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Monday, February 23, 2004



The House of Delegates met at 1:00 p.m., and was called to order by the Speaker.

Prayer was offered and the House was led in recitation of the Pledge of Allegiance.

The Clerk proceeded to read the Journal of Friday, February 20, 2004, being the first order of business, when the further reading thereof was dispensed with and the same approved.


Committee Reports


Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:
H. B. 4521, Increasing the current annual registration fee for underground storage tanks and requiring the DEP to annually report on the status of the fund and the underground storage tank program,

And reports the same back with the recommendation that it do pass, but that it first be referred to the Committee on Finance.
In accordance with the former direction of the Speaker, the bill (H. B. 4521) was referred to the Committee on Finance.

Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:
H. B. 4117, Requiring medical providers to furnish patients copies of medical reports without prepayment and to furnish copies of bills without cost,

And reports back a committee substitute therefor, with a new title, as follows:

Com. Sub. for H. B. 4117 - "A Bill to amend and reenact §16-29-1 of the code of West Virginia, 1931, as amended, relating to copies of medical records,"

With the recommendation that the committee substitute do pass.

Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:
H. B. 4166, Removing the description requirements in deeds for easements and rights-of-way for mineral leases,

And reports back a committee substitute therefor, by unanimous vote of the Committee, with a new title, as follows:

Com. Sub. for H. B. 4166 - "A Bill to amend and reenact §36-3-5a of the code of West Virginia, 1931, as amended, relating to excepting the description requirements from deeds or instruments for easements and rights-of-way for mineral leases,"

With the recommendation that the committee substitute do pass.

Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (Com. Sub. for H. B. 4166) will be placed on the Consent Calendar.

Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:
H. B. 2950, Modernizing captive insurance law to remain competitive with states which presently contract such business,

And reports the same back, by unanimous vote of the Committee, with amendment, with the recommendation that it do pass, as amended, but that it first be referred to the Committee on Finance.

In accordance with the former direction of the Speaker, the bill (H. B. 2950) was referred to the Committee on Finance.


Messages from the Senate


A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:

H. C. R. 42, Suspending a provision of Joint Rule 3, relating to the limitation on the period permitted for extending the Committee of Conference as to Com. Sub. for H. B. 4022, Creating "The All-Terrain Vehicle Safety Regulation Act".

A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage of

S. B. 147 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §29-22-18c, relating to transfers of unappropriated net profit between state lottery fund and state excess lottery fund and between state excess lottery fund and state lottery fund"; which was referred to the Committee on Finance.

A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage of

S. B. 160 - "A Bill to amend and reenact §5A-2-14a of the code of West Virginia, 1931, as amended, relating to appropriation in certain fiscal years of moneys to the bureau of medical services of the department of health and human resources from funds held in reserve for the public employees insurance agency"; which was referred to the Committee on Finance.

A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage of

S. B. 321 - "A Bill to amend and reenact §11-21-12d of the code of West Virginia, 1931, as amended, relating to providing a personal income tax adjustment to the gross income of certain retirees receiving pensions from defined pension plans that terminated and are being paid a reduced maximum benefit guarantee"; which was referred to the Committee on Finance.

A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage of

S. B. 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"; which was referred to the Committee on Political Subdivisions then the Judiciary.

A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage of

Com. Sub. for S. B. 505 - "A Bill to amend and reenact §17A-1-1 of the code of West Virginia, 1931, as amended; to amend and reenact §17A-3-2 of said code; and to amend and reenact §17A-6-3 and §17A-6-18 of said code, all relating to creating a motor vehicle classification of 'low- speed vehicle' "; which was referred to the Committee on Roads and Transportation then the Judiciary.


Resolutions Introduced


On motion for leave, a Joint Resolution was introduced, read by its title and referred as follows:

By Delegate Webster (By Request):

H. J. R. 109 - "Proposing an amendment to the Constitution of the State of West Virginia, amending article X by adding thereto a new section, designated section 1d, relating to exempting real property from ad valorem property taxation; numbering and designating such proposed amendment; and providing a summarized statement of the purpose of such proposed amendment"; to the Committee on Constitutional Revision then the Judiciary.

By Mr. Speaker, Mr. Kiss, and Delegates Overington, Anderson, Armstead, Ashley, Azinger, Beach, Beane, Blair, Boggs, Border, Browning, Butcher, Calvert, Campbell, Cann, Canterbury, Carmichael, Caruth, Crosier, Duke, Ellem, Ennis, Evans, Faircloth, Ferrell, Fragale, Frederick, Frich, Hall, Hamilton, Hartman, Houston, Howard, Hrutkay, Iaquinta, Kominar, Kuhn, Leggett, Long, Louisos, Mahan, Mezzatesta, Michael, Morgan, Overington, Paxton, Perdue, Perry, Pethtel, Pino, Poling, Renner, Romine, Schadler, Schoen, Shaver, Shelton, Smirl, Sobonya, Spencer, Stalnaker, Staton, Stemple, Sumner, Susman, Swartzmiller, Tabb, Talbott, R. Thompson, R. M. Thompson, Trump, Tucker, Varner, Wakim, Walters, Warner, Webb, G. White, H. White, Williams, Wright, Yeager and Yost offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. R. 11 - "Urging the Congress of the United States to adopt an amendment to the Constitution of the United States to protect the flag of the United States from desecration."
Whereas, There exist federal and state penal codes to protect the flag of the United States from desecration; and
Whereas, The flag of the United States is a living symbol of all our freedoms, morally obligating all responsible citizens to preserve, protect and venerate the flag. Neither our founding fathers, members of Congress nor state legislators ever intended that anybody should be allowed to desecrate and mutilate the United States flag; and
Whereas, Protection of the flag of the United States from desecration can only be assured by the enactment of a constitutional amendment; therefore, be it
Resolved by the House of Delegates:
That the Congress is urged to propose and adopt an amendment to the Constitution of the United States protecting the flag of the United States from desecration; and, be it

Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to each member of the United States Congress.


Petitions


Delegate Caruth presented a resolution adopted by the Town of Athens supporting the passage of a statewide container recycling legislation; which was referred to the Committee on the Judiciary.


Bills Introduced


On motions for leave, bills were introduced, read by their titles, and severally referred as follows:

By Mr. Speaker, Mr. Kiss, and Delegate Kuhn:

H. B. 4582 - "
A Bill to amend and reenact §21-3C-1, §21-3C-2, §21-3C-3, §21-3C-4, §21- 3C-5 and §21-3C-6 of the code of West Virginia, 1931, as amended, all relating to elevator safety; adding and modifying definitions; adding grounds for revocation or suspension of certificate of competency; limiting division inspectors to inspections of state owned elevators; and making technical and stylistic changes"; to the Committee on Government Organization.
By Delegates Calvert and Romine:
H. B. 4583 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §33-42-9 and 33-42-10, all relating to the care of aborted fetuses; requiring medical facilities that provide abortions to administer anesthesia to an unborn fetus when aborted, if it is older than seven weeks; requiring all available medical means to be used to preserve the life of a fetus if it is alive when aborted; and providing criminal penalties for violations"; to the Committee on Health and Human Resources then the Judiciary.
By Delegates Caputo, R. Thompson, Tucker, Butcher, Walters, Williams and Stemple:
H. B. 4584 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5A-1-11; and to amend said code by adding thereto a new section, designated §46A-6F-401a, all relating to requiring certain vendors to use only persons authorized to work in the United States; establishing a customer's right to customer sales or customer service call center information; and providing penalties"; to the Committee on the Judiciary.
By Delegates Caruth, Trump, Armstead, Amores, Ellem, Beane and Frederick:
H. B. 4585 - "A Bill to amend and reenact §31D-7-708 of the code of West Virginia, 1931, as amended, relating to use of electronic communications for shareholder meetings and permitting the use of speaker phones or other electronic means unless specifically prohibited by articles of incorporation or bylaws"; to the Committee on the Judiciary.
By Delegates Caruth, Trump, Frederick, Amores, Palumbo, Long and H. White:
H. B. 4586 - "A Bill to amend and reenact §21-5-4 of the code of West Virginia, 1931, as amended, relating to employee wages owed on termination of employment; and providing that liquidated damages for failure to pay a terminated employee wages owed may not exceed the amount of actual damages in any claim"; to the Committee on the Judiciary.
By Delegates Foster, Palumbo and Amores:
H. B. 4587 - "A Bill to amend and reenact §30-3C-1 of the code of West Virginia, 1931, as amended, relating to including persons who are members or consultants to review organizations within the definition of health care professionals for peer review purposes; including patient safety review in peer review; and including certain other organizations within the meaning of a review organization"; to the Committee on Health and Human Resources then the Judiciary.
By Delegate Long (By Request):
H. B. 4588 - "A Bill to amend and reenact §20-2-22a of the code of West Virginia, 1931, as amended, relating to seasonally prohibiting the training of dogs to hunt bear"; to the Committee on Agriculture and Natural Resources then the Judiciary.
By Delegates Perdue, Border, Long, Foster, Amores and Anderson:
H. B. 4589 - "A Bill to amend and reenact §30-5-1b of the code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §30-5-26, all relating to requirements for collaborative pharmacy practice agreements between pharmacists and physicians"; to the Committee on Health and Human Resources then the Judiciary.
By Delegate Trump:
H. B. 4590 - "A Bill to amend and reenact §18A-5-2 of the code of West Virginia, 1931, as amended, relating to authorizing county boards of education to extend the instructional year to one hundred eighty days when schools are closed because of bad weather or other conditions"; to the Committee on Education then Finance.
By Delegates Trump, Campbell, Duke and Walters:
H. B. 4591 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §16-2D-4c; and to amend said code by adding thereto a new section, designated §16-29B-10a, all relating to certificates of need; and providing an exemption for certain hospitals"; to the Committee on Health and Human Resources then the Judiciary.
By Delegates H. White, Hrutkay and Frich:
H. B. 4592 - "A Bill to amend and reenact §33-7-9 of the code of West Virginia, 1931, as amended, relating to the reserve liabilities for all outstanding life insurance policies and annuity and pure endowment contracts of every life insurance company doing business in this state"; to the Committee on Banking and Insurance then the Judiciary.


Consent Calendar

Third Reading

The following bills on third reading, coming up in regular order, were each read a third time:
H. B. 4308, Providing immunity from civil damages to workers who in good faith provides services or materials, without remuneration, to build or install certain universal accessibility features in accordance with applicable state and federal laws,
And,
Com. Sub. for H. B. 4433, Creating the crime of abuse and neglect of an elderly person and the crime of misuse or misappropriation of the funds or assets of an elderly person.
On the passage of the bills, the yeas and nays were taken (Roll No. 163), and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bills (H. B. 4308 and Com. Sub. for H. B. 4433) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates on the Consent Calendar bills and request concurrence therein.


Second Reading

H. B. 4247, Clarifying that the board of registration for professional engineers may assess civil penalties; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Government Organization, was reported by the Clerk and adopted, amending the bill on page two, section twenty-one, line three, by striking out the word "fine" and inserting in lieu thereof the words "civil penalty".
And,
On page six, section twenty-two, line twenty-three, by striking out the word "fine" and inserting in lieu thereof the words "assess a civil penalty against".
The bill was then ordered to engrossment and third reading.
H. B. 4411, Changing certain reporting requirements in the West Virginia workforce investment act; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Industry and Labor, Economic Development and Small Business, was reported by the Clerk and adopted, amending the bill on page five, section nine, after line twenty-two, by inserting a new subsection (c), as follows:
"(c) The team shall coordinate the development of a self-sufficiency standard study for the State of West Virginia. The self-sufficiency standard is to measure how much income is needed for a household of a given composition in a given place to adequately meet its basic needs without public or private assistance. Beginning on the first day of November, two thousand four, and every two years thereafter, this study is to be reported to the speaker of the House of Delegates, the president of the Senate, the workforce investment council and the legislative oversight commission on workforce investment for economic development" followed by a period and then relettering the remaining subsections.
And,
By amending the enacting section to read as follows:
"That §5B-2B-2, §5B-2B-4, §5B-2B-5 and §5B-2B-9 of the code of West Virginia, 1931, as amended, be amended and reenacted to read as follows" followed by a colon.
The bill was then ordered to engrossment and third reading.
Com. Sub. for H. B. 4450, Permitting the sale of timber severed in a state park incidental to construction activities; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.


First Reading

The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:
Com. Sub. for S. B. 209, Requiring review of certain state leases and purchases by joint committee on government and finance,
Com. Sub. for H. B. 4116, Providing tuition and fee vouchers for students who sound Taps during a military honors funeral,
Com. Sub. for H. B. 4285, Providing that custody of children of a parent murdered by his or her spouse shall be placed with the most suitable member of the victim's family,
Com. Sub. for H. B. 4294, Removing the requirement that funds expended from the worthless check fund to pay for additional deputy clerks be proportionate to the time expended on worthless check cases,
H. B. 4295, Exempting state bonds from taxation,
H. B. 4298, Providing that retiring municipal police officers may keep their service revolver,
H. B. 4371, Extending the pilot program for the uninsured and underinsured,
H. B. 4484, Allowing a limited license to practice medicine and surgery without examination to an individual appointed to a West Virginia medical school faculty who holds a valid license to practice medicine and surgery from another country,
H. B. 4546, Supplemental appropriation to the department of health and human resources - family protection services board - domestic violence legal services fund,
H. B. 4547, Supplemental appropriation to the bureau of commerce - division of miners' health, safety and training,
H. B. 4548, Supplemental appropriation to the department of transportation - division of motor vehicles - driver's license reinstatement fund,
H. B. 4549, Supplemental appropriation to the bureau of commerce - division of labor - elevator safety act,
H. B. 4550, Supplemental appropriation to the department of health and human resources - division of health - central office,
H. B. 4551, Supplemental appropriation to the department of health and human resources - division of human services,
H. B. 4552, Relating to grounds for the revocation of teacher certificates,
H. B. 4553, Relating to standards for awarding certificates to teach in the public schools,
H. B. 4554, Relating to the rights, privileges and benefits of substitute service personnel employed to fill vacancies created by leaves of absence,
And,
H. B. 4581, Continuing the division of protective services.


Special Calendar

Unfinished Business

H. C. R. 28, Requesting that September 12th of every year be declared as West Virginia Monarch Butterfly Day; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.


Third Reading

S. B. 449, Relating to elections generally; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 166), and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 449) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 167), and there were--yeas 100, nays none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 449) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for H. B. 2384, Providing criminal penalties for negligently or carelessly shooting and wounding or killing a human being while hunting under the influence of alcohol or drugs; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 168), and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2384) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4044, Increasing the salary limit for the state superintendent's position; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 169), and there were--yeas 77, nays 23, absent and not voting none, with the nays being as follows:
Nays: Anderson, Armstead, Ashley, Blair, Border, Calvert, Carmichael, Duke, Ellem, Faircloth, Hall, Hamilton, Howard, Leggett, Overington, Romine, Schoen, Smirl, Sobonya, Sumner, Trump, Walters and Webb.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4044) passed.
Delegate Staton moved that the bill take effect July 1, 2004.
On this question, the yeas and nays were taken (Roll No. 170), and there were--yeas 96, nays 4, absent and not voting none, with the nays being as follows:
Nays: Leggett, Smirl, Sobonya and Sumner.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4044) takes effect July 1, 2004.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4053, Changing the rate of compensation of members of the state board of education; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 171), and there were--yeas 97, nays 3, absent and not voting none, with the nays being as follows:
Nays: Hamilton, Leggett and Spencer.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4053) passed.
Delegate Staton moved that the bill take effect July 1, 2004.
On this question, the yeas and nays were taken (Roll No. 172), and there were--yeas 100, nays none, absent and not voting none.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4053) takes effect July 1, 2004.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4141, Authorizing patients or residents of certain health care facilities or homes to designate nonrelatives to receive the same visitation privileges as immediate family members; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 173), and there were--yeas 99, nays 1, absent and not voting none, with the nays being as follows:
Nays: Schadler.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4141) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4374, Relating to manufactured housing construction and safety standards ; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 174), and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4374) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4530, Continuing the meat and poultry inspection program; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 175), and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4530) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4531, Continuing the public employees insurance agency finance board; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 176), and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4531) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4532, Continuing the state fire commission; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 177), and there were--yeas 100, nays none, absent and not voting none.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4532) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.


Second Reading

S. B. 524, Relating to council for community and technical college education and PROMISE scholarship board of control; on second reading, coming up in regular order, was read a second time and ordered to third reading.


Miscellaneous Business

Delegate Howard announced that he was absent on Friday, February 20, 2004 when the vote was taken on Roll No. 155, and that had he been present, he would have voted "Yea" thereon.
At 1:53 p.m., on motion of Delegate Staton, the House of Delegates adjourned until 11:00 a.m., Tuesday, February 25, 2004.