, delinquency
and correction and the analysis thereof.
(b) On or before the first day of February, two thousand six,
and each year thereafter, the director of the governor's committee
on crime, delinquency and correction shall publish a public report
of the data collected and provide a copy thereof to all law-
enforcement agencies subject to this chapter and provide a copy of
the report and analysis of the data collected to the governor and
to the joint committee on government and finance.
(c) The provisions of sections two and three, article one of
this chapter and section two of this article shall become effective
after the thirty-first day of December, two thousand four.
(d) The provisions of this chapter shall be of no force or
effect after the thirty-first day of December, two thousand seven.;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 271--A Bill to
amend the
code of West Virginia, 1931, as amended, by adding thereto a new
chapter, designated §17F-1-1, §17F-1-2, §17F-1-3, §17F-2-1,
§17F-2-2 and §17F-2-3, all relating to racial profiling data
collection; defining terms; requiring all state law-enforcement
officers to collect certain data during traffic stops; requiring
the division of motor vehicles to develop forms and compile the data collected; establishing penalties for agencies which fail to
comply; providing limited civil liability protection for officers
collecting data; providing form content; providing consultation
with law-enforcement organizations relating to developing forms;
requiring director of the governor's committee on crime,
delinquency and correction
to conduct analysis and distribute data;
requiring promulgation of emergency and legislative rules;
providing effective date for requiring collection of data;
providing for annual report to the Legislature; and expiring data-
collection requirements.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 271, as
amended by the House of Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 271) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 320, Relating to division
of motor vehicles application for certificate of title; exempting
modular homes.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §11-5-12 of the code of West Virginia, 1931, as amended,
be amended and reenacted; that §17A-3-4 of said code be amended and
reenacted; and that said code be amended by adding thereto a new
section, designated §17A-3-12b, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 5. ASSESSMENT OF PERSONAL PROPERTY.
§11-5-12. Mobile homes situate upon property owned by a person
other than owner of mobile home.
Mobile homes situate upon property owned by a person other
than the owner of the mobile home shall be classified as personal
property whether or not said mobile home is permanently affixed to the real estate and unless subject to assessment as Class II
property under section eleven of this article or section two,
article four of this chapter shall be assessed as Class III or
Class IV personal property, as may be appropriate in the
circumstances.
_____A mobile home permanently attached to the real estate of the
owner may not be classified as personal property if the owner has
filed a cancelled certificate of title with the clerk of the county
commission and has recorded it in the same manner as deeds are
recorded and indexed.
CHAPTER 17A. MOTOR VEHICLE ADMINISTRATION, REGISTRATION,
CERTIFICATE OF TITLE, AND ANTITHEFT PROVISIONS.
ARTICLE 3. ORIGINAL AND RENEWAL OF REGISTRATION; ISSUANCE OF
CERTIFICATES OF TITLE.
§17A-3-4. Application for certificate of title; tax for privilege
of certification of title; exceptions; fee on
payments for leased vehicles; penalty for false
swearing.
(a) Certificates of registration of any vehicle or
registration plates for the vehicle, whether original issues or
duplicates, may not be issued or furnished by the division of motor
vehicles or any other officer or agent charged with the duty,
unless the applicant therefor already has received, or at the same
time makes application for and is granted, an official certificate
of title of the vehicle in either an electronic or paper format.
The application shall be upon a blank form to be furnished by the division of motor vehicles and shall contain a full description of
the vehicle, which description shall contain a manufacturer's
serial or identification number or other number as determined by
the commissioner and any distinguishing marks, together with a
statement of the applicant's title and of any liens or encumbrances
upon the vehicle, the names and addresses of the holders of the
liens and any other information as the division of motor vehicles
may require. The application shall be signed and sworn to by the
applicant. A duly certified copy of the division's electronic
record of a certificate of title shall be is admissible in any
civil, criminal or administrative proceeding in this state as
evidence of ownership.
(b) A tax is imposed upon the privilege of effecting the
certification of title of each vehicle in the amount equal to five
percent of the value of the motor vehicle at the time of the
certification, to be assessed as follows:
(1) If the vehicle is new, the actual purchase price or
consideration to the purchaser of the vehicle is the value of the
vehicle. If the vehicle is a used or secondhand vehicle, the
present market value at time of transfer or purchase is the value
of the vehicle for the purposes of this section: Provided, That so
much of the purchase price or consideration as is represented by
the exchange of other vehicles on which the tax imposed by this
section has been paid by the purchaser shall be deducted from the
total actual price or consideration paid for the vehicle, whether
the vehicle be new or secondhand. If the vehicle is acquired through gift or by any manner whatsoever, unless specifically
exempted in this section, the present market value of the vehicle
at the time of the gift or transfer is the value of the vehicle for
the purposes of this section.
(2) No certificate of title for any vehicle may be issued to
any applicant unless the applicant has paid to the division of
motor vehicles the tax imposed by this section which is five
percent of the true and actual value of the vehicle whether the
vehicle is acquired through purchase, by gift or by any other
manner whatsoever, except gifts between husband and wife or between
parents and children: Provided, That the husband or wife, or the
parents or children, previously have paid the tax on the vehicles
transferred to the state of West Virginia.
(3) The division of motor vehicles may issue a certificate of
registration and title to an applicant if the applicant provides
sufficient proof to the division of motor vehicles that the
applicant has paid the taxes and fees required by this section to
a motor vehicle dealership that has gone out of business or has
filed bankruptcy proceedings in the United States bankruptcy court
and the taxes and fees so required to be paid by the applicant have
not been sent to the division by the motor vehicle dealership or
have been impounded due to the bankruptcy proceedings: Provided,
That the applicant makes an affidavit of the same and assigns all
rights to claims for money the applicant may have against the motor
vehicle dealership to the division of motor vehicles.
(4) The division of motor vehicles shall issue a certificate of registration and title to an applicant without payment of the
tax imposed by this section if the applicant is a corporation,
partnership or limited liability company transferring the vehicle
to another corporation, partnership or limited liability company
when the entities involved in the transfer are members of the same
controlled group and the transferring entity has previously paid
the tax on the vehicle transferred. For the purposes of this
section, control means ownership, directly or indirectly, of stock
or equity interests possessing fifty percent or more of the total
combined voting power of all classes of the stock of a corporation
or equity interests of a partnership or limited liability company
entitled to vote or ownership, directly or indirectly, of stock or
equity interests possessing fifty percent or more of the value of
the corporation, partnership or limited liability company.
(5) The tax imposed by this section does not apply to vehicles
to be registered as Class H vehicles or Class M vehicles, as
defined in section one, article ten of this chapter, which are used
or to be used in interstate commerce. Nor does the tax imposed by
this section apply to the titling of Class B vehicles registered at
a gross weight of fifty-five thousand pounds or more or to the
titling of Class C semitrailers, full trailers, pole trailers and
converter gear: Provided, That if an owner of a vehicle has
previously titled the vehicle at a declared gross weight of
fifty-five thousand pounds or more and the title was issued without
the payment of the tax imposed by this section, then before the
owner may obtain registration for the vehicle at a gross weight less than fifty-five thousand pounds, the owner shall surrender to
the commissioner the exempted registration, the exempted
certificate of title and pay the tax imposed by this section based
upon the current market value of the vehicle: Provided, however,
That notwithstanding the provisions of section nine, article
fifteen, chapter eleven of this code, the exemption from tax under
this section for Class B vehicles in excess of fifty-five thousand
pounds and Class C semitrailers, full trailers, pole trailers and
converter gear does not subject the sale or purchase of the
vehicles to the consumers sales tax.
(6) The tax imposed by this section does not apply to titling
of vehicles leased by residents of West Virginia. A tax is imposed
upon the monthly payments for the lease of any motor vehicle leased
by a resident of West Virginia, which tax is equal to five percent
of the amount of the monthly payment, applied to each payment, and
continuing for the entire term of the initial lease period. The
tax shall be remitted to the division of motor vehicles on a
monthly basis by the lessor of the vehicle.
(7) The tax imposed by this section does not apply to titling
of vehicles by a registered dealer of this state for resale only,
nor does the tax imposed by this section apply to titling of
vehicles by this state or any political subdivision thereof, or by
any volunteer fire department or duly chartered rescue or ambulance
squad organized and incorporated under the laws of the state of
West Virginia as a nonprofit corporation for protection of life or
property. The total amount of revenue collected by reason of this tax shall be paid into the state road fund and expended by the
commissioner of highways for matching federal funds allocated for
West Virginia. In addition to the tax, there is a charge of five
dollars for each original certificate of title or duplicate
certificate of title so issued: Provided, That this state or any
political subdivision of this state, or any volunteer fire
department or duly chartered rescue squad is exempt from payment of
the charge.
(8) The certificate is good for the life of the vehicle, so
long as the vehicle is owned or held by the original holder of the
certificate, and need not be renewed annually, or any other time,
except as provided in this section.
(9) If, by will or direct inheritance, a person becomes the
owner of a motor vehicle and the tax imposed by this section
previously has been paid to the division of motor vehicles on that
vehicle, he or she is not required to pay the tax.
(10) A person who has paid the tax imposed by this section is
not required to pay the tax a second time for the same motor
vehicle, but is required to pay a charge of five dollars for the
certificate of retitle of that motor vehicle, except that the tax
shall be paid by the person when the title to the vehicle has been
transferred either in this or another state from the person to
another person and transferred back to the person.
(11) The tax imposed by this section does not apply to any
passenger vehicle offered for rent in the normal course of business
by a daily passenger rental car business as licensed under the provisions of article six-d of this chapter. For purposes of this
section, a daily passenger car means a Class A motor vehicle having
a gross weight of eight thousand pounds or less and is registered
in this state or any other state. In lieu of the tax imposed by
this section, there is hereby imposed a tax of not less than one
dollar nor more than one dollar and fifty cents for each day or
part of the rental period. The commissioner shall propose an
emergency rule in accordance with the provisions of article three,
chapter twenty-nine-a of this code to establish this tax.
(12) The tax imposed by this article does not apply to the
titling of any vehicle purchased by a senior citizen service
organization which is exempt from the payment of income taxes under
the United States Internal Revenue Service Code, Title 26 U. S. C.
§501(c)(3) and which is recognized to be a bonafide senior citizen
service organization by the senior services bureau existing under
the provisions of article five, chapter sixteen of this code.
(c) Notwithstanding any provisions of this code to the
contrary, the owners of trailers, semitrailers, recreational
vehicles and other vehicles not subject to the certificate of title
tax prior to the enactment of this chapter are subject to the
privilege tax imposed by this section: Provided, That the
certification of title of any recreational vehicle owned by the
applicant on the thirtieth day of June, one thousand nine hundred
eighty-nine, is not subject to the tax imposed by this section:
Provided, however, That mobile homes, manufactured homes, modular
homes and similar nonmotive propelled vehicles, except recreational vehicles and house trailers, susceptible of being moved upon the
highways but primarily designed for habitation and occupancy,
rather than for transporting persons or property, or any vehicle
operated on a nonprofit basis and used exclusively for the
transportation of mentally retarded or physically handicapped
children when the application for certificate of registration for
the vehicle is accompanied by an affidavit stating that the vehicle
will be operated on a nonprofit basis and used exclusively for the
transportation of mentally retarded and physically handicapped
children, are not subject to the tax imposed by this section, but
are taxable under the provisions of articles fifteen and fifteen-a,
chapter eleven of this code.
(d) Any person making any affidavit required under any
provision of this section who knowingly swears falsely, or any
person who counsels, advises, aids or abets another in the
commission of false swearing, or any person, while acting as an
agent of the division of motor vehicles, issues a vehicle
registration without first collecting the fees and taxes or fails
to perform any other duty required by this chapter to be performed
before a vehicle registration is issued is, on the first offense,
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than five hundred dollars or be confined in the
county or regional jail for a period not to exceed six months or,
in the discretion of the court, both fined and confined. For a
second or any subsequent conviction within five years, that person
is guilty of a felony and, upon conviction thereof, shall be fined not more than five thousand dollars or be imprisoned in a state
correctional facility for not less than one year nor more than five
years or, in the discretion of the court, both fined and
imprisoned.
(e) Notwithstanding any other provisions of this section, any
person in the military stationed outside West Virginia, or his or
her dependents who possess a motor vehicle with valid registration,
are exempt from the provisions of this article for a period of nine
months from the date the person returns to this state or the date
his or her dependent returns to this state, whichever is later.
(f) No person may transfer, purchase or sell a factory-built
home without a certificate of title issued by the commissioner in
accordance with the provisions of this article:
(1) Any person who fails to provide a certificate of title
upon the transfer, purchase or sale of a factory-built home is
guilty of a misdemeanor and, upon conviction thereof, shall for the
first offense be fined not less than one hundred dollars nor more
than one thousand dollars, or be confined in the county or regional
jail for not more than one year or, both fined and confined. For
each subsequent offense, the fine may be increased to not more than
two thousand dollars, with confinement in the county or regional
jail not more than one year or, both fined and confined.
(2) Failure of the seller to transfer a certificate of title
upon sale or transfer of the factory-built home gives rise to a
cause of action, upon prosecution thereof, and allows for the
recovery of damages, costs and reasonable attorney fees.
(3) This subsection does not apply to a mobile or manufactured
home for which a certificate of title has been cancelled pursuant
to section twelve-b of this article.
(g) Notwithstanding any other provision to the contrary,
whenever reference is made to the application for or issuance of
any title or the recordation or release of any lien, it shall be
understood to include includes the application, transmission,
recordation, transfer of ownership and storage of information in an
electronic format.
(h) Notwithstanding any other provision contained in this
section, nothing herein shall be considered to include modular
homes as defined in subsection (i), section two, article fifteen,
chapter thirty-seven of this code and built to the state building
code as established by legislative rules promulgated by the state
fire commission pursuant to section five-b, article three, chapter
twenty-nine of this code.
§17A-3-12b. Cancelled certificates of title for certain mobile
and manufactured homes.
The commissioner may cancel a certificate of title for a
mobile or manufactured home affixed to the real property of the
owner of the mobile or manufactured home. The person requesting
the cancellation shall submit to the commissioner an application
for cancellation together with the certificate of title. The
application shall be on a form prescribed by the commissioner. The
commissioner shall return one copy of the cancellation certificate
to the owner and shall send a copy of the cancellation certificate to the clerk of the county commission to be recorded and indexed in
the deed book with the owners name being indexed in the grantor
index. The commissioner shall charge a fee of ten dollars per
certificate of title cancelled. Upon recordation in the county
clerk?s office the mobile or manufactured home shall be treated for
all purposes as an appurtenance to the real estate to which it is
affixed and be transferred only as real estate and the ownership
interest in the mobile or manufactured home, together with all
liens and encumbrances on the home, shall be transferred to and
shall encumber the real property to which the mobile or
manufactured home has become affixed.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 320--A Bill to amend and
reenact §11-5-12 of the code of West Virginia, 1931, as amended; to
amend and reenact §17A-3-4 of said code; and to amend said code by
adding thereto a new section, designated §17A-3-12b, all relating
to certificates of title; permitting the filing of cancelled
certificates of title in the office of the clerk of the county
commission; exempting mobile and manufactured homes from the
prohibition against the transfer, purchase or sale of a mobile or
manufactured home when a certificate of title has been cancelled;
exempting modular homes from the need for certificates of title;
and cancellation of certificates of title for mobile and
manufactured homes permanently attached to real estate.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 320, as
amended by the House of Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 320) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 327, Authorizing department
of administration to promulgate legislative rules.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page three, by striking out
everything after the enacting
clause and inserting in lieu thereof the following:
That §64-1-1 of the code of West Virginia, 1931, as amended,
be amended and reenacted; and that article 2, chapter 64 of said
code be amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL LEGISLATIVE AUTHORIZATION.
§64-1-1. Legislative authorization.
Under the provisions of article three, chapter twenty-nine-a
of the code of West Virginia, the Legislature expressly authorizes
the promulgation of the rules described in articles two through
eleven, inclusive, of this chapter, subject only to the limitations
set forth with respect to each such rule in the section or sections
of this chapter authorizing its promulgation. Legislative rules
promulgated pursuant to the provisions of this article and articles
two through eleven, inclusive, of this chapter in effect at the
effective date of this section shall continue in full force and
effect until reauthorized in this chapter by legislative enactment
or until amended by emergency rule pursuant to the provisions of
article three, chapter twenty-nine-a of this code.
ARTICLE 2. AUTHORIZATION FOR DEPARTMENT OF ADMINISTRATION TO
PROMULGATE LEGISLATIVE RULES.
§64-2-1. Department of administration.
(a) The legislative rule filed in the state register on the first day of August, two thousand three, authorized under the
authority of section forty-two, article three, chapter five-a of
this code, modified by the department of administration 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 department of administration
(leasing space on behalf of state spending units, 148 CSR 2), is
authorized with the
following amendments:
On page one, subdivision 1.1, on the ninth line, by striking
out the words "those spending units who are exempt or who have
independent leasing authority." and inserting in lieu thereof the
words "the division of highways, the higher education policy
commission, the lottery commission, or a spending unit of the state
with independent leasing authority pursuant to the code of West
Virginia. This exemption does not apply to the office space of
spending units of the executive branch.";
On page one, subsection 2.1, by designating the first
paragraph as subdivision 2.1.a and by designating the second
paragraph as subdivision 2.1.b;
On page one, subsection 2.2, line three, after the words
"describing the space" by striking out the remainder of the
subsection and by inserting in lieu thereof the words "and a letter
justifying the agency's need for leasing the new space.";
On page two, subdivision 4.2.b, line three, after the word
"considered", by inserting the words "by the leasing officer";
On page two, subdivision 4.2.c, line two, by inserting the words "Class II";
On page two, section four, following subsection 4.3, by
inserting the following and renumbering the remaining subsections:
"4.4. Notification.
The Leasing Office shall provide written notification of its
site selection recommendation to the spending unit within thirty
(30) days of the evaluation of the spending unit's request for
space which includes the review of bids, evaluation of bids by the
Leasing Office and any negotiations conducted by the Leasing Office
pursuant to Subsection 4.3 of this rule prior to final location
selection.";
On page two, section four, subsection 4.4, by striking out the
second paragraph;
On page two, subsection 4.5, after the period, by inserting
the words "The leasing office shall provide written notification to
the spending unit regarding the agency's authorization to occupy
the space within thirty (30) days of an evaluation period.";
On page three, section six, subsection 6.3, line 1, following
the word "Administration" by inserting "or the Director of the
Purchasing Division of the Department of Administration";
On page three, section six, subsection 6.3, line seven,
following the word "Administration" by inserting "or the Director
of the Purchasing Division";
On page three, section six, subsection 6.3, line nine,
following the word "Secretary" and the comma, by inserting the
words "the Director";
On page three, section six, subsection 6.3, line 14, following
the word "Secretary", by inserting the words "or Director";
On page three, section six, subsection 6.4, line two,
following the word "Administration" by inserting "or the Director
of the Purchasing Division";
On page four, section seven, subsection 7.1, line seven,
following the word "Administration" by inserting "or the Director
of the Purchasing Division";
On page four, section ten, subsection 10.1, line five,
following the word "Administration" by inserting "or the Director
of the Purchasing Division";
On page four, subsection 11.1, line two, after the words
"other emergency situation", by inserting the words "as determined
by the Secretary,";
On page four, subsection 11.1, line three, after the period,
by inserting the words "In the event of a natural disaster or
emergency situation, the Secretary of Administration shall continue
to have the authority to select and to acquire by contract or
lease, in the name of the State, all grounds, buildings, office
space or other space for and on behalf of any spending unit.";
On page four, subsection 11.2, by striking out the entire
subsection and by renumbering the subsequent subsections;
On page four, subsection 11.3, line one, by striking out the
words "At no time does the" and inserting in lieu thereof the word
"The", and after the words "spending unit", by inserting the words
"does not";
On page four, subsection 11.4, line one, by striking out the
words "To the degree" and by inserting in lieu thereof the word
"When";
On page four, subsection 11.4, line three, after the word
"unit", by striking out the words "shall get" and by inserting in
lieu thereof the words "will obtain";
On page five, subsection 11.5, line one, by striking out the
words "To the degree" and by inserting in lieu thereof the word
"When";
And,
On page five, subsection 11.5, line two, after the words "will
put a", by inserting the words "Class II".
(b) The legislative rule filed in the state register on the
first day of August, two thousand three, authorized under the
authority of section five, article four, chapter five-a of this
code, modified by the department of administration 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 department of administration
(parking, 148 CSR 6), is authorized with the following amendment:
On page two, subsection 5, on the eleventh line, by adding
after "2007." the following sentence: "The maximum fee that can be
charged thereafter for parking is twenty dollars ($20.00) per
month.
"
§64-2-2. Consolidated public retirement board.
(a) The legislative rule filed in the state register on the twenty-eighth day of July, two thousand three, authorized under the
authority of section one, article ten-d, chapter five of this code,
modified by the consolidated public retirement board to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the thirtieth day of October, two
thousand three, relating to the consolidated public retirement
board (general provisions, 162 CSR 1), is authorized.
(b) The legislative rule filed in the state register on the
twenty-eighth day of July, two thousand three, authorized under the
authority of section one, article ten-d, chapter five of this code,
modified by the consolidated public retirement board to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the thirtieth day of October, two
thousand three, relating to the consolidated public retirement
board (benefit determination and appeal, 162 CSR 2), is authorized.
(c) The legislative rule filed in the state register on the
twenty-eighth day of July, two thousand three, authorized under the
authority of section one, article ten-d, chapter five of this code,
modified by the consolidated public retirement board to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the thirtieth day of October, two
thousand three, relating to the consolidated public retirement
board (teachers defined benefit plan, 162 CSR 4), is authorized.
(d) The legislative rule filed in the state register on the
twenty-eighth day of July, two thousand three, authorized under the
authority of section one, article ten-d, chapter five of this code, modified by the consolidated public retirement board to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the thirtieth day of October, two
thousand three, relating to the consolidated public retirement
board (West Virginia state police disability determination and
appeal process, 162 CSR 9), is authorized.
§64-2-3. Board of risk and insurance management.
(a) The legislative rule filed in the state register on the
first day of August, two thousand three, authorized under the
authority of section one, article twelve, chapter twenty-nine of
this code, modified by the board of risk and insurance management
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 board of risk and
insurance management (public entities insurance program, 115 CSR
2), is authorized.
(b) The legislative rule filed in the state register on the
first day of August, two thousand three, authorized under the
authority of section fourteen, article twelve, chapter twenty-nine
of this code, modified by the board of risk and insurance
management 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 board of
risk and insurance management (terms and conditions pertaining to
members of self insurance pools who wish to participate in state
insurance programs, 115 CSR 7), is not authorized.;
And,
On pages one through three, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 327--A Bill to amend and
reenact §64-1-1 of the code of West Virginia, 1931, as amended; and
to amend and reenact article 2, chapter 64 of said code, all
relating generally to the promulgation of administrative rules by
the various executive or administrative agencies and the procedures
relating thereto; legislative mandate or authorization for the
promulgation of certain legislative rules by various executive or
administrative agencies of the state; authorizing certain of the
agencies to promulgate certain legislative rules in the form that
the rules were filed in the state register; authorizing certain of
the agencies to promulgate certain legislative rules with various
modifications presented to and recommended by the legislative rule-
making review committee; authorizing certain of the agencies to
promulgate certain legislative rules as amended by the Legislature;
authorizing certain of the agencies to promulgate certain
legislative rules with various modifications presented to and
recommended by the legislative rule-making review committee and as
amended by the Legislature;
disapproving certain legislative rules;
authorizing the department of administration to promulgate a
legislative rule relating to leasing space on behalf of state
spending units
;
authorizing the department of administration to
promulgate a legislative rule relating to parking
;
authorizing the
consolidated public retirement board to promulgate a legislative rule relating to general provisions
;
authorizing the consolidated
public retirement board to promulgate a legislative rule relating
to benefit determination and appeal
;
authorizing the consolidated
public retirement board to promulgate a legislative rule relating
to the teachers defined benefit plan
;
authorizing the consolidated
public retirement board to promulgate a legislative rule relating
to the West Virginia state police disability determination and
appeal process
;
authorizing the board of risk and insurance
management to promulgate a legislative rule relating to the public
entities insurance program;
and
disapproving the board of risk and
insurance management legislative rule relating to the terms and
conditions pertaining to members of self-insurance pools who wish
to participate in state insurance programs.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 327, as
amended by the House of Delegates, was then 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 elected to the Senate having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 327) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 327) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 350, Authorizing bureau of
commerce to promulgate legislative rules.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page three, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 10. AUTHORIZATION FOR BUREAU OF COMMERCE TO PROMULGATE
LEGISLATIVE RULES.
§64-10-1. Economic development authority.
(a) The legislative rule filed in the state register on the
first day of August, two thousand three, authorized under the
authority of section three, article two, chapter five-e of this
code, modified by the economic development authority 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 economic development authority
(general administration of the West Virginia venture capital act,
117 CSR 3), is authorized with the following amendments:
On page one, subsection 1.5, after the words "Series 3," by
striking out the remainder of the sentence and inserting in lieu
thereof the words "§117-3-1, et seq.";
On page two, section two, subsection 2.10, line 3, by striking
out the word "Subdivision" and inserting the word "Subsection";
On page four, section four, subdivision 4.2.a, line 3,
following the word "with" by striking out the word "Subdivision"
and inserting the word "Subsection";
On page six, subdivision 5.2.c.9., line one, by striking out
the words "A signed commitment" and inserting in lieu thereof the words "An irrevocable letter of credit";
On page six, paragraph 5.2.c.9, line three, after the words
"certified check for", by striking out the word "the" and inserting
in lieu thereof the word "any", and, after the word "call", by
striking out the comma and the words "if required by the
Authority";
On page six, subdivision 5.2.c.9, line three, following the
words "by the authority" inserting a colon and the words "Provided,
That the economic development authority may authorize a reduction
in the amount of the irrevocable letter of credit to correspond to
a payment made towards the proposed investment;"
;
On page twelve, subdivision 7.4.1, line six, after the words
"applicable where", by striking out the remainder of the
subdivision and inserting in lieu thereof the words "the Fund
Manager's economic relationship is solely the result of the fact
that the Fund Manager has made a previous investment in the West
Virginia Business pursuant to the Act or this Rule.";
On page twelve, subdivision 7.4.2, line seven, after the words
"applicable where", by striking out the remainder of the
subdivision and inserting in lieu thereof the words "the investor's
economic relationship is solely the result of the fact that the
Fund Manager has made a previous investment in the West Virginia
Business pursuant to the Act or this Rule.";
And,
On page sixteen, section ten, subsection 10.10, line 1,
following the words "described in" by striking out the words "Section 10" and inserting "this section".
(b) The legislative rule filed in the state register on the
first day of August, two thousand three, authorized under the
authority of section five, article one, chapter five-e of this
code, modified by the economic development authority 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 economic development authority
(economic development and technology advancement centers, 117 CSR
4), is authorized with the following amendments:
On page five, section four, subdivision 4.1.2, line 1,
following the word "Per" by striking out the word "Investor" and
inserting the word "Center";
On page five, section four, subdivision 4.1.2, line 1,
following the word "single" by striking out the words "Investor in
a Center" and inserting the word "Center";
On page five, section four, subsection 4.3, line 7, following
the word "subdivision" by striking out "6.4.f" and inserting
"4.4.f";
And,
On page nine, section six, subsection 6.8, following the words
"described in" by striking out the word "Sections" and inserting
the word "Subsections".
§64-10-2. Infrastructure and jobs development council.
The legislative rule filed in the state register on the
twenty-third day of June, two thousand three, authorized under the authority of section four, article fifteen-a, chapter thirty-one of
this code, modified by the infrastructure and jobs development
council to meet the objections of the legislative rule-making
review committee and refiled in the state register on the
fourteenth day of August, two thousand three, relating to the
infrastructure and jobs development council (infrastructure and
jobs development council, 167 CSR 1), is authorized with the
following amendments:
On page nine, section five, subdivision 5.13.6, line 9,
following the citation "WVC 22C-2-1, et seq." by inserting words
"and WVC 16-13C-1, et seq.";
On page nine, section five, subdivision 5.13.6, line 11,
following the word "State" by striking out the words "as
delineated";
And,
On page nine, section five, subdivision 5.13.6, line 13,
following the word "Code" by striking out the word "in".
§64-10-3. Division of labor.
The legislative rule filed in the state register on the first
day of August, two thousand three, authorized under the authority
of section five-c, article five, chapter twenty-one of this code,
modified by the division of labor 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 division of labor (psychophysiological detection of
deception examinations, limitations of use, requirements, licenses and penalties, 42 CSR 6), is authorized with the following
amendments:
On page one, subsection 1.1, line one, after the words "W. Va.
Code", by striking out the words "§21-5-5(c)" and inserting in lieu
thereof the words "§21-5-5c";
On page one, subsection 1.1, line three, after the words "W.
Va. Code", by striking out the words "§21-5-5(a)-(d)" and inserting
in lieu thereof the words "§§21-5-5a, -5b, -5c, and -5d";
On page one, subsection 2.4, line three, after the words "W.
Va. Code", by striking out the words "§21-5-5c(c)" and inserting in
lieu thereof the words "§§21-5-5a, -5b, -5c, and -5d";
On page two, subsection 3.1, line two, after the words "issue
a license", by striking out the word "to";
On page two, subsection 3.1, line five, after the words "W.
Va. Code", by striking out the words "§21-5-5a, b, c, and d" and
inserting in lieu thereof the words "§§21-5-5a, -5b, -5c, and -5d";
On page two, subsection 3.3, line one, after the words
"Subsection 3.2", by inserting the words "of this section";
On page three, subdivision 3.10(b), line one, after the words
"in the violation of.", by striking out the words "this article"
and inserting in lieu thereof the words "W. Va. Code §§21-5-5a, -
5b, -5c, and -5d";
On page three, subdivision 3.10(c), line one, after the words
"The licensee", by striking out the word "is" and inserting in lieu
thereof the words "has been";
On page three, subdivision 3.10(d), line one, after the words "The licensee", by striking out the word "makes" and inserting in
lieu thereof the words "has been", and after the words "false
promises", by striking out the word "cause" and inserting in lieu
thereof the words "has caused";
On page four, subdivision 3.10(f), line one, after the words
"The licensee", by striking out the word "allows" and inserting in
lieu thereof the words "has allowed";
On page four, subdivision 3.10(g), line one, after the words
"The licensee", by striking out the word "fails" and inserting in
lieu thereof the words "has failed";
On page four, subdivision 4.2, line one, after the words "The
intern", by striking out the words "shall have" and inserting in
lieu thereof the word "has";
On page four, subparagraph 4.2.1.b.(1), line one, after the
words "W. Va. Code", by striking out the words "§21-5-5a, b, c, and
d" and inserting in lieu thereof the words "§§21-5-5a, -5b, -5c,
and -5d";
On page six, paragraph 4.2.3.A, line three, after the word
"but", by striking out the word "compliance" and inserting in lieu
thereof the words "must comply" and, after the words "with all
other", by striking out the rest of the paragraph and inserting in
lieu thereof the words "requirements of this subsection";
On page six, subsection 5.1, line one, after the words "issue
a license", by inserting the words "without examination" and, after
the words "applicant who is", by striking out the words "an
examiner" and inserting in lieu thereof the word "a";
On page six, subsection 5.1, line two, after the word
"licensed", by inserting the word "examiner";
On page six, subsection 5.1, line three, by striking out the
words "without examination";
On page seven, section six, line two, by striking out the
words "this article, it is the policy of the Commissioner that" and
inserting in lieu thereof the words "W. Va. Code §§21-5-5a, -5b, -
5c, and -5d,";
On page eight, subdivision 8.1.(b), line three, after the
words "unfit for the", by striking out the word "an";
And,
On page nine, subdivision 8.2.(c), line two, after the words
"record of the", by striking out the term "PDD" and inserting in
lieu thereof the words "psychophysiological detection of
deception".
§64-10-4. Manufactured housing construction and safety standards
board.
The legislative rule filed in the state register on the first
day of August, two thousand three, authorized under the authority
of section four, article nine, chapter twenty-one of this code,
modified by the manufactured housing construction and safety
standards board 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
manufactured housing construction and safety standards board (West
Virginia manufactured housing construction and safety standards board, 42 CSR 19), is not authorized.
§64-10-5. Office of miners' health, safety and training.
The legislative rule filed in the state register on the eighth
day of November, two thousand two, authorized under the authority
of section six, article one, chapter twenty-two-a of this code,
modified by the office of miners' health, safety and training to
meet the objections of the legislative rule-making review committee
and refiled in the state register on the fourteenth day of April,
two thousand three, relating to the office of miners' health,
safety and training (reporting requirements for independent
contractors, 56 CSR 10), is authorized.
§64-10-6. Division of natural resources.
(a) The legislative rule filed in the state register on the
eleventh day of September, two thousand three, authorized under the
authority of section seven, article one, chapter twenty of this
code, modified by the division of natural resources to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twenty-sixth day of January,
two thousand four, relating to the division of natural resources
(public land corporation rule controlling the sale, lease, exchange
or transfer of land and minerals, 58 CSR 2), is authorized.
(b) The legislative rule filed in the state register on the
second day of July, two thousand three, authorized under the
authority of section seven, article one, chapter twenty of this
code, modified by the division of natural resources to meet the
objections of the legislative rule-making review committee and refiled in the state register on the fifteenth day of September,
two thousand three, relating to the division of natural resources
(revocation of hunting and fishing licenses, 58 CSR 23), is
authorized
with the following amendment:
On page one, subsection 2.4, on the first line, by striking
out the words "Class A-1-L" and inserting in lieu thereof the words
"Lifetime Class A-1".
(c) The legislative rule filed in the state register on the
tenth day of July, two thousand three, authorized under the
authority of section twenty-two, article seven, chapter twenty of
this code, relating to the division of natural resources (special
motorboating regulations, 58 CSR 27), is authorized.
(d) The legislative rule filed in the state register on the
fourteenth day of July, two thousand three, authorized under the
authority of section seventeen, article one, chapter twenty of this
code, relating to the division of natural resources (special
fishing, 58 CSR 61), is authorized with the following amendment:
On page one, section three, by striking out all of subsection
3.1
and renumbering the remaining subsections.;
And,
On pages one through three, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 350--A Bill to amend and
reenact article 10, chapter 64 of the code of West Virginia, 1931,
as amended, relating generally to the promulgation of administrative rules by the various executive or administrative
agencies and the procedures relating thereto; continuing rules
previously promulgated by state agencies and boards; legislative
mandate or authorization for the promulgation of certain
legislative rules; authorizing certain of the agencies to
promulgate certain legislative rules in the form that the rules
were filed in the state register; authorizing certain of the
agencies to promulgate certain legislative rules with various
modifications presented to and recommended by the legislative rule-
making review committee; authorizing certain of the agencies to
promulgate certain legislative rules as amended by the Legislature;
authorizing certain of the agencies to promulgate certain
legislative rules with various modifications presented to and
recommended by the legislative rule-making review committee and as
amended by the Legislature; disapproving certain legislative rules;
authorizing the economic development authority to promulgate a
legislative rule relating to the general administration of the West
Virginia venture capital act; authorizing the economic development
authority to promulgate a legislative rule relating to economic
development and technology advancement centers; authorizing the
infrastructure and jobs development council to promulgate a
legislative rule relating to council; authorizing the division of
labor to promulgate a legislative rule relating to
psychophysiological detection of deception examinations;
disapproving the manufactured housing construction and safety
standards board to promulgate a legislative rule relating to the board; authorizing the office of miners' health, safety and
training to promulgate a legislative rule relating to reporting
requirements for independent contractors; authorizing the division
of natural resources to promulgate a legislative rule relating to
public land corporation rule controlling sale, lease, exchange or
transfer of land and minerals; authorizing the division of natural
resources to promulgate a legislative rule relating to revocation
of hunting and fishing licenses; authorizing the division of
natural resources to promulgate a legislative rule relating to
special motorboating regulations; and authorizing the division of
natural resources to promulgate a legislative rule relating to
special fishing.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 350, as
amended by the House of Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 350) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 350) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Com. Sub. for Senate Bill No. 399, Authorizing
miscellaneous boards and agencies to promulgate legislative rules.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page four, by striking out
everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 9. AUTHORIZATION FOR MISCELLANEOUS AGENCIES AND BOARDS TO
PROMULGATE LEGISLATIVE RULES.
§64-9-1. Board of accountancy.
The legislative rule filed in the state register on the first
day of August, two thousand three, authorized under the authority
of section five, article nine, chapter thirty of this code,
modified by the board of accountancy to meet the objections of the
legislative rule-making review committee and refiled in the state
register on the twenty-sixth day of January, two thousand four,
relating to the board of accountancy (board rules and rules of
professional conduct, 1 CSR 1), is authorized.
§64-9-2. Commissioner of agriculture.
(a) The legislative rule filed in the state register on the
first day of August, two thousand three, authorized under the
authority of section ten, article eleven-b, chapter nineteen of
this code, modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twenty-fourth day of November,
two thousand three, relating to the commissioner of agriculture
(frozen desserts and imitation frozen desserts, 61 CSR 4B), is
authorized with the following amendment:
On page one, section 2.1.f, after the words "Pasteurized
Milk", by deleting the term "Ordiance", and by inserting in lieu thereof the word "Ordinance".
(b) The legislative rule filed in the state register on the
first day of August, two thousand three, authorized under the
authority of section ten, article eleven-a, chapter nineteen of
this code, modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twenty-fourth day of November,
two thousand three, relating to the commissioner of agriculture
(dairy products and imitation dairy products, 61 CSR 4C), is
authorized.
(c) The legislative rule filed in the state register on the
first day of August, two thousand three, authorized under the
authority of section six, article sixteen, chapter nineteen of this
code, modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twenty-fourth day of November,
two thousand three, relating to the commissioner of agriculture
(West Virginia seed law, 61 CSR 9), is authorized.
§64-9-3. Board of architects.
The legislative rule filed in the state register on the third
day of October, two thousand two, authorized under the authority of
section one, article twelve, chapter thirty of this code, modified
by the board of architects to meet the objections of the
legislative rule-making review committee and refiled in the state
register on the twenty-second day of April, two thousand three,
relating to the board of architects (registration of architects, 2 CSR 1), is authorized.
§64-9-4. Auditor's office.
(a) The legislative rule filed in the state register on the
first day of August, two thousand three, authorized under the
authority of section ten-c, article three, chapter twelve of this
code, modified by the auditor's office to meet the objections of
the legislative rule-making review committee and refiled in the
state register on the eighteenth day of December, two thousand
three, relating to the auditor's office (transaction fee and rate
structure, 155 CSR 4), is authorized.
(b) The legislative rule filed in the state register on the
first day of August, two thousand three, authorized under the
authority of section ten-a, article three, chapter twelve of this
code, modified by the auditor's office to meet the objections of
the legislative rule-making review committee and refiled in the
state register on the fourth day of November, two thousand three,
relating to the auditor's office (state purchasing card program,
155 CSR 7), is authorized
with the following amendments:
On page two, section two, subdivision 2.17.e, line one,
following the words "Higher Education," by inserting the words "not
to exceed $5,000 for any purchase";
On page two, section two, subdivision 2.17.f, line two,
following the words "Higher Education," by striking out the word
"which" and inserting in lieu thereof the words "not to exceed
$5,000 for any purchase unless approved by the Purchasing Division.
'Routine, regularly scheduled payments of Higher Education'";
On page two, section two, subdivision 2.18.c, line three,
following the words "Chapter 15", by striking out the words "and WV
Code 18B-5-9";
On page two, section two, subdivision 2.18.c, line five,
following the words "with the card," and the semicolon, by
inserting the words "and as provided in WV Code 18B-5-9, the
transaction limit for Higher Education is the credit limit
associated with the card, not to exceed $5,000 for any purchase",
followed by a semicolon;
On page two, section two, subdivision 2.18.e, line four,
following the words "with the card," by striking out the period and
inserting the words "except as provided in subdivision 2.17.f.";
And,
On page three, section three, subsection 3.3, line one,
following the words "an emergency", by striking out the word
"effecting" and inserting in lieu thereof the word "affecting".
§64-9-5. Board of examiners in counseling.
The legislative rule filed in the state register on the fourth
day of December, two thousand two, authorized under the authority
of section five, article thirty-one, chapter thirty of this code,
modified by the board of examiners in counseling 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 board of examiners in counseling
(fees, 27 CSR 2), is authorized.
§64-9-6. Board of registration for professional engineers.
The legislative rule filed in the state register on the
thirtieth day of July, two thousand three, authorized under the
authority of section nine, article thirteen, chapter thirty of this
code, modified by the board of registration for professional
engineers to meet the objections of the legislative rule-making
review committee and refiled in the state register on the
fourteenth day of January, two thousand four, relating to the board
of registration for professional engineers (rule governing the West
Virginia board of registration for professional engineers, 7 CSR
1), is authorized
with the following amendments:
On page three, subsection 3.3, subdivision h, by striking out
said subdivision h in its entirety;
And,
On page twenty-one, subsection 14.4, by striking out said
subsection 14.4 in its entirety and inserting in lieu thereof the
words:
The Board may assess administrative costs incurred in the
performance of its enforcement or investigatory activities against
any person or entity who violates the provisions referenced in
subsection 14.1 of this rule, which shall be paid to the West
Virginia State Board of Registration for Professional Engineers by
check or money order within a period of thirty (30) days from the
date of the final order entered by the Board.
§64-9-7. Board of examiners of land surveyors.
(a) The legislative rule filed in the state register on the
first day of August, two thousand three, authorized under the authority of section four, article thirteen-a, chapter thirty of
this code, relating to the board of examiners of land surveyors
(minimum standards for practice of land surveying in West Virginia,
23 CSR 1), is authorized with the following amendments:
On page three, subsection 5.1, line eight, after the words
"annual renewal fee" by striking out the comma and the words
"determined by the board, not to exceed one hundred dollars
($100.00)" and by inserting in lieu thereof the words "of forty
dollars ($40.00)";
On page three, subsection 5.1, line nine, after the words "the
fee shall increase", by striking out the words "an amount
determined by the Board, not to exceed twenty percent (20%) of the
annual renewal fee" and inserting in lieu thereof the words "one
dollar ($1.00)";
And,
On page four, subsection 5.1, line one, after the words
"payment of a fee", by striking out the words "determined by the
Board, not to exceed fifty dollars ($50.00)" and by inserting in
lieu thereof the words "of ten dollars ($10.00)".
(b) The legislative rule filed in the state register on the
first day of August, two thousand three, authorized under the
authority of section four, article thirteen-a, chapter thirty of
this code, relating to the board of examiners of land surveyors
(mandatory continuing education for land surveyors, 23 CSR 2), is
authorized.
§64-9-8. Board of landscape architects.
The legislative rule filed in the state register on the first
day of August, two thousand three, authorized under the authority
of section five, article twenty-two, chapter thirty of this code,
modified by the board of landscape architects to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twenty-fourth day of November,
two thousand three, relating to the board of landscape architects
(rule of the West Virginia board of landscape architects, 9 CSR 1),
is authorized with the following amendments:
On page one, section 1.1, line one, after the words "the
Board", by inserting the words "and the";
On page three, section 4.15, line two, after the words
"Section 8 of", by striking out the words "these rules" and
inserting in lieu thereof the words "this rule";
On page four, section 6.5, line two, after the words "Section
4.2 of", by striking out the words "these rules" and inserting in
lieu thereof the words "this rule";
On page five, section 6.6, line four, after the words "Section
4.17 of", by striking out the words "these rules" and inserting in
lieu thereof the words "this rule";
On page five, section 6.8, line three, after the words "10.6
of", by striking out the words "these rules" and inserting in lieu
thereof the words "this rule";
And,
On page seven, section 7.7, line four, after the word "or", by
striking out the words "these rules" and inserting in lieu thereof the words "this rule", and after the words "violation of", by
striking out the words "these rules" and inserting in lieu thereof,
the words "this rule".
§64-9-9. Board of examiners for licensed practical nurses.
The legislative rule filed in the state register on the
twenty-third day of June, two thousand three, authorized under the
authority of section one, article seven-a, chapter thirty of this
code, relating to the board of examiners for licensed practical
nurses (policies and procedures for development and maintenance of
education programs in practical nursing, 10 CSR 1), is authorized.
§64-9-10. Board of medicine.
The legislative rule filed in the state register on the
sixteenth day of July, two thousand three, authorized under the
authority of section seven, article three, chapter thirty of this
code, relating to the board of medicine (licensing and disciplinary
procedures: Physicians; and podiatrists, 11 CSR 1a), is
authorized.
§64-9-11. Board of optometry.
The legislative rule filed in the state register on the
thirty-first day of July, two thousand three, authorized under the
authority of section three, article eight, chapter thirty of this
code, modified by the board of optometry to meet the objections of
the legislative rule-making review committee and refiled in the
state register on the eighteenth day of December, two thousand
three, relating to the board of optometry (rule of the West
Virginia board of optometry, 14 CSR 1), is authorized.
§64-9-12. Board of examiners of psychologists.
The legislative rule filed in the state register on the
eighteenth day of June, two thousand three, authorized under the
authority of section six, article twenty-one, chapter thirty of
this code, modified by the board of examiners of psychologists to
meet the objections of the legislative rule-making review committee
and refiled in the state register on the eighth day of August, two
thousand three, relating to the board of examiners of psychologists
(fees, 17 CSR 1), is authorized.
§64-9-13. Public service commission.
The legislative rule filed in the state register on the
twenty-first day of November, two thousand three, authorized under
the authority of section three, article seventeen-a, chapter
seventeen-c of this code, modified by the public service commission
to meet the objections of the legislative rule-making review
committee and refiled in the state register on the twenty-sixth day
of January, two thousand four, relating to the public service
commission (transportation of coal by commercial motor vehicles,
150 CSR 27), is authorized.
§64-9-14. Records management and preservation board.
The legislative rule filed in the state register on the
thirteenth day of June, two thousand three, authorized under the
authority of section fifteen, article eight, chapter five-a of this
code, relating to the records management and preservation board
(general management and preservation of county records, 100 CSR 2),
is authorized
with the following amendment:
On page seven, section five, subsection 5.2, line 1, by
striking out the word "shall" and inserting the word "may".
§64-9-15. Statewide addressing and mapping board.
The legislative rule filed in the state register on the first
day of August, two thousand three, authorized under the authority
of section six, article one, chapter twenty-four-e of this code,
modified by the statewide addressing and mapping board to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twenty-sixth day of January,
two thousand four, relating to the statewide addressing and mapping
board (addressing and mapping standards and participation by public
agencies in statewide addressing and mapping projects, 169 CSR 2),
is authorized.;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 399--A Bill to amend and
reenact article 9, chapter 64 of the code of West Virginia, 1931,
as amended, relating generally to the promulgation of
administrative rules by the various executive or administrative
agencies and the procedures relating thereto; continuing rules
previously promulgated by state agencies and boards; legislative
mandate or authorization for the promulgation of certain
legislative rules; authorizing certain of the agencies to
promulgate certain legislative rules in the form that the rules
were filed in the state register; authorizing certain of the agencies to promulgate certain legislative rules with various
modifications presented to and recommended by the legislative rule-
making review committee; authorizing certain of the agencies to
promulgate certain legislative rules as amended by the Legislature;
authorizing certain of the agencies to promulgate certain
legislative rules with various modifications presented to and
recommended by the legislative rule-making review committee and as
amended by the Legislature; disapproving certain rules; authorizing
board of accountancy to promulgate legislative rule relating to the
board and rules of professional conduct; authorizing commissioner
of agriculture to promulgate legislative rule relating to frozen
desserts and imitation frozen desserts; authorizing commissioner of
agriculture to promulgate legislative rule relating to dairy
products and imitation dairy products; authorizing commissioner of
agriculture to promulgate legislative rule relating to seed law;
authorizing board of architects to promulgate legislative rule
relating to registration of architects; authorizing auditor's
office to promulgate legislative rule relating to transaction fee
and rate structure; authorizing auditor's office to promulgate
legislative rule relating to state purchasing card program;
authorizing board of examiners in counseling to promulgate
legislative rule relating to fees; authorizing board of
registration for professional engineers to promulgate legislative
rule relating to governance of board; authorizing board of
examiners of land surveyors to promulgate legislative rule relating
to minimum standards for practice of land surveying; authorizing board of examiners of land surveyors to promulgate legislative rule
relating to mandatory continuing education for land surveyors;
authorizing board of landscape architects to promulgate legislative
rule relating to board; authorizing board of examiners for licensed
practical nurses to promulgate legislative rule relating to
policies and procedures for development and maintenance of
education programs in practical nursing; authorizing board of
medicine to promulgate legislative rule relating to licensing and
disciplinary procedures: Physicians and podiatrists; authorizing
board of optometry to promulgate legislative rule relating to
board; authorizing board of examiners of psychologists to
promulgate legislative rule relating to fees; authorizing public
service commission to promulgate legislative rule relating to
transportation of coal by commercial motor vehicles; authorizing
records management and preservation board to promulgate legislative
rule relating to general management and preservation of county
records; and authorizing statewide addressing and mapping board to
promulgate legislative rule relating to addressing and mapping
standards and participation by public agencies in statewide
addressing and mapping projects.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 399, as
amended by the House of Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 399) passed with its House of Delegates
amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 399) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 418, Allowing certain sheriff employees
to carry deadly weapons.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 1. COURTS AND OFFICERS.
§50-1-14. Duties of sheriff; service of process; bailiff.
(a) It shall be the duty of each sheriff to execute all civil
and criminal process from any magistrate court which may be
directed to such sheriff. Process shall be served in the same
manner as provided by law for process from circuit courts.
Subject to the supervision of the chief justice of the supreme
court of appeals or of the judge of the circuit court, or the chief
judge thereof if there is more than one judge of the circuit court,
it shall be the duty of the sheriff, or his or her designated
deputy, to serve as bailiff of a magistrate court upon the request
of the magistrate. Such service shall also be subject to such
administrative rules as may be promulgated by the supreme court of
appeals. A writ of mandamus shall lie on behalf of a magistrate to
enforce the provisions of this section.
(b) The sheriff of any county may employ, by and with the consent of the county commission, one or more persons whose sole
duties shall be the service of civil process and the service of
subpoenas and subpoenas duces tecum. Any such person shall not be
considered a deputy or deputy sheriff within the meaning of
subdivision (2), subsection (a), section two, article fourteen,
chapter seven of this code, nor shall any such person be authorized
to carry deadly weapons in the performance of his or her duties:
Provided, That the sheriff may authorize an employee whose sole
duties involve service of civil process to carry a firearm, if the
employee completes all training requirements otherwise applicable
to deputy sheriffs for the use and handling of firearms: Provided,
however, That the sheriff may authorize previously certified West
Virginia law-enforcement officers to carry a deadly weapon in the
performance of the duties of the officers under the provisions of
this section: Provided, however further, That these officers and
employees maintain yearly weapons' qualifications and are bonded
through the office of the sheriff.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 418--A Bill to amend and reenact §50-1-14
of the code of West Virginia, 1931, as amended, relating to
authorizing civil process servers employed by a county sheriff to
carry firearms; and requiring training, continued annual weapons'
qualifications and bonding through the office of the sheriff.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Senate Bill No. 418, as amended by the House of
Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 418) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 428, Defining "transacting insurance".
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
That §33-31-1, §33-31-2, §33-31-4, §33-31-5, §33-31-6,
§33-31-7, §33-31-8, §33-31-9, §33-31-10, §33-31-11, §33-31-13,
§33-31-14 and §33-31-15 of the code of West Virginia, 1931, as
amended, be amended and reenacted; that said code be amended by
adding thereto nine new sections, designated §33-31-17, §33-31-18,
§33-31-19, §33-31-20, §33-31-21, §33-31-22, §33-31-23, §33-31-24
and §33-31-25; and that said code be amended by adding thereto a
new article, designated §33-31A-1, §33-31A-2, §33-31A-3, §33-31A-4,
§33-31A-5, §33-31A-6, §33-31A-7, §33-31A-8 and §33-31A-9, all to
read as follows:
ARTICLE 31. CAPTIVE INSURANCE.
§33-31-1. Definitions.
As used in this chapter, unless the context requires
otherwise:
(1) "Affiliated company" means any company in the same
corporate system as a parent, an industrial insured or a member
organization by virtue of common ownership, control, operation or
management.
(2) "Alien captive insurance company" means any insurance
company formed to write insurance business for its parents and
affiliates and licensed pursuant to the laws of a country other
than the United States which imposes statutory or regulatory
standards in a form acceptable to the commissioner on companies
transacting the business of insurance in such jurisdiction.
___(2) (3) "Association" means any legal association of individuals, corporations, partnerships or associations limited
liability companies, partnerships, associations or other entities
that has been in continuous existence for at least one year, the
member organizations of which, collectively or which does itself,
whether or not in conjunction with some or all of the member
organizations:
(A) Own, control or hold with power to vote all of the
outstanding voting securities of an association captive insurance
company incorporated as a stock insurer; or
(B) Have complete voting control over an association captive
insurance company incorporated as a mutual insurer; or
___(C) Constitute all of the subscribers of an association
captive insurance company formed as a reciprocal insurer.
___(3) (4) "Association captive insurance company" means any
company that insures risks of the member organizations of the
association, and their affiliated companies.
(5) "Branch business" means any insurance business transacted
by a branch captive insurance company in this state.
___(6) "Branch captive insurance company" means any alien captive
insurance company licensed by the commissioner to transact the
business of insurance in this state through a business unit with a
principal place of business in this state.
___(7) "Branch operations" means any business operations of a
branch captive insurance company in this state.
___(4) (8) "Captive insurance company" means any pure captive
insurance company, association captive insurance company, or sponsored captive insurance company, industrial insured captive
insurance company or risk retention group formed or licensed under
the provisions of this chapter. For purposes of this chapter, a
branch captive insurance company shall be a pure captive insurance
company with respect to operations in this state, unless otherwise
permitted by the commissioner.
___(5) (9) "Commissioner" means the insurance commissioner of
West Virginia.
(10) "Controlled unaffiliated business" means any company:
___(A) That is not in the corporate system of a parent and
affiliated companies;
___(B) That has an existing contractual relationship with a
parent or affiliated company; and
___(C) Whose risks are managed by a pure captive insurance
company in accordance with section nineteen of this article.
___(6) (11) "Industrial insured" means an insured:
(A) Who procures the insurance of any risk or risks by use of
the services of a full-time employee acting as an insurance manager
or buyer;
(B) Whose aggregate annual premiums for insurance on all risks
total at least twenty-five thousand dollars; and
(C) Who has at least twenty-five full-time employees.
(7) (12) "Industrial insured captive insurance company" means
any company that insures risks of the industrial insureds that
comprise the industrial insured group and their affiliated
companies.
(8) (13) "Industrial insured group" means any group that meets
the following criteria:
Any group of industrial insureds that collectively:
(i) (A) Own, control or hold with power to vote all of the
outstanding voting securities of an industrial insured captive
insurance company incorporated as a stock insurer; or
(ii) (B) Have complete voting control over an industrial
insured captive insurance company incorporated as a mutual insurer;
or
___(C) Constitute all of the subscribers of an industrial insured
captive insurance company formed as a reciprocal insurer.
(9) (14) "Member organization" means any individual,
corporation, limited liability company, partnership, or association
or other entity that belongs to an association.
(15) "Mutual corporation" means a corporation organized
without stockholders and includes a nonprofit corporation with
members.
___(10) (16) "Parent" means a corporation, limited liability
company, partnership, other entity or individual that directly or
indirectly owns, controls or holds with power to vote more than
fifty percent of the outstanding voting:
___(A) Securities of a pure captive insurance company organized
as a stock corporation; or
___(B) Membership interests of a pure captive insurance company
organized as a nonprofit corporation.
___(11) (17) "Pure captive insurance company" means any company that insures risks of its parent and affiliated companies or
controlled unaffiliated business.
(18) "Risk retention group" means a captive insurance company
organized under the laws of this state pursuant to the Liability
Risk Retention Act of 1986, 15 U. S. C. §3901, et seq., as amended,
as a stock or mutual corporation, a reciprocal or other limited
liability entity.
§33-31-2. Licensing; authority.
(a) Any captive insurance company, when permitted by its
articles of association, or charter or other organizational
document, may apply to the commissioner for a license to do any and
all insurance comprised in chapter thirty-three of this code
section ten, article one of this chapter except as indicated in
subdivision (4), subsection (a) of this section: Provided, That
said captive insurance company maintains its all captive insurance
companies, except pure captive insurance companies, shall maintain
their principal office and principal place of business in this
state: Provided, however, That:
(1) No pure captive insurance company may insure any risks
other than those of its parent and affiliated companies or
controlled unaffiliated business;
(2) No association captive insurance company may insure any
risks other than those of the member organizations of its
association, and their affiliated companies;
(3) No industrial insured captive insurance company may insure
any risks other than those of the industrial insureds that comprise the industrial insured group, and their affiliated companies;
(4) No risk retention group may insure any risks other than
those of its members and owners;
___(4) (5) No captive insurance company may provide personal
motor vehicle or homeowner's insurance coverage or any component
thereof; and
(5) (6) No captive insurance company may accept or cede
reinsurance except as provided in section eleven hereof of this
article;
___(7) Any captive insurance company may provide excess workers'
compensation insurance to its parent and affiliated companies,
unless prohibited by the federal law or laws of the state having
jurisdiction over the transaction. Any captive insurance company,
unless prohibited by federal law, may reinsure workers'
compensation of a qualified self-insured plan of its parent and
affiliated companies; and
___(8) Any captive insurance company which insures risks
described in subsections (a) and (b), section ten, article one of
this chapter shall comply with all applicable state and federal
laws.
(b) No captive insurance company may do any insurance business
in this state unless:
(1) It first obtains from the commissioner a license
authorizing it to do insurance business in this state;
(2) Its board of directors, or in the case of a reciprocal
insurer, its subscribers' advisory committee, holds at least one meeting each year in this state; and
___(3) It maintains its principal place of business in this
state; and
(4) (3) It appoints a resident registered agent to accept
service of process and to otherwise act on its behalf in this
state: Provided, That whenever such registered agent cannot with
reasonable diligence be found at the registered office of the
captive insurance company, the secretary of state shall be an agent
of such captive insurance company upon whom any process, notice or
demand may be served.
(c) (1) Before receiving a license, a captive insurance
company shall file:
(A) File with the commissioner a certified copy of its charter
and bylaws organizational documents, a statement under oath of its
president and secretary showing its financial condition and any
other statements or documents required by the commissioner; and
___(B) Submit to the commissioner for approval a description of
the coverages, deductibles, coverage limits and rates, together
with such additional information as the commissioner may reasonably
require. In the event of any subsequent material change in any item
in such description, the captive insurance company shall submit to
the commissioner for approval an appropriate revision and shall not
offer any additional kinds of insurance until a revision of such
description is approved by the commissioner. The captive insurance
company shall inform the commissioner of any material change in
rates within thirty days of the adoption of such change.
___In addition to the information required above, each
(2) Each applicant captive insurance company shall also file
with the commissioner evidence of the following:
(1) (A) The amount and liquidity of its assets relative to the
risks to be assumed;
(2) (B) The adequacy of the expertise, experience and
character of the person or persons who will manage it;
(3) (C) The overall soundness of its plan of operation;
(4) (D) The adequacy of the loss prevention programs of its
parent, member organizations, or industrial insureds as applicable;
and
(5) (E) Such other factors deemed relevant by the commissioner
in ascertaining whether the proposed captive insurance company will
be able to meet its policy obligations.
(3) Information submitted pursuant to this subsection shall be
and remain confidential and may not be made public by the
commissioner or an employee or agent of the commissioner without
the written consent of the company, except that:
___(A) Such information may be discoverable by a party in a civil
action or contested case to which the captive insurance company
that submitted such information is a party, upon a showing by the
party seeking to discover such information that:
___(i) The information sought is relevant to and necessary for
the furtherance of such action or case;
___(ii) The information sought is unavailable from other
nonconfidential sources; and
___(iii) A subpoena issued by a judicial or administrative
officer of competent jurisdiction has been submitted to the
commissioner: Provided, That the provisions of this subdivision
shall not apply to any risk retention group; and
___(B) The commissioner may, in the commissioner's discretion,
disclose such information to a public officer having jurisdiction
over the regulation of insurance in another state if:
___(i) The public official shall agree in writing to maintain the
confidentiality of such information; and
___(ii) The laws of the state in which such public official
serves require such information to be and to remain confidential.
(d) Each captive insurance company shall pay to the
commissioner a nonrefundable fee of two hundred dollars for
examining, investigating and processing its application for
license, and upon issuance of a license, an annual license fee of
three hundred dollars. In addition, it shall pay fees and charges
in accordance with article three of this chapter and the
commissioner is authorized to retain legal, financial and
examination services from outside the department, the reasonable
cost of which may be charged against the applicant. The provisions
of subsection (r), section nine, article two of this chapter shall
apply to examinations, investigations and processing conducted
under the authority of this section. In addition, each captive
insurance company shall pay a license fee for the year of
registration and a renewal fee for each year thereafter of three
hundred dollars.
(e) If the commissioner is satisfied that the documents and
statements that such captive insurance company has filed comply
with the provisions of this chapter, he the commissioner may grant
a license authorizing it to do insurance business in this state
until the first day of April, thereafter, which license may be
renewed.
§33-31-4. Minimum capital and surplus; letter of credit.
No pure captive insurance company, association captive
insurance company incorporated as a stock insurer, or industrial
insured captive insurance company incorporated as a stock insurer
shall be issued a license unless it shall possess and thereafter
maintain unimpaired paid-in capital of:
(1) In the case of a pure captive insurance company, not less
than one hundred thousand dollars;
(2) In the case of an association captive insurance company
incorporated as a stock insurer, not less than three hundred twenty
thousand dollars; and
(3) In the case of an industrial insured captive insurance
company incorporated as a stock insurer, not less than one hundred
sixty thousand dollars.
Such capital may be in the form of cash or an irrevocable
letter of credit issued by a bank chartered by the state of West
Virginia or a member bank of the federal reserve system and
approved by the commissioner.
(a) No captive insurance company shall be issued a license
unless it shall possess and thereafter maintain free surplus unimpaired paid-in capital of:
(1) In the case of a pure captive insurance company, not less
than one hundred fifty thousand dollars;
(2) In the case of an association captive insurance company,
incorporated as a stock insurer, not less than two hundred eighty
three hundred fifty thousand dollars;
(3) In the case of an industrial insured captive insurance
company, incorporated as a stock insurer not less than two hundred
forty fifty thousand dollars;
(4) In the case of an association captive insurance company
incorporated as a mutual insurer a risk retention group, not less
than six five hundred thousand dollars; and
(5) In the case of an industrial insured captive insurance
company incorporated as a mutual insurer a sponsored captive
insurance company, not less than four hundred two hundred fifty
thousand dollars.
(b) No captive insurance company shall be issued a license
unless it possesses and thereafter maintains unimpaired paid-in
surplus of:
___(1) In the case of a pure captive insurance company, not less
than one hundred fifty thousand dollars;
___(2) In the case of an association captive insurance company,
not less than three hundred fifty thousand dollars;
___(3) In the case of an industrial insured captive insurance
company, not less than two hundred fifty thousand dollars;
___(4) In the case of a risk retention group, not less than five hundred thousand dollars; and
___(5) In the case of a sponsored captive insurance company, not
less than two hundred fifty thousand dollars.
___(c) The commissioner may prescribe additional capital and
surplus based upon the type, volume and nature of insurance
business transacted.
___(d) Such Capital and surplus may be in the form of cash or an
irrevocable letter of credit issued by a bank chartered by the
state of West Virginia or a member bank of the federal reserve
system and approved by the commissioner.
§33-31-5. Dividends.
No captive insurance company may pay a dividend out of, or
other distribution with respect to, capital or surplus without the
prior approval of the commissioner. Approval of an ongoing plan
for the payment of dividends or other distributions shall be
conditioned upon the retention, at the time of each payment, of
capital or surplus in excess of amounts specified by, or determined
in accordance with formulas approved by, the commissioner.
§33-31-6. Formation of captive insurance companies in this state.
(a) A pure captive insurance company shall may be incorporated
as a stock insurer with its capital divided into shares and held by
the stockholders or as a nonprofit corporation with one or more
members.
(b) An association captive insurance company or an industrial
insured captive insurance company may be incorporated:
(1) As Incorporated as a stock insurer with its capital divided into shares and held by the stockholders; or
(2) As Incorporated as a mutual insurer without capital stock,
the governing body of which is elected by the member organizations
of its association its insureds; or
___(3) Organized as a reciprocal insurer in accordance with
article twenty-one of this chapter.
(c) A captive insurance company incorporated or organized in
this state shall have at least one incorporator who not less than
three incorporators or three organizers of whom not less than one
shall be a resident of this state.
(d) Before the articles of association are transmitted to the
secretary of state,
___(1) (A) Formed as a corporation the incorporators shall
petition the commissioner to issue a certificate setting forth his
or her the commissioner's finding that the establishment and
maintenance of the proposed corporation will promote the general
good of the state. In arriving at such a finding the commissioner
shall consider:
(1) (i) The character, reputation, financial standing and
purpose purposes of the incorporators;
(2) (ii) The character, reputation, financial responsibility,
insurance experience and business qualifications of the officers
and directors; and
(3) (iii) Such other aspects as the commissioner deems shall
deem advisable.
(e) (B) The articles of association incorporation, such certificate and the organization fee shall be transmitted to the
secretary of state, who shall thereupon record both the articles of
incorporation and the certificate.
(2) Formed as a reciprocal insurer, the organizers shall
petition the commissioner to issue a certificate setting forth the
commissioner's finding that the establishment and maintenance of
the proposed association will promote the general good of the
state. In arriving at such a finding the commissioner shall
consider the items set forth in subparagraphs (i), (ii) and (iii),
paragraph (A), subdivision (1) of this subsection.
___(f) (e) The capital stock of a captive insurance company
incorporated as a stock insurer shall be issued at not less than
may be authorized with no par value.
(f) In the case of a captive insurance company:
___(g) (1) Formed as a corporation, at least one of the members
of the board of directors of a captive insurance company
incorporated in this state shall be a resident of this state; and
___(2) Formed as a reciprocal insurer, at least one of the
members of the subscribers' advisory committee shall be a resident
of this state.
___(h) (g) Captive Other than captive insurance companies formed
as nonprofit corporations under chapter thirty-one-e of this code,
captive insurance companies formed as corporations under the
provisions of this chapter article shall have the privileges and be
subject to the provisions of the general corporation law as well as
the applicable provisions contained in this chapter. Captive insurance companies are subject to the provisions of article
thirty-three, article thirty-four, article thirty-seven and article
thirty-nine of this chapter. In the event of conflict between the
provisions of said general corporation law and the provisions of
this chapter, the latter shall control.
(h) Captive insurance companies formed as nonprofit
corporations under the provisions of this article shall have the
privileges and be subject to the provisions of chapter thirty-one-e
of this code as well as the applicable provisions contained in this
chapter. In the event of conflict between the provisions of
chapter thirty-one-e of this code and the provisions of this
chapter, the latter shall control.
___(i) The provisions of sections twenty-five, twenty-seven and
twenty-eight, article five of this chapter and section three,
article twenty-seven of this chapter, pertaining to mergers,
consolidations, conversions, mutualizations, redomestications and
mutual holding companies, shall apply in determining the procedures
to be followed by captive insurance companies in carrying out any
of the transactions described therein, except that:
___(1) The commissioner may waive or modify the requirements for
public notice and hearing in accordance with rules which the
commissioner may adopt addressing categories of transactions. If a
notice of public hearing is required, but no one requests a
hearing, then the commissioner may cancel the hearing; and
___(2) An alien insurer may be a party to a merger authorized
under this subsection: Provided, That the requirements for a merger between a captive insurance company and a foreign insurer under
section twenty-five, article five of this chapter shall apply to a
merger between a captive insurance company and an alien insurer
under this subsection. Such alien insurer shall be treated as a
foreign insurer under section twenty-five, article five of this
chapter and such other jurisdictions shall be the equivalent of a
state for purposes of said section.
___(j) Captive insurance companies formed as reciprocal insurers
under the provisions of this chapter shall have the privileges and
be subject to the provisions of article twenty-one of this chapter
in addition to the applicable provisions of this chapter. In the
event of a conflict between the provisions of article twenty-one of
this chapter and the provisions of this chapter, the latter shall
control. To the extent a reciprocal insurer is made subject to
other provisions of this chapter pursuant to article twenty-one of
this chapter, such provisions shall not be applicable to a
reciprocal insurer formed under this chapter unless such provisions
are expressly made applicable to captive insurance companies under
this chapter.
___(k) The articles of incorporation or bylaws of a captive
insurance company formed as a corporation may authorize a quorum of
its board of directors to consist of no fewer than one third of the
fixed or prescribed number of directors determined under section
eight hundred twenty-four, article eight, chapter thirty-one-e of
this code.
___(l) The subscribers' agreement or other organizing document of a captive insurance company formed as a reciprocal insurer may
authorize a quorum of its subscribers' advisory committee to
consist of no fewer than one third of the number of its members.
§33-31-7. Reports and statements.
(a) Captive insurance companies shall not be required to make
any annual report except as provided in this chapter.
(b) On or before the first day of March first of each year,
each captive insurance company shall submit to the commissioner a
report of its financial condition, verified by oath of two of its
executive officers. Each captive insurance company shall report
using generally accepted accounting principles, unless the
commissioner approves the use of statutory accounting principles,
with any appropriate or necessary modifications or adaptations
thereof required or approved or accepted by the commissioner for
the type of insurance and kinds of insurers to be reported upon,
and as supplemented by additional information required by the
commissioner. Except as otherwise provided, each association
captive insurance company and each risk retention group shall file
its report in the form required by section fourteen, article three
of this chapter, and each risk retention group shall comply with
the requirements set forth in article thirty-two of this chapter.
The commissioner shall by rule propose the form forms in which pure
captive insurance companies and industrial insured captive
insurance companies shall report.
(c) Any pure captive insurance company or an industrial
insured captive insurance company may make written application for filing the required report on a fiscal year-end. If an alternative
reporting date is granted:
___(1) The annual report is due sixty days after the fiscal
year-end; and
___(2) In order to provide sufficient detail to support the
premium tax return, the pure captive insurance company or
industrial insured captive insurance company shall file on or
before the first day of March of each year for each calendar
year-end, pages one, two, three and five of the "captive annual
statement; pure or industrial insured", verified by oath of two of
its executive officers.
§33-31-8. Examinations and investigations.
(a) At least once in three five years, and whenever the
commissioner determines it to be prudent, he the commissioner shall
personally, or by some competent person appointed by him the
commissioner, visit each captive insurance company and thoroughly
inspect and examine its affairs to ascertain its financial
condition, its ability to fulfill its obligations and whether it
has complied with the provisions of this chapter. The commissioner
upon application, in his discretion, may extend the aforesaid
three-year period to five years, provided said captive insurance
company is subject to a comprehensive annual audit during such
period of a scope satisfactory to the commissioner by independent
auditors approved by him. The captive insurance company shall be
subject to the provisions of section nine, article two of this
chapter in regard to the expense and conduct of the examination.
(b) All examination reports, preliminary examination reports
or results, working papers, recorded information, documents and
copies thereof produced by, obtained by or disclosed to the
commissioner or any other person in the course of an examination
made under this section are confidential and are not subject to
subpoena and may not be made public by the commissioner or an
employee or agent of the commissioner without the written consent
of the company, except to the extent provided in this subsection.
Nothing in this subsection shall prevent the commissioner from
using such information in furtherance of the commissioner's
regulatory authority under this title. The commissioner may, in the
commissioner's discretion, grant access to such information to
public officers having jurisdiction over the regulation of
insurance in any other state or country, or to law-enforcement
officers of this state or any other state or agency of the federal
government at any time, so long as such officers receiving the
information agree in writing to hold it in a manner consistent with
this section.
§33-31-9. Grounds and procedures for suspension or revocation of
license.
(a) The license of a captive insurance company to do any
insurance business in this state may be suspended or revoked by the
commissioner for any of the following reasons:
(1) Insolvency or impairment of capital or surplus;
(2) Failure to meet the requirements of section four or five
of this article;
(3) Refusal or failure to submit an annual report, as required
by section seven of this article, or any other report or statement
required by law or by lawful order of the commissioner;
(4) Failure to comply with the provisions of its own charter,
or bylaws or other organizational document;
(5) Failure to submit to examination or any legal obligation
relative thereto, as required by section eight of this article;
(6) Refusal or failure to pay the cost of examination as
required by section eight of this article;
(7) Use of methods that, although not otherwise specifically
prohibited by law, nevertheless render its operation detrimental or
its condition unsound with respect to the public or to its
policyholders; or
(8) Failure otherwise to comply with the laws of this state.
(b) If the commissioner finds, upon examination, hearing or
other evidence, that any captive insurance company has committed
any of the acts specified in violated any provision of subsection
(a) of this section, he the commissioner may suspend or revoke such
company's license if he the commissioner deems it in the best
interest of the public and the policyholders of such captive
insurance company, notwithstanding any other provision of this
title.
§33-31-10. Legal investments.
(a) An association Association captive insurance company
companies and risk retention groups shall comply with the
investment requirements of the commissioner contained in article eight of this chapter, as applicable. Section eleven, article seven
of this chapter shall apply to association captive insurance
companies and risk retention groups except to the extent it is
inconsistent with approved accounting standards in use by the
company. Notwithstanding any other provision of this chapter, the
commissioner may approve the use of alternative reliable methods of
valuation and rating.
(b) No pure captive insurance company or industrial insured
captive insurance company may shall be subject to any restrictions
on allowable investments whatever, including those limitations
contained in article eight of this chapter: Provided, That the
commissioner may, however, prohibit or limit any investment that
threatens the solvency or liquidity of any such company.
(c) No pure captive insurance company may make a loan to or an
investment in its parent company or affiliates without prior
written approval of the commissioner, and any such loan or
investment must be evidenced by documentation approved by the
commissioner. Loans of minimum capital and surplus funds required
by section four of this article are prohibited.
§33-31-11. Reinsurance.
(a) A Any captive insurance company may procure reinsurance or
issue policies of reinsurance to other licensed insurers
transacting like kinds of insurance, pursuant to the provisions of
section fifteen, article four of this chapter provide reinsurance,
comprised in section fifteen-a, article four of this chapter, on
risks ceded by any other insurer.
___(b) Any captive insurance company may take credit for the
reinsurance of risks or portions of risks ceded to reinsurers
complying with the provisions of sections fifteen-a and fifteen-b,
article four of this chapter. Prior approval of the commissioner
shall be required for ceding or taking credit for the reinsurance
of risks or portions of risks ceded to reinsurers not complying
with said sections, except for business written by an alien captive
insurance company outside of the United States.
___(c) In addition to reinsurers authorized under the provisions
of section fifteen, article four of this chapter, a captive
insurance company may take credit for the reinsurance of risks or
portions of risks ceded to a pool, exchange or association acting
as a reinsurer which has been authorized by the commissioner. The
commissioner may require any other documents, financial information
or other evidence that such a pool, exchange or association will be
able to provide adequate security for its financial obligations.
The commissioner may deny authorization or impose any limitations
on the activities of a reinsurance pool, exchange or association
that, in the commissioner's judgment, are necessary and proper to
provide adequate security for the ceding captive insurance company
and for the protection and consequent benefit of the public at
large.
___(d) For all purposes of this chapter, insurance by a captive
insurance company of any workers' compensation qualified
self-insured plan of its parent and affiliates shall be deemed to
be reinsurance.
§33-31-13. Exemption from compulsory associations.
No captive insurance company may be permitted to join or
contribute financially to any plan, pool, association or guaranty
or insolvency fund in this state, nor may any captive insurance
company, or its insured, or its parent or any affiliated company,
or any member organization of its association any insured or
affiliate thereof, receive any benefit from any such plan, pool,
association or guaranty or insolvency fund for claims arising out
of the operations of such captive insurance company.
§33-31-14. Tax on premiums collected.
(a) Each pure captive insurance company which maintains its
principal office and principal place of business in this state
shall pay to the commissioner, in the month of February of each
year, a tax at the rate of five tenths of one percent on the gross
amount of all premiums collected or contracted for on policies or
contracts of insurance covering property or risks in this state and
on risks and property situated elsewhere upon which no premium tax
is otherwise paid written by the pure captive insurance company
during the year ending the thirty-first day of December, next
preceding, after deducting from the gross amount of direct
premiums, subject to the tax, the amount received as reinsurance
premiums on business in the state and the amount amounts paid to
policyholders as return premiums which shall include dividends on
unabsorbed premiums or premium deposits returned or credited to
policyholders: Provided, That no tax shall be due or payable as to
considerations received for annuity contracts.
___(b) Except as otherwise provided in subsection (a) of this
section, each captive insurance company shall pay to the
commissioner in the month of February of each year, a tax at the
rate of two percent on the gross amount of all premiums collected
on or contracted for on policies or contracts of insurance written
by the captive insurance company during the year ending the
thirty-first day of December, next preceding, after deducting from
the direct premiums, subject to the tax, the amounts paid to
policyholders as return premiums which shall include dividends on
unabsorbed premiums or premium deposits returned or credited to
policyholders. Each captive insurance company shall also be
subject to the additional premium taxes levied by sections
fourteen-a and fourteen-d, article three of this chapter and the
surcharge levied by said section.
___(b) (c) The tax provided for in this section shall constitute
all taxes collectible under the laws of this state from any captive
insurance company, and no other premium occupation tax or other
taxes shall be levied or collected from any captive insurance
company by the state or any county, city or municipality within
this state, except ad valorem taxes.
(d) The tax provided for in this section shall be calculated
on an annual basis, notwithstanding policies or contracts of
insurance or contracts of reinsurance issued on a multiyear basis.
In the case of multiyear policies or contracts, the premium shall
be prorated for purposes of determining the tax under this section.
§33-31-15. Rules and regulations.
The commissioner may establish rules and from time to time
amend such rules relating to captive insurance companies as are
necessary to enable him the commissioner to carry out the
provisions of this chapter.
§33-31-17. Delinquency.
Except as otherwise provided in this article, the terms and
conditions set forth in article ten of this chapter, pertaining to
insurance reorganizations, receiverships and injunctions, shall
apply in full to captive insurance companies formed or licensed
under this article.
§33-31-18. Rules for controlled unaffiliated business.
The commissioner may adopt rules establishing standards to
ensure that a parent or affiliated company is able to exercise
control of the risk management function of any controlled
unaffiliated business to be insured by the pure captive insurance
company. Until such time as rules under this section are adopted,
the commissioner may approve the coverage of such risks by a pure
captive insurance company.
§33-31-19. Conversion to or merger with reciprocal insurer.
(a) An association captive insurance company, risk retention
group or industrial insured captive insurance company formed as a
stock or mutual corporation may be converted to or merged with and
into a reciprocal insurer in accordance with a plan therefore and
the provisions of this section.
(b) Any plan for such conversion or merger shall provide a
fair and equitable plan for purchasing, retiring or otherwise extinguishing the interests of the stockholders and policyholders
of a stock insurer and the members and policyholders of a mutual
insurer, including a fair and equitable provision for the rights
and remedies of dissenting stockholders, members or policyholders.
(c) In the case of a conversion authorized under subsection
(a) of this section:
(1) Such conversion shall be accomplished under such
reasonable plan and procedure as approved by the commissioner. The
commissioner may not approve any plan of conversion unless the
plan:
(A) Satisfies the provisions of subsection (b) of this
section;
(B) Provides for a hearing, of which notice is given or to be
given to the captive insurance company, its directors, officers and
policyholders and, in the case of a stock insurer, its stockholders
and, in the case of a mutual insurer, its members, all of which
persons shall be entitled to attend and appear at such hearing. If
notice of a hearing is given and no director, officer,
policyholder, member or stockholder requests a hearing, the
commissioner may cancel such hearing;
(C) Provides a fair and equitable plan for the conversion of
stockholder, member or policyholder interests into subscriber
interests in the resulting reciprocal insurer, substantially
proportionate to the corresponding interests in the stock or mutual
insurer: Provided, That this requirement shall not preclude the
resulting reciprocal insurer from applying underwriting criteria that could affect ongoing ownership interests; and
(D) Is approved:
(i) In the case of a stock insurer, by a majority of the
shares entitled to vote represented in person or by proxy at a duly
called regular or special meeting at which a quorum is present; and
(ii) In the case of a mutual insurer, by a majority of the
voting interests of policyholders represented in person or by proxy
at a duly called regular or special meeting thereof at which a
quorum is present;
(2) The commissioner shall approve such plan of conversion if
the commissioner finds that the conversion will promote the general
good of the state in conformity with those standards set forth in
subdivision (2), subsection (d), section six of this article;
(3) If the commissioner approves the plan, the commissioner
shall amend the converting insurer's certificate of authority to
reflect conversion to a reciprocal insurer and issue such amended
certificate of authority to the company's attorney-in-fact;
(4) Upon the issuance of an amended certificate of authority
of a reciprocal insurer by the commissioner, the conversion shall
be effective; and
(5) Upon the effectiveness of such conversion the corporate
existence of the converting insurer shall cease and the resulting
reciprocal insurer shall notify the secretary of state of such
conversion.
(d) A merger authorized under subsection (a) of this section
shall be accomplished substantially in accordance with the procedures set forth in sections twenty-five and twenty-eight,
article five of this chapter, except that, solely for purposes of
such merger:
(1) The plan of merger shall satisfy the provisions of
subsection (b) of this section;
(2) The subscribers' advisory committee of a reciprocal
insurer shall be equivalent to the board of directors of a stock or
mutual insurance company;
(3) The subscribers of a reciprocal insurer shall be the
equivalent of the policyholders of a mutual insurance company;
(4) If a subscribers' advisory committee does not have a
president or secretary, the officers of such committee having
substantially equivalent duties shall be deemed the president or
secretary of such committee;
(5) The commissioner shall approve the articles of merger if
the commissioner finds that the merger will promote the general
good of the state in conformity with those standards set forth in
subdivision (2), subsection (d), section six of this article. If
the commissioner approves the articles of merger, the commissioner
shall endorse the commissioner's approval thereon and the surviving
insurer shall present the same to the secretary of state at the
secretary of state's office;
(6) Notwithstanding section four of this article, the
commissioner may permit the formation, without surplus, of a
captive insurance company organized as a reciprocal insurer, into
which an existing captive insurance company may be merged for the purpose of facilitating a transaction under this section: Provided,
That there shall be no more than one authorized insurance company
surviving such merger; and
(7) An alien insurer may be a party to a merger authorized
under subsection (a) of this section: Provided, That the
requirements for a merger between a domestic and a foreign insurer
under section twenty-five, article five of this chapter shall apply
to a merger between a domestic and an alien insurer under this
subsection. Such alien insurer shall be treated as a foreign
insurer under section twenty-five, article five of this chapter and
such other jurisdictions shall be the equivalent of a state for
purposes of said section.
§33-31-20. Branch captive insurance company formation.
(a) A branch captive may be established in this state in
accordance with the provisions of this article to write in this
state only insurance or reinsurance of the employee benefit
business of its parent and affiliated companies which is subject to
the provisions of the federal Employee Retirement Income Security
Act of 1974 and set forth in 29 U. S. C. §1001, et seq., as
amended. In addition to the general provisions of this chapter,
the provisions of sections twenty-one through twenty-five,
inclusive, of this article shall apply to branch captive insurance
companies.
(b) No branch captive insurance company shall do any insurance
business in this state unless it maintains the principal place of
business for its branch operations in this state.
§33-31-21. Security required.
In the case of a branch captive insurance company, as security
for the payment of liabilities attributable to the branch
operations, the commissioner shall require that a trust fund,
funded by an irrevocable letter of credit or other acceptable
asset, be established and maintained in the United States for the
benefit of United States policyholders and United States ceding
insurers under insurance policies issued or reinsurance contracts
issued or assumed by the branch captive insurance company through
its branch operations. The amount of such security may be no less
than the amount set forth in subdivision (1), subsection (a),
section four of this article and the reserves on such insurance
policies or such reinsurance contracts, including reserves for
losses, allocated loss adjustment expenses, incurred but not
reported losses, and unearned premiums with regard to business
written through the branch operations: Provided, That the
commissioner may permit a branch captive insurance company that is
required to post security for loss reserves on branch business by
its reinsurer to reduce the funds in the trust account required by
this section by the same amount so long as the security remains
posted with the reinsurer. If the form of security selected is a
letter of credit, the letter of credit must be established by, or
issued or confirmed by, a bank chartered in this state or a member
bank of the federal reserve system.
§33-31-22. Certificate of general good.
In the case of a captive insurance company licensed as a branch captive, the alien captive insurance company shall petition
the commissioner to issue a certificate setting forth the
commissioner's finding that, after considering the character,
reputation, financial responsibility, insurance experience and
business qualifications of the officers and directors of the alien
captive insurance company, the licensing and maintenance of the
branch operations will promote the general good of the state. The
alien captive insurance company may register to do business in this
state after the commissioner's certificate is issued.
§33-31-23. Reports.
Prior to the first day of March of each year, or with the
approval of the commissioner within sixty days after its fiscal
year-end, a branch captive insurance company shall file with the
commissioner a copy of all reports and statements required to be
filed under the laws of the jurisdiction in which the alien captive
insurance company is formed, verified under oath by its president
and secretary. If the commissioner is satisfied that the annual
report filed by the alien captive insurance company in its
domiciliary jurisdiction provides adequate information concerning
the financial condition of the alien captive insurance company, the
commissioner may waive the requirement for completion of the
captive annual statement for business written in the alien
jurisdiction.
§33-31-24. Examination.
(a) The examination of a branch captive insurance company
pursuant to section eight of this article shall be of branch business and branch operations only, so long as the branch captive
insurance company annually provides to the commissioner a
certificate of compliance, or its equivalent, issued by or filed
with the licensing authority of the jurisdiction in which the
branch captive insurance company is formed, and demonstrates to the
commissioner's satisfaction that it is operating in sound financial
condition in accordance with all applicable laws and regulations of
such jurisdiction.
(b) As a condition of licensure, the alien captive insurance
company shall grant authority to the commissioner for examination
of the affairs of the alien captive insurance company in the
jurisdiction in which the alien captive insurance company is
formed.
§33-31-25. Taxation.
In the case of a branch captive insurance company, the tax
provided for in section fourteen of this article shall apply only
to the branch business of such company.
ARTICLE 31A. SPONSORED CAPTIVE INSURANCE COMPANY FORMATION.
§33-31A-1. Applicability of article.
In addition to the provisions of article thirty-one of this
chapter, the provisions of this article shall apply to all
sponsored captive insurance companies.
§33-31A-2. Definitions.
As used in this article, unless the context requires
otherwise:
(1) "Participant" means associations, corporations, limited liability companies, partnerships, trusts and other business
entities and any affiliates thereof, that are insured by a
sponsored captive insurance company, where the losses of the
participant are limited through a participant contract to such
participant's pro rata share of the assets of one or more protected
cells identified in such participant contract.
(2) "Participant contract" means a contract by which a
sponsored captive insurance company insures the risks of a
participant and limits the losses of each such participant to its
pro rata share of the assets of one or more protected cells
identified in such participant contract.
(3) "Protected cell" means a separate account established by
a sponsored captive insurance company formed or licensed under the
provisions of this chapter, in which assets are maintained for one
or more participants in accordance with the terms of one or more
participant contracts to fund the liability of the sponsored
captive insurance company assumed on behalf of such participants as
set forth in such participant contracts.
(4) "Sponsor" means any entity that meets the requirements of
section six of this article and is approved by the commissioner to
provide all or part of the capital and surplus required by
applicable law and to organize and operate a sponsored captive
insurance company.
(5) "Sponsored captive insurance company" means any captive
insurance company:
(A) In which the minimum capital and surplus required by applicable law is provided by one or more sponsors;
(B) That is formed or licensed under the provisions of this
chapter;
(C) That insures the risks only of its participants through
separate participant contracts; and
(D) That funds its liability to each participant through one
or more protected cells and segregates the assets of each protected
cell from the assets of other protected cells and from the assets
of the sponsored captive insurance company's general account.
§33-31A-3. Formation of sponsored captive insurance companies.
One or more sponsors may form a sponsored captive insurance
company under the provisions of this article. A sponsored captive
insurance company shall be incorporated as a stock insurer with its
capital divided into shares and held by the stockholders.
§33-31A-4. Supplemental application materials
.
In addition to the information required by subdivisions (1)
and (2), subsection (c), section two, article thirty-one of this
chapter, each applicant-sponsored captive insurance company shall
file with the commissioner the following:
(1) Materials demonstrating how the applicant will account for
the loss and expense experience of each protected cell at a level
of detail found to be sufficient by the commissioner and how it
will report such experience to the commissioner;
(2) A statement acknowledging that all financial records of
the sponsored captive insurance company, including records
pertaining to any protected cells, shall be made available for inspection or examination by the commissioner or the commissioner's
designated agent;
(3) All contracts or sample contracts between the sponsored
captive insurance company and any participants; and
(4) Evidence that expenses shall be allocated to each
protected cell in a fair and equitable manner.
§33-31A-5. Protected cells.
A sponsored captive insurance company formed or licensed under
the provisions of this article may establish and maintain one or
more protected cells to insure risks of one or more participants,
subject to the following conditions:
(1) The shareholders of a sponsored captive insurance company
shall be limited to its participants and sponsors: Provided, That
a sponsored captive insurance company may issue nonvoting
securities to other persons on terms approved by the commissioner;
(2) Each protected cell shall be accounted for separately on
the books and records of the sponsored captive insurance company to
reflect the financial condition and results of operations of such
protected cell, net income or loss, dividends or other
distributions to participants and such other factors as may be
provided in the participant contract or required by the
commissioner;
(3) The assets of a protected cell shall not be chargeable
with liabilities arising out of any other insurance business the
sponsored captive insurance company may conduct;
(4) No sale, exchange or other transfer of assets may be made by such sponsored captive insurance company between or among any of
its protected cells without the consent of such protected cells;
(5) No sale, exchange, transfer of assets, dividend or
distribution may be made from a protected cell to a sponsor or
participant without the commissioner's approval and in no event
shall such approval be given if the sale, exchange, transfer,
dividend or distribution would result in insolvency or impairment
with respect to a protected cell;
(6) Each sponsored captive insurance company shall annually
file with the commissioner such financial reports as the
commissioner shall require, which shall include, without
limitation, accounting statements detailing the financial
experience of each protected cell;
(7) Each sponsored captive insurance company shall notify the
commissioner in writing within ten business days of any protected
cell that is insolvent or otherwise unable to meet its claim or
expense obligations;
(8) No participant contract shall take effect without the
commissioner's prior written approval, and the addition of each new
protected cell and withdrawal of any participant or termination of
any existing protected cell shall constitute a change in the
business plan requiring the commissioner's prior written approval;
and
(9) The business written by a sponsored captive, with respect
to each cell, shall be:
(A) Fronted by an insurance company licensed under the laws of any state;
(B) Reinsured by a reinsurer authorized or approved by the
state of West Virginia; or
(C) Secured by a trust fund in the United States for the
benefit of policyholders and claimants or funded by an irrevocable
letter of credit or other arrangement that is acceptable to the
commissioner. The amount of security provided shall be no less
than the reserves associated with those liabilities which are
neither fronted nor reinsured, including reserves for losses,
allocated loss adjustment expenses, incurred but not reported
losses and unearned premiums for business written through the
participant's protected cell. The commissioner may require the
sponsored captive to increase the funding of any security
arrangement established under this subdivision. If the form of
security is a letter of credit, the letter of credit must be
established, issued or confirmed by a bank chartered in this state,
a member of the federal reserve system or a bank chartered by
another state if such state chartered bank is acceptable to the
commissioner. A trust maintained pursuant to this paragraph shall
be established in a form and upon such terms approved by the
commissioner.
§33-31A-6. Qualification of sponsors.
A sponsor of a sponsored captive insurance company shall be an
insurer licensed under the laws of any state, a reinsurer
authorized or approved under the laws of any state or a captive
insurance company formed or licensed under this article. A risk retention group shall not be either a sponsor or a participant of
a sponsored captive insurance company.
§33-31A-7. Authorized participants.
Associations, corporations, limited liability companies,
partnerships, trusts and other business entities may be
participants in any sponsored captive insurance company formed or
licensed under this chapter. A sponsor may be a participant in a
sponsored captive insurance company. A participant need not be a
shareholder of the sponsored captive insurance company or any
affiliate thereof. A participant shall insure only its own risks
through a sponsored captive insurance company.
§33-31A-8. Investments.
Notwithstanding the provisions of section five of this
article, the assets of two or more protected cells may be combined
for purposes of investment, and such combination shall not be
construed as defeating the segregation of such assets for
accounting or other purposes. Sponsored captive insurance companies
shall comply with the investment requirements contained in article
eight of this chapter, as applicable: Provided, That compliance
with such investment requirements shall be waived for sponsored
captive insurance companies to the extent that credit for
reinsurance ceded to reinsurers is allowed pursuant to section
eleven, article thirty-one of this chapter or to the extent
otherwise deemed reasonable and appropriate by the commissioner.
Notwithstanding any other provision of this chapter, the
commissioner may approve the use of alternative reliable methods of valuation and rating.
§33-31A-9. Delinquency.
In the case of a delinquency of a sponsored captive insurance
company, the provisions of section seventeen, article thirty-one of
this chapter shall apply, provided:
(1) The assets of a protected cell may not be used to pay any
expenses or claims other than those attributable to such protected
cell; and
(2) Its capital and surplus shall at all times be available to
pay any expenses of or claims against the sponsored captive
insurance company.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 428--A Bill to amend and reenact §33-31-
1, §33-31-2, §33-31-4, §33-31-5, §33-31-6, §33-31-7, §33-31-8, §33-
31-9, §33-31-10, §33-31-11, §33-31-13, §33-31-14 and §33-31-15 of
the code of West Virginia, 1931, as amended; to amend said code by
adding thereto nine new sections, designated §33-31-17, §33-31-18,
§33-31-19, §33-31-20, §33-31-21, §33-31-22, §33-31-23, §33-31-24
and §33-31-25; and to amend said code by adding thereto a new
article, designated §33-31A-1, §33-31A-2, §33-31A-3, §33-31A-4,
§33-31A-5, §33-31A-6, §33-31A-7, §33-31A-8 and §33-31A-9, all
relating to captive insurance companies; authorizing establishment
of and regulating branch captive insurance companies and sponsored
cell captives; and generally modernizing the captive insurance law.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 428, as amended by the House of
Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 428) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 444, Requiring county litter control
officers to enforce litter laws.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §7-1-3ff of the code of West Virginia, 1931, as amended,
be amended and reenacted; and that §20-7-25 of said code be amended
and reenacted, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3ff. Authority of county commission to enact ordinances
regulating the repair, alteration, improvement,
vacating, closing, removal or demolition of unsafe
or unsanitary structures and the clearance and
removal of refuse, debris, overgrown vegetation,
toxic spills or toxic seepage on private land;
authority to create enforcement agency; procedure
for complaints; promulgation of rules governing
investigation and hearing of complaints; remedies
for failure to comply with commission-ordered
repairs or alterations; lien and sale of land to
recover costs; entry on land to perform repairs and
alterations or to satisfy lien; receipt of grants
and subsidies.
(a) Plenary power and authority are hereby conferred upon
every county commission to adopt ordinances regulating the repair,
alteration or improvement, or the vacating and closing or removal
or demolition, or any combination thereof, of any dwellings or other buildings, except for buildings utilized for farm purposes on
land actually being used for farming, unfit for human habitation
due to dilapidation, defects increasing the hazard of fire,
accidents or other calamities, lack of ventilation, light or
sanitary facilities or any other conditions prevailing in any
dwelling or building, whether used for human habitation or not,
which would cause the dwellings or other buildings to be unsafe,
unsanitary, dangerous or detrimental to the public safety or
welfare, whether the result of natural or manmade force or effect.
(b) Plenary power and authority are hereby conferred upon
every county commission to adopt ordinances regulating the removal
and cleanup of any accumulation of refuse or debris, overgrown
vegetation or toxic spillage or toxic seepage located on private
lands which is determined to be unsafe, unsanitary, dangerous or
detrimental to the public safety or welfare, whether the result of
natural or manmade force or effect.
(c) The county commission, in formally adopting ordinances,
shall designate an enforcement agency which shall consist of the
county engineer (or other technically qualified county employee or
consulting engineer), county health officer or his or her designee,
a fire chief from a county fire company, the county litter control
officer, if the commission chooses to hire one, and two members at
large selected by the county commission to serve two-year terms.
The county sheriff shall serve as an ex officio member of the
enforcement agency and the county officer charged with enforcing
the orders of the county commission under this section.
(d) In addition to the powers and duties imposed by this
section, county litter control officers shall enforce the West
Virginia litter control program established pursuant to the
provisions of sections twenty-four through twenty-nine, inclusive,
article seven, chapter twenty of this code. Any county commission
which hires a litter control officer shall contract with the West
Virginia division of natural resources for any training necessary
for a litter control officer to properly fulfill his or her
responsibilities under the litter control program. Nothing in this
subsection supercedes in any way the authority or duty of other
law-enforcement officers to preserve law and order and enforce the
litter control program.
___(d) (e) Any ordinance adopted pursuant to the provisions of
this section shall provide fair and equitable rules of procedure
and any other standards considered necessary to guide the
enforcement agency, or its agents, in the investigation of dwelling
or building conditions, accumulation of refuse or debris, overgrown
vegetation or toxic spillage or toxic seepage and shall provide for
fair and equitable rules of procedure for instituting and
conducting hearings in the matters before the county commission.
Any entrance upon premises for the purpose of making examinations
shall be made in a manner as to cause the least possible
inconvenience to the persons in possession.
(e) (f) Any county commission adopting ordinances authorized
by this section shall hear and determine complaints of the
enforcement agency. Complaints shall be initiated by citation issued by the county litter control officer or petition of the
county engineer (or other technically qualified county employee or
consulting engineer) on behalf of and at the direction of the
enforcement agency, but only after that agency has investigated and
determined that any dwelling, building, accumulation of refuse or
debris, overgrown vegetation or toxic spillage or toxic seepage is
unsafe, unsanitary, dangerous or detrimental to the public safety
or welfare and should be repaired, altered, improved, vacated,
removed, closed, cleaned or demolished. The county commission
shall cause the owner or owners of the private land in question to
be served with a copy of the complaint. Service shall be
accomplished in the manner provided in rule four of the West
Virginia rules of civil procedure. The complaint shall state the
findings and recommendations of the enforcement agency and that
unless the owner or owners of the property file with the clerk of
the county commission a written request for a hearing within ten
days of receipt of the complaint, an order will be issued by the
county commission implementing the recommendations of the
enforcement agency. If the owner or owners of the property file a
request for a hearing, the county commission shall issue an order
setting this matter down for hearing within twenty days. Hearings
shall be recorded by electronic device or by court reporter. The
West Virginia rules of evidence do not apply to the proceedings,
but each party has the right to present evidence and examine and
cross-examine all witnesses. The enforcement agency has the burden
of proving its allegation by a preponderance of the evidence and has the duty to go forward with the evidence. At the conclusion of
the hearing the county commission shall make findings of fact,
determinations and conclusions of law as to whether the dwelling or
building: Is unfit for human habitation due to dilapidation; has
defects that increase the hazard of fire, accidents or other
calamities, lacks ventilation, light or sanitary facilities; or any
other conditions prevailing in the dwelling or building, whether
used for human habitation or not and whether the result of natural
or manmade force or effect, which would cause such dwelling or
other building to be unsafe, unsanitary, dangerous or detrimental
to the public safety or welfare; or whether there is an
accumulation of refuse or debris, overgrown vegetation, toxic
spillage or toxic seepage on private lands which is determined to
be unsafe, unsanitary, dangerous or detrimental to the public
safety or welfare, whether the result of natural or manmade force
or effect. The county commission has authority to order the owner
or owners thereof to repair, alter, improve, vacate, remove, close,
clean up or demolish the dwelling or building in question or to
remove or cleanup any accumulation of refuse or debris, overgrown
vegetation or toxic spillage or toxic seepage within a reasonable
time and to impose daily civil monetary penalties on the owner or
owners who fail to obey an order. Appeals from the county
commission to the circuit court shall be in accordance with the
provisions of article three, chapter fifty-eight of this code.
(f) (g) Upon the failure of the owner or owners of the private
land to perform the ordered duties and obligations as set forth in the order of the county commission, the county commission may
advertise for and seek contractors to make the ordered repairs,
alterations or improvements, or the ordered demolition, removal or
cleanup. The county commission may enter into any contract with
any contractor to accomplish the ordered repairs, alterations or
improvements or the ordered demolition, removal or cleanup.
(g) (h) A civil proceeding may be brought in circuit court by
the county commission against the owner or owners of the private
land which is the subject matter of the order of the county
commission to subject the private land in question to a lien for
the amount of the contractor's costs in making these ordered
repairs, alterations or improvements or ordered demolition, removal
or cleanup, together with any daily civil monetary penalty imposed
and reasonable attorney fees and court costs and to order and
decree the sale of the private land in question to satisfy the lien
and to order and decree that the contractor may enter upon the
private land in question at any and all times necessary to make
improvements, or ordered repairs, alterations or improvements, or
ordered demolition, removal or cleanup. In addition, the county
commission shall have the authority to institute a civil action in
a court of competent jurisdiction against the landowner or other
responsible party for all costs incurred by the county with respect
to the property and for reasonable attorney fees and court costs
incurred in the prosecution of the action.
(h) (i) County commissions have the power and authority to
receive and accept grants, subsidies, donations and services in kind consistent with the objectives of this section.
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 7. LAW ENFORCEMENT, MOTORBOATING, LITTER.
§20-7-25. West Virginia litter control and recycling programs;
additional duties of director; grants to counties and
municipalities; and regulations relating thereto.
(a) In addition to all other powers, duties and
responsibilities granted and assigned to the director of the
division of natural resources in this chapter and elsewhere by law,
the director, in the administration of the West Virginia litter
control program created by this section, shall:
(1) Coordinate all industry and business organizations seeking
to aid in the litter control and recycling effort;
(2) Cooperate with all local governments to accomplish
coordination of local litter control and recycling efforts;
(3) Encourage, organize, coordinate and increase public
awareness of and participation in all voluntary litter control and
recycling campaigns, including citizen litter watch programs,
seeking to focus the attention of the public on the litter control
and recycling programs of the state and local governments and of
private recycling centers;
(4) Encourage, organize, coordinate and increase public
awareness of, and participation in, a volunteer litter-reporting
program. The director shall assist the county commission and the
county sheriff in establishing the program, which shall utilize
trained volunteers to report and collect information necessary to enable the county sheriff to issue citations to persons violating
the litter laws of this state. The scope of duty of a volunteer
participating in the litter-reporting program may include:
Reporting the motor vehicle registration plate number, the date,
time and location of a person observed littering; collecting other
evidence as may be requested by the county sheriff, including
taking photographs of a litter site; providing testimony in court
proceedings as to litter violations observed or evidence collected
by the volunteer; and providing other assistance in litter
enforcement as may be requested by the county sheriff, except that
in no event may a volunteer participate in the direct apprehension
or arrest of a litter violator. The county sheriff may seek the
assistance of the law-enforcement section of the division of
natural resources to provide a training course for volunteers to
instruct them in proper reporting procedures and the collection of
evidence and may provide reporting forms for volunteers to record
their observations of litter violations. Upon completion of the
course and approval from the county sheriff, a volunteer may begin
participation in the program. Volunteers participating in the
program are responsible for providing their own vehicles, gasoline,
cameras, cell phones and other items they may use while
participating in the program and are responsible for other
incidental expenses they may incur in the course of participating
in the program, except as otherwise provided in this section. The
commissioner of the division of highways may cause appropriate
signs to be placed along primary and secondary highways to inform motorists of the volunteer litter reporting program;
_____(4) (5) Recommend to local governing bodies that they adopt
ordinances similar to the provisions of section twenty-six of this
article;
(5) (6) Investigate the methods and success of techniques of
litter control, removal and disposal utilized in other states, and
develop, encourage, organize and coordinate local litter control
programs funded by grants awarded pursuant to subsection (b) of
this section utilizing such successful techniques;
(6) (7) Investigate the availability of, and apply for, funds
available from any and all private or public sources to be used in
the litter control program created by this section;
(7) (8) Promulgate regulations pursuant to article three,
chapter twenty-nine-a of this code establishing criteria for the
awarding of direct and/or matching grants for the study of
available research and development in the fields of litter control,
removal and disposal, methods for the implementation of such
research and development, and the development of public educational
programs concerning litter control;
(8) (9) Promulgate regulations pursuant to article three,
chapter twenty-nine-a of this code designating public areas where
litter receptacles shall be placed in accordance with subsection
(d), section twenty-six of this article. The director is further
authorized to specify within such regulations the minimum number of
litter receptacles required to be placed at each designated public
area;
(9) (10) Attract to the state persons or industries that
purchase, process or use recyclable materials; and
(10) (11) Contract for the development, production and
broadcast of radio and television messages promoting the West
Virginia litter control program. The messages should increase
public awareness of and promote citizen responsibility toward the
reduction of litter. The director shall undertake the activities
authorized in this subdivision no later than the fifteenth day of
September, one thousand nine hundred eighty-eight.
(b) Commencing on the first day of July, one thousand nine
hundred eighty-six, the director shall expend annually at least
fifty percent of the moneys credited to the "litter control fund"
in the previous fiscal year for matching grants to counties and
municipalities for the initiation and administration of litter
control programs. The director may promulgate regulations pursuant
to article three, chapter twenty-nine-a of this code establishing
criteria for the awarding of matching grants.
(c) The director of the division of natural resources in
cooperation with the commissioner of highways, the department of
commerce, the department of public safety West Virginia state
police, the United States forestry service, and other local, state
and federal law-enforcement agencies, shall be responsible for the
administration and enforcement of all laws and regulations relating
to the maintenance of cleanliness and improvement of appearances on
and along highways, roads, streets, alleys and any other private or
public areas of the state and these other agencies shall make recommendations to the director from time to time concerning means
and methods of accomplishing litter control consistent with the
provisions of this chapter. Such cooperation shall include, but
not be limited to, contracts with the commissioner of highways to
operate the litter control program.
(d) All other state agencies and local governments shall
cooperate with the director in effecting the purposes of the litter
control program.
;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 444--A Bill to
amend and reenact
§7-1-3ff
of the code of West Virginia, 1931, as amended; and to amend and
reenact §20-7-25 of said code, all relating to authority of county
commissions to hire litter control officer; requiring county litter
control officer to enforce litter laws under the litter control
program; and encouraging volunteers by creating a volunteer
program
.
On motion of Senator Fanning, the following amendments to the
House of Delegates amendments to the bill were reported by the
Clerk, considered simultaneously, and adopted:
On page one, by striking out everything after the chapter
heading and inserting in lieu thereof the following
:
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3ff. Authority of county commission to enact ordinances
regulating the repair, alteration, improvement, vacating, closing, removal or demolition of unsafe
or unsanitary structures and the clearance and
removal of refuse, debris, overgrown vegetation,
toxic spills or toxic seepage on private land;
authority to create enforcement agency; procedure
for complaints; promulgation of rules governing
investigation and hearing of complaints; remedies
for failure to comply with commission-ordered
repairs or alterations; lien and sale of land to
recover costs; entry on land to perform repairs and
alterations or to satisfy lien; receipt of grants
and subsidies.
(a) Plenary power and authority are hereby conferred upon
every county commission to adopt ordinances regulating the repair,
alteration or improvement, or the vacating and closing or removal
or demolition, or any combination thereof, of any dwellings or
other buildings, except for buildings utilized for farm purposes on
land actually being used for farming, unfit for human habitation
due to dilapidation, defects increasing the hazard of fire,
accidents or other calamities, lack of ventilation, light or
sanitary facilities or any other conditions prevailing in any
dwelling or building, whether used for human habitation or not,
which would cause the dwellings or other buildings to be unsafe,
unsanitary, dangerous or detrimental to the public safety or
welfare, whether the result of natural or manmade force or effect.
(b) Plenary power and authority are hereby conferred upon every county commission to adopt ordinances regulating the removal
and cleanup of any accumulation of refuse or debris, overgrown
vegetation or toxic spillage or toxic seepage located on private
lands which is determined to be unsafe, unsanitary, dangerous or
detrimental to the public safety or welfare, whether the result of
natural or manmade force or effect.
(c) The county commission, in formally adopting ordinances,
shall designate an enforcement agency which shall consist of the
county engineer (or other technically qualified county employee or
consulting engineer), county health officer or his or her designee,
a fire chief from a county fire company, the county litter control
officer, if the commission chooses to hire one, and two members at
large selected by the county commission to serve two-year terms.
The county sheriff shall serve as an ex officio member of the
enforcement agency and the county officer charged with enforcing
the orders of the county commission under this section.
(d) In addition to the powers and duties imposed by this
section, county litter control officers
shall have authority to
issue citations for violations of the provisions of
section
twenty-six, article seven, chapter twenty of this code after
completing a training course offered by the West Virginia division
of natural resources. Nothing in this subsection supercedes the
authority or duty of other law-enforcement officers to preserve law
and order and enforce the litter control program.
_____(d) (e) Any ordinance adopted pursuant to the provisions of
this section shall provide fair and equitable rules of procedure and any other standards considered necessary to guide the
enforcement agency, or its agents, in the investigation of dwelling
or building conditions, accumulation of refuse or debris, overgrown
vegetation or toxic spillage or toxic seepage and shall provide for
fair and equitable rules of procedure for instituting and
conducting hearings in the matters before the county commission.
Any entrance upon premises for the purpose of making examinations
shall be made in a manner as to cause the least possible
inconvenience to the persons in possession.
(e) (f) Any county commission adopting ordinances authorized
by this section shall hear and determine complaints of the
enforcement agency. Complaints shall be initiated by citation
issued by the county litter control officer or petition of the
county engineer (or other technically qualified county employee or
consulting engineer) on behalf of and at the direction of the
enforcement agency, but only after that agency has investigated and
determined that any dwelling, building, accumulation of refuse or
debris, overgrown vegetation or toxic spillage or toxic seepage is
unsafe, unsanitary, dangerous or detrimental to the public safety
or welfare and should be repaired, altered, improved, vacated,
removed, closed, cleaned or demolished. The county commission
shall cause the owner or owners of the private land in question to
be served with a copy of the complaint. Service shall be
accomplished in the manner provided in rule four of the West
Virginia rules of civil procedure. The complaint shall state the
findings and recommendations of the enforcement agency and that unless the owner or owners of the property file with the clerk of
the county commission a written request for a hearing within ten
days of receipt of the complaint, an order will be issued by the
county commission implementing the recommendations of the
enforcement agency. If the owner or owners of the property file a
request for a hearing, the county commission shall issue an order
setting this matter down for hearing within twenty days. Hearings
shall be recorded by electronic device or by court reporter. The
West Virginia rules of evidence do not apply to the proceedings,
but each party has the right to present evidence and examine and
cross-examine all witnesses. The enforcement agency has the burden
of proving its allegation by a preponderance of the evidence and
has the duty to go forward with the evidence. At the conclusion of
the hearing the county commission shall make findings of fact,
determinations and conclusions of law as to whether the dwelling or
building: Is unfit for human habitation due to dilapidation; has
defects that increase the hazard of fire, accidents or other
calamities, lacks ventilation, light or sanitary facilities; or any
other conditions prevailing in the dwelling or building, whether
used for human habitation or not and whether the result of natural
or manmade force or effect, which would cause such dwelling or
other building to be unsafe, unsanitary, dangerous or detrimental
to the public safety or welfare; or whether there is an
accumulation of refuse or debris, overgrown vegetation, toxic
spillage or toxic seepage on private lands which is determined to
be unsafe, unsanitary, dangerous or detrimental to the public safety or welfare, whether the result of natural or manmade force
or effect. The county commission has authority to order the owner
or owners thereof to repair, alter, improve, vacate, remove, close,
clean up or demolish the dwelling or building in question or to
remove or cleanup any accumulation of refuse or debris, overgrown
vegetation or toxic spillage or toxic seepage within a reasonable
time and to impose daily civil monetary penalties on the owner or
owners who fail to obey an order. Appeals from the county
commission to the circuit court shall be in accordance with the
provisions of article three, chapter fifty-eight of this code.
(f) (g) Upon the failure of the owner or owners of the private
land to perform the ordered duties and obligations as set forth in
the order of the county commission, the county commission may
advertise for and seek contractors to make the ordered repairs,
alterations or improvements, or the ordered demolition, removal or
cleanup. The county commission may enter into any contract with
any contractor to accomplish the ordered repairs, alterations or
improvements or the ordered demolition, removal or cleanup.
(g) (h) A civil proceeding may be brought in circuit court by
the county commission against the owner or owners of the private
land which is the subject matter of the order of the county
commission to subject the private land in question to a lien for
the amount of the contractor's costs in making these ordered
repairs, alterations or improvements or ordered demolition, removal
or cleanup, together with any daily civil monetary penalty imposed
and reasonable attorney fees and court costs and to order and decree the sale of the private land in question to satisfy the lien
and to order and decree that the contractor may enter upon the
private land in question at any and all times necessary to make
improvements, or ordered repairs, alterations or improvements, or
ordered demolition, removal or cleanup. In addition, the county
commission shall have the authority to institute a civil action in
a court of competent jurisdiction against the landowner or other
responsible party for all costs incurred by the county with respect
to the property and for reasonable attorney fees and court costs
incurred in the prosecution of the action.
(h) (i) County commissions have the power and authority to
receive and accept grants, subsidies, donations and services in
kind consistent with the objectives of this section.;
On page one,
by striking out the enacting section and
inserting in lieu thereof a new enacting section, to read as
follows:
That §7-1-3ff of the code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 444--A Bill to amend and reenact
§7-1-3ff
of the code of West Virginia, 1931, as amended, relating to
authority of county commissions to hire litter control officer; and
requiring county litter control officer to enforce litter laws
under the litter
control program.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as amended.
Engrossed Senate Bill No. 444, as amended, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 444) passed with its Senate amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Com. Sub. for Senate Bill No. 460, Relating to regulating
surveyors and underground surveyors.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On
page two, section one, by striking out the section caption
and substituting therefor a new section caption, to read as
follows:
§30-13A-1. Legislative findings; license required to practice.;
On page seven, section three, line seventy-nine, by striking
out all of subdivision (w) and inserting in lieu thereof a new
subdivision (w), to read as follows:
(w) "Mortgage/loan inspection survey" means a survey in which
property lines and corner have not been established.;
On page thirteen, section three, line two hundred eight, after
the word "and" by striking out the word "features";
On page thirty-six, section fourteen, line nine, after the
word "fees" by inserting the words "as set by rule";
On page thirty-six, section fifteen, line eleven, after the
word "fees" by inserting the words "as set by rule";
On page forty-three, section twenty-four, line six, after the
word "thereto" by inserting a comma and the words "except that any
document, plan, map, drawing, exhibit, sketch or pictorial
representation prepared by a person exempted from the regulation
and licensing requirements of this article as provided in section
thirty-six of this article shall not be required to have the
signature and seal affixed thereto";
On page forty-three, section twenty-four, line eleven, after
the word "changes" by inserting a comma and the words "except that
any document, plan, map, drawing, exhibit, sketch or pictorial representation altered by a person exempted from the regulation and
licensing requirements of this article as provided in section
thirty-six of this article shall require that the person who made
the alteration initial the changes";
On page forty-four, section twenty-six, by striking out all of
subsection (d) and inserting in lieu thereof a new subsection (d),
to read as follows:
(d) A licensee, endorsee, an exempt person under section
thirty-six of this article or persons under the direct supervision
of a licensee, endorsee or exempt person shall physically go to the
land and perform the survey.;
On page forty-seven, section twenty-six, line seventy-eight,
after the word "The" by inserting the word "ares,";
On page forty-eight, section twenty-six, line one hundred
three, after the word "description" by inserting the words "or
strip description, if applicable,";
On page forty-nine, section twenty-six, line one hundred
twenty-two, by striking out all of subdivision (12) and inserting
in lieu thereof a new subdivision (12), to read as follows:
(12) The name of the individual preparing the description of
the survey.;
On page fifty, section twenty-six, by striking out all of
subsection (p) and inserting in lieu thereof a new subsection (p),
to read as follows:
(p) A mortgage/loan inspection survey in which boundaries on
a property have not been surveyed in accordance with the methods set forth by the board, then the plat must be stamped "a mortgage
inspection survey only, not a boundary survey". The surveyor must
notify a landowner or other person commissioning their services if
a survey or an inspection was performed.;
And,
On pages sixty-six and sixty-seven, section thirty-six, by
striking out all of subdivisions (1) and (2) and inserting in lieu
thereof two new subdivisions, designated subdivisions (1) and (2),
to read as follows:
(1) Any employee or agent of a person, firm, association or
corporation, when such employee or agent is engaged in the practice
of land surveying exclusively for the person, firm, association or
corporation by which employed, or, if a corporation, its parents,
affiliates or subsidiaries, and such person, firm, association or
corporation does not hold himself, herself or itself out to the
public as being engaged in the business of land surveying.
(2) Any employee or officer of the United States, this state
or any political subdivision thereof, or their agents, when such
employee is engaged in the practice of land surveying exclusively
for such governmental unit.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 460, as
amended by the House of Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 460) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 505, Creating motor vehicle
classification of "low-speed vehicle".
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page one, by striking out
everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 1. WORDS AND PHRASES DEFINED.
§17A-1-1. Definitions.
Except as otherwise provided in this chapter, the following words and phrases, when used in this chapter, shall have the
meanings respectively ascribed to them in this article:
(a) "Vehicle" means every device in, upon or by which any
person or property is or may be transported or drawn upon a
highway, excepting devices moved by human power or used exclusively
upon stationary rails or tracks.
(b) "Motor vehicle" means every vehicle which is
self-propelled and every vehicle which is propelled by electric
power obtained from overhead trolley wires, but not operated upon
rails.
(c) "Motorcycle" means every motor vehicle, including
motor-driven cycles and mopeds as defined in sections five and
five-a, article one, chapter seventeen-c of this code, having a
saddle for the use of the rider and designed to travel on not more
than three wheels in contact with the ground, but excluding a
tractor.
(d) "School bus" means every motor vehicle owned by a public
governmental agency and operated for the transportation of children
to or from school or privately owned and operated for compensation
for the transportation of children to or from school.
(e) "Bus" means every motor vehicle designed to carry more
than seven passengers and used to transport persons; and every
motor vehicle, other than a taxicab, designed and used to transport
persons for compensation.
(f) "Truck tractor" means every motor vehicle designed and
used primarily for drawing other vehicles and not so constructed as to carry a load other than a part of the weight of the vehicle and
load so drawn.
(g) "Farm tractor" means every motor vehicle designed and used
primarily as a farm implement for drawing plows, mowing machines
and other implements of husbandry.
(h) "Road tractor" means every motor vehicle designed, used or
maintained for drawing other vehicles and not so constructed as to
carry any load thereon either independently or any part of the
weight of a vehicle or load so drawn.
(i) "Truck" means every motor vehicle designed, used or
maintained primarily for the transportation of property.
(j) "Trailer" means every vehicle with or without motive power
designed for carrying persons or property and for being drawn by a
motor vehicle and so constructed that no part of its weight rests
upon the towing vehicle, but excluding recreational vehicles.
(k) "Semitrailer" means every vehicle with or without motive
power designed for carrying persons or property and for being drawn
by a motor vehicle and so constructed that some part of its weight
and that of its load rests upon or is carried by another vehicle.
(l) "Pole trailer" means every vehicle without motive power
designed to be drawn by another vehicle and attached to the towing
vehicle by means of a reach, or pole, or by being boomed or
otherwise secured to the towing vehicle and ordinarily used for
transporting long or irregularly shaped loads such as poles, pipes
or structural members capable, generally, of sustaining themselves
as beams between the supporting connections.
(m) "Specially constructed vehicles" means every vehicle of a
type required to be registered hereunder not originally constructed
under a distinctive name, make, model or type by a generally
recognized manufacturer of vehicles and not materially altered from
its original construction.
(n) "Reconstructed vehicle" means every vehicle of a type
required to be registered hereunder materially altered from its
original construction by the removal, addition or substitution of
essential parts, new or used.
(o) "Essential parts" means all integral and body parts of a
vehicle of a type required to be registered hereunder, the removal,
alteration or substitution of which would tend to conceal the
identity of the vehicle or substantially alter its appearance,
model, type or mode of operation.
(p) "Foreign vehicle" means every vehicle of a type required
to be registered hereunder brought into this state from another
state, territory or country other than in the ordinary course of
business by or through a manufacturer or dealer and not registered
in this state.
(q) "Implement of husbandry" means every vehicle which is
designed for or adapted to agricultural purposes and used by the
owner thereof primarily in the conduct of his agricultural
operations, including, but not limited to, trucks used for spraying
trees and plants: Provided, That the vehicle may not be let for
hire at any time.
(r) "Special mobile equipment" means every self-propelled vehicle not designed or used primarily for the transportation of
persons or property and incidentally operated or moved over the
highways, including, without limitation, road construction or
maintenance machinery, ditch-digging apparatus, stone crushers, air
compressors, power shovels, graders, rollers, well-drillers, wood-
sawing equipment, asphalt spreaders, bituminous mixers, bucket
loaders, ditchers, leveling graders, finishing machines, motor
graders, road rollers, scarifiers, earth-moving carryalls,
scrapers, drag lines, rock-drilling equipment and earth-moving
equipment. The foregoing enumeration shall be deemed partial and
may not operate to exclude other such vehicles which are within the
general terms of this subdivision.
(s) "Pneumatic tire" means every tire in which compressed air
is designed to support the load.
(t) "Solid tire" means every tire of rubber or other resilient
material which does not depend upon compressed air for the support
of the load.
(u) "Metal tire" means every tire the surface of which in
contact with the highway is wholly or partly of metal or other
hard, nonresilient material.
(v) "Commissioner" means the commissioner of motor vehicles of
this state.
(w) "Department" "Division" means the department division of
motor vehicles of this state acting directly or through its duly
authorized officers and agents.
(x) "Person" means every natural person, firm, copartnership, association or corporation.
(y) "Owner" means a person who holds the legal title to a
vehicle, or in the event a vehicle is the subject of an agreement
for the conditional sale or lease thereof with the right of
purchase upon performance of the conditions stated in the agreement
and with an immediate right of possession vested in the conditional
vendee or lessee, or in the event a mortgagor of a vehicle is
entitled to possession, then the conditional vendee or lessee or
mortgagor shall be deemed the owner for the purpose of this
chapter.
(z) "Nonresident" means every person who is not a resident of
this state.
(aa) "Dealer" or "dealers" is a general term meaning,
depending upon the context in which used, either a new motor
vehicle dealer, used motor vehicle dealer, factory-built home
dealer, recreational vehicle dealer, trailer dealer or motorcycle
dealer, as defined in section one, article six of this chapter, or
all of the dealers or a combination thereof and, in some instances,
a new motor vehicle dealer or dealers in another state.
(bb) "Registered dealer" or "registered dealers" is a general
term meaning, depending upon the context in which used, either a
new motor vehicle dealer, used motor vehicle dealer, house trailer
dealer, trailer dealer, recreational vehicle dealer or motorcycle
dealer, or all of the dealers or a combination thereof, licensed
under the provisions of article six of this chapter.
(cc) "Licensed dealer" or "licensed dealers" is a general term meaning, depending upon the context in which used, either a new
motor vehicle dealer, used motor vehicle dealer, house trailer
dealer, trailer dealer, recreational vehicle dealer or motorcycle
dealer, or all of the dealers or a combination thereof, licensed
under the provisions of article six of this chapter.
(dd) "Transporter" means every person engaged in the business
of delivering vehicles of a type required to be registered
hereunder from a manufacturing, assembling or distributing plant to
dealers or sales agents of a manufacturer.
(ee) "Manufacturer" means every person engaged in the business
of constructing or assembling vehicles of a type required to be
registered hereunder at a place of business in this state which is
actually occupied either continuously or at regular periods by the
manufacturer where his books and records are kept and a large share
of his business is transacted.
(ff) "Street" or "highway" means the entire width between
boundary lines of every way publicly maintained when any part
thereof is open to the use of the public for purposes of vehicular
travel.
(gg) "Motorboat" means any vessel propelled by an electrical,
steam, gas, diesel or other fuel propelled or driven motor, whether
or not the motor is the principal source of propulsion, but may not
include a vessel which has a valid marine document issued by the
bureau of customs of the United States government or any federal
agency successor thereto.
(hh) "Motorboat trailer" means every vehicle designed for or ordinarily used for the transportation of a motorboat.
(ii) "All-terrain vehicle" (ATV) means any motor vehicle
designed for off-highway use and designed for operator use only
with no passengers, having a seat or saddle designed to be
straddled by the operator and handlebars for steering control.
(jj) "Travel trailer" means every vehicle, mounted on wheels,
designed to provide temporary living quarters for recreational,
camping or travel use of such size or weight as not to require
special highway movement permits when towed by a motor vehicle and
of gross trailer area less than four hundred square feet.
(kk) "Fold down camping trailer" means every vehicle
consisting of a portable unit mounted on wheels and constructed
with collapsible partial sidewalls which fold for towing by another
vehicle and unfold at the camp site to provide temporary living
quarters for recreational, camping or travel use.
(ll) "Motor home" means every vehicle, designed to provide
temporary living quarters, built into an integral part of or
permanently attached to a self-propelled motor vehicle, chassis or
van including: (1) Type A motor home built on an incomplete truck
chassis with the truck cab constructed by the second stage
manufacturer; (2) Type B motor home consisting of a van-type
vehicle which has been altered to provide temporary living
quarters; and (3) Type C motor home built on an incomplete van or
truck chassis with a cab constructed by the chassis manufacturer.
(mm) "Snowmobile" means a self-propelled vehicle intended for
travel primarily on snow and driven by a track or tracks in contact with the snow and steered by a ski or skis in contact with the
snow.
(nn) "Recreational vehicle" means a motorboat, motorboat
trailer, all-terrain vehicle, travel trailer, fold down camping
trailer, motor home or snowmobile.
(oo) "Mobile equipment" means every self-propelled vehicle not
designed or used primarily for the transportation of persons or
property over the highway but which may infrequently or
incidentally travel over the highways among job sites, equipment
storage sites or repair sites, including farm equipment, implements
of husbandry, well-drillers, cranes and wood-sawing equipment.
(pp) "Factory-built home" includes mobile homes, house
trailers and manufactured homes.
(qq) "Manufactured home" has the same meaning as the term is
defined in section two, article nine, chapter twenty-one of this
code which meets the federal Manufactured Housing Construction and
Safety Standards Act of 1974 (42 U. S. C. §5401, et seq.),
effective on the fifteenth day of June, one thousand nine hundred
seventy-six, and the federal manufactured home construction and
safety standards and regulations promulgated by the secretary of
the United States department of housing and urban development.
(rr) "Mobile home" means a transportable structure that is
wholly, or in substantial part, made, fabricated, formed or
assembled in manufacturing facilities for installation or assembly
and installation on a building site and designed for long-term
residential use and built prior to enactment of the federal Manufactured Housing Construction and Safety Standards Act of 1974
(42 U. S. C. §5401, et seq.), effective on the fifteenth day of
June, one thousand nine hundred seventy-six, and usually built to
the voluntary industry standard of the American national standards
institute (ANSI) -- A119.1 standards for mobile homes.
(ss) "House trailers" means all trailers designed and used for
human occupancy on a continual nonrecreational basis, but may not
include fold down camping and travel trailers, mobile homes or
manufactured homes.
(tt) "Parking enforcement vehicle" means a motor vehicle which
does not fit into any other classification of vehicle in this
chapter, has three or four wheels and is designed for use in an
incorporated municipality by a city, county, state or other
governmental entity primarily for parking enforcement or other
governmental purposes with an operator area with sides permanently
enclosed with rigid construction and a top which may be
convertible, sealed beam headlights, turn signals, brake lights,
horn, at least one rear view mirror on each side and such other
equipment that will enable it to pass a standard motorcycle vehicle
inspection.
(uu) "Low-speed vehicle" means a four-wheeled motor vehicle
whose attainable speed in one mile on a paved level surface is more
than twenty miles per hour but not more than twenty-five miles per
hour.
ARTICLE 3. ORIGINAL AND RENEWAL OF REGISTRATION; ISSUANCE OF
CERTIFICATES OF TITLE.
§17A-3-2. Every motor vehicle, etc., subject to registration and
certificate of title provisions; exceptions.
(a) Every motor vehicle, trailer, semitrailer, pole trailer
and recreational vehicle when driven or moved upon a highway is
subject to the registration and certificate of title provisions of
this chapter except:
(1) Any vehicle driven or moved upon a highway in conformance
with the provisions of this chapter relating to manufacturers,
transporters, dealers, lienholders or nonresidents or under a
temporary registration permit issued by the division as authorized
under this chapter;
(2) Any implement of husbandry upon which is securely attached
a machine for spraying fruit trees and plants of the owner or
lessee or for any other implement of husbandry which is used
exclusively for agricultural or horticultural purposes on lands
owned or leased by the owner of the implement and which is not
operated on or over any public highway of this state for any other
purpose other than for the purpose of operating it across a highway
or along a highway other than an expressway as designated by the
commissioner of the division of highways from one point of the
owner's land to another part of the owner's land, irrespective of
whether or not the tracts adjoin: Provided, That the distance
between the points may not exceed twenty-five miles, or for the
purpose of taking it or other fixtures attached to the implement,
to and from a repair shop for repairs. The exemption in this
subdivision from registration and license requirements also applies to any vehicle described in this subsection or to any farm trailer
owned by the owner or lessee of the farm on which the trailer is
used, when the trailer is used by the owner of the trailer for the
purpose of moving farm produce and livestock from the farm along a
public highway for a distance not to exceed twenty-five miles to a
storage house or packing plant, when the use is a seasonal
operation:
(A) The exemptions contained in this section also apply to
farm machinery and tractors: Provided, That the machinery and
tractors may use the highways in going from one tract of land to
another tract of land regardless of whether the land is owned by
the same or different persons;
(B) Any vehicle exempted under this subsection from the
requirements of annual registration certificate and license plates
and fees for the registration certificate and license plate may not
use the highways between sunset and sunrise unless the vehicle is
classified as a Class A motor vehicle with a farm-use exemption
under the provisions of section one, article ten of this chapter
and has a valid and current inspection sticker as required by the
provisions of article sixteen, chapter seventeen-c of this code and
is traveling from one tract of land to another over a distance of
twenty-five miles or less;
(C) Any vehicle exempted under this section from the
requirements of annual registration certificate and license plates
may use the highways as provided in this section whether the exempt
vehicle is self-propelled, towed by another exempt vehicle or towed by another vehicle required to be registered;
(D) Any vehicle used as an implement of husbandry exempt under
this section shall have the words "farm use" affixed to both sides
of the implement in ten-inch letters. Any vehicle which would be
subject to registration as a Class A or B vehicle if not exempted
by this section shall display a farm-use exemption certificate on
the lower driver's side of the windshield:
(i) The farm-use exemption certificate shall be provided by
the commissioner and shall be issued annually by the assessor of
the applicant's county of residence. The assessor shall issue a
farm-use exemption certificate to the applicant upon his or her
determination pursuant to an examination of the property books or
documentation provided by the applicant that the vehicle has been
properly assessed as Class I personal property. The assessor shall
charge a fee of two dollars for each certificate, which shall be
retained by the assessor;
(ii) A farm-use exemption certificate shall not exempt the
applicant from maintaining the security required by chapter
seventeen-d of this code on any vehicle being operated on the roads
or highways of this state;
(iii) No person charged with the offense of operating a
vehicle without a farm-use exemption certificate, if required under
this section, may be convicted of the offense if he or she produces
in court, or in the office of the arresting officer, a valid
farm-use exemption certificate for the vehicle in question within
five days;
(3) Any vehicle which is propelled exclusively by electric
power obtained from overhead trolley wires though not operated upon
rails;
(4) Any vehicle of a type subject to registration which is
owned by the government of the United States;
(5) Any wrecked or disabled vehicle towed by a licensed
wrecker or dealer on the public highways of this state;
(6) The following recreational vehicles are exempt from the
requirements of annual registration, license plates and fees,
unless otherwise specified by law, but are subject to the
certificate of title provisions of this chapter regardless of
highway use: Motorboats, all-terrain vehicles and snowmobiles; and
(7) Any special mobile equipment as defined in subsection (r),
section one, article one of this chapter.
(b) Notwithstanding the provisions of subsection (a) of this
section:
(1) Mobile homes or manufactured homes are exempt from the
requirements of annual registration, license plates and fees;
(2) House trailers may be registered and licensed; and
(3) Factory-built homes are subject to the certificate of
title provisions of this chapter.
_____(c) The division shall title and register low-speed vehicles
if the manufacturer?s certificate of origin clearly identifies the
vehicle as a low-speed vehicle. The division may not title or
register homemade low-speed vehicles or retrofitted golf carts and
such vehicles do not qualify as low-speed vehicles in this state. In addition to all other motor vehicle laws and regulations, except
as specifically exempted below, low-speed vehicles are subject to
the following restrictions and requirements:
_____(1) Low-speed vehicles shall only be operated on private roads
and on public roads and streets within the corporate limits of a
municipality where the speed limit is not more than twenty-five
miles per hour;
_____(2) Notwithstanding any provisions in this code to the
contrary, low-speed vehicles shall meet the requirements of 49 C.
F. R. §571.500 (2003);
_____(3) In lieu of annual inspection, the owner of a low-speed
vehicle shall, upon initial application for registration and each
renewal thereafter, certify under penalty of false swearing, that
all lights, brakes, tires and seat belts are in good working
condition; and
_____(4) Any person operating a low-speed vehicle must hold a valid
driver?s license, not an instruction permit.
ARTICLE 6. LICENSING OF DEALERS AND WRECKERS OR DISMANTLERS;
SPECIAL PLATES; TEMPORARY PLATES OR MARKERS.
Part II. License Certificate Provisions.
§17A-6-3. License certificate required; engaging in more than one
business; established place of business required;
civil penalties.
(a) No person shall engage or represent or advertise that he
or she is engaged or intends to engage in the business of new motor
vehicle dealer, used motor vehicle dealer, house trailer dealer, trailer dealer, recreational vehicle dealer, motorcycle dealer,
used parts dealer or wrecker or dismantler in this state unless and
until he or she first obtains a license certificate therefor as
provided in this article, which license certificate remains
unexpired, unsuspended and unrevoked. Any person desiring to
engage in more than one such business must, subject to the
provisions of section five of this article, apply for and obtain a
separate license certificate for each such business.
(b) A person in business as a new motor vehicle or
recreational vehicle dealer may sell low-speed vehicles as defined
in section one, article one of this chapter.
_____(b) (c) Except for the qualification contained in subdivision
(17), subsection (a), section one of this article with respect to
a new motor vehicle dealer, each place of business of a new motor
vehicle dealer, used motor vehicle dealer, house trailer dealer,
trailer dealer, recreational vehicle dealer, motorcycle dealer,
used parts dealer and wrecker or dismantler must be an established
place of business as defined for such business in said section.
(c) (d) Any person who violates this section shall, in
addition to any other penalty prescribed by law, be subject to a
civil penalty levied by the commissioner in an amount not to exceed
one thousand dollars for the first violation, two thousand dollars
for the second violation and five thousand dollars for every
subsequent violation.
(d) (e) The commissioner shall promulgate rules, in accordance
with the provisions of chapter twenty-nine-a of this code, establishing procedures whereby persons against whom such civil
penalties are to be assessed shall be afforded all due process
required pursuant to the provisions of the West Virginia
constitution.
§17A-6-18. Investigation; matters confidential; grounds for
suspending or revoking license or imposing fine;
suspension and revocation generally.
(a) The commissioner may conduct an investigation to determine
whether any provisions of this chapter have been or are about to be
violated by a licensee. Any investigation shall be kept in
strictest confidence by the commissioner, the division, the
licensee, any complainant and all other persons, unless and until
the commissioner suspends or revokes the license certificate of the
licensee involved or fines the licensee: Provided, That the
commissioner may advise the motor vehicle dealers advisory board of
pending actions and may disclose to the motor vehicle dealers
advisory board any information that enables it to perform its
advisory function in imposing penalties. The commissioner may
suspend or revoke a license certificate, suspend a special dealer
plate or plates, impose a fine or take any combination of these
actions if the commissioner finds that the licensee:
(1) Has failed or refused to comply with the laws of this
state relating to the registration and titling of vehicles and the
giving of notices of transfers, the provisions and requirements of
this article, or any reasonable rules authorized in section nine,
article two of this chapter and promulgated to implement the provisions of this article by the commissioner in accordance with
the provisions of article three, chapter twenty-nine-a of this
code;
(2) Has given any check in the payment of any fee required
under the provisions of this chapter which is dishonored;
(3) In the case of a dealer, has knowingly made or permitted
any unlawful use of any dealer special plate or plates issued to
him or her;
(4) In the case of a dealer, has a dealer special plate or
plates to which he or she is not lawfully entitled;
(5) Has knowingly made false statement of a material fact in
his or her application for the license certificate then issued and
outstanding;
(6) Has habitually defaulted on financial obligations;
(7) Does not have and maintain at each place of business,
(subject to the qualification contained in subdivision (17),
subsection (a), section one of this article with respect to a new
motor vehicle dealer) an established place of business as defined
for the business in question in section one of this article;
(8) Has been guilty of any fraudulent act in connection with
the business of new motor vehicle dealer, used motor vehicle
dealer, house trailer dealer, trailer dealer, motorcycle dealer,
used parts dealer or wrecker or dismantler;
(9) Has defrauded or is attempting to defraud any buyer or any
other person, to the damage of the buyer or other person, in the
conduct of the licensee's business;
(10) Has defrauded or is attempting to defraud the state or
any political subdivision of the state of any taxes or fees in
connection with the sale or transfer of any vehicle;
(11) Has committed fraud in the registration of a vehicle;
(12) Has knowingly purchased, sold or otherwise dealt in a
stolen vehicle or vehicles;
(13) Has advertised by any means, with intent to defraud, any
material representation or statement of fact which is untrue,
misleading or deceptive in any particular relating to the conduct
of the licensed business;
(14) Has willfully failed or refused to perform any legally
binding written agreement with any buyer;
(15) Has made a fraudulent sale or purchase;
(16) Has failed or refused to assign, reassign or transfer a
proper certificate of title;
(17) Has a license certificate to which he or she is not
lawfully entitled;
(18) Has misrepresented a customer's credit or financial
status to obtain financing; or
(19) Has failed to reimburse, when ordered, any claim against
the dealer recovery fund as prescribed in section two-a of this
article.
The commissioner shall also suspend or revoke the license
certificate of a licensee if he or she finds the existence of any
ground upon which the license certificate could have been refused
or any ground which would be cause for refusing a license certificate to the licensee were he or she then applying for the
license certificate.
(b) Whenever a licensee fails or refuses to keep the bond,
unless exempt from the requirement pursuant to section two-a of
this article or liability insurance required by section four of
this article, in full force and effect, or fails to provide
evidence of the bond or liability insurance, the commissioner shall
automatically suspend the license certificate of the licensee
unless and until a bond or certificate of insurance as required by
section four of this article is furnished to the commissioner.
When the licensee furnishes the bond or certificate of insurance to
the commissioner and pays all reinstatement fees, the commissioner
shall vacate the suspension.
(c) Suspensions under this section shall continue until the
cause for the suspension has been eliminated or corrected.
Revocation of a license certificate shall not preclude application
for a new license certificate. The commissioner shall process the
application for a new license certificate in the same manner and
issue or refuse to issue the license certificate on the same
grounds as any other application for a license certificate is
processed, considered and passed upon, except that the commissioner
may give any previous suspension and the revocation such weight in
deciding whether to issue or refuse the license certificate as is
correct and proper under all of the circumstances.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 505, as
amended by the House of Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 505) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect July
1, 2004, and requested the concurrence of the Senate in the House
of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 508, Relating to commission
on arts.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page two, section three, lines twelve and thirteen, by striking out the words "five voting members may be from the same
congressional district" and inserting in lieu thereof the words
"three voting members may be from the same regional educational
service agency district created in section twenty-six, article two,
chapter eighteen of this code";
On page five, section three, line seventy-one, after the word
"improvements" by inserting a comma and the words "preservation,
and operations of cultural facilities: Provided, That the
commission on the arts may use no more than twenty-five percent of
the funding for operations of cultural facilities";
And,
On page five, section three, line seventy-two, after the word
"Provided," by inserting the word "however,".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 508, as
amended by the House of Delegates, was then 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 elected to the Senate having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 508) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2004.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 508) takes effect July 1, 2004.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 533, Authorizing division
of corrections charge certain adult offenders transfer application
fee.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page two, section four, line one, by striking out the word
"The" and inserting in lieu thereof the words "On and after the
first day of July, two thousand four, the".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 533, as
amended by the House of Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 533) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 636, Relating to employment of members of teachers defined benefit retirement system.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On
page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §18-7A-13a and §18-7A-17 of the code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 7A. STATE TEACHERS RETIREMENT SYSTEM.
§18-7A-13a. Resumption of service by retired teachers.
(a) For the purpose of this section, reemployment of a former
or retired teacher as a teacher shall in no way impair such that
teacher's eligibility for a prior service pension or any other
benefit provided by this article.
(b) Retired teachers, who qualified for an annuity because of
age or service, may not receive prior service allowance from the
retirement board when employed as a teacher and when regularly
employed by the state of West Virginia. The payment of such the
allowance shall be discontinued on the first day of the month
within which such employment begins and shall be resumed on the
first day of the month succeeding the month within which such
employment ceases. The annuity paid any such the teacher on first
retirement resulting from the teachers' accumulation fund and the
employers' accumulation fund shall continue throughout the
governmental service and thereafter according to the option selected by the teacher upon first retirement.
(c) Retired teachers, who qualified for an annuity because of
disability, shall receive no further retirement payments if the
retirement board finds that the disability of the teacher no longer
exists; payment shall be discontinued on the first day of the month
within which such the finding is made. If such the retired teacher
returns to service as a teacher, he or she shall contribute to the
teachers' accumulation fund as a member of the system. His or her
prior service eligibility, if any, shall not be impaired because of
his or her disability retirement. His or her accumulated
contributions and interest which were transferred to the benefit
fund upon his or her retirement shall be returned to his or her
individual account in the teachers' accumulation fund, minus
retirement payments received which were not supported by such the
contributions and interest. Upon subsequent retirement, he or she
shall receive credit for all of his or her contributory experience,
anything to the contrary in this article notwithstanding.
_______________________(d) Notwithstanding any provision of this code to the
contrary, a person who retires under the system provided by this
article may subsequently become employed on either a full-time,
part-time basis or contract basis by any institution of higher
education. Any such employment after the effective date of the
enactment of this section in two thousand four shall be without any
loss of retirement annuity or retirement benefits if the person's
retirement commences between the effective date of the enactment of
this section in two thousand two first day of January, one thousand nine hundred ninety-five, and the thirty-first day of December, two
thousand two three: Provided, That such the person shall not be
eligible to participate in any other state retirement system
provided by this code.
(e) The retirement board is herewith authorized to require of
the retired teachers and their employers such reports as it deems
considers necessary to effectuate the provisions of this section.
§18-7A-17. Statement and computation of teachers' service;
qualified military service.
(a) Under rules adopted by the retirement board, each teacher
shall file a detailed statement of his or her length of service as
a teacher for which he or she claims credit. The retirement board
shall determine what part of a year is the equivalent of a year of
service. In computing the service, however, it shall credit no
period of more than a month's duration during which a member was
absent without pay, nor shall it credit for more than one year of
service performed in any calendar year.
(b) For the purpose of this article, the retirement board
shall grant prior service credit to new entrants and other members
of the retirement system for service in any of the armed forces of
the United States in any period of national emergency within which
a federal Selective Service Act was in effect. For purposes of
this section, "armed forces" includes women's army corps, women's
appointed volunteers for emergency service, army nurse corps,
spars, women's reserve and other similar units officially parts of
the military service of the United States. The military service is considered equivalent to public school teaching, and the salary
equivalent for each year of that service is the actual salary of
the member as a teacher for his or her first year of teaching after
discharge from military service. Prior service credit for military
service shall not exceed ten years for any one member, nor shall it
exceed twenty-five percent of total service at the time of
retirement. Notwithstanding the preceding provisions of this
subsection, contributions, benefits and service credit with respect
to qualified military service shall be provided in accordance with
Section 414(u) of the Internal Revenue Code. For purposes of this
section, "qualified military service" has the same meaning as in
Section 414(u) of the Internal Revenue Code. The retirement board
is authorized to determine all questions and make all decisions
relating to this section and, pursuant to the authority granted to
the retirement board in section one, article ten-d, chapter five of
this code, may promulgate rules relating to contributions, benefits
and service credit to comply with Section 414(u) of the Internal
Revenue Code.
(c) For service as a teacher in the employment of the federal
government, or a state or territory of the United States, or a
governmental subdivision of that state or territory, the retirement
board shall grant credit to the member: Provided, That the member
shall pay to the system double the amount he or she contributed
during the first full year of current employment, times the number
of years for which credit is granted, plus interest at a rate to be
determined by the retirement board. The interest shall be deposited in the reserve fund and service credit granted at the
time of retirement shall not exceed the lesser of ten years or
fifty percent of the member's total service as a teacher in West
Virginia. Any transfer of out-of-state service, as provided in
this article, shall not be used to establish eligibility for a
retirement allowance and the retirement board shall grant credit
for the transferred service as additional service only: Provided,
however, That a transfer of out-of-state service is prohibited if
the service is used to obtain a retirement benefit from another
retirement system: Provided further, That salaries paid to members
for service prior to entrance into the retirement system shall not
be used to compute the average final salary of the member under the
retirement system.
(d) Service credit for members or retired members shall not be
denied on the basis of minimum income rules promulgated by the
teachers retirement board: Provided, That the member or retired
member shall pay to the system the amount he or she would have
contributed during the year or years of public school service for
which credit was denied as a result of the minimum income rules of
the teachers retirement board.
(e) No members shall be considered absent from service while
serving as a member or employee of the Legislature of the state of
West Virginia during any duly constituted session of that body or
while serving as an elected member of a county commission during
any duly constituted session of that body.
(f) No member shall be considered absent from service as a teacher while serving as an officer with a statewide professional
teaching association, or who has served in that capacity, and no
retired teacher, who served in that capacity while a member, shall
be considered to have been absent from service as a teacher by
reason of that service: Provided, That the period of service
credit granted for that service shall not exceed ten years:
Provided, however, That a member or retired teacher who is serving
or has served as an officer of a statewide professional teaching
association shall make deposits to the teachers retirement board,
for the time of any absence, in an amount double the amount which
he or she would have contributed in his or her regular assignment
for a like period of time.
(g) The teachers retirement board shall grant service credit
to any former or present member of the West Virginia public
employees retirement system who has been a contributing member for
more than three years for service previously credited by the public
employees retirement system and: (1) Shall require the transfer of
the member's contributions to the teachers retirement system; or
(2) shall require a repayment of the amount withdrawn any time
prior to the member's retirement: Provided, That there shall be
added by the member to the amounts transferred or repaid under this
subsection an amount which shall be sufficient to equal the
contributions he or she would have made had the member been under
the teachers retirement system during the period of his or her
membership in the public employees retirement system plus interest
at a rate to be determined by the board compounded annually from the date of withdrawal to the date of payment. The interest paid
shall be deposited in the reserve fund.
(h) For service as a teacher in an elementary or secondary
parochial school, located within this state and fully accredited by
the West Virginia department of education, the retirement board
shall grant credit to the member: Provided, That the member shall
pay to the system double the amount contributed during the first
full year of current employment, times the number of years for
which credit is granted, plus interest at a rate to be determined
by the retirement board. The interest shall be deposited in the
reserve fund and service granted at the time of retirement shall
not exceed the lesser of ten years or fifty percent of the member's
total service as a teacher in the West Virginia public school
system. Any transfer of parochial school service, as provided in
this section, may not be used to establish eligibility for a
retirement allowance and the board shall grant credit for the
transfer as additional service only: Provided, however, That a
transfer of parochial school service is prohibited if the service
is used to obtain a retirement benefit from another retirement
system.
(i) Active members who previously worked in CETA
(Comprehensive Employment and Training Act) may receive service
credit for time served in that capacity: Provided, That in order
to receive service credit under the provisions of this subsection
the following conditions must be met: (1) The member must have
moved from temporary employment with the participating employer to permanent full-time employment with the participating employer
within one hundred twenty days following the termination of the
member's CETA employment; (2) the board must receive evidence that
establishes to a reasonable degree of certainty as determined by
the board that the member previously worked in CETA; and (3) the
member shall pay to the board an amount equal to the employer and
employee contribution plus interest at the amount set by the board
for the amount of service credit sought pursuant to this
subsection: Provided, however, That the maximum service credit
that may be obtained under the provisions of this subsection is two
years: Provided further, That a member must apply and pay for the
service credit allowed under this subsection and provide all
necessary documentation by the thirty-first day of March, two
thousand three: And provided further, That the board shall
exercise due diligence to notify affected employees of the
provisions of this subsection.
(j) If a member is not eligible for prior service credit or
pension as provided in this article, then his or her prior service
shall not be considered a part of his or her total service.
(k) A member who withdrew from membership may regain his or
her former membership rights as specified in section thirteen of
this article only in case he or she has served two years since his
or her last withdrawal.
(l) Subject to the provisions of subsections (a) through (l),
inclusive, of this section, the board shall verify as soon as
practicable the statements of service submitted. The retirement board shall issue prior service certificates to all persons
eligible for the certificates under the provisions of this article.
The certificates shall state the length of the prior service
credit, but in no case shall the prior service credit exceed forty
years.
(m) Notwithstanding any provision of this article to the
contrary, when a member is or has been elected to serve as a member
of the Legislature, and the proper discharge of his or her duties
of public office require that member to be absent from his or her
teaching or administrative duties, the time served in discharge of
his or her duties of the legislative office are credited as time
served for purposes of computing service credit: Provided, That
the board may not require any additional contributions from that
member in order for the board to credit him or her with the
contributing service credit earned while discharging official
legislative duties: Provided, however, That nothing herein may be
construed to relieve the employer from making the employer
contribution at the member's regular salary rate or rate of pay
from that employer on the contributing service credit earned while
the member is discharging his or her official legislative duties.
These employer payments shall commence as of the first day of June,
two thousand: Provided further, That any member to which the
provisions of this subsection apply may elect to pay to the board
an amount equal to what his or her contribution would have been
and, for service after the effective date of the amendment of this
section in two thousand four, may also elect to pay in addition both the employer and employee share for legislative compensation
for those periods of time he or she was serving in the Legislature.
The periods of time upon which the member paid his or her
contribution and, if applicable, the compensation for which he or
she paid both the employer and employee share, shall then be
included for purposes of determining his or her final average
salary as well as for determining years of service: And provided
further, That a member utilizing the provisions of this subsection
is not required to pay interest on any contributions he or she may
decide to make.
(n) The teachers retirement board shall grant service credit
to any former member of the state police death, disability and
retirement system who has been a contributing member for more than
three years, for service previously credited by the state police
death, disability and retirement system; and: (1) Shall require
the transfer of the member's contributions to the teachers
retirement system; or (2) shall require a repayment of the amount
withdrawn any time prior to the member's retirement: Provided,
That the member shall add to the amounts transferred or repaid
under this paragraph an amount which is sufficient to equal the
contributions he or she would have made had the member been under
the teachers retirement system during the period of his or her
membership in the state police death, disability and retirement
system plus interest at a rate of six percent compounded annually
from the date of withdrawal to the date of payment. The interest
paid shall be deposited in the reserve fund.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 636--A Bill to amend and reenact §18-7A-
13a and §18-7A-17 of the code of West Virginia, 1931, as amended,
all relating to employment of members of the teachers defined
benefit retirement system by institutions of higher education
following the retirement of the member; and including certain
compensation of certain members in determination of benefits if
certain conditions are met.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 636, as amended by the House of
Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 636) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Senate Bill No. 717, Terminating agencies following full
performance evaluations.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page three, section four, line twenty, after the word
"resources;" by inserting the words "department of environmental
protection;";
On page six, section five, line forty-three, by striking out
the words "racing commission;";
On page six, section five, lines forty-four and forty-five, by
striking out the words "environmental quality board;";
And,
On page eight, section five, line eighty-eight, after the word
"board;" by inserting the words "state rail authority;".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 717, as amended by the House of
Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 717) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 717) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence in the changed
effective date.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 719, Increasing tax on providers of
nursing facility services.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On
page four, after section eleven, by adding a new section,
designated section thirty-seven, to read as follows:
§11-27-37. Contingent increase in rates of certain health care
provider taxes.
(a) Increase in rates of certain provider taxes. --
Notwithstanding any provision of this code to the contrary:
(1) The rate of the tax imposed by section four of this
article on providers of ambulatory surgical centers shall be two
and thirty-six hundredths percent of the gross receipts received or
receivable by providers on and after the first day of the calendar
month as provided in subsection (b) of this section;
(2) The rate of the tax imposed by section nine of this
article on providers of inpatient hospital services shall be three
and thirty-eight hundredths percent of the gross receipts received
or receivable by providers on and after the first day of the
calendar month as provided in subsection (b) of this section;
(3) The rate of tax imposed by section ten of this article on providers of intermediate care facility services shall be five and
ninety-five hundredths percent of the gross receipts received or
receivable by providers on and after the first day of the calendar
month as provided in subsection (b) of this section; and
(4) The rate of the tax imposed by section fifteen of this
article on providers of outpatient hospital services shall be three
and thirty-eight hundredths percent of the gross receipts received
or receivable by providers on and after the first day of the
calendar month as provided in subsection (b) of this section.
(b) Effective date. -- This section shall take effect as
provided in section thirty,
article VI of the constitution of this
state: Provided, That this section does not apply to any taxpayer
unless and until all of the following have occurred: (1) The
governor makes a determination that both estimated general revenue
fund collections and the funds available to fund this state's
medicaid program as set forth in the annual budget bill enacted by
the Legislature will both be less in the next fiscal year than
those funds are estimated to be in the current fiscal year, with
this decrease being a result of changes, or anticipated changes, in
the medicaid program at the federal level or a result of federal
administrative actions with respect to this state's medicaid
program; (2) the governor notifies the president of the Senate and
the speaker of the House of Delegates of this determination; (3)
the governor issues an executive order convening a panel to study
and examine possible alternative means of addressing and resolving
the anticipated medicaid program budget shortfall, which panel shall include, but may not be limited to, one or more
representatives of each group of providers upon which the provider
tax increases contemplated by this section may be imposed; (4) this
panel is afforded not less than seventy-five days in which to
conduct its study and provide a report and recommendations to the
governor, the president of the Senate and the speaker of the House
of Delegates; and (5) the Legislature adopts a resolution
authorizing imposition of the rate increases described in this
section. If, and only if, no other solution than the tax increase
set forth herein is implemented by either administrative or
legislative action in response to the report and recommendations of
the study panel to the anticipated medicaid budget shortfall, and
upon adoption of a resolution of the Legislature, the provisions of
this section shall become effective on the date specified by the
Legislature in the resolution.;
On page one, by striking out the enacting section and
inserting in lieu thereof a new enacting section, to read as
follows:
That §11-27-11 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 §11-27-37,
all to read as
follows:;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 719--A Bill to
amend and reenact §11-27-11 of the code of West Virginia, 1931, as amended; and to amend
said code by adding thereto a new section, designated §11-27-37,
all relating to increasing the health care provider tax imposed on
gross receipts of providers of nursing facility services and
establishing a contingent provider tax increase if certain
conditions occur; specifying condition precedent to tax increase;
study panel; and setting forth effective date.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 719, as amended by the House of
Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Helmick, Hunter, Kessler, Love, McCabe, Minard, Minear, Oliverio,
Plymale, Prezioso, Ross, Rowe, Sharpe, Snyder, Sprouse, White and
Tomblin (Mr. President)--27.
The nays were: Harrison, Jenkins, McKenzie, Smith, Unger and
Weeks--6.
Absent: Bailey--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 719) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendment, as amended by the House of Delegates, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment to
the Senate amendment, as to
Eng. Com. Sub. for House Bill No. 2200, Creating the felony
offense of destruction of property.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the Senate
amendment to the bill was reported by the Clerk:
On
page one, by striking out everything after the article
heading and inserting in lieu thereof the following:
§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 act, series of
acts 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.
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendment to the Senate amendment to
the bill.
Engrossed Committee Substitute for House Bill No. 2200, as
amended, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2200) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments, as amended
by the House of Delegates, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments to the Senate
amendments, as to
Eng. Com. Sub. for House Bill No. 4004, Establishing an
insurance fraud unit within the office of the insurance
commissioner.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the Senate
amendments to the bill were reported by the Clerk:
On page one, by striking out everything after the article
heading and inserting in lieu thereof the following:
§33-2-15b. Reports to the Legislature.
(a) By the first day of February, two thousand five, the
commissioner shall submit to the Legislature a report
on third-
party causes of action;
(b) The report shall contain the following information:
(1) The legal history of the creation of a third-party causes
of action brought pursuant to unfair trade practices act
as
codified in article eleven of this chapter;
(2) An analysis of the impact of third-party causes of action
upon insurance rates and the availability of insurance in this
state
;
(3)
A summary of the types of data which the commissioner
utilized in preparing the analysis: Provided, That the commissioner
will not disclose information which is otherwise confidential:
Provided, however, That if the commissioner is unable to obtain
data which he or she considers necessary to preparing a full
analysis, the commissioner shall state in the report:
(A) The reasons that he or she was not able to obtain the
data;
(B) Recommendations or proposed legislation for facilitating
the collection of necessary data and protecting proprietary
information;
(4) Information on what other states have this cause of
action;
(5) Based upon the findings of the commissioner, and if the
findings so suggest, proposed legislation to address any reforms
needed for third-party claims under the unfair trade practices act;
(c) For purpose of preparing the report, the commissioner may
request from companies authorized to conduct business in this state
any information that he or she believes is necessary to determine
the economic effect of third-party lawsuits on insurance premiums.
The companies shall not be required to provide the information.
Any information which the company agrees to provide shall be
considered confidential by law and privileged, is exempt from
disclosure pursuant to chapter twenty-nine-b of this code, is not
open to public inspection, is not subject to subpoena and is not
subject to discovery or admissible in evidence in any criminal,
private civil or administrative action and is not subject to
production pursuant to court order. Notwithstanding any other
provisions in this section, while the commissioner is to provide
his or her general conclusions based upon the review of the data,
the commissioner is not to disclose the information in a manner so
as to violate the confidentiality provisions of this section.
§33-2-15c. Reports to the Legislature.
(a) By the first day of February, two thousand five, the
commissioner shall submit to the Legislature a report
relating to
the office of the consumer advocate.
(b) The report shall contain the following information:
(1) An overview of the function of the office of the consumer
advocate and how the office addresses consumer complaints;
(2) The number of staff in the office of the consumer advocate
and the structure of the existing office;
(3) Statistics reflecting the number of consumer complaints
and types handled by the office from the first day of January, two
thousand one, until the first day of January, two thousand four;
(4) The number of states which have consumer advocates and the
lines of insurance for which the advocates are authorized to act on
behalf of consumers;
(5) The recommendation of the commissioner in regard to
whether this state would benefit by having the role of the consumer
advocate expanded to other lines of insurance;
(6) Based upon the findings and recommendations of the
commissioner, and if the findings so suggest,
proposed legislation
for expanding the office of the consumer advocate to other lines of
insurance.
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
automobile liability insurance for personal, private passenger
automobiles covered by article six-a of this chapter or 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' 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) Two 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 that makes an election
pursuant to section four-b of this article to issue all nonrenewal
notices pursuant to this section, 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 after the date that the insurer makes
an election pursuant to section four-b of this article, 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 that makes an election
pursuant to section four-b of this article to issue all nonrenewal notices pursuant to this section, 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 after the date that
the insurer makes an election pursuant to section four-b of this
article, 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 that makes an election pursuant to section
four-b of this article to issue all nonrenewal notices pursuant to
this section 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 (6) or
(7), 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 for
the reason that an operator has violated the provisions of
subdivision (6) or (7), 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 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 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 which is consistent with its
underwriting standards.
(b) Notwithstanding any other provisions in this section,
race, religion, nationality, ethnic group, age, sex, marital status
or other reason prohibited by the provisions of this chapter may
not be considered as a reason for nonrenewal;
(c) Notwithstanding the provisions of section four of this
article, a nonrenewal may only be issued pursuant to the provisions
of this section upon forty-five days' advance notice to the named
insured of the insurer's election not to renew the policy.
(d) The total number of nonrenewal notices issued each year,
commencing on the first day of July, two thousand four, by the insurer, resulting in nonrenewal, pursuant to this section may not
exceed one percent per year 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 each year to insureds within any given county in this state
resulting in nonrenewal may not exceed one percent per year 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 per year in any county if the
applicable percentage limitation results in less than one policy.
(e) 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 of the policy was issued for a discriminatory
reason, was based upon inadequate notice, an underwriting standard
by the commissioner found to be in violation of this chapter or
causes the insurer to exceed the percentage limitations, or
percentage limitations by county, of 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.
(f) 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 that they are
consistent with generally accepted underwriting principles. The
underwriting standards filed with the commissioner shall
be
considered confidential by law and privileged, are exempt from
disclosure pursuant to chapter twenty-nine-b of this code, are not
open to public inspection, are not subject to subpoena, and are not
subject to discovery or admissible in evidence in any criminal,
private civil or administrative action and are not subject to
production pursuant to court order.
The commissioner shall
promulgate legislative rules pursuant to chapter twenty-nine-a of
this code to implement the provisions of this section.
(g) Each insurer that has elected to issue nonrenewal notices
pursuant to the percentage limitations provided in this section
shall report to the commissioner, on a form prescribed by the
commissioner, on or before the thirtieth day of September of each
year the total number of nonrenewal notices issued in this state
and in each county of this state for the preceding year. The
insurer shall also report to the commissioner the specific reason
or reasons for the nonrenewals by county which have been issued
pursuant to this section.
§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, may elect to issue all nonrenewal notices either pursuant to section four or four-a of this article.
Each insurer may notify the commissioner of its election any time
after 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.
(1) If no election is made by the first day of July, two
thousand four, then, until the first day of July, two thousand
five, the insurer shall continue to issue all nonrenewal notices
pursuant to the existing nonrenewal provisions in section four
prior to the amendments enacted therein by the acts of the seventy-
sixth Legislature during the second session, two thousand four.
(2) As of the first day of July, two thousand five,
each
insurer licensed to write automobile liability or physical damage
insurance policies in this state, and that has not previously made
an election under this section, shall elect to issue all nonrenewal
notices either pursuant to section four or four-a of this article.
Each insurer which has not previously made an election must notify
the commissioner of its election no later than the first day of
July, two thousand five, 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 such policies after that date shall, no later than two
years after the date the insurer becomes licensed to write such
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 nonrenewals may not exceed the percentage
limitations set forth in 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 (6) or (7), subsection (b), section four of this
article.
§33-6A-4c. Report to the Legislature.
(a) By the first day of January, two thousand nine, the
commissioner shall submit a report to the Legislature. The report
shall contain the following:
(1) An analysis of the impact of legislation enacted during
the two thousand four legislative session upon rates and insurance
availability in the state;
(2) Statistics reflecting the rate history of insurers
conducting business in West Virginia from the first day of July,
two thousand four, until the first day of July, two thousand eight.
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 attorneys institute
pursuant to the provisions of section six, article four, chapter
seven of this code. Notwithstanding the provisions of said
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 page one, by striking out the enacting section and
inserting in lieu thereof a new enacting section, to read as
follows:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto three new sections, designated §33-2-15b, §33-2-
15c and §33-2-20;
that §33-6A-4 of said code be amended and
reenacted; that said code be amended by adding thereto three new
sections, designated §33-6A-4a, §33-6A-4b and §33-6A-4c; 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:;
And,
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 three
new sections, designated §33-2-15b, §33-2-15c and
§33-2-20; to amend and reenact §33-6A-4 of said code; to amend said code by
adding thereto three new sections, designated §33-6A-4a, §33-6A-4b
and §33-6A-4c; 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; requiring
the insurance commissioner to submit a report to the Legislature on
the impact of third-party causes of actions on rates and
availability and to make recommendations; authorizing the
commissioner to request information from insurers; providing that
certain information provided by insurers is not subject to
disclosure; requiring the insurance commissioner to submit a report
to the Legislature on
the office of the consumer advocate;
requiring the commissioner to make recommendations regarding the
office of the consumer advocate; permitting additional reasons for
nonrenewal of automobile liability or physical damage policies;
requiring the submission of withdrawal plans in certain instances;
providing that a certain percentage of existing policies or any
policies 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; providing that a certain percentage of policies may be
nonrenewed for underwriting reasons; allowing insurers to elect a
method of nonrenewal; requiring renewal in certain instances when
there are restrictive endorsements; authorizing the commissioner of
insurance to act regarding withdrawal of insurers from the state;
authorizing the commissioner to allow certain insurers to withdraw
from the state; requiring insurers and the insurance commissioner
to submit information regarding the impact of legislation on rates
and availability; 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.
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendments to the Senate amendments to
the bill.
Engrossed Committee Substitute for House Bill No. 4004, as
amended, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4004) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments, as amended
by the House of Delegates, passage as amended with its Senate
amended title, and requested the concurrence of the Senate in the House of Delegates amendment to the Senate amendments, as to
Eng. Com. Sub. for House Bill No. 4266, Requiring regulatory
agencies of government, with exceptions, to study ways to expedite
the issuance of licenses, permits and certificates.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the Senate
amendments to the bill was reported by the Clerk:
On page one, by striking out the enacting section and
inserting in lieu thereof a new enacting section, to read as
follows:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §5-29-1 and §5-29-2,
all to read as follows:.
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendment to the Senate amendments to
the bill.
Engrossed Committee Substitute for House Bill No. 4266, as
amended, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4266) passed with its Senate amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments, as amended
by the House of Delegates, passage as amended with its Senate
amended title, and requested the concurrence of the Senate in the
House of Delegates amendments to the Senate amendments, as to
Eng. Com. Sub. for House Bill No. 4605, Clarifying certain
provisions of the West Virginia Code as they relate to domestic
violence offenses and related protective orders that are issued by
various courts.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the Senate
amendments to the bill were reported by the Clerk:
On page one, by striking everything after the chapter heading
and inserting in lieu thereof the following:
ARTICLE 5. DIVORCE.
Part V. Temporary Relief During Pendency of Action For Divorce.
§48-5-509. Enjoining abuse, emergency protective order.
(a) The court may enjoin the offending party from molesting or
interfering with the other, or otherwise imposing any restraint on the personal liberty of the other, or interfering with the
custodial or visitation rights of the other. This order may enjoin
the offending party from:
(1) Entering the school, business or place of employment of
the other for the purpose of molesting or harassing the other;
(2) Contacting the other, in person or by telephone, for the
purpose of harassment or threats; or
(3) Harassing or verbally abusing the other in a public place.
(b) Any order entered by the court to protect a party from
abuse may grant any other relief that may be appropriate for
inclusion under authorized by the provisions of article twenty-
seven of this chapter, if the party seeking the relief has
established the grounds for that relief as required by the
provisions of said article.
(c) The court, in its discretion, may enter a protective
order, as provided in article twenty-seven of this chapter, as part
of the final relief granted in a divorce action, either as a part
of an order for temporary relief or as part of a separate order.
Notwithstanding the provisions of section five hundred five of said
article, a protective order entered pursuant to the provisions of
this subsection shall remain in effect until a final order is
entered in the divorce, unless otherwise ordered by the judge.
Part VI. Judgment Ordering Divorce.
§48-5-608. Injunctive relief or protective orders.
(a) When allegations of abuse have been proved, the court
shall enjoin the offending party from molesting or interfering with the other, or otherwise imposing any restraint on the personal
liberty of the other or interfering with the custodial or
visitation rights of the other. The order may permanently enjoin
the offending party from entering the school, business or place of
employment of the other for the purpose of molesting or harassing
the other; or from contacting the other, in person or by telephone,
for the purpose of harassment or threats; or from harassing or
verbally abusing the other in a public place.
(b) Any order entered by the court to protect a party from
abuse may grant relief pursuant to the provisions of article
twenty-seven of this chapter any other relief authorized to be
awarded by the provisions of article twenty-seven of this chapter,
if the party seeking the relief has established the grounds for
that relief as required by the provisions of said article.
(c) The court, in its discretion, may enter a protective
order, as provided in by the provisions of article twenty-seven of
this chapter, as part of the final relief in a divorce action,
either as a part of a order for final relief or in a separate
order.
A protective order entered pursuant to the provisions of
this subsection shall remain in effect for the period of time
ordered by the court not to exceed one hundred eighty days:
Provided, That if the court determines that a violation of a
domestic violence protective order entered during or extended by
the divorce action has occurred, it may extend the protective order
for whatever period the court deems necessary to protect the safety
of the petitioner and others threatened or at risk.
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
Part 4. Coordination With Pending Court Actions.
§48-27-401. Interaction between domestic proceedings.
(a) During the pendency of a divorce action, a person may file
for and be granted relief provided by this article until an order
is entered in the divorce action pursuant to part 5-501, et seq.
(b) If a person who has been granted relief under this article
should subsequently become a party to an action for divorce,
separate maintenance or annulment, such person shall remain
entitled to the relief provided under this article including the
right to file for and obtain any further relief, so long as no
temporary order has been entered in the action for divorce,
annulment and separate maintenance, pursuant to part 5-501, et seq.
(c) Except as provided in section 5-509 of this chapter and
section 27-402 of this article for a petition and a temporary
emergency protective order, no person who is a party to a pending
action for divorce, separate maintenance or annulment in which an
order has been entered pursuant to part 5-501, et seq., of this
chapter, shall be entitled to file for or obtain relief against
another party to that action under this article until after the
entry of a final order which grants or dismisses the action for
divorce, annulment or separate maintenance.
(d) Notwithstanding the provisions set forth in section 27-
505, any order issued pursuant to this article where a subsequent
when an action is filed seeking a divorce, an annulment or separate
maintenance, the allocation of custodial responsibility or a habeas corpus action to establish custody, the establishment of paternity,
the establishment or enforcement of child support or other relief
under the provisions of this chapter is filed or is reopened by
petition, motion or otherwise, then any order issued pursuant to
this article which is in effect on the day the action is filed or
reopened shall remain in full force and effect by operation of this
statute until: (1) a A temporary or final order is entered
pursuant to the provisions of part 5-501, et seq., or part 6-601,
et seq., of this chapter; or (2) an order is entered modifying such
order issued pursuant to this article; or (3) the entry of a final
order is entered granting or dismissing the action.
Part IX. Sanctions.
§48-27-902. Violations of protective orders; criminal complaints.
(a) When a respondent abuses the petitioner or minor children,
or both, or is physically present at any location in knowing and
willful violation of the terms of an emergency or final protective
order under the provisions of this article or section 5-509 or 5-
608 of this chapter granting the relief pursuant to the provisions
of this article, any person authorized to file a petition pursuant
to the provisions of section 27-305 or the legal guardian or
guardian ad litem may file a petition for civil contempt as set
forth in section 27-901.
(b) When any such violation of a valid order has occurred, the
petitioner may file a criminal complaint. If the court finds
probable cause upon the complaint, the court shall issue a warrant
for arrest of the person charged.
§48-27-903. Misdemeanor offenses for violation of protective
order, repeat offenses, penalties.
(a) A respondent who abuses the petitioner or minor children
or who is physically present at any location in knowing and willful
violation of the terms of an: (1) An emergency or final protective
order issued under the provisions of this article or
section 5-509
or 5-608
of this chapter granting the relief pursuant to the
provisions of this article; or (2) a condition of bail, probation
or parole which has the express intent or effect of protecting the
personal safety of a particular person or persons is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in the
county or regional jail for a period of not less than one day nor
more than one year, which jail term shall include actual
confinement of not less than twenty-four hours, and shall be fined
not less than two hundred fifty dollars nor more than two thousand
dollars.
(b) When a A respondent previously convicted of the offense
described in who is convicted of a second or subsequent offense
under subsection (a) of this section abuses the petitioner or minor
children or is physically present at any location in knowing and
willful violation of the terms of a temporary or final protective
order issued under the provisions of this article, the respondent
is guilty of a misdemeanor and, upon conviction thereof, shall be
confined in the county or regional jail for not less than three
months nor more than one year, which jail term shall include actual
confinement of not less than twenty-four hours, and fined not less than five hundred dollars nor more than three thousand dollars, or
both.
Part X. Arrests.
§48-27-1001. Arrest for violations of protective orders.
(a) When a law-enforcement officer observes any respondent
abuse the petitioner or minor children or the respondent's physical
presence at any location in knowing and willful violation of the
terms of an emergency or final protective order issued under the
provisions of this article or section 5-509 or 5-608 of this
chapter granting the relief pursuant to the provisions of this
article, he or she shall immediately arrest the respondent.
(b) When a family or household member is alleged to have
committed a violation of the provisions of section 27-903, a law-
enforcement officer may arrest the perpetrator for said offense
where:
(1) The law-enforcement officer has observed credible
corroborative evidence, as defined in subsection 27-1002(b), that
the offense has occurred; and
(2) The law-enforcement officer has received, from the victim
or a witness, a verbal or written allegation of the facts
constituting a violation of section 27-903; or
(3) The law-enforcement officer has observed credible evidence
that the accused committed the offense.
(c) Any person who observes a violation of a protective order
as described in this section, or the victim of such abuse or
unlawful presence, may call a local law-enforcement agency, which shall verify the existence of a current order, and shall direct a
law-enforcement officer to promptly investigate the alleged
violation.
(d) Where there is an arrest, the officer shall take the
arrested person before a circuit court or a magistrate and, upon a
finding of probable cause to believe a violation of an order as set
forth in this section has occurred, the court or magistrate shall
set a time and place for a hearing in accordance with the West
Virginia rules of criminal procedure.
Part XI. Miscellaneous Provisions.
§48-27-1102. Authorization for the promulgation of legislative
rules.
The governor's committee on crime, delinquency and correction
shall develop and promulgate rules for state, county and municipal
law-enforcement officers, and law-enforcement agencies and
communications and emergency operations centers which dispatch law-
enforcement officers with regard to domestic violence: Provided,
That such rules and procedures must be consistent with the priority
criteria prescribed by generally applicable department procedures.
The notice of the public hearing on the rules shall be published
before the first day of July, one thousand nine hundred ninety-one.
Prior to the publication of the proposed rules, the governor's
committee on crime, delinquency and correction shall convene a
meeting or meetings of an advisory committee to assist in the
development of the rules. The advisory committee shall be composed
of persons invited by the committee to represent state, county and local law-enforcement agencies and officers, to represent
magistrates and court officials, to represent victims of domestic
violence, to represent shelters receiving funding pursuant to
article 26-101, et seq., of this chapter, to represent
communications and emergency operations centers that dispatch law-
enforcement officers and to represent other persons or
organizations who, in the discretion of the committee, have an
interest in the rules. The rules and the revisions thereof as
provided in this section shall be promulgated as legislative rules
in accordance with chapter twenty-nine-a of this code. Following
the promulgation of said rules, the The committee shall meet at
least annually to review the rules and to propose revisions as a
result of changes in law or policy.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-9. Malicious or unlawful assault; assault; battery;
penalties.
(a) If any person maliciously shoot, stab, cut or wound any
person, or by any means cause him bodily injury with intent to
maim, disfigure, disable or kill, he shall, except where it is
otherwise provided, be guilty of a felony and, upon conviction,
shall be punished by confinement in the penitentiary not less than
two nor more than ten years. If such act be done unlawfully, but
not maliciously, with the intent aforesaid, the offender shall be
guilty of a felony and, upon conviction, shall, in the discretion
of the court, either be confined in the penitentiary not less than one nor more than five years, or be confined in jail not exceeding
twelve months and fined not exceeding five hundred dollars.
(b) Assault. -- If any person unlawfully attempts to commit a
violent injury to the person of another or unlawfully commits an
act which places another in reasonable apprehension of immediately
receiving a violent injury, he shall be guilty of a misdemeanor
and, upon conviction, shall be confined in jail for not more than
six months, or fined not more than one hundred dollars, or both
such fine and imprisonment.
(c) Battery. -- If any person unlawfully and intentionally
makes physical contact of an insulting or provoking nature with the
person of another or unlawfully and intentionally causes physical
harm to another person, he shall be guilty of a misdemeanor and,
upon conviction, shall be confined in jail for not more than twelve
months, or fined not more than five hundred dollars, or both such
fine and imprisonment.
(d) Any person convicted of a violation of subsection (b) or
(c) of this section who has, in the ten years prior to said
conviction, been convicted of a violation of either subsection (b)
or (c) of this section where the victim was a current or former
spouse, current or former sexual or intimate partner, a person with
whom the defendant has a child in common, a person with whom the
defendant cohabits or has cohabited, a parent or guardian, the
defendant's child or ward or a member of the defendant's household
at the time of the offense or convicted of a violation of section
twenty-eight of this article or has served a period of pretrial diversion for an alleged violation of subsection (b) or (c) of this
section or section twenty-eight of this article when the victim has
such present or past relationship shall, upon conviction, be
subject to the penalties set forth in section twenty-eight of this
article for a second, third or subsequent criminal act of domestic
violence offense, as appropriate.
§61-2-28. Domestic violence -- Criminal acts.
(a) Domestic battery. -- Any person who unlawfully and
intentionally makes physical contact of an insulting or provoking
nature with his or her family or household member or unlawfully and
intentionally causes physical harm to his or her family or
household member, is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in a county or regional jail for not
more than twelve months, or fined not more than five hundred
dollars, or both.
(b) Domestic assault. -- Any person who unlawfully attempts to
commit a violent injury against his or her family or household
member or unlawfully commits an act which places his or her family
or household member in reasonable apprehension of immediately
receiving a violent injury, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in a county or regional jail
for not more than six months, or fined not more than one hundred
dollars, or both.
(c) Second offense domestic assault or domestic battery. --
Any person who has previously been convicted of a violation of
subsection (a) or (b) of this section, a violation of the provisions of subsection (b) or (c), section nine of this article
where the victim was his or her family or household member, or who
has previously been granted a period of pretrial diversion pursuant
to section twenty-two, article eleven of this chapter for a
violation of subsection (a) or (b) of this section or subsection
(b) or (c), section nine of this article where the victim was his
or her family or household member
A person convicted of a violation of subsection (a) of this
section after having been previously convicted of a violation of
subsection (a) or (b) of this section, after having been convicted
of a violation of subsection (b) or (c), section nine of this
article where the victim was his or her family or household member
current or former spouse, current or former sexual or intimate
partner, person with whom the defendant has a child in common,
person with whom the defendant cohabits or has cohabited, a parent
or guardian, the defendant's child or ward or a member of the
defendant's household at the time of the offense or who has
previously been granted a period of pretrial diversion pursuant to
section twenty-two, article eleven of this chapter for a violation
of subsection (a) or (b) of this section, or a violation of
subsection (b) or (c), section nine of this article where the
victim was his or her family or household member a current or
former spouse, current or former sexual or intimate partner, person
with whom the defendant has a child in common, person with whom the
defendant cohabits or has cohabited, a parent or guardian, the
defendant's child or ward or a member of the defendant's household at the time of the offense is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in a county or regional jail
for not less than sixty days nor more than one year, or fined not
more than one thousand dollars, or both.
A person convicted of a violation of subsection (b) of this
section after having been previously convicted of a violation of
subsection (a) or (b) of this section, after having been convicted
of a violation of subsection (b) or (c), section nine of this
article where the victim was his or her family or household member
a current or former spouse, current or former sexual or intimate
partner, person with whom the defendant has a child in common,
person with whom the defendant cohabits or has cohabited, a parent
or guardian, the defendant's child or ward or a member of the
defendant's household at the time of the offense or having
previously been granted a period of pretrial diversion pursuant to
section twenty-two, article eleven of this chapter for a violation
of subsection (a) or (b) of this section or subsection (b) or (c),
section nine of this article where the victim was his or her family
or household member a current or former spouse, current or former
sexual or intimate partner, person with whom the defendant has a
child in common, person with whom the defendant cohabits or has
cohabited, a parent or guardian, the defendant's child or ward or
a member of the defendant's household at the time of the offense
shall be confined in a county or regional jail for not less than
thirty days nor more than six months, or fined not more than five
hundred dollars, or both.
(d) Third offense. -- Any person who has been convicted of a
third or subsequent violation of the provisions of subsection (a)
or (b) of this section, a third or subsequent violation of the
provisions of section nine of this article where the victim is a
family or household member was a current or former spouse, current
or former sexual or intimate partner, person with whom the
defendant has a child in common, person with whom the defendant
cohabits or has cohabited, a parent or guardian, the defendant's
child or ward or a member of the defendant's household at the time
of the offense or who has previously been granted a period of
pretrial diversion pursuant to section twenty-two, article eleven
of this chapter for a violation of subsection (a) or (b) of this
section or a violation of the provisions of section nine of this
article where in which the victim is a family or household member
was a current or former spouse, current or former sexual or
intimate partner, person with whom the defendant has a child in
common, person with whom the defendant cohabits or has cohabited,
a parent or guardian, the defendant's child or ward or a member of
the defendant's household at the time of the offense, or any
combination of convictions or diversions for these offenses, is
guilty of a felony if the offense occurs within ten years of a
prior conviction of any of these offenses and, upon conviction
thereof, shall be confined in a state correctional facility not
less than one nor more than five years or fined not more than two
thousand five hundred dollars, or both.
(e) As used in this section, "family or household member" means "family or household member" as defined in 48-27-203 48-27-
204 of this code.
(f) A person charged with a violation of this section may not
also be charged with a violation of subsection (b) or (c), section
nine of this article for the same act.
(g) No law-enforcement officer may be subject to any civil or
criminal action for false arrest or unlawful detention for
effecting an arrest pursuant to this section or pursuant to
48-27-1002 of this code.
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-4. License to carry deadly weapons; how obtained.
(a) Except as provided in subsection (h) of this section, any
person desiring to obtain a state license to carry a concealed
deadly weapon shall apply to the sheriff of his or her county for
such license and shall pay to the sheriff, at the time of
application, a fee of seventy-five dollars, of which fifteen
dollars of that amount shall be deposited in the courthouse
facilities improvement fund created by section six, article
twenty-six, chapter twenty-nine of this code. Concealed weapons
permits may only be issued for pistols or revolvers. Each
applicant shall file with the sheriff a complete application, as
prepared by the superintendent of the West Virginia state police,
in writing, duly verified, which sets forth only the following
licensing requirements:
(1) The applicant's full name, date of birth, social security
number and a description of the applicant's physical features;
(2) That, on the date the application is made, the applicant
is a bona fide resident of this state and of the county in which
the application is made and has a valid driver's license or other
state-issued photo identification showing such residence;
(3) That the applicant is twenty-one years of age or older:
Provided, That any individual who is less than twenty-one years of
age and possesses a properly issued concealed weapons license as of
the effective date of this article shall be licensed to maintain
his or her concealed weapons license notwithstanding the provisions
of this section requiring new applicants to be at least twenty-one
years of age: Provided, however, That upon a showing of any
applicant who is eighteen years of age or older that he or she is
required to carry a concealed weapon as a condition for employment,
and presents satisfactory proof to the sheriff thereof, then he or
she shall be issued a license upon meeting all other conditions of
this section. Upon discontinuance of employment that requires the
concealed weapons license, if the individual issued the license is
not yet twenty-one years of age, then the individual issued the
license is no longer eligible and must return his or her license to
the issuing sheriff;
(4) That the applicant is not addicted to alcohol, a
controlled substance or a drug and is not an unlawful user thereof;
(5) That the applicant has not been convicted of a felony or
of an act of violence involving the misuse of a deadly weapon;
(6) That the applicant has not been convicted of a misdemeanor
offense of assault or battery either under the provisions of section twenty-eight, article two of this chapter or the provisions
of subsection (b) or (c), section nine of said article in which the
victim was a current or former spouse, current or former sexual or
intimate partner, person with whom the defendant has a child in
common, person with whom the defendant cohabits or has cohabited,
a parent or guardian, the defendant's child or ward or a member of
the defendant's household at the time of the offense or a
misdemeanor offense with similar essential elements in a
jurisdiction other than this state;
__________(6) (7) That the applicant has no criminal charges pending and
is not under indictment for a felony offense or is not currently
serving a sentence of confinement, parole, probation or other
court-ordered supervision
because of a charge of domestic violence
as provided for in section twenty-eight, article two of this
chapter
a restraining order
as a result of a domestic violence act as
defined in that section, or because of a verified petition of
domestic violence as provided for in article two-a, chapter forty-
eight of this code or is subject to a protective order as provided
for in that article an emergency or temporary domestic violence
protective order or is the subject of a final domestic violence
protective order entered by a court of any jurisdiction
;
(7) (8) That the applicant is physically and mentally
competent to carry such weapon;
(8) (9) That the applicant has not been adjudicated to be
mentally incompetent;
(9) (10) That the applicant has qualified under the minimum
requirements set forth in subsection (d) of this section for
handling and firing such weapon: Provided, That this requirement
shall be waived in the case of a renewal applicant who has
previously qualified;
(10) (11) That the applicant authorizes the sheriff of the
county, or his or her designee, to conduct an investigation
relative to the information contained in the application.
(b) The sheriff shall conduct an investigation which shall
verify that the information required in subdivisions (1), (2), (3),
(5), (6), (8) and (9), subsection (a) of this section are true and
correct.
(c) Sixty dollars of the application fee and any fees for
replacement of lost or stolen licenses received by the sheriff
shall be deposited by the sheriff into a concealed weapons license
administration fund. Such fund shall be administered by the
sheriff and shall take the form of an interest-bearing account with
any interest earned to be compounded to the fund. Any funds
deposited in this concealed weapon license administration fund are
to be expended by the sheriff to pay for the costs associated with
issuing concealed weapons licenses. Any surplus in the fund on
hand at the end of each fiscal year may be expended for other
law-enforcement purposes or operating needs of the sheriff's
office, as the sheriff may consider appropriate.
(d) All persons applying for a license must complete a
training course in handling and firing a handgun. The successful completion of any of the following courses fulfills this training
requirement:
(1) Any official national rifle association handgun safety or
training course;
(2) Any handgun safety or training course or class available
to the general public offered by an official law-enforcement
organization, community college, junior college, college or private
or public institution or organization or handgun training school
utilizing instructors duly certified by such institution;
(3) Any handgun training or safety course or class conducted
by a handgun instructor certified as such by the state or by the
national rifle association;
(4) Any handgun training or safety course or class conducted
by any branch of the United States military, reserve or national
guard.
A photocopy of a certificate of completion of any of the
courses or classes or an affidavit from the instructor, school,
club, organization or group that conducted or taught said course or
class attesting to the successful completion of the course or class
by the applicant or a copy of any document which shows successful
completion of the course or class shall constitute evidence of
qualification under this section.
(e) All concealed weapons license applications must be
notarized by a notary public duly licensed under article four,
chapter twenty-nine of this code. Falsification of any portion of
the application constitutes false swearing and is punishable under the provisions of section two, article five of this chapter.
(f) If the information in the application is found to be true
and correct, the sheriff shall issue a license. The sheriff shall
issue or deny the license within forty-five days after the
application is filed if all required background checks authorized
by this section are completed.
(g) Before any approved license shall be issued or become
effective, the applicant shall pay to the sheriff a fee in the
amount of fifteen dollars which the sheriff shall forward to the
superintendent of the West Virginia state police within thirty days
of receipt. Any such license shall be valid for five years
throughout the state, unless sooner revoked.
(h) All persons holding a current and valid concealed weapons
license as of the sixteenth day of December, one thousand nine
hundred ninety-five, shall continue to hold a valid concealed
weapons license until his or her license expires or is revoked as
provided for in this article: Provided, That all reapplication
fees shall be waived for applications received by the first day of
January, one thousand nine hundred ninety-seven, for any person
holding a current and valid concealed weapons license as of the
sixteenth day of December, one thousand nine hundred ninety-five,
which contains use restrictions placed upon the license as a
condition of issuance by the issuing circuit court. Any licenses
reissued pursuant to this subsection will be issued for the time
period of the original license.
(i) Each license shall contain the full name, social security number and address of the licensee and a space upon which the
signature of the licensee shall be signed with pen and ink. The
issuing sheriff shall sign and attach his or her seal to all
license cards. The sheriff shall provide to each new licensee a
duplicate license card, in size similar to other state
identification cards and licenses, suitable for carrying in a
wallet, and such license card is deemed a license for the purposes
of this section.
(j) The superintendent of the West Virginia state police shall
prepare uniform applications for licenses and license cards showing
that such license has been granted and shall do any other act
required to be done to protect the state and see to the enforcement
of this section.
(k) In the event an application is denied, the specific
reasons for the denial shall be stated by the sheriff denying the
application. Any person denied a license may file, in the circuit
court of the county in which the application was made, a petition
seeking review of the denial. Such petition shall be filed within
thirty days of the denial. The court shall then determine whether
the applicant is entitled to the issuance of a license under the
criteria set forth in this section. The applicant may be
represented by counsel, but in no case shall the court be required
to appoint counsel for an applicant. The final order of the court
shall include the court's findings of fact and conclusions of law.
If the final order upholds the denial, the applicant may file an
appeal in accordance with the rules of appellate procedure of the supreme court of appeals.
(l) In the event a license is lost or destroyed, the person to
whom the license was issued may obtain a duplicate or substitute
license for a fee of five dollars by filing a notarized statement
with the sheriff indicating that the license has been lost or
destroyed.
(m) The sheriff shall, immediately after the license is
granted as aforesaid, furnish the superintendent of the West
Virginia state police a certified copy of the approved application.
It shall be the duty of the sheriff to furnish to the
superintendent of the West Virginia state police at any time so
requested a certified list of all such licenses issued in the
county. The superintendent of the West Virginia state police shall
maintain a registry of all persons who have been issued concealed
weapons licenses.
(n) All licensees must carry with them a state-issued photo
identification card with the concealed weapons license whenever the
licensee is carrying a concealed weapon. Any licensee who fails to
have in his or her possession a state-issued photo identification
card and a current concealed weapons license while carrying a
concealed weapon shall be guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than fifty nor more
than two hundred dollars for each offense.
(o) The sheriff shall deny any application or revoke any
existing license upon determination that any of the licensing
application requirements established in this section have been violated by the licensee.
(p) No person who is engaged in the receipt, review or in the
issuance or revocation of a concealed weapon license shall incur
any civil liability as the result of the lawful performance of his
or her duties under this article.
(q) Notwithstanding the provisions of subsection (a) of this
section, with respect to application by a former law-enforcement
officer honorably retired from agencies governed by article
fourteen, chapter seven of this code; article fourteen, chapter
eight of this code
; article two, chapter fifteen of this code
; and
article seven, chapter twenty of this code, an honorably retired
officer is exempt from payment of fees and costs as otherwise
required by this section, and the application of the honorably
retired officer shall be granted without proof or inquiry by the
sheriff as to those requirements set forth in subdivision (9),
subsection (a) of this section, if the officer meets the remainder
of the requirements of this section and has the approval of the
appropriate chief law-enforcement officer.
§61-7-7. Persons prohibited from possessing firearms;
classifications; reinstatement of rights to
possess; offenses; penalties.
(a) Except as provided for in this section, no person shall
possess a firearm as such is defined in section two of this article
who:
(1) Has been convicted in any court of a crime punishable by
imprisonment for a term exceeding one year;
(2) Is addicted to alcohol;
(3) Is an unlawful user of or addicted to any controlled
substance;
(4) Has been adjudicated as a mental defective or who has been
involuntarily committed to a mental institution;
(5) Being an alien is illegally or unlawfully in the United
States;
(6) Has been discharged from the armed forces under
dishonorable conditions;
(7) Is subject to a domestic violence protective order that:
(A) Was issued after a hearing of which such person received
actual notice and at which such person had an opportunity to
participate;
(B) Restrains such person from harassing, stalking or
threatening an intimate partner of such person or child of such
intimate partner or person, or engaging in other conduct that would
place an intimate partner in reasonable fear of bodily injury to
the partner or child; and
(C) (i) Includes a finding that such person represents a
credible threat to the physical safety of such intimate partner or
child; or
(ii) By its terms explicitly prohibits the use, attempted use
or threatened use of physical force against such intimate partner
or child that would reasonably be expected to cause bodily injury;
or
(8) Has has been convicted of a misdemeanor offense of assault or battery either under the provisions of section twenty-eight,
article two of this chapter or the provisions of subsection (b) or
(c), section nine of said article in which the victim was a current
or former spouse, current or former sexual or intimate partner,
person with whom the defendant has a child in common, person with
whom the defendant cohabits or has cohabited, a parent or guardian,
the defendant's child or ward or a member of the defendant's
household at the time of the offense or has been convicted in any
court of any jurisdiction of a comparable misdemeanor crime of
domestic violence.
Any person who violates the provisions of this subsection
shall be guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than one hundred dollars nor more than one
thousand dollars or confined in the county jail for not less than
ninety days nor more than one year, or both.
(b) Notwithstanding the provisions of subsection (a) of this
section, any person:
(1) Who has been convicted in this state or any other
jurisdiction of a felony crime of violence against the person of
another or of a felony sexual offense; or
(2) Who has been convicted in this state or any other
jurisdiction of a felony controlled substance offense involving a
Schedule I controlled substance other than marijuana, a Schedule II
or a Schedule III controlled substance as such are defined in
sections two hundred four, two hundred five and two hundred six,
article two, chapter sixty-a of this code and who possesses a firearm as such is defined in section two of this article shall be
guilty of a felony and, upon conviction thereof, shall be confined
in a state correctional facility for not more than five years or
fined not more than five thousand dollars, or both. The provisions
of subsection (c) of this section shall not apply to persons
convicted of offenses referred to in this subsection or to persons
convicted of a violation of this subsection.
(c) Any person prohibited from possessing a firearm by the
provisions of subsection (a) of this section may petition the
circuit court of the county in which he or she resides to regain
the ability to possess a firearm and if the court finds by clear
and convincing evidence that the person is competent and capable of
exercising the responsibility concomitant with the possession of a
firearm, the court may enter an order allowing the person to
possess a firearm if such possession would not violate any federal
law.;
And,
On page one, by striking out the enacting section and
inserting in lieu thereof a new enacting section, to read as
follows:
That §48-5-509 and §48-5-608 of the code of West Virginia,
1931, as amended, be amended and reenacted; that §48-27-401, §48-
27-902, §48-27-903, §48-27-1001 and §48-27-1102 of said code be
amended and reenacted; that §61-2-9 and §61-2-28 of said code be
amended and reenacted; and that §61-7-4 and §61-7-7 of said code be
amended and reenacted, all to read as follows:.
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendments to the Senate amendments to
the bill.
Engrossed Committee Substitute for House Bill No. 4605, as
amended, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4605) passed with its Senate amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 701,
Authorizing certain taxes imposed by municipalities.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On
page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §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 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 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.
(b) 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.
(c) 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.
(a) 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 policemen's and
firemen's pension funds and the necessary changes in West Virginia
law have been enacted to allow for implementation of the municipal
plan.
(b)
Notwithstanding any other provision of this code to the
contrary, no cost-of-living increases or other benefit increases,
and no new benefits, may be granted to or received by any member or beneficiary of a policemen's and firemen's pension and relief funds
of a municipality during any period that the municipality imposes
a pension relief municipal occupational tax, a pension relief
municipal sales and service tax, the pension relief municipal use
tax
or any combination thereof authorized under this chapter.
§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 this chapter.
§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 fuels 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.;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 701--A Bill
to amend the code of West Virginia, 1931, as 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; to amend
and reenact §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; and to amend and reenact §11-10-3 of
said code, all relating to authorizing a qualifying municipality to
impose municipal occupational tax, an alternative municipal sales
and service tax and use tax and a pension relief municipal sales
and service tax and use tax; establishing responsibilities of tax
commissioner relating to the tax; clarifying application of other
state tax laws; creating qualifying municipal sales and service tax
and use tax fund; providing that tax rate applies to purchases from
printed catalogs; limiting use of certain proceeds of the taxes to
application toward the unfunded liability of certain pensions; citing instances where qualifying municipalities lose certain
taxing authority; limiting increase in pension benefits pending
imposition of certain taxes; addressing conflicts and
unconstitutionality; establishing prerequisites to imposition of
certain taxes; requiring a study by the chief technology officer on
the cost of implementing municipal taxes; imposing criminal
penalties for certain violations relating to municipal tax; and
applying tax procedure and administration act to municipal taxes.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 701, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Helmick, Hunter,
Jenkins, Kessler, McCabe, McKenzie, Minard, Minear, Oliverio,
Plymale, Prezioso, Ross, Sharpe, Snyder, Sprouse, Unger, White and
Tomblin (Mr. President)--26.
The nays were: Boley, Guills, Harrison, Love, Rowe, Smith and
Weeks--7.
Absent: Bailey--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 701) passed with its House of
Delegates title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 197, Relating generally to
distribution of net terminal income of racetrack video lottery
terminals.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto three new sections, designated §5A-4-5a, §5A-4-6
and §5A-4-7; and that §5B-2-12 of said code be amended and
reenacted, all to read as follows:
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 4. GENERAL SERVICES DIVISION.
§5A-4-5a. Construction of parking garage for general public;
creation of fund.
(a) It is the intent of the Legislature to provide a parking
facility for the general public and to direct the secretary of the
department of administration to plan and construct a parking garage
at the state capitol complex that will provide sufficient and additional parking for the general public.
(b) There is created the state treasury to be administered by
the department of administration a special fund to be named the
"2004 capitol complex parking garage fund" in which shall be
deposited funds that are appropriated and funds from other sources
to be used for the construction and maintenance of a parking garage
on or adjacent to the state capitol complex.
§5A-4-6. Distribution of funds.
Notwithstanding any other provision of this code to the
contrary, in each fiscal year beginning after the thirtieth day of
June, two thousand four, the provisions directing the distribution
of money in subdivision (9), subsection (c), section ten, article
twenty-two-a, chapter twenty-nine of this code and subdivision (9),
subsection (a), section ten-b of said article are superseded by the
provisions of this section, except to the extent provided by
subdivision (1) of this section, and all of the money described in
those subdivisions shall be distributed as follows:
(1) Five hundred thousand dollars of the one percent of net
terminal income distributed by the provisions of subdivision (9),
subsection (c), section ten, article twenty-two-a, chapter twenty-
nine of this code shall continue to be deposited pursuant to the
provisions of said subdivision in the state treasury in the special
fund of the department of administration, created under section
five of this article to be used for construction and maintenance of
a parking garage on the state capitol complex.
(2) Of the total of the one percent of net terminal income otherwise directed to be distributed by the provisions of
subdivision (9), subsection (c), section ten, article twenty-two-a,
chapter twenty-nine of this code and the one percent of net
terminal income otherwise directed to be distributed by the
provisions of subdivision (9), subsection (a), section ten-b of
said article, the money shall be deposited in equal amounts in the
capitol dome and improvements fund created under section two,
article four, chapter five-a of this code and cultural facilities
and capitol resources matching grant program fund created under
section three, article one of this chapter until a total of one
million five hundred thousand dollars is deposited into the
cultural facilities and capitol resources matching grant program
fund; thereafter, the money shall be deposited until a total of
four million dollars is deposited into the capitol dome and
improvements fund.
(3) After the requirements of subdivisions (1) and (2) of this
section have been fulfilled, any remaining amounts of the one
percent of net terminal income otherwise directed to be distributed
by the provisions of subdivision (9), subsection (c), section ten,
article twenty-two-a, chapter twenty-nine of this code and the one
percent of net terminal income otherwise directed to be distributed
by the provisions of subdivision (9), subsection (a), section ten-b
of said article shall be deposited into the revenue shortfall
reserve fund created pursuant to the provisions of section twenty,
article two of this chapter.
§5A-4-7.
Renovation and improvement of capitol building and capitol complex.
(a) It is the intent of the Legislature to provide renovation
and improvement of the existing state capitol building and the
capitol complex and to direct the secretary of the department of
administration to plan and make renovations and improvements of the
existing state capitol building and the capitol complex for the
purpose of reversing deterioration to existing facilities, securing
the safety of the general public and state employees, promoting
efficiency of governmental operations and to enhance tourism in the
state.
(b) There is created the state treasury to be administered by
the department of administration a special fund to be named the
"capitol renovation and improvement fund" in which shall be
deposited funds that are appropriated and funds from other sources
to be used for renovations and improvements of the existing state
capitol building and the capitol complex.
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 2. WEST VIRGINIA DEVELOPMENT OFFICE.
§5B-2-12. Tourism promotion fund continued; use of funds.
There is hereby continued in the state treasury the special
revenue fund known as the "tourism promotion fund" created under
prior enactment of section nine, article one of this chapter.
(a) A minimum of five percent of the moneys deposited in the
fund each year shall be used solely for direct advertising for West
Virginia travel and tourism: Provided, That no less than twenty
percent of these funds be expended with the approval of the director of the division of natural resources to effectively
promote and market the state's parks, state forests, state
recreation areas and wildlife recreational resources. Direct
advertising means advertising which is limited to television,
radio, mailings, newspaper, magazines and outdoor billboards, or
any combination thereof.
(b) The balance of the moneys deposited in the fund shall be
used for direct advertising within the state's travel regions as
defined by the commission. The funds shall be made available to
these districts beginning the first day of July, one thousand nine
hundred ninety-five, according to legislative rules promulgated
authorized for promulgation
by the tourism commission. Provided,
That emergency rules for the distribution of funds for the fiscal
year ending the thirtieth day of June, one thousand nine hundred
ninety-six, are specifically authorized; and
(c) All advertising expenditures over twenty-five thousand
dollars from the tourism promotion fund require prior approval by
recorded vote of the commission.
No member of the commission or of
any committee created by the commission to evaluate applications
for advertising or other grants may participate in the discussion
of, or action upon, an application for or an award of any grant in
which the member has a direct financial interest.
__(d) Notwithstanding any other provision of this code to the
contrary, in each fiscal year beginning after the thirtieth day of
June, two thousand four, the total amount of money that may be
received by the tourism promotion fund pursuant to the provisions of sections ten and ten-b, article twenty-two-a, chapter twenty-
nine of this code is ten million dollars and any money exceeding
ten million dollars that would otherwise be received by the tourism
promotion fund pursuant to said sections
shall instead be
distributed as follows:
__(1) Not more than five hundred thousand dollars shall be
deposited in the state treasury in a special fund of the department
of administration, created under section five-a, article four,
chapter five-a of this code, to be used for construction and
maintenance of a parking garage on or adjacent to
the state capitol
complex
;
__(2) Not more than five million dollars shall be deposited in
the state treasury in a special fund of the department of
administration, created under section seven, article four, chapter
five-a of this code
, to be used for renovation and improvement of
the existing state capitol building and the capitol complex; and
__(3)
The remainder of the money shall be deposited into the
revenue shortfall reserve fund created pursuant to the provisions
of section twenty, article two, chapter five-a of this code.
;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 197--A Bill to amend the
code of West Virginia, 1931, as amended, by adding thereto three
new sections, designated §5A-4-5a, §5A-4-6 and §5A-4-7; and to
amend and reenact §5B-2-12 of said code, all relating to funding specific activities; creating of a fund to be used for the
construction and maintenance of a parking garage; distributing of
net terminal income to funds for the construction and maintenance
of parking garages, to the capitol dome and improvements fund, to
the cultural facilities and capitol resources matching grant
program fund, to the capitol renovation and improvement fund, to
the tourism promotion fund and to the revenue shortfall reserve
fund; creating of a fund for renovations and improvements of the
existing state capitol building and the capitol complex; and
prohibiting members of the tourism commission from
participating in
the discussion of, or action upon, an application for or an award
of any grant in which the member has a direct financial interest
.
On motion of Senator Helmick, the following amendments to the
House of Delegates amendments to the bill (Eng. Com. Sub. for S. B.
No. 197) were reported by the Clerk, considered simultaneously, and
adopted:
On page one, by striking out everything after the chapter
heading and inserting in lieu thereof the following:
ARTICLE 4. GENERAL SERVICES DIVISION.
§5A-4-5a. Construction of parking garage for general public;
creation of fund.
(a) It is the intent of the Legislature to provide a parking
facility for the general public and to direct the secretary of the
department of administration to plan and construct a parking garage
at the state capitol complex that will provide sufficient and
additional parking exclusively for the general public.
(b) There is created the state treasury to be administered by
the department of administration a special fund to be named the
"2004 capitol complex parking garage fund" in which shall be
deposited funds that are appropriated and funds from other sources
to be used for the construction and maintenance of a parking garage
on or adjacent to the state capitol complex.
§5A-4-6. Distribution of funds.
Notwithstanding any other provision of this code to the
contrary, in each fiscal year beginning after the thirtieth day of
June, two thousand four, the total amount of the remainder of the
one percent of net terminal income described in subparagraph (ii),
paragraph (B), subdivision (9), subsection (c), section ten,
article twenty-two-a, chapter twenty-nine of this code and all of
the one percent of net terminal income described in subdivision
(9), subsection (a), section ten-b of said article shall be
distributed as follows:
Equal amounts of the total shall be deposited in the capitol
dome and improvements fund created under section two of this
article and cultural facilities and capitol resources matching
grant program fund created under section three, article one of this
chapter until a total of one million five hundred thousand dollars
is deposited into the cultural facilities and capitol resources
matching grant program fund; thereafter, the remainder shall be
deposited into the capitol dome and improvements fund.
§5A-4-7. Renovation and improvement of capitol building and capitol
complex.
(a) It is the intent of the Legislature to provide renovation
and improvement of the existing state capitol building and the
capitol complex and to direct the secretary of the department of
administration to plan and make renovations and improvements of the
existing state capitol building and the capitol complex for the
purpose of reversing deterioration to existing facilities, securing
the safety of the general public and state employees, promoting
efficiency of governmental operations and to enhance tourism in the
state.
(b) There is created the state treasury to be administered by
the department of administration a special fund to be named the
"capitol renovation and improvement fund" in which shall be
deposited funds that are appropriated and funds from other sources
to be used for renovations and improvements of the existing state
capitol building and the capitol complex.
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 2. WEST VIRGINIA DEVELOPMENT OFFICE.
§5B-2-12. Tourism promotion fund continued; use of funds.
There is hereby continued in the state treasury the special
revenue fund known as the "tourism promotion fund" created under
prior enactment of section nine, article one of this chapter.
(a) A minimum of five percent of the moneys deposited in the
fund each year shall be used solely for direct advertising for West
Virginia travel and tourism: Provided, That no less than twenty
percent of these funds be expended with the approval of the
director of the division of natural resources to effectively promote and market the state's parks, state forests, state
recreation areas and wildlife recreational resources. Direct
advertising means advertising which is limited to television,
radio, mailings, newspaper, magazines and outdoor billboards, or
any combination thereof.
(b) The balance of the moneys deposited in the fund shall be
used for direct advertising within the state's travel regions as
defined by the commission. The funds shall be made available to
these districts beginning the first day of July, one thousand nine
hundred ninety-five, according to legislative rules promulgated
authorized for promulgation by the tourism commission. : Provided,
That emergency rules for the distribution of funds for the fiscal
year ending the thirtieth day of June, one thousand nine hundred
ninety-six, are specifically authorized; and
(c) All advertising expenditures over twenty-five thousand
dollars from the tourism promotion fund require prior approval by
recorded vote of the commission. No member of the commission or of
any committee created by the commission to evaluate applications
for advertising or other grants may participate in the discussion
of, or action upon, an application for or an award of any grant in
which the member has a direct financial interest.
__(d) Notwithstanding any other provision of this code to the
contrary:
__(1) In the fiscal year beginning the first day of July, two
thousand four, the total amount of the three percent of net
terminal income described in paragraph (B), subdivision (8), subsection (c), section ten, article twenty-two-a, chapter twenty-
nine of this code and the three percent of net terminal income
described in paragraph (B), subdivision (9), subsection (a),
section ten-b of said article shall be distributed as follows:
__(A) Not more than six million dollars shall be deposited in
the tourism promotion fund;
__(B) Not more than five hundred thousand dollars shall be
deposited in the state treasury in a special fund of the department
of administration, created under section five-a, article four,
chapter five-a of this code, to be used for construction and
maintenance of a parking garage on or adjacent to the state capitol
complex;
__(C) Not more than five million five hundred thousand dollars
shall be deposited in the state treasury in a special fund of the
department of administration, created under section seven, article
four, chapter five-a of this code, to be used for renovation and
improvement of the existing state capitol building and the capitol
complex; and
__(D) The remainder of the three percent of net terminal income
shall be available only upon appropriation by the Legislature as
part of the state budget.
__(2) In each fiscal year beginning after the thirtieth day of
June, two thousand five, the total amount of the three percent of
net terminal income described in paragraph (B), subdivision (8),
subsection (c), section ten, article twenty-two-a, chapter twenty-
nine of this code and the three percent of net terminal income described in paragraph (B), subdivision (9), subsection (a),
section ten-b of said article shall be distributed as follows:
__(A) Not more than eleven million dollars shall be deposited in
the tourism promotion fund;
__(B) Not more than five hundred thousand dollars shall be
deposited in the state treasury in a special fund of the department
of administration, created under section five-a, article four,
chapter five-a of this code, to be used for construction and
maintenance of a parking garage on or adjacent to the state capitol
complex;
__(C) Not more than five million five hundred thousand dollars
shall be deposited in the state treasury in a special fund of the
department of administration, created under section seven, article
four, chapter five-a of this code, to be used for renovation and
improvement of the existing state capitol building and the capitol
complex; and
__(D) The remainder of the three percent of net terminal income
shall be available only upon appropriation by the Legislature as
part of the state budget.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 22A. RACETRACK VIDEO LOTTERY.
§29-22A-10. Accounting and reporting; commission to provide
communications protocol data; distribution of net
terminal income; remittance through electronic
transfer of funds; establishment of accounts and
nonpayment penalties; commission control of accounting for net terminal income; settlement of
accounts; manual reporting and payment may be
required; request for reports; examination of
accounts and records.
(a) The commission shall provide to manufacturers, or
applicants applying for a manufacturer's permit, the protocol
documentation data necessary to enable the respective
manufacturer's video lottery terminals to communicate with the
commission's central computer for transmitting auditing program
information and for activation and disabling of video lottery
terminals.
(b) The gross terminal income of a licensed racetrack shall be
remitted to the commission through the electronic transfer of
funds. Licensed racetracks shall furnish to the commission all
information and bank authorizations required to facilitate the
timely transfer of moneys to the commission. Licensed racetracks
must provide the commission thirty days' advance notice of any
proposed account changes in order to assure the uninterrupted
electronic transfer of funds. From the gross terminal income
remitted by the licensee to the commission, the commission shall
deduct an amount sufficient to reimburse the commission for its
actual costs and expenses incurred in administering racetrack video
lottery at the licensed racetrack and the resulting amount after
the deduction is the net terminal income. The amount deducted for
administrative costs and expenses of the commission may not exceed
four percent of gross terminal income: Provided, That any amounts deducted by the commission for its actual costs and expenses that
exceeds its actual costs and expenses shall be deposited into the
state lottery fund. For all fiscal years beginning on or after the
first day of July, two thousand one, the commission shall not
receive an amount of gross terminal income in excess of the amount
of gross terminal income received during the fiscal year ending on
the thirtieth day of June, two thousand one, but four percent of
any amount of gross terminal income received in excess of the
amount of gross terminal income received during the fiscal year
ending on the thirtieth day of June, two thousand one, shall be
deposited into the fund established in section eighteen-a, article
twenty-two of this chapter.
(c) Net terminal income shall be divided as set out in this
subsection. For all fiscal years beginning on or after the first
day of July, two thousand one, any amount of net terminal income
received in excess of the amount of net terminal income received
during the fiscal year ending on the thirtieth day of June, two
thousand one, shall be divided as set out in section ten-b of this
article. The licensed racetrack's share is in lieu of all lottery
agent commissions and is considered to cover all costs and expenses
required to be expended by the licensed racetrack in connection
with video lottery operations. The division shall be made as
follows:
(1) The commission shall receive thirty percent of net
terminal income, which shall be paid into the state lottery fund as
provided in section ten-a of this article;
(2) Fourteen percent of net terminal income at a licensed
racetrack shall be deposited in the special fund established by the
licensee and used for payment of regular purses in addition to
other amounts provided for in article twenty-three, chapter
nineteen of this code;
(3) The county where the video lottery terminals are located
shall receive two percent of the net terminal income: Provided,
That:
(A) Beginning the first day of July, one thousand nine hundred
ninety-nine, and thereafter, any Any amount in excess of the two
percent received during fiscal year one thousand nine hundred
ninety-nine by a county in which a racetrack is located that has
participated in the West Virginia thoroughbred development fund
since on or before the first day of January, one thousand nine
hundred ninety-nine, shall be divided as follows:
(i) The county shall receive fifty percent of the excess
amount; and
(ii) The municipalities of the county shall receive fifty
percent of the excess amount, the fifty percent to be divided among
the municipalities on a per capita basis as determined by the most
recent decennial United States census of population; and
(B) Beginning the first day of July, one thousand nine hundred
ninety-nine, and thereafter, any Any amount in excess of the two
percent received during fiscal year one thousand nine hundred
ninety-nine by a county in which a racetrack other than a racetrack
described in paragraph (A) of this proviso is located and where the racetrack has been located in a municipality within the county
since on or before the first day of January, one thousand nine
hundred ninety-nine, shall be divided, if applicable, as follows:
(i) The county shall receive fifty percent of the excess
amount; and
(ii) The municipality shall receive fifty percent of the
excess amount; and
(C) This proviso shall not affect the amount to be received
under this subdivision by any county other than a county described
in paragraph (A) or (B) of this subdivision;
(4) One half of one percent of net terminal income shall be
paid for and on behalf of all employees of the licensed racing
association by making a deposit into a special fund to be
established by the racing commission to be used for payment into
the pension plan for all employees of the licensed racing
association;
(5) The West Virginia thoroughbred development fund created
under section thirteen-b, article twenty-three, chapter nineteen of
this code and the West Virginia greyhound breeding development fund
created under section ten of said article shall receive an equal
share of a total of not less than one and one-half percent of the
net terminal income: Provided, That for any racetrack which does
not have a breeder's program supported by the thoroughbred
development fund or the greyhound breeding development fund, the
one and one-half percent provided for in this subdivision shall be
deposited in the special fund established by the licensee and used for payment of regular purses in addition to other amounts provided
for in subdivision (2) of this subsection and article twenty-three,
chapter nineteen of this code;
(6) The West Virginia racing commission shall receive one
percent of the net terminal income which shall be deposited and
used as provided in section thirteen-c, article twenty-three,
chapter nineteen of this code;
(7) A licensee shall receive forty-seven percent of net
terminal income;
(8)(A) The tourism promotion fund established in section
twelve, article two, chapter five-b of this code shall receive
three percent of the net terminal income: Provided, That for the
fiscal year beginning the first day of July, two thousand three,
the tourism commission shall transfer from the tourism promotion
fund no more than five million dollars of the three percent of the
net terminal income into the fund administered by the West Virginia
economic development authority pursuant to section seven, article
fifteen, chapter thirty-one of this code; and
_____(B) Notwithstanding any provision of paragraph (A) of this
subdivision to the contrary, for each fiscal year beginning after
the thirtieth day of June, two thousand four, this three percent of
net terminal income shall be distributed pursuant to the provisions
of subsection (d), section twelve, article two, chapter five-b of
this code; and
(9) The remaining one percent of net terminal income shall be
deposited as follows:
_____(A) For the fiscal year beginning the first day of July, two
thousand three the, The veterans memorial program shall receive
that one percent of the net terminal income until sufficient moneys
have been received to complete the veterans memorial on the grounds
of the state capitol complex in Charleston, West Virginia. The
moneys shall be deposited in the state treasury in the division of
culture and history special fund created under section three,
article one-i, chapter twenty-nine of this code: Provided, That
only after sufficient moneys have been deposited in the fund to
complete the veterans memorial and to pay in full the annual bonded
indebtedness on the veterans memorial, not more than twenty
thousand dollars of the one percent of net terminal income provided
for in this subdivision shall be deposited into a special revenue
fund in the state treasury, to be known as the "John F. 'Jack'
Bennett Fund". The moneys in this fund shall be expended by the
division of veterans affairs to provide for the placement of
markers for the graves of veterans in perpetual cemeteries in this
state. The division of veterans affairs shall promulgate
legislative rules pursuant to the provisions of article three,
chapter twenty-nine-a of this code specifying the manner in which
the funds are spent, determine the ability of the surviving spouse
to pay for the placement of the marker and setting forth the
standards to be used to determine the priority in which the
veterans grave markers will be placed in the event that there are
not sufficient funds to complete the placement of veterans grave
markers in any one year, or at all. Upon payment in full of the bonded indebtedness on the veterans memorial, one hundred thousand
dollars of the one percent of net terminal income provided for in
this subdivision shall be deposited in the special fund in the
division of culture and history created under section three,
article one-i, chapter twenty-nine of this code and be expended by
the division of culture and history to establish a West Virginia
veterans memorial archives within the cultural center to serve as
a repository for the documents and records pertaining to the
veterans memorial, to restore and maintain the monuments and
memorial on the capitol grounds: Provided, however, That five
hundred thousand dollars of the one percent of net terminal income
shall be deposited in the state treasury in a special fund of the
department of administration, created under section five, article
four, chapter five-a of this code, to be used for construction and
maintenance of a parking garage on the state capitol complex; and
Provided further, That the remainder of the one percent of net
terminal income shall be deposited in equal amounts in the capitol
dome and improvements fund created under section two, article four,
chapter five-a of this code and cultural facilities and capitol
resources matching grant program fund created under section three,
article one of this chapter.
(B) For each fiscal year beginning after the thirtieth day of
June, two thousand four:
_____(i) Five hundred thousand dollars of the one percent of net
terminal income shall be deposited in the state treasury in a
special fund of the department of administration, created under section five, article four, chapter five-a of this code, to be used
for construction and maintenance of a parking garage on the state
capitol complex; and
_____(ii) The remainder of the one percent of net terminal income
shall be distributed pursuant to the provisions of section six,
article four, chapter five-a of this code.
(d) Each licensed racetrack shall maintain in its account an
amount equal to or greater than the gross terminal income from its
operation of video lottery machines, to be electronically
transferred by the commission on dates established by the
commission. Upon a licensed racetrack's failure to maintain this
balance, the commission may disable all of a licensed racetrack's
video lottery terminals until full payment of all amounts due is
made. Interest shall accrue on any unpaid balance at a rate
consistent with the amount charged for state income tax delinquency
under chapter eleven of this code. The interest shall begin to
accrue on the date payment is due to the commission.
(e) The commission's central control computer shall keep
accurate records of all income generated by each video lottery
terminal. The commission shall prepare and mail to the licensed
racetrack a statement reflecting the gross terminal income
generated by the licensee's video lottery terminals. Each licensed
racetrack shall report to the commission any discrepancies between
the commission's statement and each terminal's mechanical and
electronic meter readings. The licensed racetrack is solely
responsible for resolving income discrepancies between actual money collected and the amount shown on the accounting meters or on the
commission's billing statement.
(f) Until an accounting discrepancy is resolved in favor of
the licensed racetrack, the commission may make no credit
adjustments. For any video lottery terminal reflecting a
discrepancy, the licensed racetrack shall submit to the commission
the maintenance log which includes current mechanical meter
readings and the audit ticket which contains electronic meter
readings generated by the terminal's software. If the meter
readings and the commission's records cannot be reconciled, final
disposition of the matter shall be determined by the commission.
Any accounting discrepancies which cannot be otherwise resolved
shall be resolved in favor of the commission.
(g) Licensed racetracks shall remit payment by mail if the
electronic transfer of funds is not operational or the commission
notifies licensed racetracks that remittance by this method is
required. The licensed racetracks shall report an amount equal to
the total amount of cash inserted into each video lottery terminal
operated by a licensee, minus the total value of game credits which
are cleared from the video lottery terminal in exchange for winning
redemption tickets, and remit the amount as generated from its
terminals during the reporting period. The remittance shall be
sealed in a properly addressed and stamped envelope and deposited
in the United States mail no later than noon on the day when the
payment would otherwise be completed through electronic funds
transfer.
(h) Licensed racetracks may, upon request, receive additional
reports of play transactions for their respective video lottery
terminals and other marketing information not considered
confidential by the commission. The commission may charge a
reasonable fee for the cost of producing and mailing any report
other than the billing statements.
(i) The commission has the right to examine all accounts, bank
accounts, financial statements and records in a licensed
racetrack's possession under its control or in which it has an
interest and the licensed racetrack shall authorize all third
parties in possession or in control of the accounts or records to
allow examination of any of those accounts or records by the
commission.
§29-22A-10b. Distribution of excess net terminal income.
(a) For all years beginning on or after the first day of July,
two thousand one, any amount of net terminal income generated
annually by a licensed racetrack in excess of the amount of net
terminal income generated by that licensed racetrack during the
fiscal year ending on the thirtieth day of June, two thousand one,
shall be divided as follows:
(1) The commission shall receive forty-one percent of net
terminal income, which the commission shall deposit in the state
excess lottery revenue fund created in section eighteen-a, article
twenty-two of this chapter;
(2) Eight percent of net terminal income at a licensed
racetrack shall be deposited in the special fund established by the licensee and used for payment of regular purses in addition to
other amounts provided for in article twenty-three, chapter
nineteen of this code;
(3) The county where the video lottery terminals are located
shall receive two percent of the net terminal income: Provided,
That:
(A) Any amount by which the total amount under this section
and subdivision (3), subsection (c), section ten of this article is
in excess of the two percent received during fiscal year one
thousand nine hundred ninety-nine by a county in which a racetrack
is located that has participated in the West Virginia thoroughbred
development fund since on or before the first day of January, one
thousand nine hundred ninety-nine, shall be divided as follows:
(i) The county shall receive fifty percent of the excess
amount; and
(ii) The municipalities of the county shall receive fifty
percent of the excess amount, the fifty percent to be divided among
the municipalities on a per capita basis as determined by the most
recent decennial United States census of population; and
(B) Any amount by which the total amount under this section
and subdivision (3), subsection (c), section ten of this article is
in excess of the two percent received during fiscal year one
thousand nine hundred ninety-nine by a county in which a racetrack
other than a racetrack described in paragraph (A) of this proviso
is located and where the racetrack has been located in a
municipality within the county since on or before the first day of January, one thousand nine hundred ninety-nine, shall be divided,
if applicable, as follows:
(i) The county shall receive fifty percent of the excess
amount; and
(ii) The municipality shall receive fifty percent of the
excess amount; and
(C) This proviso shall not affect the amount to be received
under this subdivision by any county other than a county described
in paragraph (A) or (B) of this proviso;
(4) One half of one percent of net terminal income shall be
paid for and on behalf of all employees of the licensed racing
association by making a deposit into a special fund to be
established by the racing commission to be used for payment into
the pension plan for all employees of the licensed racing
association;
(5) The West Virginia thoroughbred development fund created
under section thirteen-b, article twenty-three, chapter nineteen of
this code and the West Virginia greyhound breeding development fund
created under section ten of said article shall receive an equal
share of a total of not less than one and one-half percent of the
net terminal income: Provided, That for any racetrack which does
not have a breeder's program supported by the thoroughbred
development fund or the greyhound breeding development fund, the
one and one-half percent provided for in this subdivision shall be
deposited in the special fund established by the licensee and used
for payment of regular purses, in addition to other amounts provided for in subdivision (2) of this subsection and article
twenty-three, chapter nineteen of this code;
(6) The West Virginia racing commission shall receive one
percent of the net terminal income which shall be deposited and
used as provided in section thirteen-c, article twenty-three,
chapter nineteen of this code;
(7) A licensee shall receive forty-two percent of net terminal
income;
(8) The tourism promotion fund established in section twelve,
article two, chapter five-b of this code shall receive three
percent of the net terminal income: Provided, That for each fiscal
year beginning after the thirtieth day of June, two thousand four,
this three percent of net terminal income shall be distributed
pursuant to the provisions of subsection (d), section twelve,
article two, chapter five-b of this code; and
(9)(A) One percent of the net terminal income shall be
deposited in equal amounts in the capitol dome and improvements
fund created under section two, article four, chapter five-a of
this code and cultural facilities and capitol resources matching
grant program fund created under section three, article one of this
chapter; and
_____(B) Notwithstanding any provision of paragraph (A) of this
subdivision to the contrary, for each fiscal year beginning after
the thirtieth day of June, two thousand four, this one percent of
net terminal income shall be distributed pursuant to the provisions
of section six, article four, chapter five-a of this code.
(b) The commission may establish orderly and effective
procedures for the collection and distribution of funds under this
section in accordance with the provisions of this section and
section ten of this article.;
On page one, by striking out the enacting section and
inserting in lieu thereof a new enacting section, to read as
follows:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto three new sections, designated §5A-4-5a, §5A-4-6
and §5A-4-7; that §5B-2-12 of said code be amended and reenacted;
and that §29-22A-10 and §29-22A-10b of said code be amended and
reenacted, all to read as follows:;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 197--A Bill to amend the
code of West Virginia, 1931, as amended, by adding thereto three
new sections, designated §5A-4-5a, §5A-4-6 and §5A-4-7; to amend
and reenact §5B-2-12 of said code; and to amend and reenact §29-
22A-10 and §29-22A-10b of said code, all relating generally to
distribution of net terminal income of racetrack video lottery
terminals for funding purposes; creating of a fund to be used for
the construction and maintenance of a parking garage; distributing
net terminal income to funds for the construction and maintenance
of parking garages, to the capitol dome and improvements fund, to
the cultural facilities and capitol resources matching grant program fund, to the capitol renovation and improvement fund, to
the tourism promotion fund and to purposes determined by
appropriation in the state budget; creating of a fund for
renovations and improvements of the existing state capitol building
and the capitol complex; and prohibiting members of the tourism
commission from participating in the discussion of, or action upon,
an application for or an award of any grant in which the member has
a direct financial interest.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as amended.
Engrossed Committee Substitute for Senate Bill No. 197, as
amended, was then put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Sharpe, Snyder, Unger,
White and Tomblin (Mr. President)--27.
The nays were: Guills, Harrison, Rowe, Smith, Sprouse and
Weeks--6.
Absent: Bailey--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 197) passed with its Senate amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio,
Plymale, Prezioso, Ross, Sharpe, Snyder, Unger, White and Tomblin
(Mr. President)--27.
The nays were: Guills, Harrison, Rowe, Smith, Sprouse and
Weeks--6.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 197) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 408, Relating
generally to levies by county boards of education and expenditure
of property taxes collected.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page four, section six-f, line forty, after the word
"subdivision" by changing the colon to a period and striking out
the following proviso: Provided, however, That the rate of levy
for county boards of education for the fiscal year beginning on the first day of July, two thousand four, shall be equal to the rate of
levy set forth in section six-c of this article.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 408, as amended by the House of Delegates, was then
put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Snyder,
Sprouse, Unger, White and Tomblin (Mr. President)--30.
The nays were: Harrison, Smith and Weeks--3.
Absent: Bailey--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 408) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Helmick,
Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear,
Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Snyder, Sprouse,
Unger, White and Tomblin (Mr. President)--30.
The nays were: Harrison, Smith and Weeks--3.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 408) takes effect from
passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 513, Relating to jobs
investment trust board.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 7. JOBS INVESTMENT TRUST FUND.
§12-7-4. Jobs investment trust board; composition; appointment,
term of private members; chairman; quorum.
(a) The jobs investment trust board is continued. The board
is a public body corporate and established to improve and otherwise
promote economic development in this state.
(b) The board consists of thirteen members, five of whom serve
by virtue of their respective positions. These five are the
president of West Virginia university or his or her designee; the president of Marshall university or his or her designee; the
chancellor of the higher education policy commission or his or her
designee; the executive director of the West Virginia housing
development fund; and the executive director of the West Virginia
development office. One member shall be appointed by the governor
from a list of two names submitted by the board of directors of the
housing development fund. One member shall be appointed by the
governor from a list of two names submitted by the commissioner of
the division of tourism. The other six members shall be appointed
from the general public by the governor. Of the members of the
general public appointed by the governor, one shall be an attorney
with experience in finance and investment matters, one shall be a
certified public accountant, one shall be a representative of
labor, one shall be experienced or involved in innovative business
development and two shall be present or past executive officers of
companies listed on a major stock exchange or large privately held
companies: Provided, That all appointments made pursuant to the
provisions of this article shall be by and with the advice and
consent of the Senate.
(c) A vacancy on the board shall be filled by appointment by
the governor for the unexpired term in the same manner as the
original appointment. Any person appointed to fill a vacancy
serves only for the unexpired term.
(d) The governor may remove any appointed member in case of
incompetency, neglect of duty, moral turpitude or malfeasance in
office and the governor may declare the office vacant and fill the vacancy as provided in other cases of vacancy.
(e) The chairman of the board shall be elected by the board
from among the members of the board.
(f) Seven members of the board is a quorum. No action may be
taken by the board except upon the affirmative vote of at least a
majority of those members present or participating by such any
other means as described in subsection (g) of this section, but in
no event fewer than six of the members serving on the board.
(g) Members of the board may participate in a meeting of the
board by means of conference telephone or similar communication
equipment by means of which all persons participating in the
meeting can hear each other and participation in a board meeting
pursuant to this subsection shall constitute constitutes presence
in person at such the meeting.
(h) The members of the board, including the chairman, may
receive no compensation for their services as members of the board,
but are entitled to their reasonable and necessary expenses
actually incurred in discharging their duties under this article.
(i) The board shall meet on a quarterly basis or more often if
necessary.
(j) The terms of the board members appointed by the governor
first taking office on or after the one thousand nine hundred
ninety-two effective date of the jobs investment trust act expired
as designated by the governor at the time of the nomination, two at
the end of the first year, two at the end of the second year, two
at the end of the third year and two at the end of the fourth year. These original appointments were for, and each subsequent
appointment was and shall be for, a full governor shall appoint a
member for a four-year term. Any member whose term has expired
serves until his or her successor has been duly appointed and
qualified. Any member is eligible for reappointment.
(k) Additionally, one member of the West Virginia House of
Delegates, to be appointed by the speaker of the House of
Delegates, and one member of the West Virginia Senate, to be
appointed by the president of the Senate, shall serve as advisory
members of the jobs investment trust board and, as advisory
members, shall be ex officio, nonvoting advisory members. The
governor shall appoint the two legislative ex officio advisory
members who shall serve for four years or such shorter time as he
or she continues to be a West Virginia legislator.
§12-7-6. Corporate powers.
The board has the power may:
(1) (i) To make Make loans to eligible businesses with or
without interest secured if and as required by the board; and (ii)
acquire ownership interests in eligible businesses. These
investments may be made in eligible businesses that stimulate
economic growth and provide or retain jobs in this state and shall
be made only upon the determination by the board that the
investments are prudent and meet the criteria established by the
board;
(2) To accept Accept appropriations, gifts, grants, bequests
and devises and use or dispose of them to carry out its corporate purposes;
(3) To make Make and execute contracts, releases, compromises,
agreements and other instruments necessary or convenient for the
exercise of its powers or to carry out its corporate purposes;
(4) To collect Collect reasonable fees and charges in
connection with making and servicing loans, notes, bonds,
obligations, commitments and other evidences of indebtedness, in
connection with making equity investments and in connection with
providing technical, consultative and project assistance services;
(5) To sue Sue and be sued;
(6) To make Make, amend and repeal bylaws and rules consistent
with the provisions of this article;
(7) To hire Hire its own employees, whom shall be employees of
the state of West Virginia for purposes of articles ten and
sixteen, chapter five of this code, and appoint officers and
consultants and fix their compensation and prescribe their duties;
(8) To acquire Acquire, hold and dispose of real and personal
property for its corporate purposes;
(9) To enter Enter into agreements or other transactions with
any federal or state agency, college or university, any person and
any domestic or foreign partnership, corporation, association or
organization;
(10) To acquire Acquire real and personal property, or an
interest in real or personal property, in its own name, by purchase
or foreclosure when acquisition is necessary or appropriate to
protect any loan in which the board has an interest; sell, transfer and convey any real or personal property to a buyer; and, in the
event a sale, transfer or conveyance cannot be effected with
reasonable promptness or at a reasonable price, lease real or
personal property to a tenant;
(11) To purchase Purchase, sell, own, hold, negotiate,
transfer or assign: (i) Any mortgage, instrument, note, credit,
debenture, guarantee, bond or other negotiable instrument or
obligation securing a loan, or any part of a loan; (ii) any
security or other instrument evidencing ownership or indebtedness;
or (iii) equity or other ownership interest. An offering of one of
the above these instruments shall include the representation and
qualification that the board is a public body corporate managing a
venture capital fund that includes high-risk investments and that
in any transfer, sale or assignment of any interest, the
transferee, purchaser or assignee accepts any risk without recourse
to the jobs investment trust or to the state;
(12) To procure Procure insurance against losses to its
property in amounts, and from insurers, as is prudent;
(13) To consent Consent, when prudent, to the modification of
the rate of interest, time of maturity, time of payment of
installments of principal or interest or any other terms of the
investment, loan, contract or agreement in which the board is a
party;
(14) To establish Establish training and educational programs
to further the purposes of this article;
(15) To file File its own travel rules;
(16) To borrow Borrow money to carry out its corporate purpose
in principal amounts and upon terms as are necessary to provide
sufficient funds for achieving its corporate purpose;
(17) To take Take options in or warrants for, subscribe to,
acquire, purchase, own, hold, transfer, sell, vote, employ,
mortgage, pledge, assign, pool or syndicate: (i) Any loans, notes,
mortgages or securities; (ii) debt instruments, ownership
certificates or other instruments evidencing loans or equity; or
(iii) securities or other ownership interests of or in domestic or
foreign corporations, associations, partnerships, limited
partnerships, limited liability partnerships, limited liability
companies, joint ventures or other private enterprise to foster
economic growth, jobs preservation and creation in the state of
West Virginia and all other acts that carry out the board's
purpose;
(18) To contract Contract with either Marshall university or
West Virginia university, or both, for the purpose of retaining the
services of, and paying the reasonable cost of, services performed
by the institution for the board in order to effectuate the
purposes of this article;
(19) To enter Enter into collaborative arrangements or
contracts with private venture capital companies when considered
advisable by the board;
(20) To provide Provide equity financing for any eligible
business that will stimulate economic growth and provide or retain
jobs in this state and hold, transfer, sell, assign, pool or syndicate, or participate in the syndication of, any loans, notes,
mortgages, securities, debt instruments or other instruments
evidencing loans or equity interest in furtherance of the board's
corporate purposes;
(21) To form Form partnerships, create subsidiaries or take
all other actions necessary to qualify as a small business
investment company under the United States Public Law (85-699)
Small Business Investment Act, as amended; and
(22) To provide Provide for staff payroll and make purchases
in the same manner as the housing development fund;
(23) Indemnify its members, directors, officers, employees and
agents relative to actions and proceedings to which they have been
made parties and make advances for expenses relative thereto and
purchase and maintain liability insurance on behalf of those
persons all to the same extent as authorized for West Virginia
business corporations under present or future laws of the state
applicable to business corporations generally; and
__(24) Contract for the provision of legal services by private
counsel and, notwithstanding the provisions of article three,
chapter five of this code, counsel may, but is not limited to,
represent the board in court, negotiate contracts and other
agreements on behalf of the board, render advice to the board on
any matter relating thereto, prepare contracts and other agreements
and provide any other legal services requested by the board.
§12-7-8a. New millennium fund; new millennium fund promissory
notes; nonincentive tax credits; rulemaking.
(a) The new millennium fund is established continued to permit
the board to better fulfill its mission to mobilize financing and
capital for emerging, expanding and restructuring businesses in the
state. New millennium fund moneys are to consist of all
appropriations for use by the jobs investment trust board made by
the Legislature subsequent to the thirty-first day of December, one
thousand nine hundred ninety-nine, and funds borrowed from private
or institutional lenders by the board through the issuance of
promissory notes. Fund moneys may be held in a separate account or
accounts by or at the West Virginia housing development fund for
the board until the board disburses any portion of the funds. Fund
moneys that are not set aside or otherwise designated for paying
interest on the promissory notes may be used by the board in
accordance with and to effectuate the purposes of this article.
The board may impose reasonable fees and charges associated with
its investment of funds from the new millennium fund in eligible
businesses to be paid in any combination of money, warrants or
equity interests.
(b) Without limiting the powers otherwise enumerated in this
article, the board has the power to may: (1) Sell and transfer
portions of the nonincentive tax credits created, issued and
transferred to the board pursuant to the provisions of this section
to contracting taxpayers and/or their assigns in return for the
payments described in subsection (f) of this section; (2) issue or
provide promissory notes on loans made to the board having terms of
up to ten years on a zero-coupon basis or otherwise; (3) enter into put options or similar commitment contracts with taxpayers that
would be for terms of up to ten years committing, at the board's
option, to sell and transfer to the contracting taxpayers or their
assigns at the end of the term and as soon after the term as is
reasonable under the circumstances portions of the nonincentive tax
credits created, issued and transferred to the board pursuant to
this section; (4) grant, transfer and assign the benefits of the
put options or similar commitment contracts as collateral to secure
the board's obligations pursuant to its promissory notes; and (5)
satisfy the board's payment obligations under its promissory notes
from assets of the board, other than the benefits of the put
options or similar commitment contracts, then to effect a
corresponding cancellation of the board's related nonincentive tax
credit commitment; and (6) satisfy the board's payment obligations
under its promissory notes from the benefits of the put options or
similar commitment contracts, then to effect a corresponding sale
and transfer of nonincentive tax credits. The terms and conditions
of the promissory notes, put options or similar commitment
contracts shall be consistent with the purposes of this section,
and approved by board resolution, and may be different for separate
transactions.
(c) Without limiting the powers otherwise enumerated in this
article and with regard to the new millennium fund, the board has
and may exercise all powers necessary to further the purposes of
this section, including, but not limited to, the power to commit,
sell and transfer nonincentive tax credits up to the total amount of thirty million dollars.
(d) The board may issue its promissory notes pursuant to this
section in amounts totaling no more than six million dollars in
each of the fiscal years ending in two thousand one, two thousand
two, two thousand three, two thousand four and two thousand five
and may issue its nonincentive tax credit commitments in amounts
totaling no more than six million dollars in each of the fiscal
years ending in two thousand one, two thousand two, two thousand
three, two thousand four and two thousand five. The board may
agree to sell and transfer, at its option, nonincentive tax credits
to taxpayers ten years after the date of its commitments, and as
soon thereafter as it is reasonable under the circumstances.
(e) Prior to committing to the sale and transfer of any
nonincentive tax credits, the board shall first determine that:
(1) The new millennium fund moneys to be received in
relationship to the commitment shall be used for the development,
promotion and expansion of the economy of the state; and
(2) The existence and pledge of a put option or similar
commitment contract that is supported by the nonincentive tax
credits that are committed by the board is a material inducement to
the private or institutional lender transferring moneys to the
board to be placed in the new millennium fund.
(f) The board may sell and transfer nonincentive tax credits
only in conjunction with the satisfaction of its obligations under
its promissory notes issued pursuant to this section. Each
original sale and transfer of nonincentive tax credits by the board shall be consummated upon payment to the board, or for its
benefits, of an amount equal to the dollar amount of the
nonincentive tax credits sold and transferred. minus the amount of
any federal tax deduction lost by the purchasing taxpayer, if any,
resulting from the purchase and projected use of the nonincentive
tax credit in satisfying state tax obligations The nonincentive tax
credits sold and transferred by the board pursuant to this section
shall be claimed as a credit on the tax returns for the year or
years in which the nonincentive tax credits are sold and
transferred by the board. The amount of the nonincentive tax
credit that exceeds the taxpayer's tax liability for the taxable
year in the year of the purchase may be carried to succeeding
taxable years until used in full up to two years after the year of
purchase and may not be carried back to prior taxable years. Any
nonincentive tax credit sold and transferred by the board that
remains outstanding after the third taxable year subsequent to and
including the year of the transfer is forfeited.
(g) Nonincentive tax credits are created, issued and
transferred by the state to the board in a total amount of thirty
million dollars to be used by taxpayers, including persons, firms,
corporations and all other business entities, to reduce the tax
liabilities imposed upon them pursuant to articles twelve-a,
thirteen, thirteen-a, thirteen-b, twenty-one, twenty-three and
twenty-four, chapter eleven of this code. The total amount of
nonincentive tax credits that are created, issued and transferred
to the board is thirty million dollars. The nonincentive tax credits are freely transferable to subsequent transferees. The
board shall immediately notify the president of the Senate, the
speaker of the House of Delegates and the governor in writing if
and when any nonincentive tax credits are sold and transferred by
the board.
(h) In conjunction with the department of tax and revenue, the
board shall develop a system for: (i) Registering nonincentive tax
credits, commitments for the sale and transfer of nonincentive tax
credits, the assignments of the commitments and the assignments of
the nonincentive tax credits; and (ii) certifying nonincentive tax
credits so that when nonincentive tax credits are claimed on a tax
return, they may be verified as validly issued by the board,
properly taken in the year of claim and in accordance with the
requirements of this section.
(i) The board may promulgate, repeal, amend and change rules
consistent with the provisions of this article to carry out the
purposes of this section. These rules are not subject to the
provisions of chapter twenty-nine-a of this code, but shall be
filed with the secretary of state.
§12-7-11. Documentary materials concerning trade secrets;
commercial, financial or personal information;
confidentiality.
Any documentary material or data made or received by the board
for the purpose of furnishing assistance, to the extent that such
the material or data consists of trade secrets, commercial,
financial or personal information regarding the financial position or activities of such business or person, shall not be considered
public records and shall be exempt from disclosure pursuant to the
provisions of chapter twenty-nine-b of this code. Any discussion
or consideration of such the trade secrets, commercial, financial
or personal information may be held by the board in executive
session closed to the public, notwithstanding the provisions of
article nine-a, chapter six of this code: Provided, That the board
shall make public the following information regarding executed
investments: (1) The names and addresses of the principals of the
business and its board of directors; (2) the location or locations
of the projects; (3) the amount of the investment or financial
assistance provided by the board; (4) the purpose of the investment
or financial assistance; (5) the maturity, interest rate and other
pertinent terms of the investment; (6) the fixed assets which serve
as security for the investment; and (7) the names and addresses of
all persons holding twenty-five percent or more of the equity of
the entity receiving investment assistance: Provided, however,
That the board shall keep available in its offices for inspection
by any citizen of this state the annual report prepared pursuant to
the requirements of section twelve of this article and the annual
audit report prepared pursuant to the requirements of sections nine
and fourteen of this article.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 513--A Bill to amend and reenact §12-7-4, §12-7-6, §12-7-8a and §12-7-11 of the code of West
Virginia, 1931, as amended, all relating to the jobs investment
trust board; expanding board powers; providing for sale or transfer
of nonincentive tax credits; and providing that certain documents
be available for public inspection.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 513, as
amended by the House of Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 513) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 516, Establishing eastern
panhandle highway authority.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page two, section one, line two, by striking out the word
"highway" and inserting in lieu thereof the word "transportation";
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 516--A Bill to establish
the West Virginia eastern panhandle transportation authority to
include representatives from Berkeley, Jefferson and Morgan
counties; appointment of officers; and powers of authority.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 516, as
amended by the House of Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 516) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Com. Sub. for Senate Bill No. 518, Relating to policemen
and firemen required to work during holidays; compensation.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §8-14-2a of the code of West Virginia, 1931, as amended,
be amended and reenacted; and that §8-15-10a of said code be
amended and reenacted, all to read as follows:
ARTICLE 14. LAW AND ORDER; POLICE FORCE OR DEPARTMENTS; POWERS,
AUTHORITY AND DUTIES OF LAW-ENFORCEMENT OFFICIALS
AND POLICEMEN; POLICE MATRONS; SPECIAL SCHOOL ZONE AND PARKING LOT OR PARKING BUILDING POLICE
OFFICERS; CIVIL SERVICE FOR CERTAIN POLICE
DEPARTMENTS.
§8-14-2a. Policemen who are required to work during holidays; how
compensated.
From the effective date of this section, if any municipal
police officer is required to work during a legal holiday as is
specified in subsection (a), section one, article two, chapter two
of this code, or if a legal holiday falls on the police officer's
regular scheduled day off, he shall be
such a time as may be approved by the chief of police under
whom he or she serves or, in the alternative, shall be paid at a
rate not less than one and one-half times his or her regular rate
of pay: Provided, That if a special election of a political
subdivision other than a municipality falls on a Saturday or
Sunday, the municipality may choose not to recognize the day of the
election as a holiday if a majority of the municipality's city
council votes not to recognize the day of the election as a
holiday
.
ARTICLE 15. FIREFIGHTING; FIRE COMPANIES AND DEPARTMENTS; CIVIL
SERVICE FOR PAID FIRE DEPARTMENTS.
§8-15-10a. Firemen who are required to work during holidays; how
compensated.
From the effective date of this section, if any member of a
paid fire department is required to work during a legal holiday as
is specified in subsection (a), section one, article two, chapter two of this code, or if a legal holiday falls on the member's
regular scheduled day off, he or she shall be allowed equal time
off at such time as may be approved by the chief executive officer
of the department under whom he or she serves or, in the
alternative, shall be paid at a rate not less than one and one-half
times his or her regular rate of pay: Provided, That if a special
election of a political subdivision other than a municipality falls
on a Saturday or Sunday, the municipality may choose not to
recognize the day of the election as a holiday if a majority of the
municipality's city council votes not to recognize the day of the
election as a holiday
.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 518, as
amended by the House of Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 518) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendments, as to
Eng. Senate Bill No. 536, Relating to claims against state.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On
page eight, section one, line ninety-four, before the word
"Verizon" by inserting "(1)";
On page twenty, section one, line three hundred fifty-eight,
by striking out "(2)" and inserting in lieu thereof "(1)";
And,
On page twenty, section one, line three hundred fifty-nine, by
striking out "(n)" and inserting in lieu thereof "(2)".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 536, as amended by the House of
Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 536) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 536) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amendments, as amended
by the House of Delegates, passage as amended with its Senate
amended title, to take effect July 1, 2004, and requested the
concurrence of the Senate in the House of Delegates amendment to the Senate amendments, as to
Eng. Com. Sub. for House Bill No. 4001, Ensuring safer schools
and empowering teachers by automating student suspension and
expulsion data.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the Senate
amendments to the bill was reported by the Clerk:
On page nineteen, section five, by striking out all of
subsection (k) and inserting in lieu thereof a new subsection (k),
to read as follows:
(i) (k) On-site reviews. --
(1) At The system of education performance audits shall
include on-site reviews of schools and school systems which shall
be conducted only at the specific direction of the state board or
by weighted selection by the education performance audits, an upon
its determination that the performance and progress of the school
or school system are persistently below standard or that other
circumstances exist that warrant an on-site review.
Any discussion
by the state board of schools to be subject to an on-site review or
dates for which on-site reviews will be conducted may be held in
executive session and is not subject to the provisions of article
nine-a, chapter six of this code, relating to open governmental
proceedings.
An on-site review shall be conducted by the office of
education performance audits of any a school or school system for
purposes, including, but
(A) Verifying data reported by the school or county board;
(B) Documenting Examining compliance with the laws and
policies and laws affecting student, school and school system
performance and progress;
(C) Evaluating the effectiveness and implementation status of
school and school system unified improvement plans;
(D) Investigating official complaints submitted to the state
board that allege serious impairments in the quality of education
in schools or school systems;
(E) Investigating official complaints submitted to the state
board that allege that a school or county board is in violation of
policies or laws under which schools and county boards operate; and
(F) Determining and reporting whether required reviews and
inspections have been conducted by the appropriate agencies,
including, but not limited to, the state fire marshal, the health
department, the school building authority and the responsible
divisions within the department of education, and whether noted
deficiencies have been or are in the process of being corrected.
The office of education performance audits may not conduct a
duplicate review or inspection of any compliance reviews or inspections conducted by the department or its agents or other duly
authorized agencies of the state, nor may it mandate more stringent
compliance measures.
(2) The selection of schools and school systems for an on-site
review shall use a weighted sample so that those with lower
performance and progress indicators have a greater likelihood of
being selected. The director of the office of education
performance audits shall notify the county superintendent of
schools five school days prior to commencing an on-site review of
the county school system and shall notify both the county
superintendent and the principal five school days prior to
commencing an on-site review of an individual school: Provided,
That the state board may direct the office of education performance
audits to conduct an unannounced on-site review of a school or
school system if the state board believes circumstances warrant an
unannounced on-site review.
(3) The office of education performance audits may shall
conduct on-site reviews which are limited in scope to specific
areas in addition to full reviews which cover all
which performance
and progress are persistently below standard as determined by the
state board unless specifically directed by the state board to
conduct a review which covers additional areas.
(4) An on-site review of a school or school system shall
include a person or persons from the department of education or a
public education agency in the state who has expert knowledge and
experience in the area or areas to be reviewed, and who is has been trained and designated by the state board from the department of
education and the agencies responsible for assisting the office
to
perform such functions. If the size of the school or school system
and issues being reviewed necessitates necessitate the use of an
on-site review team or teams, the person or persons designated by
the state board shall advise and assist the director to appoint the
team or teams. The person or persons designated by the state board
shall be the team leaders.
The persons designated by the state board shall be responsible
for completing the report on the findings and recommendations of
the on-site review in their area of expertise. It is the intent of
the Legislature that the persons designated by the state board
participate in all on-site reviews that involve their area of
expertise, to the extent practicable, so that the on-site review
process will evaluate compliance with the standards in a uniform,
consistent and expert manner.
(5) The office of education performance audits shall reimburse
a county board for the costs of substitutes required to replace
county board employees while they are serving on a review team.
(6) At the conclusion of an on-site review of a school system,
the director and team leaders shall hold an exit conference with
the superintendent and shall provide an opportunity for principals
to be present for at least the portion of the conference pertaining
to their respective schools. In the case of an on-site review of
a school, the exit conference shall be held with the principal and
curriculum team of the school and the superintendent shall be provided the opportunity to be present. The purpose of the exit
conference is to review the initial findings of the on-site review,
clarify and correct any inaccuracies and allow the opportunity for
dialogue between the reviewers and the school or school system to
promote a better understanding of the findings.
(7) The office of education performance audits shall report
the findings of an on-site review to the county superintendent and
the principals whose schools were reviewed within thirty days
following the conclusion of the on-site review. The office of
education performance audits shall report the findings of the
on-site reviews review to the state board for inclusion in the
evaluation and determination of a school's or county board's
accreditation or approval status as applicable. The report on the
findings of an on-site review shall be submitted to the state board
within thirty days following the conclusion of the on-site review
and to the county superintendent and principals of schools within
the reviewed school system within forty-five days following the
conclusion of the on-site review
within forty-five days after the
conclusion of the on-site review. A copy of the report shall be
provided to the process for improving education council at its
request.
(8) The Legislature finds that the accountability and
oversight of the following activities and programmatic areas in the
public schools is controlled through other mechanisms and that
additional accountability and oversight are not only unnecessary
but counter productive in distracting necessary resources from teaching and learning. Therefore, notwithstanding any other
provision of this section to the contrary, the following activities
and programmatic areas are not subject to review by the office of
education performance audits:
_____(A) Work-based learning;
_____(B) Use of advisory councils;
_____(C) Program accreditation and student credentials;
_____(D) Student transition plans;
_____(E) Graduate assessment form;
_____(F) Casual deficit;
_____(G) Accounting practices;
_____(H) Transportation services;
_____(I) Special education services;
_____(J) Safe, healthy and accessible facilities;
_____(K) Health services;
_____(L) Attendance director;
_____(M) Business/community partnerships;
_____(N) Pupil-teacher ratio/split grade classes;
_____(O)Local school improvement council, faculty senate, student
assistance team and curriculum team;
_____(P) Planning and lunch periods;
_____(Q) Skill improvement program;
_____(R) Certificate of proficiency;
_____(S) Training of county board members;
_____(T) Excellence in job performance;
_____(U) Staff development; and
_____(V) Preventive discipline, character education and student and
parental involvement.
On motion of Senator Chafin, the Senate concurred in the
foregoing House of Delegates amendment to the Senate amendments to
the bill.
Engrossed Committee Substitute for House Bill No. 4001, as
amended, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4001) passed with its Senate amended title.
Senator Chafin moved that the bill take effect July 1, 2004.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: None.
Absent: Bailey--1.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 4001) takes effect July 1, 2004.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 139, Creating Tourism
Development Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On
page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 2E. WEST VIRGINIA TOURISM DEVELOPMENT ACT.
§5B-2E-1. West Virginia tourism development act.
This article shall be referred to as the "West Virginia
Tourism Development Act".
§5B-2E-2. Legislative findings.
The Legislature finds and declares that the general welfare
and material well-being of the citizens of the state depend, in large measure, upon the development of tourism development projects
in the state and that it is in the best interest of the state to
induce the creation of new or the expansion of existing tourism
development projects within the state in order to advance the
public purposes of relieving unemployment by preserving and
creating jobs and by preserving and creating new and greater
sources of revenues for the support of public services provided by
the state; and that the inducement for the creation or expansion of
tourism development projects should be in the form of a tax credit
to be applied to consumers sales and service taxes collected on the
gross receipts generated directly from the operations of the new or
expanded tourism development projects, in lieu of tax credits on
income that are largely deferred for a number of years after start
up of a major tourism development project; and all of which new or
expanded tourism developments are of paramount importance to the
state and its economy and for the state's contribution to the
national economy.
§5B-2E-3. Definitions.
As used in this article, unless the context clearly indicates
otherwise:
(1) "Agreement" means a tourism development agreement entered
into, pursuant to section six of this article, between the
development office and an approved company, with respect to a
tourism development project.
(2) "Approved company" means any eligible company approved by
the development office pursuant to section five of this article seeking to undertake a tourism development project.
(3) "Approved costs" means:
(A) Included costs:
(i) Obligations incurred for labor and to vendors,
contractors, subcontractors, builders, suppliers, delivery persons
and material persons in connection with the acquisition,
construction, equipping, installation or expansion of a tourism
development project;
(ii) The costs of acquiring real property or rights in real
property and any costs incidental thereto;
(iii) The cost of contract bonds and of insurance of all kinds
that may be required or necessary during the course of the
acquisition, construction, equipping, installation or expansion of
a tourism development project which is not paid by the vendor,
supplier, delivery person, contractor or otherwise provided;
(iv) All costs of architectural and engineering services,
including, but not limited to: Estimates, plans and
specifications, preliminary investigations and supervision of
construction, installation, as well as for the performance of all
the duties required by or consequent to the acquisition,
construction, equipping, installation or expansion of a tourism
development project;
(v) All costs required to be paid under the terms of any
contract for the acquisition, construction, equipping, installation
or expansion of a tourism development project;
(vi) All costs required for the installation of utilities, including, but not limited to: Water, sewer, sewer treatment, gas,
electricity, communications and off-site construction of utility
extensions to the boundaries of the real estate on which the
facilities are located, all of which are to be used to improve the
economic situation of the approved company in a manner that allows
the approved company to attract persons; and
(vii) All other costs comparable with those described in this
subdivision;
(B) Excluded costs. -- The term "approved costs" does not
include any portion of the cost required to be paid for the
acquisition, construction, equipping and installation or expansion
of a tourism development project that is financed with governmental
incentives, grants or bonds or for which the eligible taxpayer
elects to qualify for other tax credits, including, but not limited
to, those provided by article thirteen-q, chapter eleven of this
code.
(4) "Base tax revenue amount" means the average monthly amount
of consumers sales and service tax collected by an approved
company, based on the twelve-month period ending immediately prior
to the opening of a new tourism development project for business,
as certified by the state tax commissioner.
(5) "Council" means the council for community and economic
development as provided in article two of this chapter.
(6) "Development office" means the West Virginia development
office as provided in article two of this chapter.
(7) "Crafts and products center" means a facility primarily devoted to the display, promotion and sale of West Virginia
products and at which a minimum of eighty percent of the sales
occurring at the facility are of West Virginia arts, crafts or
agricultural products.
(8) "Eligible company" means any corporation, limited
liability company, partnership, limited liability partnership, sole
proprietorship, business trust, joint venture or any other entity
operating or intending to operate a tourism development project,
whether owned or leased, within the state that meets the standards
required by the council. An eligible company may operate or intend
to operate directly or indirectly through a lessee.
(9) "Entertainment destination center" means a facility
containing a minimum of two hundred thousand square feet of
building space adjacent or complementary to an existing tourism
attraction, an approved tourism development project or a major
convention facility and which provides a variety of entertainment
and leisure options that contain at least one major theme
restaurant and at least three additional entertainment venues,
including, but not limited to, live entertainment, multiplex
theaters, large-format theaters, motion simulators, family
entertainment centers, concert halls, virtual reality or other
interactive games, museums, exhibitions or other cultural and
leisure time activities. Entertainment and food and drink options
shall occupy a minimum of sixty percent of total gross area, as
defined in the application, available for lease and other retail
stores shall occupy no more than forty percent of the total gross area available for lease.
(10) "Final approval" means the action taken by the council
qualifying the eligible company to receive the tax credits provided
in this article.
(11) "Preliminary approval" means the action taken by the
development office conditioning final approval by the council.
(12) "State agency" means any state administrative body,
agency, department, division, board, commission or institution
exercising any function of the state that is not a municipal
corporation or political subdivision.
(13) "Tourism attraction" means a cultural or historical site,
a recreation or entertainment facility, an area of natural
phenomenon or scenic beauty, a West Virginia crafts and products
center or an entertainment destination center. A tourism
development project or attraction shall not include any of the
following:
(A) Lodging facilities, unless:
(i) The facilities constitute a portion of a tourism
development project and represent less than fifty percent of the
total approved cost of the tourism development project, or the
facilities are to be located on recreational property owned or
leased by the state or federal government and the facilities have
received prior approval from the appropriate state or federal
agency.
(ii) The facilities involve the restoration or rehabilitation
of a structure that is listed individually in the national register of historic places or are located in a national register historic
district and certified by the state historic preservation officer
as contributing to the historic significance of the district, and
the rehabilitation or restoration project has been approved in
advance by the state historic preservation officer; or
(iii) The facilities involve the construction, reconstruction,
restoration, rehabilitation or upgrade of a full-service lodging
facility or the reconstruction, restoration, rehabilitation or
upgrade of an existing structure into a full-service lodging
facility having not less than five hundred guest rooms, with
construction, reconstruction, restoration, rehabilitation or
upgrade costs exceeding ten million dollars;
(B) Facilities that are primarily devoted to the retail sale
of goods, other than an entertainment destination center, a West
Virginia crafts and products center or a tourism development
project where the sale of goods is a secondary and subordinate
component of the project; and
(C) Recreational facilities that do not serve as a likely
destination where individuals who are not residents of the state
would remain overnight in commercial lodging at or near the new
tourism development project or existing attraction.
(14) "Tourism development project" means the acquisition,
including the acquisition of real estate by a leasehold interest
with a minimum term of ten years, construction and equipping of a
tourism attraction; the construction, and installation of
improvements to facilities necessary or desirable for the acquisition, construction, installation or expansion of a tourism
attraction, including, but not limited to, surveys, installation of
utilities, which may include water, sewer, sewage treatment, gas,
electricity, communications and similar facilities; and off-site
construction of utility extensions to the boundaries of the real
estate on which the facilities are located, all of which are to be
used to improve the economic situation of the approved company in
a manner that allows the approved company to attract persons.
(15) "Tourism development project tax credit" means the
tourism development project tax credit allowed by section seven of
this article.
§5B-2E-4. Additional powers and duties of the development office.
The development office has the following powers and duties, in
addition to those set forth in this case, necessary to carry out
the purposes of this article, including, but not limited to:
(1) Make preliminary approvals of all applications for tourism
development projects and enter into agreements pertaining to
tourism development projects with approved companies;
(2) Employ fiscal consultants, attorneys, appraisers and other
agents as the executive director of the development office finds
necessary or convenient for the preparation and administration of
agreements and documents necessary or incidental to any tourism
development project; and
(3) Impose and collect fees and charges in connection with any
transaction.
§5B-2E-5. Tourism development project application; evaluation standards; consulting services; preliminary and
final approval of projects; limitation of amount
annual tourism development project tax credit.
(a) Each eligible company that seeks to qualify a tourism
development project for the tax credit provided by this article
must file a written application for approval of the project with
the development office.
(b) With respect to each eligible company making an
application to the development office for the tourism development
project tax credit, the development office shall make inquiries and
request documentation, including a completed application, from the
applicant that shall include: A description and location of the
project; capital and other anticipated expenditures for the project
and the sources of funding therefor; the anticipated employment and
wages to be paid at the project; business plans that indicate the
average number of days in a year in which the project will be in
operation and open to the public; and the anticipated revenues and
expenses generated by the project.
(c) Based upon a review of the application and additional
documentation provided by the eligible company, if the director of
the development office determines that the applicant and the
tourism development project may reasonably satisfy the criteria for
final approval set forth in subsection (d) of this section, then
the director of the development office may grant a preliminary
approval of the applicant and the tourism development project.
(d) After preliminary approval by the director of the development office, the development office shall engage the
services of a competent consulting firm or firms to analyze the
data made available by the applicant and to collect and analyze
additional information necessary to determine that, in the
independent judgment of the consultant, the tourism development
project:
(1) Likely will attract at least twenty-five percent of its
visitors from outside of this state;
(2) Will have approved costs in excess of one million dollars;
(3) Will have a significant and positive economic impact on
the state considering, among other factors, the extent to which the
tourism development project will compete directly with or
complement existing tourism attractions in the state and the amount
by which increased tax revenues from the tourism development
project will exceed the credit given to the approved company;
(4) Will produce sufficient revenues and public demand to be
operating and open to the public for a minimum of one hundred days
per year; and
(5) Will provide additional employment opportunities in the
state.
(e) The applicant shall pay to the development office, prior
to the engagement of the services of a competent consulting firm or
firms pursuant to the provisions of subsection (d) of this section,
for the cost of the consulting report or reports and shall
cooperate with the consulting firm or firms to provide all of the
data that the consultant considers necessary or convenient to make its determination under subsection (d) of this section.
(f) The director of the development office, within thirty days
following receipt of the consultant's report or reports, shall
decide whether to recommend the tourism development project to the
council for final approval. If the director of the development
office recommends the tourism development project to the council,
he or she shall submit the project application, the consulting
report or reports and other information regarding the project to
the council.
(g) The council shall review all applications properly
submitted to the council for conformance to statutory and
regulatory requirements, the reasonableness of the project's budget
and timetable for completion and, in addition to the criteria for
final approval set forth in subsection (d) of this section, the
following criteria:
(1) The quality of the proposed tourism development project
and how it addresses economic problems in the area in which the
tourism development project will be located;
(2) Whether there is substantial and credible evidence that
the tourism development project is likely to be started and
completed in a timely fashion;
(3) Whether the tourism development project will, directly or
indirectly, improve the opportunities in the area where the tourism
development project will be located for the successful
establishment or expansion of other industrial or commercial
businesses;
(4) Whether the tourism development project will, directly or
indirectly, assist in the creation of additional employment
opportunities in the area where the tourism development project
will be located;
(5) Whether the project helps to diversify the local economy;
(6) Whether the project is consistent with the goals of this
article;
(7) Whether the project is economically and fiscally sound
using recognized business standards of finance and accounting; and
(8) The ability of the eligible company to carry out the
tourism development project.
(h) The council may establish other criteria for consideration
when approving the applications.
(i) The council may give its final approval to the applicant's
application for a tourism development project and may grant to the
applicant the status of an approved company: Provided, That the
total amount of tourism development project tax credits for all
approved companies may not exceed one million five hundred thousand
dollars each calendar year. The council shall act to approve or
not approve any application within thirty days following the
receipt of the application or the receipt of any additional
information requested by the council, whichever is later. The
decision by the development office and the council is final.
§5B-2E-6. Agreement between development office and approved
company.
The development office, upon grant of the council's final approval, may enter into an agreement with any approved company
with respect to its tourism development project. The terms and
provisions of each agreement shall include, but not be limited to:
(1) The amount of approved costs of the project that qualify
for the sales tax credit provided for in section seven of this
article. Within three months of the completion date, the approved
company shall document the actual cost of the project through a
certification of the costs to the development office by an
independent certified public accountant acceptable to the
development office; and
(2) A date certain by which the approved company shall have
completed and opened the tourism development project to the public.
Any approved company that has received final approval may request
and the development office may grant an extension or change,
however, in no event shall the extension exceed three years from
the date of final approval to the completion date specified in the
agreement with the approved company.
§5B-2E-7. Amount of credit allowed; approved projects.
(a) Approved companies are allowed a credit against the West
Virginia consumers sales and service tax imposed by article
fifteen, chapter eleven of this code and collected by the approved
company on sales generated by or arising from the operations of the
tourism development project: Provided, That if the consumers sales
and service tax collected by the approved company is not solely
attributable to sales resulting from the operation of the new
tourism development project, the credit shall only be applied against that portion of the consumers sales and service tax
collected in excess of the base tax revenue amount. The amount of
this credit is determined and applied as provided in this article.
(b) The maximum amount of credit allowable in this article is
equal to twenty-five percent of the approved company's approved
costs as provided in the agreement:
Provided, That if the tourism
development project site is located within the permit area or an
adjacent area of a surface mining operation, as these terms are
defined in section three, article three, chapter twenty-two of this
code, from which all coal has been or will be extracted prior to
the commencement of the tourism development project, the maximum
amount of credit allowable is equal to fifty percent of the
approved company's approved costs as provided in the agreement.
(c) The amount of credit allowable must be taken over a
ten-year period, at the rate of one tenth of the amount thereof per
taxable year, beginning with the taxable year in which the project
is opened to the public, unless the approved company elects to
delay the beginning of the ten-year period until the next
succeeding taxable year. This election shall be made in the first
consumers sales and service tax return filed by the approved
company following the date the project is opened to the public.
Once made, the election cannot be revoked.
(d) The amount determined under subsection (b) of this section
is allowed as a credit against the consumers sales and service tax
collected by the approved company on sales from the operation of
the tourism development project. The amount determined under said subsection may be used as a credit against taxes required to be
remitted on the approved company's monthly consumers sales and
service tax returns that are filed pursuant to section sixteen,
article fifteen, chapter eleven of this code. The approved company
shall claim the credit by reducing the amount of consumers sales
and service tax required to be remitted with its monthly consumers
sales and service tax returns by the amount of its aggregate annual
credit allowance until such time as the full current year annual
credit allowance has been claimed. Once the total credit claimed
for the tax year equals the approved company's aggregate annual
credit allowance no further reductions to its monthly consumers
sales and service tax returns will be permitted.
(e) If any credit remains after application of subsection (d)
of this section, the amount of credit is carried forward to each
ensuing tax year until used or until the expiration of the third
taxable year subsequent to the end of the initial ten-year credit
application period. If any unused credit remains after the
thirteenth year, that amount is forfeited. No carryback to a prior
taxable year is allowed for the amount of any unused portion of any
annual credit allowance.
§5B-2E-8. Forfeiture of unused tax credits; credit recapture;
recapture tax imposed; information required to be
submitted annually to development office; transfer of
tax credits to successors.
(a) The approved company shall forfeit the tourism development
project tax credit allowed by this article with respect to any calendar year and shall pay the recapture tax imposed by subsection
(b) of this section, if:
(1) In any year following the first calendar year the project
is open to the public, the tourism development project fails to
attract at least twenty-five percent of its visitors from among
persons who are not residents of the state;
(2) In any year following the first year the project is open
to the public, the tourism development project is not operating and
open to the public for at least one hundred days; or
(3) The approved company is not in good standing with the
state tax division, the workers' compensation commission or the
bureau of employment programs as of the beginning of each calendar
year.
(b) In addition to the loss of credit allowed under this
article for the calendar year, any approved company or successor
eligible company that forfeits the tourism development project tax
credit under the provisions of subsection (a) of this section,
credit recapture shall apply, and the approved company, and
successor eligible companies, shall return to the state all
previously claimed tourism development project tax credit allowed
by this article. An amended return shall be filed with the state
tax commissioner for the prior calendar year, or calendar years,
for which credit recapture is required, along with interest, as
provided in section seventeen, article ten, chapter eleven of this
code: Provided, That the approved company and successor eligible
companies who previously claimed the tourism development project tax credit allowed by this article are jointly and severally liable
for payment of any recapture tax subsequently imposed under this
section.
(c) Within forty-five days after the end of each calendar
year during the term of the agreement, the approved company shall
supply the development office with all reports and certifications
the development office requires demonstrating to the satisfaction
of the development office that the approved company is in
compliance with applicable provisions of law. Based upon a review
of these materials and other documents that are available, the
development office shall then certify to the tax commissioner that
the approved company is in compliance with this section.
(d) The tax credit allowed in this article is transferable,
subject to the written consent of the development office, to an
eligible successor company that continues to operate the approved
tourism development project.
§5B-2E-9. Promulgation of rules.
The council may promulgate rules to implement the tourism
development project application approval process and to describe
the criteria and procedures it has established in connection
therewith. These rules are not subject to the provisions of
chapter twenty-nine-a of this code but shall be filed with the
secretary of state.
§5B-2E-10. Legislative review.
The development office shall report annually to the joint
commission on economic development by the first day of December of each year on the number of applications received from eligible
companies as provided in this article, the status of each
application, the number of projects approved, the status of each
project, the amount of credit allowed and the amount of consumers
sales and service tax generated by each project.
§5B-2E-11. Termination.
The development office may not accept any new application on
or after the first day of January, two thousand seven, and all
applications submitted prior to the first day of January, two
thousand seven, that have not been previously approved or not
approved, shall be deemed not approved and shall be null and void
as of the first day of January, two thousand seven.
CHAPTER 11. TAXATION.
ARTICLE 15. CONSUMERS SALES AND SERVICE TAX.
§11-15-34. Tourism development project tax credit.
(a) There is allowed as a credit against the consumers sales
and service tax collected and required to be remitted pursuant to
this article from the operation of an approved tourism development
project as defined in section three, article two-e, chapter five-b
of this code, the amount determined under section eight of said
article relating to the tourism development project tax credit.
(b) The tax commissioner may propose legislative rules in
accordance with article three, chapter twenty-nine-a of this code
designed to require the filing of forms designed by the tax
commissioner to reflect the intent of this section and article
two-e, chapter five-b of this code.
;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 139--A Bill to amend the
code of West Virginia, 1931, as amended, by adding thereto a new
article, designated §5B-2E-1, §5B-2E-2, §5B-2E-3, §5B-2E-4, §5B-2E-
5, §5B-2E-6, §5B-2E-7, §5B-2E-8, §5B-2E-9, §5B-2E-10 and §5B-2E-11;
and to amend said code by adding thereto a new section, designated
§11-15-34, all relating to the West Virginia tourism development
act; establishing a tourism development project tax credit;
specifying short titles; specifying legislative findings and
purpose; defining terms; specifying additional powers and duties of
the development office; specifying activity that qualifies for the
credit; requiring filing of application for tax credit as condition
precedent to claiming tax credit; specifying procedures for
evaluation and approval of project; providing for hiring of
consultants; specifying criteria for evaluating projects;
specifying determination of amount of allowable tax credits;
providing maximum amount of credit; specifying application of tax
credits against sales tax collected; termination of applications
after a certain date; providing for forfeiture of unused tax
credits; providing for a recapture credit under certain
circumstances; and specifying information required to be annually
submitted to the state development office.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 139, as
amended by the House of Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 139) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 558, Making misuse of power of attorney
or fiduciary relationship crime.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §61-3-20 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 §61-3-20a, all to read as
follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-20. Embezzlement.
If any officer, agent, clerk or servant of this state, or of
any county, district, school district or municipal corporation, or
of any banking institution, or other corporation, or any officer of
public trust in this state, or any agent, clerk or servant of any
firm or person, or company or association of persons not
incorporated, embezzles or fraudulently converts to his own use
bullion, money, bank notes, drafts, security for money or any
effects or property of any other person, which shall have come into
his possession, or been placed under his care or management, by
virtue of his office, place or employment, he shall be guilty of
the larceny thereof. If such guilty person be an officer, agent,
clerk or servant of any banking institution, he shall be guilty of
a felony and, upon conviction thereof, shall be imprisoned in the
penitentiary not less than ten years. And it shall not be necessary
to describe in the indictment, or to identify upon the trial, the
particular bullion, money, bank note, draft or security for money
which is so taken, converted to his own use or embezzled by him.
In the prosecution of any such officer, agent, clerk or servant, charged with such embezzlement, fraudulent conversion or larceny,
if it appear that the possession of such bullion, money, bank
notes, drafts, security for money, or other property, is unlawfully
withheld by such officer, agent, clerk or servant from the person
or persons entitled thereto, and that such officer, agent, clerk or
servant has failed or refused to restore or account for such
bullion, money, bank notes, drafts, security for money, or other
property, within thirty days after proper demand has been made
therefor, such accused officer, agent, clerk or servant shall be
presumed to be guilty of such offense; but the accused may rebut
such presumption by disproving any such facts, or by other
competent testimony germane to the issue, upon the trial.
And whenever any officer, agent, clerk or servant of this
state, or of any county, district, school district or municipal
corporation, shall appropriate or use for his own benefit, or for
the benefit of any other person, any bullion, money, bank notes,
drafts, security for money or funds belonging to this state or to
any such county, district, school district or municipal
corporation, he shall be held to have embezzled the same and be
guilty of the larceny thereof. In the prosecution of any such
officer, agent, clerk or servant of this state or of any county,
district, school district or municipal corporation, charged with
appropriation or use for his own benefit or the benefit of any
other person any bullion, money, bank notes, drafts, security for
money or funds belonging to this state or to any county, district,
school district or municipal corporation, it shall not be necessary to describe in the indictment, or to identify upon the trial, the
particular bullion, money, bank notes, drafts, security for money
or funds appropriated or used for his own benefit or for the
benefit of any other person. The failure of any such officer,
clerk or servant to account for or pay over, as required by law,
any such bullion, money, bank notes, drafts, security for money, or
funds, shall be prima facie evidence that he has so appropriated or
used the same for his own benefit or for the benefit of such other
person.
§61-3-20a. Embezzlement by misuse of power of attorney or other
fiduciary relationship; penalty.
Any person who holds a fiduciary power of attorney or who has
a fiduciary relationship with a person and in so doing willfully
and with intent to defraud embezzles, misappropriates or
fraudulently converts for his or her own benefit, or for the
benefit of another, the assets or property, real or personal, with
which he or she has been entrusted, or misuses or misappropriates
funds from the person to whom he or she owes a fiduciary duty or
misuses any account, line of credit or credit card of the principal
for purposes not contemplated by the terms of the power of attorney
instrument or fiduciary relationship, or for purposes not intended
by the principal in the execution of the power of attorney or for
purposes not intended by the fiduciary relationship, shall be held
to have embezzled the same and, upon conviction, shall be deemed
guilty of the larceny thereof.
;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 558--A Bill to
amend and reenact §61-3-20
of the code of West Virginia, 1931, as amended; and to amend said
code by adding thereto a new section, designated §61-3-20a, all
relating to crimes of embezzlement; removing certain evidentiary
presumptions which have been deemed unconstitutional; creating a
new crime of embezzlement related to the willful and fraudulent
misuse of a power of attorney or other fiduciary relationship; and
providing that such crimes of embezzlement or fraudulent conversion
to be punishable as larceny.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 558, as amended by the House of
Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S. B. No. 558) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 573, Providing procedure for economic
development authority to address problems of state minorities.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page six, section three, line seven, by striking out the
word "faith-based" and inserting in lieu thereof the word
"nonprofit".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 573, as amended by the House of
Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 573) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 616, Relating
to environmental protection advisory council.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page two, by striking out
everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 1. DEPARTMENT OF ENVIRONMENTAL PROTECTION.
§22-1-9. Environmental protection advisory council.
(a) There is created within the department of commerce, labor and environmental resources environmental protection the
environmental protection advisory council. The environmental
protection advisory council consists of seven twelve members. The
director secretary serves as an ex officio member of the council
and as its chair. The remaining six eleven members are appointed
by the governor. Each member serves for a term of four years and
may be reappointed. Of the new members of the council first
appointed, two
as a result of the enactment of this section during
the two thousand four regular session, four shall be appointed for
terms ending on the thirtieth day of June, one thousand nine
hundred ninety-six, and two each for terms ending one and two years
thereafter. two thousand six, four shall be appointed for terms
ending two thousand seven and three shall be appointed for terms
ending two thousand eight. Thereafter, each appointment shall be
for a term of four years. Vacancies on the council shall be filled
within sixty days after the vacancy occurs.
(b) Two members of the council shall represent industries
regulated by the division or their trade associations. Two members
shall represent organizations advocating environmental protection.
One member shall represent organizations representing local
governments. One member shall represent public service districts.
(b) The governor shall appoint members of the council from
nominations submitted by the following organizations:
_____(1) The largest state organization representing manufacturers;
_____(2) The largest state trade organization representing coal producers;
_____(3) The largest state organization representing farming
interests; and
_____(4) The largest employee organization representing coal miners
within this state.
_____And from the following areas of interest:
_____(5) A forester registered pursuant to article nineteen,
chapter thirty of this code and representing the interests of
private owners of forest land;
_____(6) Two members shall represent organizations advocating
environmental protection;
_____(7) One member shall represent wildlife conservation;
_____(8) One member shall be the department of environmental
protection environmental advocate;
_____(9) One member shall represent organizations representing
local governments; and
_____(10) One member shall represent public service districts.
In making subsequent appointments this balance of membership
shall be maintained.
(c) Appointed members, who are not employees of the state,
shall be paid the same compensation and expense reimbursement as is
paid to members of the Legislature for their interim duties as
recommended by the citizens legislative compensation commission and
authorized by law for each day or portion thereof engaged in the discharge of official duties.
(d) The council shall meet at least once every quarter and at
the call of the chair on his or her own motion or at the request of
any five members of the council presented in writing to the chair.
At least fifteen days prior to each regularly scheduled quarterly
meeting, or ten days in advance of a meeting called by the chair,
the secretary shall provide to the council an agenda of all matters
scheduled for discussion at the meeting together with any rules the
secretary intends to propose for promulgation.
(e) The council shall:
(1) Consult with and advise the director secretary on program
and policy development, problemsolving and other appropriate
subjects;
(2) Identify and define problems associated with the
implementation of the policy set forth in section one of this
article;
(3) Provide and disseminate to industry and the public early
identification of major federal program and regulatory changes;
(4) Provide a forum for the resolution of conflicts between
constituency groups;
(5) To the extent possible, strive for consensus on the
development of overall environmental policy; and
(6) Upon a majority vote of the members, the council may
submit to the secretary suggestions for proposed rulemaking which the secretary may propose as amendments to an existing rule or as
a new rule pursuant to the provisions of chapter twenty-nine-a of
this code;_____
_____(6) (7) Provide an annual report to the joint committee on
government and finance on or before the first day of January of
each year relating to its findings with regard to the division's
performance during the previous year. The report will specifically
address the division's department's performance in accomplishing
the nine ten purposes set forth in subsection (b), section one of
this article; and
_____(8) Appoint technical advisory committees as may be of
assistance to the council and secretary in the development of
programs.
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-33. Quality assurance and compliance advisory committee.
(a) A quality assurance and compliance advisory committee is
hereby established.
(b) The purpose of the advisory committee is to review mine
permitting procedures and related requirements and to work with the
office of mining and reclamation to improve upon the efficiency and
quality of permits issued by the office and improvement of the
permitting process.
(c) The secretary shall serve as an ex officio member of the
advisory committee and as its chair.
(d) The governor shall appoint two members to the committee
who each have five or more years' experience in either underground
or surface coal mining; two members who each have five or more
years' experience in environmental protection and one citizen at
large from a coal-producing region of the state who is not
currently nor has been employed in the coal mining industry.
(e) After the initial appointments, members shall serve for
staggered terms of six years and may be reappointed. Two of the
members of the advisory committee first appointed shall serve terms
ending on the thirtieth day of June, two thousand six, and one each
for terms ending two, three and four years thereafter.
(f) Vacancies on the advisory committee shall be filled within
sixty days after the vacancy occurs. Members appointed to fill
vacancies shall serve for the remainder of the unexpired term.
(g) Any appointed member whose term has expired shall serve
until a successor has been duly appointed and qualified.
(h) Appointed members of the advisory committee shall be paid
the same compensation and expense reimbursement as is provided for
members of the Legislature pursuant to sections six and eight,
article two-a, chapter four of this code.
(i) The advisory committee shall meet at the call of the
secretary or his or her designee, but not less than every four
months.
;
And,
On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 616--A Bill
to amend and reenact §22-1-9 of the code of West Virginia, 1931, as
amended; and to amend said code by adding thereto a new section,
designated §22-3-33, all relating to the department of
environmental protection generally; increasing the membership of
the environmental protection advisory council; requiring that a
meeting of the advisory council be called upon the written request
of a majority of members; requiring that the council timely receive
an agenda and related materials for each meeting; allowing council
members to submit rule-making suggestions to the secretary for
consideration; authorizing appointment of technical advisors;
establishing a new quality assurance and compliance advisory
committee; providing for procedures for committee meetings;
authorizing payment of expenses; and authorizing the committee to
review coal mining permit procedures and processes.
On motion of Senator Kessler, the following amendment to the
House of Delegates amendments to the bill was reported by the
Clerk:
In section nine, subsection (d), line eight, by striking out
the words "any five" and inserting in lieu thereof the words "a
majority of the".
The question being on the adoption of Senator Kessler's
amendment to the House of Delegates amendments to the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 616).
At the request of Senator Kessler, and by unanimous consent,
Senator Kessler's amendment to the House of Delegates amendments to
the bill was withdrawn.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Committee Substitute for
Senate Bill No. 616, as amended by the House of Delegates, was then
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, 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.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for Com. Sub. for S. B. No. 616) passed with its House of
Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 637, Relating to
termination of tenancy of factory-built home site; other
provisions.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §37-15-2, §37-15-3 and §37-15-6 of the code of West
Virginia, 1931, as amended, be amended and reenacted; that said
code be amended by adding thereto a new section, designated §37-15-
3a; and that said code be amended by adding thereto a new article,
designated §55-3B-1, §55-3B-2, §55-3B-3, §55-3B-4, §55-3B-5, §55-
3B-6 and §55-3B-7,
all to read as follows:
CHAPTER 37. REAL PROPERTY.
ARTICLE 15. HOUSE TRAILERS, MOBILE HOMES, MANUFACTURED HOMES AND
MODULAR HOMES.
§37-15-2. Definitions.
For the purposes of this article, unless expressly stated
otherwise:
(a) "Abandoned factory-built home" means a factory-built home occupying a factory-built home site pursuant to a written agreement
under which the tenant has defaulted in rent or the landlord has
exercised any right to terminate the rental agreement;
(b) "Factory-built home" includes modular homes, mobile homes,
house trailers and manufactured homes;
(c) "Factory-built home rental community" means a parcel of
land under single or common ownership upon which two or more
factory-built homes are located on a continual, nonrecreational
basis together with any structure, equipment, road or facility
intended for use incidental to the occupancy of the factory-built
homes, but does not include premises used solely for storage or
display of uninhabited factory-built homes or premises occupied
solely by a landowner and members of his family;
(d) "Factory-built home site" means a parcel of land within
the boundaries of a factory-built home rental community provided
for the placement of a single factory-built home and the exclusive
use of its occupants;
_____(e) "Good cause" means:
_____(1) The tenant is in arrears in the payment of periodic
payments or other charges;
_____(2) The tenant has breached a material term of a written
rental agreement or has repeatedly breached other terms of the
rental agreement;
_____(3) Where there is no written agreement, or where the written
agreement does not cover the subject matter of a warranty or leasehold covenant, the tenant breached a material warranty or
leasehold covenant or has repeatedly breached other terms of a
warranty or a leasehold covenant;
_____(4) The tenant has deliberately or negligently damaged the
property or knowingly permitted another person to do so.
_____(e) (f) "House trailers" means all trailers designed or
intended for human occupancy and commonly referred to as mobile
homes or house trailers and shall include fold down camping and
travel trailers as these terms are defined in section one, article
six, chapter seventeen-a of this code, but only when such camping
and travel trailers are located in a factory-built home rental
community, as defined in this section, on a continual,
nonrecreational basis.
(f) (g) "Landlord" means the factory-built home rental
community owner, lessor or sublessor of the factory-built home
rental community, or an agent or representative authorized to act
on his or her behalf in connection with matters relating to tenancy
in the community.
(g) (h) "Manufactured home" has the same meaning as the term
is defined in section two, article nine, chapter twenty-one of this
code which meets the National Manufactured Housing Construction and
Safety Standards Act of 1974 (42 U. S. C. §§5401, et seq.),
effective on the fifteenth day of June, one thousand nine hundred
seventy-six, and the federal manufactured home construction and
safety standards and regulations promulgated by the secretary of the United States department of housing and urban development.
(h) (i) "Mobile home" means a transportable structure that is
wholly, or in substantial part, made, fabricated, formed or
assembled in manufacturing facilities for installation or assembly
and installation on a building site and designed for long-term
residential use and built prior to enactment of the National
Manufactured Housing Construction and Safety Standards Act of 1974
(42 U. S. C. §§5401, et seq.), effective on the fifteenth day of
June, one thousand nine hundred seventy-six, and usually built to
the voluntary industry standard of the American national standards
institute (ANSI)--A119.1 standards for mobile homes.
(i) (j) "Modular home" means any structure that is wholly, or
in substantial part, made, fabricated, formed or assembled in
manufacturing facilities for installation or assembly and
installation on a building site and designed for long-term
residential use and is certified as meeting the standards contained
in the state fire code encompassed in the legislative rules
promulgated by the state fire commission pursuant to section five-
b, article three, chapter twenty-nine of this code.
(j) (k) "Owner" means one or more persons, jointly or
severally, in whom is vested: (i) All or part of the legal title
to the factory-built home rental community; or (ii) all or part of
the beneficial ownership and right to present use and enjoyment of
the factory-built homesite or other areas specified in the rental
agreement and the term includes a mortgagee in possession.
(k) (l) "Rent" means payments made by the tenant to the
landlord for use of a factory-built home site and as payment for
other facilities or services provided by the landlord.
(m) "Section" means a unit of a factory-built home which is
transported and delivered as a whole and which contains some or all
of the indoor living area.
_____(l) (n) "Tenant" means a person entitled pursuant to a rental
agreement to occupy a factory-built home site to the exclusion of
others.
§37-15-3. Written agreement required.
(a) The rental and occupancy of a factory-built home site
shall be governed by a written agreement which shall be dated and
signed by all parties thereto prior to commencement of tenancy. A
copy of the signed and dated written agreement and a copy of this
article shall be given by the landlord to the tenant within seven
days after the tenant signs the written agreement.
(b) The written agreement, in addition to the provisions
otherwise required by law to be included, shall contain:
(1) The terms of the tenancy and the rent therefor;
(2) The rules and regulations of the factory-built home rental
community. A copy of the text of the rules and regulations
attached as an exhibit satisfies this requirement;
(3) The language of the provisions of this article. A copy of
the text of this article attached as an exhibit satisfies this requirement;
(4) A description of the physical improvements and maintenance
to be provided by the tenant and the landlord during the tenancy;
and
(5) A provision listing those services which will be provided
at the time the rental agreement is executed and will continue to
be offered for the term of tenancy and the fees, if any, to be
charged for those services.
(c) The written agreement for a factory-built home site on
which is placed a factory-built home that is comprised of one
section, other than a camping or travel trailer, may not allow for
the termination of the tenancy by the landlord during the first
twelve months that the factory-built home is placed on the site
except for good cause. The written agreement for a factory-built
home site upon which is placed a factory-built home that is
comprised of more than one section may not allow for the
termination of the tenancy by the landlord during the first five
years the factory-built home is placed on the site except for good
cause.
_____(c) (d) The written agreement may not contain:
(1) Any provisions contrary to the provisions of this article
and shall not contain a provision prohibiting the tenant who owns
his or her factory-built home from selling his or her factory-built
home;
(2) Any provision that requires the tenant to pay any recurring charges except fixed rent, utility charges or reasonable
incidental charges for services or facilities supplied by the
landlord; or
(3) Any provision by which the tenant waives his or her rights
under the provisions of this article.
(d) (e) When any person possesses a security interest in the
factory-built home, the written agreement or rental application
shall contain the name and address of any secured parties. The
written agreement shall require the tenant to notify the landlord
within ten days of any new security interest, change of existing
security interest or settlement or release of the security
interest.
(e) (f) When a factory-built home owner sells a factory-built
home, the new owner shall enter into a written agreement if the
factory-built home continues to occupy the site: Provided, That
the new owner meets the standards and restrictions contained in the
prior rental agreement.
37-15-3a. Rules and regulations.
(a) An owner, from time to time, may adopt rules or
regulations concerning the tenant's use and occupancy of the
premises. A rule or regulation is enforceable against the tenant
if the rule or regulation:
(1) Is reasonably related to the purpose for which it is
adopted;
(2) Applies to all tenants in the factory-built home rental community in a fair manner;
(3) Is sufficiently explicit in its prohibition, direction or
limitation of the tenant's conduct to fairly inform the tenant of
what the tenant must or must not do to comply;
(4) Is not for the purpose of evading the obligations of the
landlord; and
(5) The tenant has been given written notice of the rule at
the time the tenant enters into the rental agreement or when it is
adopted by the owner.
(b) A rule or regulation adopted by the owner after the tenant
has entered into a rental agreement that results in a substantial
modification of the tenant's original rental agreement does not
become effective until the current rental agreement expires and a
new agreement is made in writing.
§37-15-6. Termination of tenancy.
(a) The tenancy for a factory-built home site upon which is
placed a factory-built home that is comprised of one section, other
than a camping or travel trailer, may not be terminated until
twelve months after the home is placed on the site except for good
cause. The tenancy for a factory-built home site on which is
placed a factory-built home that is comprised of two or more
sections may not be terminated until five years after the home has
been placed on the site except for good cause.
_____(b) The tenancy for a factory-built home, other then a camping
or travel trailer, may be terminated at the time set forth in this subsection.
_____(1) Either party may terminate a rental agreement which is for
a term of thirty days or more by giving written notice to the other
party at least thirty days prior to the termination date:
Provided, That the
_____(2) Either party may terminate a tenancy which has continued
after its stated term and longer than the period set out in
subsection (a) of this section for no reason, unless the rental
agreement states that reasons must exist.
_____(3) A tenancy that has not reached the end of its stated term
or has not existed for the time periods stated in subsection (a) of
this section may be terminated only for good cause.
_____(c) A tenancy governed by subdivision (1) or (2), subsection
(b) of this section may be terminated only by written notice at
least three months before the termination date of the tenancy. A
tenancy governed by subdivision (3), subsection (a) of this section
may be terminated only by a written notice at least three months
before the termination date of the tenancy. The rental agreement
may specify a period of notice in excess of thirty days the periods
of time set out in this subsection.
_____(d) A landlord may not cause the eviction of a tenant by
willfully interrupting gas, electricity, water or any other essential service, or by removal of the factory-built home from the
factory-built home site, or by any other willful self-help measure.
(d) A rental agreement may be terminated by the landlord for
the following reasons:
(1) Failure to comply with the terms of the rental agreement;
(2) Condemnation of the community; or
(3) change of use of the community: Provided, That all
requirements imposed by this chapter are complied with.
(c) (e) The landlord shall set forth in a notice of
termination the reason relied upon for the termination with
specific facts to permit determination of the date, place,
witnesses and circumstances concerning that reason.
(f) If
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.
ARTICLE
3B. REMEDIES FOR WRONGFUL OCCUPATION OF FACTORY-BUILT HOME
SITE.
§55-3B-1. Definitions.
For the purposes of this article, unless expressly stated otherwise:
(a) "Factory-built home" has the same meaning given to that
term in section two, article fifteen, chapter thirty-seven of this
code.
(b) "Factory-built home site" means a parcel of land provided
for the placement of a factory-built home for occupancy as a
residence whether or not in a factory-built home community. A
factory-built home site is not residential rental property for the
purposes of article three-a of this chapter.
(c) "Good cause" means:
(1) The tenant is in arrears in the payment of periodic
payments or other charges related to the tenancy;
(2) The tenant has breached a material term of a written
rental agreement or repeatedly breached other terms of a written
rental agreement including those agreements required in section
three, article fifteen, chapter thirty-seven of this code;
(3) Where there is no written agreement, or where the written
agreement does not cover the subject matter of a warranty or
leasehold covenant, the tenant breached a material term of a
warranty or leasehold covenant or repeatedly breached other terms
of a warranty or leasehold covenant;
(4) The tenant has deliberately or negligently damaged the
property or knowingly permitted another person to do so.
(d) "Section" means a unit of a factory-built home which is transported and delivered as a whole and which contains some or all
of the indoor living area.
§55-3B-2. Tenancy of factory-built home site.
(a) The tenancy of the site of a factory-built home that is
comprised of one section and that is not subject to a written
agreement is from month to month. The tenancy of the site of a
factory-built home that is comprised of two or more sections that
is not subject to a written agreement is from year to year.
(b) The tenancy of a factory-built home site that has placed
on it a factory-built home that is comprised of one section, other
then a camping or travel trailer, may not be terminated by the
landlord until twelve months after the tenancy began except for
good cause. The tenancy of a factory-built home site that has
placed on it a factory-built home that is comprised of two or more
sections may not be terminated by the landlord until five years
after the tenancy began except for good cause. A written agreement
may provide that the tenant may not terminate the tenancy for the
same or greater periods of time. A written agreement may provide
that the landlord may not terminate the tenancy for greater periods
of time.
(c) For a month-to-month or year-to-year tenancy or a tenancy
that is created by a written agreement for a definite period of
time, the tenancy does not terminate at the end of the month, year
or stated period of time unless either party gives timely notice as
required in section three of this article. If no notice is given and if no new agreement is made, the tenancy of a factory-built
home site that is comprised of one section becomes a month-to-month
tenancy and the tenancy of a factory-built home that is comprised
of two or more sections becomes a year-to-year tenancy.
§55-3B-3. Termination of tenancy.
(a) The tenancy of a factory-built home site may be terminated
by either party only by giving at least three months' notice in
writing to the other of his or her intention to terminate the
tenancy. When such notice is to the tenant, it may be served upon
him or upon anyone holding under him the leased premises or any
part thereof. When it is by the tenant, it may be served upon
anyone who at the time owns the premises, in whole or in part, or
the agent of such owner or according to the common law.
(b) Unless the landlord is changing the use of the site, if a
tenancy is ended by the landlord at the later of its stated term or
at the end of the time period set out in subsection (b), section
two of this article, with no good cause, the owner may not prevent
the sale of the factory-built home in place to another tenant who
meets the standards and criteria in effect for new tenants prior to
the termination of the tenancy.
§55-3B-4. Petition for summary relief for wrongful occupation of
residential rental property
.
(a) A person desiring to remove a tenant and factory-built
home from a factory-built home site may apply for such relief to
the magistrate court or the circuit court of the county in which such property is located, by verified petition, setting forth the
following:
(1) That he is the owner or agent of the owner and as such has
a right to evict the tenant and have the factory-built home of the
tenant removed;
(2) A brief description of the factory-built home site
sufficient to identify it;
(3) That the tenant is wrongfully occupying such property in
that the tenant is:
(A) Holding over after having been given proper notice of
termination of tenancy, whether or not the tenant has continued to
pay and the landlord has accepted rent; or
(B) The landlord has good cause; and
(4) A prayer for eviction of the tenant and removal of the
tenant's factory-built home.
(b) Previous to the filing of the petition the person shall
request from the court the time and place at which the petitioner
shall be heard. The court shall fix a time for such hearing, which
time shall not be less than five nor more than ten judicial days
following such request.
(c) Immediately upon being apprised of the time and place for
hearing the petitioner shall cause a notice of the same to be
served upon the tenant in accordance with the provisions of rule 4
of the West Virginia rules of civil procedure or by certified mail, return receipt requested. Such notice shall inform the tenant that
any defense to the petition must be submitted in writing to the
petitioner within five days of the receipt by the tenant of the
notice and in no case later than the fifth day next preceding the
date of hearing. Upon receipt of the return of service or the
return receipt as the case may be, evidencing service upon the
tenant, the petitioner shall file with the court his petition and
such proof of service.
§55-3B-5. Defenses available.
In a proceeding under the provisions of this article, a tenant
against whom a petition has been brought may assert any and all
defenses which might be raised in an action for ejectment or an
action for unlawful detainer or provided by this article or article
fifteen, chapter thirty-seven of this code.
§55-3B-6. Proceedings in court; final order; disposition of
abandoned personal property
.
(a) If at the time of the hearing there has been no
appearance, answer or other responsive pleading filed by the
tenant, the court shall make and enter an order evicting the tenant
and ordering the tenant to have the factory-built home removed.
(b) In the case of a petition alleging good cause or holding
over after proper termination of a tenancy, if the tenant files an
answer raising the defense of breach by the landlord of a material
covenant upon which the tenant's duties depend or other defenses to
the claim or claims set forth in the petition, the court shall proceed to a hearing on such issues.
(c) Continuances of the hearing provided for in this section
shall be for good cause only and the judge or magistrate shall not
grant a continuance to either party as a matter of right. If a
continuance is granted upon request by a tenant, the tenant shall
be required to pay into court any periodic rent becoming due during
the period of such continuance.
(d) At the conclusion of the hearing, if the court finds that
the landlord is entitled to evict the tenants and have the factory-
built home of the tenants removed, the court shall make and enter
an order evicting the tenants and ordering the tenants to have the
factory-built home removed. In the case of a proceeding pursuant
to subsection (a) of this section, the court may also make a
written finding and include in its order such relief on the issue
of arrearage in the payment of periodic payments or other agreed
charges related to the tenancy as the evidence may require. The
court may disburse any moneys paid into court by the tenant in
accordance with the provisions of this section.
(e) The court order shall specify the time when the tenant
shall vacate the property, taking into consideration such factors
as the nature of the factory-built home, the possibility of
relative harm to the parties and other material facts deemed
relevant by the court in considering when the tenant might
reasonably be expected to vacate the property. The court shall not
order the tenant to vacate the premises in less than one month unless the tenant refuses or fails to pay rent for that period in
advance as it becomes due or unless the court finds that the tenant
has deliberately or negligently damaged the property or the
property of other tenants or materially threatened or harmed the
quiet enjoyment of the property of other tenants or neighbors or
knowingly permitted another person to do so. The court shall not
order the tenant to remove the factory-built home in less than
three months unless the tenant refuses or fails to pay rent in
advance as it becomes due for that period or unless the court finds
that the presence of the factory-built home poses an imminent
threat to the health or safety of other tenants or neighbors:
Provided, That the court may order the home to be removed in not
less than thirty days if the factory-built home is a single section
and the tenant had held over after having been given notice
pursuant to section three of this article. The order shall further
provide that if the tenant continues to wrongfully occupy the
property beyond such time or if the tenant refuses or fails to
remove the factory-built home in the time required, the landlord
may apply for a writ of possession and the sheriff shall forthwith
remove the tenant, taking precautions to guard against damage to
the property of the landlord and the tenant.
(f) In the event an appeal is taken and the tenant prevails
upon appeal, and if the term of the lease has expired
and proper
termination notice was given pursuant to section three of this
article, absent an issue of title, retaliatory eviction or breach
of warranty
, the relief ordered by the appellate court shall be for monetary damages only and shall not restore the tenant to
possession. During the pendency of any such appeal, if the period
of the tenancy has otherwise expired
and proper termination notice
was given pursuant to section three of this article,
the tenant is
not entitled to remain in possession of the property.
(g) When an order is issued pursuant to this section evicting
the tenant and ordering the tenant to remove the factory-built home
and the tenant fails to remove the factory-built home by the date
specified by the order issued pursuant to subsection (e) of this
section, the landlord may:
(1) Dispose of the tenant's factory-built home without
incurring any liability or responsibility to the tenant or any
other person if the tenant informs the landlord in writing that the
tenant is abandoning the factory-built home;
(2) Remove and store the factory-built home after the date and
time by which the court ordered the tenant to remove the factory-
built home. The landlord may sell the stored factory-built home
after thirty days without incurring any liability or responsibility
to the tenant or any other person if: (i) The tenant has not paid
the reasonable costs of storage and removal to the landlord and has
not taken possession of the stored factory-built home; or (ii) the
costs of storage equal the value of the factory-built home being
stored; or
(3) Leave the factory-built home on the property. The landlord
may sell the factory-built home left on the property after thirty days without incurring any liability or responsibility to the
tenant or any other person if the tenant has not paid the landlord
the reasonable costs of leaving the factory-built home on the
landlord's property and has not taken possession of the factory-
built home.
(h) The sale shall be conducted and the proceeds distributed
pursuant to article nine, chapter forty-six of this code as if the
landlord became the holder of a security interest on the day the
tenant was to have the factory-built home removed from the site
except that the landlord shall have first priority to recover
unpaid rent and may require as a condition of the sale that the
buyer post security or place in escrow the cost of moving the
factory-built home from the site.
(i) When an order is issued pursuant to this section granting
possession of the property to the landlord, and the tenant removes
the factory-built home, but fails to remove all other personal
property by the date and time specified by the order issued
pursuant to subsection (e) of this section, the landlord may:
(1) Dispose of the tenant's personal property without
incurring any liability or responsibility to the tenant or any
other person if the tenant informs the landlord in writing that the
other personal property is abandoned or if the property is garbage;
(2) Remove and store the other personal property after the
date and time by which the court ordered the tenant to vacate the
property. The landlord may dispose of the stored personal property after thirty days without incurring any liability or responsibility
to the tenant or any other person if: (i) The tenant has not paid
the reasonable costs of storage and removal to the landlord and has
not taken possession of the stored personal property; or (ii) the
costs of storage equal the value of the personal property being
stored; or
(3) Leave the personal property on the property. The landlord
may dispose of personal property left on the property after thirty
days without incurring any liability or responsibility to the
tenant or any other person if the tenant has not paid the landlord
the reasonable costs of leaving the personal property on the
landlord's property and has not taken possession of the personal
property.
(j) Notwithstanding the provisions of subsections (g) and (i)
of this section, if the personal property is worth more than three
hundred dollars and was not removed from the property or place of
storage within thirty days with the required fees paid as provided
in subsection (i) of this section, or if the factory-built home was
not removed within thirty days with the required fees paid as
provided in subsection (g) of this section, the landlord shall
store the personal property or factory-built home for up to thirty
additional days if the tenant or any person holding a security
interest in the abandoned personal property or factory-built home
informs the landlord of their intent to remove the property:
Provided, That the tenant or person holding a security interest in
the personal property pays the landlord the reasonable costs of storage and removal.
§55-3B-7. Waiver.
A tenant's rights under this article may not be waived by
agreement.;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 637--A Bill to amend and
reenact §37-15-2, §37-15-3 and §37-15-6 of the code of West
Virginia, 1931, as amended; and to amend said code by adding
thereto a new section, designated §37-15-3a; and to amend said code
by adding thereto a new article, designated §55-3B-1, §55-3B-2,
§55-3B-3, §55-3B-4, §55-3B-5, §55-3B-6 and §55-3B-7, all relating
to factory-built home sites; definition of good cause and section;
written agreements for factory-built home sites; adoption of rules
and regulations by owners of factory-built home sites; terms of
written agreement related to termination of tenancy; remedies for
wrongful occupation of factory-built home site; definitions;
tenancy of factory-built home site; termination of tenancy;
petition for summary relief for wrongful occupation; defenses;
proceedings; final order; disposition of abandoned property; and
waiver of rights.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 637, as amended by the House of Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 637) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 638, Authorizing special license plate
for Davis & Elkins college and plate recognizing breast cancer
survivors.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
That §17A-3-14 of the code of West Virginia, 1931, as amended
,
be amended and reenacted to read as follows:
ARTICLE 3. ORIGINAL AND RENEWAL OF REGISTRATION; ISSUANCE OF
CERTIFICATES OF TITLE.
§17A-3-14. Registration plates generally; description of plates;
issuance of special numbers and plates; registration
fees; special application fees; exemptions;
commissioner to promulgate forms; suspension and
nonrenewal.
(a) The division upon registering a vehicle shall issue to the
owner one registration plate for a motorcycle, trailer, semitrailer
or other motor vehicle.
(b) Registration plates issued by the division shall meet the
following requirements:
(1) Every registration plate shall be of reflectorized
material and have displayed upon it the registration number
assigned to the vehicle for which it is issued; the name of this
state, which may be abbreviated; and the year number for which it
is issued or the date of expiration of the plate.
(2) Every registration plate and the required letters and numerals on the plate shall be of sufficient size to be plainly
readable from a distance of one hundred feet during daylight:
Provided, That the requirements of this subdivision shall not apply
to the year number for which the plate is issued or the date of
expiration.
(3) Registration numbering for registration plates shall begin
with number two.
(c) The division may not issue, permit to be issued or
distribute any special registration plates except as follows:
(1) The governor shall be issued two registration plates, on
one of which shall be imprinted the numeral one and on the other
the word one.
(2) State officials and judges may be issued special
registration plates as follows:
(A) Upon appropriate application, the division shall issue to
the secretary of state, state superintendent of schools, auditor,
treasurer, commissioner of agriculture and the attorney general,
the members of both houses of the Legislature, including the
elected officials of both houses of the Legislature, the justices
of the supreme court of appeals of West Virginia, the
representatives and senators of the state in the Congress of the
United States, the judges of the West Virginia circuit courts,
active and retired on senior status, the judges of the United
States district courts for the state of West Virginia and the
judges of the United States court of appeals for the fourth circuit, if any of the judges are residents of West Virginia, a
special registration plate for a Class A motor vehicle and a
special registration plate for a Class G motorcycle owned by the
official or his or her spouse: Provided, That the division may
issue a Class A special registration plate for each vehicle titled
to the official and a Class G special registration plate for each
motorcycle titled to the official.
(B) Each plate issued pursuant to this subdivision shall bear
any combination of letters and numbers not to exceed an amount
determined by the commissioner and a designation of the office.
Each plate shall supersede the regular numbered plate assigned to
the official or his or her spouse during the official's term of
office and while the motor vehicle is owned by the official or his
or her spouse.
(C) The division shall charge an annual fee of fifteen dollars
for every registration plate issued pursuant to this subdivision,
which is in addition to all other fees required by this chapter.
(3) The division may issue members of the national guard
forces special registration plates as follows:
(A) Upon receipt of an application on a form prescribed by the
division and receipt of written evidence from the chief executive
officer of the army national guard or air national guard, as
appropriate, or the commanding officer of any United States armed
forces reserve unit that the applicant is a member thereof, the
division shall issue to any member of the national guard of this state or a member of any reserve unit of the United States armed
forces a special registration plate designed by the commissioner
for any number of Class A motor vehicles owned by the member. Upon
presentation of written evidence of retirement status, retired
members of this state's army or air national guard, or retired
members of any reserve unit of the United States armed forces, are
eligible to purchase the special registration plate issued pursuant
to this subdivision.
(B) The division shall charge an initial application fee of
ten dollars for each special registration plate issued pursuant to
this subdivision, which is in addition to all other fees required
by this chapter. All initial application fees collected by the
division shall be deposited into a special revolving fund to be
used in the administration of this section.
(C) A surviving spouse may continue to use his or her deceased
spouse's national guard forces license plate until the surviving
spouse dies, remarries or does not renew the license plate.
(4) Specially arranged registration plates may be issued as
follows:
(A) Upon appropriate application, any owner of a motor vehicle
subject to Class A registration, or a motorcycle subject to Class
G registration, as defined by this article, may request that the
division issue a registration plate bearing specially arranged
letters or numbers with the maximum number of letters or numbers to
be determined by the commissioner. The division shall attempt to comply with the request wherever possible.
(B) The commissioner shall propose rules for legislative
approval in accordance with the provisions of chapter twenty-nine-a
of this code regarding the orderly distribution of the plates:
Provided, That for purposes of this subdivision, the registration
plates requested and issued shall include all plates bearing the
numbers two through two thousand.
(C) An annual fee of fifteen dollars shall be charged for each
special registration plate issued pursuant to this subdivision,
which is in addition to all other fees required by this chapter.
(5) The division may issue honorably discharged veterans
special registration plates as follows:
(A) Upon appropriate application, the division shall issue to
any honorably discharged veteran of any branch of the armed
services of the United States a special registration plate for any
number of vehicles titled in the name of the qualified applicant
with an insignia designed by the commissioner of the division of
motor vehicles.
(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: Provided, That nothing in this section may be construed to exempt any veteran from any other
provision of this chapter.
(C) A surviving spouse may continue to use his or her deceased
spouse's honorably discharged veterans license plate until the
surviving spouse dies, remarries or does not renew the license
plate.
(6) The division may issue disabled veterans special
registration plates as follows:
(A) Upon appropriate application, the division shall issue to
any disabled veteran who is exempt from the payment of registration
fees under the provisions of this chapter a registration plate for
a vehicle titled in the name of the qualified applicant which bears
the letters "DV" in red and also the regular identification
numerals in red.
(B) A surviving spouse may continue to use his or her deceased
spouse's disabled veterans license plate until the surviving spouse
dies, remarries or does not renew the license plate.
(C) A qualified disabled veteran may obtain a second disabled
veteran license plate as described in this section for use on a
passenger vehicle titled in the name of the qualified applicant.
The division shall charge a one-time fee of ten dollars to be
deposited into a special revolving fund to be used in the
administration of this section, in addition to all other fees
required by this chapter, for the second plate.
(7) The division may issue recipients of the distinguished purple heart medal special registration plates as follows:
(A) Upon appropriate application, there shall be issued to any
armed service person holding the distinguished purple heart medal
for persons wounded in combat a registration plate for a vehicle
titled in the name of the qualified applicant bearing letters or
numbers. The registration plate shall be designed by the
commissioner of motor vehicles and shall denote that those
individuals who are granted this special registration plate are
recipients of the purple heart. All letterings shall be in purple
where practical.
(B) Registration plates issued pursuant to this subdivision
are exempt from all registration fees otherwise required by the
provisions of this chapter.
(C) A surviving spouse may continue to use his or her deceased
spouse's purple heart medal license plate until the surviving
spouse dies, remarries or does not renew the license plate.
(D) A recipient of the purple heart medal may obtain a second
purple heart medal license plate as described in this section for
use on a passenger vehicle titled in the name of the qualified
applicant. The division shall charge a one-time fee of ten dollars
to be deposited into a special revolving fund to be used in the
administration of this section, in addition to all other fees
required by this chapter, for the second plate.
(8) The division may issue survivors of the attack on Pearl
Harbor special registration plates as follows:
(A) Upon appropriate application, the owner of a motor vehicle
who was enlisted in any branch of the armed services that
participated in and survived the attack on Pearl Harbor on the
seventh day of December, one thousand nine hundred forty-one, the
division shall issue a special registration plate for a vehicle
titled in the name of the qualified applicant. The registration
plate shall be designed by the commissioner of motor vehicles.
(B) Registration plates issued pursuant to this subdivision
are exempt from the payment of all registration fees otherwise
required by the provisions of this chapter.
(C) A surviving spouse may continue to use his or her deceased
spouse's survivors of the attack on Pearl Harbor license plate
until the surviving spouse dies, remarries or does not renew the
license plate.
(D) A survivor of the attack on Pearl Harbor may obtain a
second survivors of the attack on Pearl Harbor license plate as
described in this section for use on a passenger vehicle titled in
the name of the qualified applicant. The division shall charge a
one-time fee of ten dollars to be deposited into a special
revolving fund to be used in the administration of this section, in
addition to all other fees required by this chapter, for the second
plate.
(9) The division may issue special registration plates to
nonprofit charitable and educational organizations authorized under
prior enactment of this subdivision as follows:
(A) Approved nonprofit charitable and educational
organizations previously authorized under the prior enactment of
this subdivision may accept and collect applications for special
registration plates from owners of Class A motor vehicles together
with a special annual fee of fifteen dollars, which is in addition
to all other fees required by this chapter. The applications and
fees shall be submitted to the division of motor vehicles with the
request that the division issue a registration plate bearing a
combination of letters or numbers with the organizations' logo or
emblem, with the maximum number of letters or numbers to be
determined by the commissioner.
(B) The commissioner shall propose rules for legislative
approval in accordance with the provisions of article three,
chapter twenty-nine-a of this code regarding the procedures for and
approval of special registration plates issued pursuant to this
subdivision.
(C) The commissioner shall set an appropriate fee to defray
the administrative costs associated with designing and
manufacturing special registration plates for a nonprofit
charitable or educational organization. The nonprofit charitable
or educational organization shall collect this fee and forward it
to the division for deposit in a special revolving fund to pay the
administrative costs. The nonprofit charitable or educational
organization may also collect a fee for marketing the special
registration plates.
(D) The commissioner may not approve or authorize any
additional nonprofit charitable and educational organizations to
design or market special registration plates.
(10) The division may issue specified emergency or volunteer
registration plates as follows:
(A) Any owner of a motor vehicle who is a resident of the
state of West Virginia and who is a certified paramedic or
emergency medical technician, a member of a paid fire department,
a member of the state fire commission, the state fire marshal, the
state fire marshal's assistants, the state fire administrator and
voluntary rescue squad members may apply for a special license
plate for any number of Class A vehicles titled in the name of the
qualified applicant which bears the insignia of the profession,
group or commission. Any insignia shall be designed by the
commissioner. License plates issued pursuant to this subdivision
shall bear the requested insignia in addition to the registration
number issued to the applicant pursuant to the provisions of this
article.
(B) Each application submitted pursuant to this subdivision
shall be accompanied by an affidavit signed by the fire chief or
department head of the applicant stating that the applicant is
justified in having a registration with the requested insignia;
proof of compliance with all laws of this state regarding
registration and licensure of motor vehicles; and payment of all
required fees.
(C) Each application submitted pursuant to this subdivision
shall be accompanied by payment of a special initial application
fee of ten dollars, which is in addition to any other registration
or license fee required by this chapter. All special fees shall be
collected by the division and deposited into a special revolving
fund to be used for the purpose of compensating the division of
motor vehicles for additional costs and services required in the
issuing of the special registration and for the administration of
this section.
(11) The division may issue specified certified firefighter
registration plates as follows:
(A) Any owner of a motor vehicle who is a resident of the
state of West Virginia and who is a certified firefighter may apply
for a special license plate which bears the insignia of the
profession, for any number of Class A vehicles titled in the name
of the qualified applicant. Any insignia shall be designed by the
commissioner. License plates issued pursuant to this subdivision
shall bear the requested insignia pursuant to the provisions of
this article. Upon presentation of written evidence of
certification as a certified firefighter, certified firefighters
are eligible to purchase the special registration plate, issued
pursuant to this subdivision.
(B) Each year an application submitted pursuant to this
subdivision shall be accompanied by an affidavit stating that the
applicant is justified in having a registration with the requested insignia; proof of compliance with all laws of this state regarding
registration and licensure of motor vehicles; and payment of all
required fees. The firefighter certification department, section
or division of the West Virginia university fire service extension
shall notify the commissioner in writing immediately when a
firefighter loses his or her certification. If a firefighter loses
his or her certification, the commissioner may not issue him or her
a license plate under this subsection.
(C) Each year an application submitted pursuant to this
subdivision shall be accompanied by payment of a special initial
application fee of ten dollars, which is in addition to any other
registration or license fee required by this chapter. All special
fees shall be collected by the division and deposited into a
special revolving fund to be used for the purpose of compensating
the division of motor vehicles for additional costs and services
required in the issuing of the special registration and for the
administration of this section.
(12) The division may issue special scenic registration plates
as follows:
(A) Upon appropriate application, the commissioner shall issue
a special registration plate displaying a scenic design of West
Virginia which displays the words "Wild Wonderful" as a slogan.
(B) The division shall charge a special one-time initial
application fee of ten dollars in addition to all other fees
required by this chapter. All initial application fees collected by the division shall be deposited into a special revolving fund to
be used in the administration of this chapter.
(13) The division may issue honorably discharged marine corps
league members special registration plates as follows:
(A) Upon appropriate application, the division shall issue to
any honorably discharged marine corps league member a special
registration plate for any number of vehicles titled in the name of
the qualified applicant with an insignia designed by the
commissioner of the division of motor vehicles.
(B) The division may charge a special one-time initial
application fee of ten dollars in addition to all other fees
required by this chapter. 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: Provided, That
nothing in this section may be construed to exempt any veteran from
any other provision of this chapter.
(C) A surviving spouse may continue to use his or her deceased
spouse's honorably discharged marine corps league license plate
until the surviving spouse dies, remarries or does not renew the
license plate.
(14) The division may issue military organization registration
plates as follows:
(A) The division may issue a special registration plate for the members of any military organization chartered by the United
States Congress upon receipt of a guarantee from the organization
of a minimum of one hundred applicants. The insignia on the plate
shall be designed by the commissioner.
(B) Upon appropriate application, the division may issue
members of the chartered organization in good standing, as
determined by the governing body of the chartered organization, a
special registration plate for any number of vehicles titled in the
name of the qualified applicant.
(C) The division shall charge a special one-time initial
application fee of ten dollars for each special license plate in
addition to all other fees required by this chapter. All initial
application fees collected by the division shall be deposited into
a special revolving fund to be used in the administration of this
chapter: Provided, That nothing in this section may be construed
to exempt any veteran from any other provision of this chapter.
(D) A surviving spouse may continue to use his or her deceased
spouse's military organization registration plate until the
surviving spouse dies, remarries or does not renew the special
military organization registration plate.
(15) The division may issue special nongame wildlife
registration plates and special wildlife registration plates as
follows:
(A) Upon appropriate application, the division shall issue a
special registration plate displaying a species of West Virginia wildlife which shall display a species of wildlife native to West
Virginia as prescribed and designated by the commissioner and the
director of the division of natural resources.
(B) The division shall charge an annual fee of fifteen dollars
for each special nongame wildlife registration plate and each
special wildlife registration plate in addition to all other fees
required by this chapter. All annual fees collected for nongame
wildlife registration plates and wildlife registration plates shall
be deposited in a special revenue account designated the nongame
wildlife fund and credited to the division of natural resources.
(C) The division shall charge a special one-time initial
application fee of ten dollars in addition to all other fees
required by this chapter. All initial application fees collected
by the division shall be deposited in a special revolving fund to
be used in the administration of this chapter.
(16) The division may issue members of the silver haired
legislature special registration plates as follows:
(A) Upon appropriate application, the division shall issue to
any person who is a duly qualified member of the silver haired
legislature a specialized registration plate which bears
recognition of the applicant as a member of the silver haired
legislature.
(B) A qualified member of the silver haired legislature may
obtain one registration plate described in this subdivision for use
on a passenger vehicle titled in the name of the qualified applicant. The division shall charge an annual fee of fifteen
dollars, in addition to all other fees required by this chapter,
for the plate. All annual fees collected by the division shall be
deposited in a special revolving fund to be used in the
administration of this chapter.
(17) Upon appropriate application, the commissioner shall
issue to a classic motor vehicle or classic motorcycle as defined
in section three-a, article ten of this chapter, a special
registration plate designed by the commissioner. An annual fee of
fifteen dollars, in addition to all other fees required by this
chapter, shall be charged for each classic registration plate.
(18) Honorably discharged veterans may be issued special
registration plates for motorcycles subject to Class G registration
as follows:
(A) Upon appropriate application, there shall be issued to any
honorably discharged veteran of any branch of the armed services of
the United States a special registration plate for any number of
motorcycles subject to Class G registration titled in the name of
the qualified applicant with an insignia designed by the
commissioner of the division of motor vehicles.
(B) A special initial application fee of ten dollars shall be
charged 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: Provided, That nothing in this
section may be construed to exempt any veteran from any other
provision of this chapter.
(C) A surviving spouse may continue to use his or her deceased
spouse's honorably discharged veterans license plate until the
surviving spouse dies, remarries or does not renew the license
plate.
(19) Racing theme special registration plates:
(A) The division may issue a series of special registration
plates displaying national association for stock car auto racing
themes.
(B) An annual fee of twenty-five dollars shall be charged for
each special racing theme registration plate in addition to all
other fees required by this chapter. All annual fees collected for
each special racing theme registration plate shall be deposited
into a special revolving fund to be used in the administration of
this chapter.
(C) A special application fee of ten dollars shall be charged
at the time of initial application as well as upon application for
any duplicate or replacement registration plate, in addition to all
other fees required by this chapter. All application fees shall be
deposited into a special revolving fund to be used in the
administration of this chapter.
(20) The division may issue recipients of the navy cross, distinguished service cross, distinguished flying cross, air force
cross, bronze star or silver star special registration plates as
follows:
(A) Upon appropriate application, the division shall issue to
any recipient of the navy cross, distinguished service cross,
distinguished flying cross, air force cross, silver star or bronze
star, a registration plate for any number of vehicles titled in the
name of the qualified applicant bearing letters or numbers. A
separate registration plate shall be designed by the commissioner
of motor vehicles for each award that denotes that those
individuals who are granted this special registration plate are
recipients of the navy cross, distinguished service cross,
distinguished flying cross, air force cross, silver star or bronze
star, as applicable.
(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: Provided, That nothing in this
section exempts the applicant for a special registration plate
under this subdivision from any other provision of this chapter.
(C) A surviving spouse may continue to use his or her deceased
spouse's navy cross, distinguished service cross, distinguished flying cross, air force cross, silver star or bronze star special
registration plate until the surviving spouse dies, remarries or
does not renew the special registration plate.
(21) The division may issue honorably discharged veterans
special registration plates as follows:
(A) Upon appropriate application, the division shall issue to
any honorably discharged veteran of any branch of the armed
services of the United States with verifiable service during World
War II, the Korean War, the Vietnam War, the Persian Gulf War or
the War against Terrorism, a special registration plate for any
number of vehicles titled in the name of the qualified applicant
with an insignia designed by the commissioner denoting service in
the applicable conflict.
(B) The division shall charge a special one-time 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: Provided, That nothing
contained in this section may be construed to exempt any veteran
from any other provision of this chapter.
(C) A surviving spouse may continue to use his or her deceased
spouse's honorably discharged veterans registration plate until the
surviving spouse dies, remarries or does not renew the special registration plate.
(22) The division may issue special volunteer firefighter
registration plates as follows:
(A) Any owner of a motor vehicle who is a resident of West
Virginia and who is a volunteer firefighter may apply for a special
license plate for any Class A vehicle titled in the name of the
qualified applicant which bears the insignia of the profession in
white letters on a red background. The insignia shall be designed
by the commissioner and shall contain a fireman's helmet insignia
on the left side of the license plate.
(B) Each application submitted pursuant to this subdivision
shall be accompanied by an affidavit signed by the applicant's fire
chief, stating that the applicant is a volunteer firefighter and
justified in having a registration plate with the requested
insignia. The applicant must comply with all other laws of this
state regarding registration and licensure of motor vehicles and
must pay all required fees.
(C) Each application submitted pursuant to this subdivision
shall be accompanied by payment of a special one-time initial
application fee of ten dollars, which is in addition to any other
registration or license fee required by this chapter. All
application fees shall be deposited into a special revolving fund
to be used in the administration of this chapter.
(23) The division may issue special registration plates which
reflect patriotic themes, including the display of any United States symbol, icon, phrase or expression, which evokes patriotic
pride or recognition.
(A) Upon appropriate application, the division shall issue to
an applicant a registration plate of the applicant's choice,
displaying a patriotic theme as provided in this subdivision, for
a vehicle titled in the name of the applicant. A series of
registration plates displaying patriotic themes shall be designed
by the commissioner of motor vehicles for distribution to
applicants.
(B) The division shall charge a special one-time 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.
(24) Special license plates bearing the American flag and the
logo "9/11/01".
(A) Upon appropriate application, the division shall issue
special registration plates which shall display the American flag
and the logo "9/11/01".
(B) An annual fee of fifteen dollars shall be charged for each
plate in addition to all other fees required by this chapter.
(C) A special application fee of ten dollars shall be charged
at the time of initial application as well as upon application for any duplicate or replacement registration plate, in addition to all
other fees required by this chapter. All application fees shall be
deposited into a special revolving fund to be used in the
administration of this chapter.
(25) The division may issue a special registration plate
celebrating the centennial of the 4-H youth development movement
and honoring the future farmers of America organization as follows:
(A) Upon appropriate application, the division may issue a
special registration plate depicting the symbol of the 4-H
organization which represents the head, heart, hands and health as
well as the symbol of the future farmers of America organization
which represents a cross section of an ear of corn 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 4-H future farmers of America registration plate
in addition to all other fees required by this chapter.
(26) The division may issue special registration plates to
educators in the state's elementary and secondary schools and in the state's institutions of higher education 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 educator registration plate in addition to all
other fees required by this chapter.
(27) The division may issue special registration plates to
members of the Nemesis Shrine 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 Nemesis Shrine.
(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.
(D) Notwithstanding the provisions of subsection (d) of this
section, the time period for the Nemesis Shrine to comply with the
minimum one hundred prepaid applications is hereby extended to the
fifteenth day of January, two thousand five.
(28) The division may issue volunteers and employees of the
American Red Cross special registration plates as follows:
(A) Upon appropriate application, the division shall issue to
any person who is a duly qualified volunteer or employee of the
American Red Cross a specialized registration plate which bears
recognition of the applicant as a volunteer or employee of the
American Red Cross 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) An annual fee of fifteen dollars shall be charged for each plate in addition to all other fees required by this chapter.
(29) The division shall issue special registration plates to
individuals who have received either the Combat Infantry Badge or
the Combat Medic Badge as follows:
(A) Upon appropriate application, the division shall 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 that they have received either the Combat Infantry
Badge or the Combat Medic Badge.
(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.
(30) The division may issue special registration plates to
members of the Knights of Columbus as follows:
(A) Upon appropriate application, the division shall 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 Columbus.
(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.
(D) Notwithstanding the provisions of subsection (d) of this
section, the time period for the Knights of Columbus to comply with
the minimum one hundred prepaid applications is hereby extended to
the fifteenth day of January, two thousand five.
(31) The division may issue special registration plates to
former members of the Legislature as follows:
(A) Upon appropriate application, the division shall 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 former service as an elected or appointed
member of the West Virginia House of Delegates or the West Virginia
Senate.
(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. The design of the plate shall
indicate total years of service in the Legislature.
(C) An annual fee of fifteen dollars shall be charged for each
plate in addition to all other fees required by this chapter.
(32) Democratic state or county executive committee member
special registration plates:
(A) The division shall design and issue special registration
plates for use by democratic state or county executive committee
members. The design of the plates shall include an insignia of a
donkey and shall differentiate by wording on the plate between
state and county executive committee members.
(B) An annual fee of twenty-five dollars shall be charged for
each democratic state or county executive committee member
registration plate in addition to all other fees required by this
chapter. All annual fees collected for each special plate issued
under this subdivision shall be deposited into a special revolving
fund to be used in the administration of this chapter.
(C) A special application fee of ten dollars shall be charged
at the time of initial application as well as upon application for
any duplicate or replacement registration plate, in addition to all
other fees required by this chapter. All application fees shall be
deposited into a special revolving fund to be used in the
administration of this chapter.
(D) The division shall not begin production of a plate
authorized under the provisions of this subdivision until the
division receives at least one hundred completed applications from
the state or county executive committee members, including all fees
required pursuant to this subdivision.
(E) Notwithstanding the provisions of subsection (d) of this
section, the time period for the democratic executive committee to
comply with the minimum one hundred prepaid applications is hereby
extended to the fifteenth day of January, two thousand five.
(33) The division may issue honorably discharged female
veterans special registration plates as follows:
(A) Upon appropriate application, there shall be issued to any
female honorably discharged veteran, of any branch of the armed
services of the United States, a special registration plate for any
number of vehicles titled in the name of the qualified applicant
with an insignia designed by the commissioner of the division of
motor vehicles to designate the recipient as a woman veteran.
(B) A special initial application fee of ten dollars shall be
charged 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: Provided, That nothing in this
section may be construed to exempt any veteran from any other provision of this chapter.
(C) A surviving spouse may continue to use his deceased
spouse's honorably discharged veterans license plate until the
surviving spouse dies, remarries or does not renew the license
plate.
(34) The division may issue special registration plates
bearing the logo, symbol, insignia, letters or words demonstrating
association with West Liberty state college to any resident owner
of a motor vehicle. Resident owners may apply for the special
license plate for any number of Class A vehicles titled in the name
of the applicant. The special registration plates shall be
designed by the commissioner. Each application submitted pursuant
to this subdivision shall be accompanied by payment of a special
initial application fee of fifteen dollars, which is in addition to
any other registration or license fee required by this chapter.
The division shall charge an annual fee of fifteen dollars for each
special educator registration plate in addition to all other fees
required by this chapter. All special fees shall be collected by
the division and deposited into a special revolving fund to be used
for the purpose of compensating the division of motor vehicles for
additional costs and services required in the issuing of the
special registration and for the administration of this section.
(35) The division may issue special registration plates to
members of the Harley Owners Group 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 Harley Owners Group.
(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.
(36) The division may issue special registration plates for
persons retired from any branch of the armed services of the United
States as follows:
(A) Upon appropriate application, there shall be issued to any
person who has retired after service in any branch of the armed
services of the United States, a special registration plate for any
number of vehicles titled in the name of the qualified applicant
with an insignia designed by the commissioner of the division of
motor vehicles to designate the recipient as retired from the armed
services of the United States.
(B) A special initial application fee of ten dollars shall be
charged 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 a 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: Provided, That nothing in this section may be
construed to exempt any registrants from any other provision of
this chapter.
(C) A surviving spouse may continue to use his or her deceased
spouses retired military license plate until the surviving spouse
dies, remarries or does not renew the license plate.
_____(37) The division may issue special registration plates
bearing the logo, symbol, insignia, letters or words demonstrating
association with or support for Fairmont state college 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) An annual fee of fifteen dollars shall be charged for each
plate in addition to all other fees required by this chapter.
_____(38) The division may issue special registration plates
honoring the farmers of West Virginia as follows:
_____(A) Any owner of a motor vehicle who is a resident of West
Virginia may apply for a special license plate depicting a farming
scene or other apt reference to farming, whether in pictures or
words, at the discretion of the commissioner.
_____(B) The division shall charge a special initial application
fee of ten dollars. 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.
_____(39) The division shall issue special registration plates
promoting education as follows:
_____(A) Upon appropriate application, the division shall issue a
special registration plate displaying a children's education-
related theme as prescribed and designated by the commissioner and
the state superintendent of schools.
_____(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: Provided, That nothing in this
section exempts the applicant for a special registration plate
under this subdivision from any other provision of this chapter.
_____(C) An annual fee of fifteen dollars shall be charged for each
plate in addition to all other fees required by this chapter.
_____(40) The division may issue members of the 82nd airborne
division association special registration plates as follows:
_____(A) The division may issue a special registration plate for
members of the 82nd airborne division association upon receipt of
a guarantee from the organization of a minimum of one hundred
applicants. The insignia on the plate shall be designed by the
commissioner.
_____(B) Upon appropriate application, the division may issue
members of the 82nd airborne division association in good standing,
as determined by the governing body of the organization, a special
registration plate for any number of vehicles titled in the name of
the qualified applicant.
_____(C) The division shall charge a special one-time initial
application fee of ten dollars for each special license plate in
addition to all other fees required by this chapter. All initial
application fees collected by the division shall be deposited into
a special revolving fund to be used in the administration of this
chapter: Provided, That nothing in this section may be construed
to exempt the applicant from any other provision of this chapter.
_____(D) A surviving spouse may continue to use his or her deceased
spouse's special 82nd airborne division association registration
plate until the surviving spouse dies, remarries or does not renew
the special registration plate.
_____(41)
The division may issue special registration plates to
survivors of wounds received in the line of duty as a member with
a West Virginia law-enforcement agency.
_____(A) Upon appropriate application, the division shall issue to
any member of a municipal police department, sheriff's department,
the state police or the law-enforcement division of the division of
natural resources who has been wounded in the line of duty and
awarded a purple heart in recognition thereof by the West Virginia
chiefs' of police association, the West Virginia sheriffs'
association, the West Virginia troopers' association or the
division of natural resources a special registration plate for one
vehicle titled in the name of the qualified applicant with an
insignia appropriately designed by the commissioner.
_____(B) Registration plates issued pursuant to this subdivision
are exempt from the registration fees otherwise required by the
provisions of this chapter.
_____(C) A surviving spouse may continue to use his or her deceased
spouse's special registration plate until the surviving spouse
dies, remarries or does not renew the plate.
_____(D)
Survivors of wounds received in the line of duty as a
member with a West Virginia law-enforcement agency
may obtain a license plate as described in this section for use on a passenger
vehicle titled in the name of the qualified applicant. The
division shall charge a one-time fee of ten dollars to be deposited
into a special revolving fund to be used in the administration of
this section, in addition to all other fees required by this
chapter, for the second plate.
_____(42) The division may issue a special registration plate for
persons who are Native Americans and residents of this state.
_____(A) Upon appropriate application, the division shall issue to
an applicant who is a Native American resident of West Virginia a
registration plate of the applicants for a vehicle titled in the
name of the applicant with an insignia designed by the commissioner
of the division of motor vehicles to designate the recipient as
a
Native American.
_____(B) The division shall charge a special one-time 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.
_____(43) The division may issue special registration plates
commemorating the centennial anniversary of the creation of Davis & Elkins college as follows:
_____(A) Upon appropriate application, the division may issue a
special registration plate designed by the commissioner to
commemorate the centennial anniversary of Davis & Elkins college
for any number of vehicles titled in the name of the applicant.
_____(B) The division shall charge a special initial application
fee of ten dollars. 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 division may issue special registration plates
recognizing and honoring breast cancer survivors.
_____(A) Upon appropriate application, the division may issue a
special registration plate designed by the commissioner to
recognize and honor breast cancer survivors, such plate to
incorporate somewhere in the design the "pink ribbon emblem", for
any number of vehicles titled in the name of the applicant.
_____(B) The division shall charge a special initial application
fee of ten dollars. This special fee is to compensate the division
of motor vehicles for additional costs and services required in 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.
_____(45) The division may issue special registration plates to
members of the Knights of Pythias or Pythian Sisters 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.
_____(46) 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.
(d) The commissioner shall propose rules for legislative
approval in accordance with the provisions of article three,
chapter twenty-nine-a of this code regarding the proper forms to be
used in making application for the special license plates
authorized by this section. The commissioner may not begin the
design or production of any license plates for which eligibility is
based on membership or affiliation with a particular private
organization until at least one hundred persons complete an
application and deposit a check to cover the first year's basic
registration, one-time design and manufacturing costs and to cover
the first year additional annual fee. If the organization fails to
submit the required number of applications with attached checks
within six months of the effective date of the authorizing
legislation, the plate will not be produced and will require
legislative reauthorization: Provided, That the six-month
requirement in this subsection does not apply to subdivisions (1)
through (26), inclusive, subsection (c) of this section.
(e) (1) Nothing in this section requires a charge for a free
prisoner of war license plate or a free recipient of the
congressional medal of honor license plate for a vehicle titled in
the name of the qualified applicant as authorized by other
provisions of this code.
(2) A surviving spouse may continue to use his or her deceased
spouse's prisoner of war or congressional medal of honor license
plate until the surviving spouse dies, remarries or does not renew
the license plate.
(3) Qualified former prisoners of war and recipients of the
congressional medal of honor may obtain a second special
registration plate for use on a passenger vehicle titled in the
name of the qualified applicant. The division shall charge a
one-time fee of ten dollars to be deposited into a special
revolving fund to be used in the administration of this chapter, in
addition to all other fees required by this chapter, for the second
special plate.
(f) The division may issue special ten-year registration
plates as follows:
(1) The commissioner may issue or renew for a period of no
more than ten years any registration plate exempted from
registration fees pursuant to any provision of this code or any
restricted use antique motor vehicle license plate authorized by
section three-a, article ten of this chapter: Provided, That the
provisions of this subsection do not apply to any person who has had a special registration suspended for failure to maintain motor
vehicle liability insurance as required by section three, article
two-a, chapter seventeen-d of this code or failure to pay personal
property taxes as required by section three-a of this article.
(2) An initial nonrefundable fee shall be charged for each
special registration plate issued pursuant to this subsection,
which is the total amount of fees required by section fifteen,
article ten of this chapter, section three, article three of this
chapter or section three-a, article ten of this chapter for the
period requested.
(g) The provisions of this section may not be construed to
exempt any registrant from maintaining motor vehicle liability
insurance as required by section three, article two-a, chapter
seventeen-d of this code or from paying personal property taxes on
any motor vehicle as required by section three-a of this article.
(h) The commissioner may, in his or her discretion, issue a
registration plate of reflectorized material suitable for permanent
use on motor vehicles, trailers and semitrailers, together with
appropriate devices to be attached to the registration to indicate
the year for which the vehicles have been properly registered or
the date of expiration of the registration. The design and
expiration of the plates shall be determined by the commissioner.
(i) Any license plate issued or renewed pursuant to this
chapter, which is paid for by a check that is returned for
nonsufficient funds, is void without further notice to the applicant. The applicant may not reinstate the registration until
the returned check is paid by the applicant in cash, money order or
certified check and all applicable fees assessed as a result
thereof have been paid.
;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 638--A Bill to
amend and reenact §17A-3-
14 of the code of West Virginia, 1931, as amended, relating to
registration plates; providing registration plates for promoting
education; Fairmont state college; West Virginia farmers; Native
Americans; members of the 82nd airborne association;
Knights of
Pythias or Pythian Sisters; whitewater rafting;
survivors of wounds
received in the line of duty as law-enforcement members;
authorizing a special license plate commemorating the centennial
anniversary of the creation of Davis & Elkins college; authorizing
a special license plate recognizing and honoring breast cancer
survivors;
setting fees; exemptions from fees; extending the time
period for certain organizations to achieve the minimum number of
applicants for a registration plate; setting forth requirements to
obtain certain registration plates;
and expanding the number of
registration plates certain persons may obtain.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 638, as amended by the House of Delegates, was then put upon its passage.
On