__________*__________

Tuesday, January 20, 2004



The House of Delegates met at 4:00 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 Monday, January 19, 2004, being the first order of business, when the further reading thereof was dispensed with and the same approved.


Committee Reports


On motion for leave, a bill was introduced (Originating in the Committee on Government Organization and reported by unanimous vote of the Committee, with the recommendation that it do pass), which was read by its title, as follows:

By Delegates Beane, Ennis, Yeager, Tucker, Butcher, Azinger and Schoen:

H. B. 4083 - "A Bill to amend and reenact §9A-1-2a of the code of West Virginia, 1931, as amended, relating to continuation of the veterans' council."
Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (H. B. 4083) will be placed on the Consent Calendar.

Chairman Mezzatesta, from the Committee on Education, submitted the following report, which was received:

Your Committee on Education has had under consideration:

H. B. 4043, Establishing the priority for early childhood education in the basic skills of reading, mathematics and English language arts,

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

Com. Sub. for H. B. 4043 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18-2E-3f, relating to establishing the priority for early childhood education in the basic skills of reading, mathematics and English language arts; making certain findings; stating intent and purpose; limiting scope of statewide assessments in early childhood; and requiring state board rule,"

And,

H. B. 4072, Providing for a unified approach to the long-term planning and implementation of technology in the public schools,

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

Com. Sub. for H. B. 4072 - "A Bill to amend and reenact §18-2E-7 of the code of West Virginia, 1931, as amended, relating to education technology strategic plan; making certain findings; stating intent and purpose; requiring state board establish education technology strategic plan to address findings consistent with intent and purpose; providing minimum areas to be addressed in plan; providing for expenditure of appropriations consistent with plan; and eliminating categorical requirements specific to basic skills and remediation,"

With the recommendation that the committee substitutes each do pass, and with the recommendation that second reference of the bills to the Committee on Finance be dispensed with.

At the respective requests of Delegate Staton, and by unanimous consent, reference of the bills (Com. Sub. for H. B. 4043 and Com. Sub. for H. B. 4072) to the Committee on Finance was abrogated, and they were taken up for immediate consideration, read a first time and ordered to second reading.

The Clerk announced that, pursuant to House Rule 70a, Mr. Speaker, Mr. Kiss, had requested Com. Sub. for H. B. 4043 and Com. Sub. for H. B. 4072 be removed from the Consent Calendar and be placed upon the House Calendar.

On motion for leave, a bill was introduced (Originating in the Committee on Finance and reported by unanimous vote of the Committee, with the recommendation that it do pass), which was read by its title, as follows:

By Delegates Michael, Mezzatesta, Leach, Warner, Foster, Varner and Stalnaker:

H. B. 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, §A-3C-10, §5A-3C-11, §5A-3C-12 and §5A-3C-13, all relating to the creation of a pharmaceutical program for the state, creation of a West Virginia pharmaceutical commission; establishing members, responsibilities, pricing parameters for pharmaceuticals, waiver procedures, state responsibilities, pharmaceutical reporting requirements, civil and criminal penalties, savings uses, rule making authority and sunset provisions."

At the respective requests of Delegate Staton, and by unanimous consent, the bill (H. B. 4084) was taken up for immediate consideration, read a first time and then ordered to second reading.

The Clerk announced that, pursuant to House Rule 70a, Delegate Michael had requested H. B. 4084 be removed from the Consent Calendar and be placed upon the House 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. 2755, Creating a criminal penalty for persons receiving stolen property that was obtained by means other than through the commission of a theft,

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

Com. Sub. for H. B. 2755 - "A Bill to amend and reenact §61-3-18 of the code of West Virginia, 1931, as amended, relating to creating a criminal penalty for persons receiving stolen property that was obtained by means other than through the commission of a larceny,"

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. 2801, Requiring the ethics commission to furnish copies of all advisory opinions issued by the commission to the West Virginia Legislature and the supreme court law library,

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

Com. Sub. for H. B. 2801 - "A Bill to amend and reenact §6B-2-3 and §6B-2-5 of the code of West Virginia, 1931, as amended, clarifying the law relating to the solicitation of donations by a member of the legislature, and requiring the ethics commission to furnish copies of advisory opinions to the legislature and the supreme court of appeals,"

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. 2801) will be placed on the Consent Calendar.

Chairman Beane, from the Committee on Government Organization, submitted the following report, which was received:

Your Committee on Government Organization has had under consideration:

H. B. 4022, Creating "The All-Terrain Vehicle Safety Regulation Act",

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

Com. Sub. for H. B. 4022 - "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-1-4, §17F-1-5 and §17F-1-6, all relating to the regulation of all-terrain vehicles; prohibiting operation on center-lined roads or roads with more than two lanes; exceptions to prohibition; prohibiting riders under the age of eighteen without a helmet; providing for penalties for violations; requiring safety training; providing for regulation by local government authority; requiring rental dealers to provide safety equipment; providing exemption for private property; and providing exemption for farm and commercial use,"

With the recommendation that the committee substitute do pass.

At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub. for H. B. 4022) was taken up for immediate consideration, read a first time and then ordered to second reading.
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. 4032, Reducing the allowable blood alcohol content for DUI from .10 to .08 of one percent of body weight,

And reports the same back, with amendment, without recommendation as to its passage.

At the respective requests of Delegate Staton, and by unanimous consent, the bill (H. B. 4032) was taken up for immediate consideration, read a first time, ordered to second reading and then, on motion of Delegate Staton, recommitted to the Committee on the Judiciary.


Messages from the Executive


Mr. Speaker, Mr. Kiss, presented the annual report of the West Virginia Division of Natural Resources, in accordance with section seven, article one, chapter twenty of the code; which was filed in the Clerk's Office.

Mr. Speaker, Mr. Kiss, presented the annual report of the West Virginia Board of Optometry, in accordance with section three, article eight, chapter thirty of the code; which was filed in the Clerk's Office.

Mr. Speaker, Mr. Kiss, presented the annual report of the West Virginia Real Estate Commission, in accordance with article forty, chapter thirty of the code; which was filed in the Clerk's Office.

Mr. Speaker, Mr. Kiss, presented the annual report of the West Virginia Board of Examiners of Psychologists, in accordance with section twelve-b, article one, chapter thirty of the code; which was filed in the Clerk's Office.

Mr. Speaker, Mr. Kiss, presented the annual report of the West Virginia Board of Osteopathy, in accordance with section one, article fourteen-a, chapter thirty of the code; which was filed in the Clerk's Office.


Messages from the Senate


A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:

S. C. R. 6 - "Requesting the United States Congress provide funding for the development of a double-stack-compatible rail route through West Virginia in order to improve West Virginia's access to affordable rail and truck transportation."

Whereas, Efficient and affordable intermodal transportation has emerged as an essential element in international trade. The absence of rail and truck intermodal capacity severely restricts any region's ability to access global markets; and

Whereas, For most of West Virginia, exiting intermodal routes are too distant to provide a competitive alternative for the state's producers. As a consequence, most West Virginia commerce is isolated from burgeoning international opportunities; and

Whereas, West Virginia has invited its two Class I railroads, CSX Transportation and Norfolk Southern Corporation, to explore remedies that would improve West Virginia's access to affordable rail and truck intermodal transportation; and

Whereas, The most efficient land-side form of international container movement involves stacking containers two-high on railroad cars. This specific form of intermodel transportation is known as "double-stacking"; and

Whereas, Currently there are no rail routes in West Virginia capable of accommodating double-stacked containers, so that double-stack services cannot be offered to most of the state's producers, and has an adverse effect on out-of-state producers to travel to other states; and

Whereas, Providing adequate clearances for double-stack movement in West Virginia would require that tunnels and other track structures be modified; and

Whereas, Clearing a West Virginia routing for the movement of double-stacked containers would provide significant benefits to the residents of West Virginia and adjoining states and to the participating rail carriers and the businesses who use them. Providing the routing for the movement of such containers should be pursued by a partnership that includes both public and private entities; and

Whereas, Funding for implementing doubled-stacked rail carriers in West Virginia is important to advanced infrastructure improvements; therefore, be it

Resolved by the Legislature of West Virginia:

That the Legislature hereby requests the United States Congress provide funding for the development of a double-stack-compatible rail route through West Virginia in order to improve West Virginia's access to affordable rail and truck transportation; and, be it

Further Resolved, That the United States Congress should consider that the implementation of this type of intermodal transportation would not only greatly benefit the citizens of West Virginia, but would also have a multistate effect on business and industry and economic development; and, be it

Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to West Virginia's congressional delegation.


Resolutions Introduced


Mr. Speaker, Mr. Kiss, and Delegate Staton offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. R. 3 - "Amending House Rule 70a, relating to the Consent Calendar and specifying that no bill may be removed therefrom on third reading."
Resolved by the House of Delegates:

That Rule 70a of the rules of the House of Delegates be amended to read as follows:
Consent Calendar
70a. The Committee on Rules may direct that bills of either house be divided on the Calendar between the designations "Consent Calendar", "Special Calendar" and "House Calendar" and be considered in such order after the Eighth Order of Business or the Local Bill Calendar shall have been acted upon. When such a division is directed for bills on the Calendar, the Consent Calendar shall not include any bill (a) which received a dissenting vote in committee; (b) to which objection is made by any member; or (c) to which any amendment is offered other than amendments recommended by committee or an amendment or amendments of a purely technical nature, provided that such bill with proposed committee amendments shall have been reported from committee without a dissenting vote. To assist in preparation of the Consent Calendar, the Clerk shall be notified in writing, to be included on the committee report, that such bills have received the unanimous recommendation of the committee from which they are being reported. Any bill on first or second reading shall be removed from the Consent Calendar and be placed on the same reading on the House Calendar at the request of any member, such request to be made in writing and presented during a session of the House, or upon written request of the Chair of the committee reporting the bill or bills, such request by the Chair to be indicated on the report of the committee. Any written requests to remove items from the Consent Calendar filed in accordance with the provisions of this rule shall be announced by the Clerk at such time or times during a session of the House as shall be directed by the Speaker. Once removed, such bill shall not again be placed on the Consent Calendar. All bills appearing on the Consent Calendar shall be voted upon en bloc, to be decided without debate, and in no event shall a Joint Resolution proposing an amendment to the Constitution of the State be placed upon the Consent Calendar, nor may any bill on third reading of the Consent Calendar be removed therefrom.
Petitions


Delegate Boggs presented a petition, signed by one hundred ninety-four residents of Braxton County, submitted to the Sugar Creek Public Service District and the Braxton County Commission for a waterline extension; which was referred to the Committee on Political Subdivisions.


Bills Introduced


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

By Delegates Border, Perdue, Ashley, Campbell, Staton, Browning and Michael:

H. B. 4076 - "A Bill to amend and reenact §9-2-9 of the code of West Virginia, 1931, as amended, relating to responsibilities of the secretary of the department of health and human resources; and requiring that the secretary consider a method to obtain medicaid reimbursement to retail pharmacies for the cost of certain prescriptions that are prescribed in a dosage that is less than the smallest available package and there is a reasonable expectation that the remaining portion of the broken package cannot be sold"; to the Committee on Health and Human Resources then Finance.

By Delegates Campbell and Canterbury:

H. B. 4077 - "A Bill to amend and reenact §21A-6-3 of the code of West Virginia, 1931, as amended, relating to unemployment compensation generally and eliminating reductions in unemployment compensation for persons receiving benefits under Title II of the social security act"; to the Committee on Finance.

By Delegates Caputo, Frederick, Yeager and Romine:

H. B. 4078 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new chapter, designated §44C-1-101, §44C-1-102, §44C-1-103, §44C-1-104, §44C-1-105, §44C-1-106, §44C-1-107, §44C-1-108, §44C-1-109, §44C-1-110, §44C-1-111, §44C-1-112, §44C- 2-201, §44C-2-202, §44C-2-203, §44C-2-204, §44C-3-301, §44C-3-302, §44C-3-304, §44C-3-305, §44C-4-401, §44C-4-402, §44C-4-403, §44C-4-404, §44C-4-405, §44C-4-406, §44C-4-407, §44C- 4-408, §44C-4-409, §44-4-410, §44C-4-411, §44C-4-412, §44C-4-413, §44C-4-414, §44C-4-415, §44C-4-416, §44C-4-417, §44C-5-501, §44C-5-502, §44C-5-503, §44C-5-504, §44C-5-505, §44C-5-506, §44C-5-507, §44C-6-601, §44C-6-602, §44C-6-603, §44C-6-604, §44C-7-701, §44C- 7-702, §44C-7-703, §44C-7-704, §44C-7-705, §44C-7-706, §44C-7-707, §44C-7-708, §44C-7-709, §44C-8-801, §44C-8-802, §44C-8-803, §44C-8-804, §44C-8-805, §44C-8-806, §44C-8-807, §44C- 8-808, §44C-8-809, §44C-8-810, §44C-8-811, §44C-8-812, §44C-8-813- §44C-8-814, §44C-8-815, §44C-8-816, §44C-8-817, §44C-9-901, §44C-10-1001, §44C-10-1002, §44C-10-1003, §44C-10- 1004, §44C-10-1005, §44C-10-1006, §44C-10-1007, §44C-10-1008, §44C-10-1009, §44C-10-1010, §44C-10-1011, §44C-10-1012, §44C-10-1013, §44C-11-1101, §44C-11-1102, §44C-11-1103, §44C- 11-1104, §44C-11-1105 and §44C-11-1106, all relating to the uniform trust code"; to the Committee on the Judiciary.

By Delegates Fleischauer, Amores and Webster:

H. B. 4079 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §60A-4A-1, §60A-4A-2, §60A-4A-3, §60A-4A-4, §60A-4A-5 and §60A-4A-6, all relating to drug treatment instead of incarceration"; to the Committee on the Judiciary then Finance.

By Delegates Hatfield and Perdue:

H. B. 4080 - "A Bill to amend and reenact §16-4D-4 of the code of West Virginia, 1931, as amended, relating to disburdening any citizen who uses an automated external defibrillator on an individual experiencing sudden cardiac arrest of any civil or criminal liability created under this article; and likewise disburdening any public entity that purchases, installs and maintains an automated external defibrillator"; to the Committee on Health and Human Resources then the Judiciary.

By Delegates Mezzatesta, Shaver, Swartzmiller, Wright, Kuhn, Perry and Long:

H. B. 4081 - "A Bill to amend and reenact §18-4-1 of the code of West Virginia, 1931, as amended, relating to requiring a thirty-day posting of a position as superintendent, excepting when the appointment is a temporary one or constitutes the reappointment of a superintendent whose term has expired"; to the Committee on Education.

By Delegate Yost:

H. B. 4082 - "A Bill to amend and reenact §61-3B-1 of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to defining curtilage as it relates to trespass"; to the Committee on the Judiciary.


Consent Calendar

Second Reading

Com. Sub. for H. B. 2088, Prohibiting the manufacture, distribution or possession of certain controlled or counterfeit substances near a park or housing project; on second reading, coming up in regular order, was reported by the Clerk.

The Clerk announced that, pursuant to House Rule 70a, Delegates Amores and Frich had requested Com. Sub. for H. B. 2088 be removed from the Consent Calendar and be placed upon the House Calendar.

The following bills on second reading, coming up in regular order, were each read a second time and ordered to engrossment and third reading:

H. B. 4040
, Relating to criteria for making decisions affecting the filling of vacancies if one or more permanently employed instructional personnel apply for a classroom teaching position,

And,
H. B. 4045, Requiring submission of evidence to state superintendent that county superintendent has given required bond and good security.


First Reading

Com. Sub. for H. B. 3190, Relating to the titling and ownership of property for area vocational education programs; on first reading, coming up in regular order, was read a first time and ordered to second reading.


House Calendar

Second Reading

The following bills on second reading, coming up in regular order, were each read a second time and ordered to engrossment and third reading:
Com. Sub. for H. B. 2268, Teachers and substitute teachers as professional educators and addressing the critical need and shortage thereof,
Com. Sub. for H. B. 3052, Retitling the "Clerk of the Circuit Court" as the "Clerk of the Circuit and Family Court",

And,
H. B. 4039, Relating to the posting of positions for the employment of persons other than professional educators as coaches.


First Reading

S. B. 166, Reducing allowable blood alcohol content for DUI; on first reading, coming up in regular order, was read a first time.

Delegate Trump moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.

On this question, the yeas and nays were taken (Roll No. 3), and there were--yeas 40, nays 56, absent and not voting 4, with the yeas and absent and not voting being as follows:

Yeas: Anderson, Armstead, Ashley, Azinger, Blair, Border, Calvert, Cann, Canterbury, Carmichael, Caruth, Duke, Ellem, Evans, Faircloth, Foster, Frederick, Frich, Hall, Hamilton, Houston, Howard, Iaquinta, Leggett, Louisos, Manuel, Overington, Romine, Schadler, Schoen, Smirl, Sobonya, Stemple, Sumner, Tabb, Trump, Walters, Webb, G. White and Yeager.

Absent And Not Voting: Coleman, Fragale, Shelton and Wakim.

So, four fifths of the members present and voting not having voted in the affirmative, the constitutional rule was not dispensed with.
**The bill was then advanced to second reading.

At the request of Delegate Staton, and by unanimous consent, the House of Delegates returned to the Third Order of Business for the purpose of receiving committee reports.


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. 4004, Establishing an insurance fraud unit within the office of the insurance commissioner,

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

Com. Sub. for H. B. 4004 - "A Bill to repeal §33-2-18 of the code of West Virginia, 1931, as amended; to amend and reenact §33-2-17 of said code; to amend said code by adding thereto a new article, designated §33-2A-1, §33-2A-2, §33-2A-3, §33-2A-4, §33-2A-5, §33-2A-6, and §33- 2A-7; to amend said code by adding thereto a new section, designated §33-6-31g, to amend and reenact §33-6A-4, of said code; 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; to amend said code by adding thereto eleven 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, §33-41-12, §33-41-13 and §33-41-14; and to amend and reenact §55-7-13 of said code, all relating to indemnification for losses generally; deleting language dealing with funding of the office of consumer advocacy; striking language limiting the authority of the office of consumer advocacy to health related matters; authorizing the office of consumer advocacy to coordinate the consumer service functions within the office of the insurance commissioner prohibiting the use of credit scoring to determine scoring of certain premiums; creating a legislative oversight commission on insurance; adding additional instances when an insurers may elect to nonrenew automobile insurance policies due to at-fault accidents; restricting the amount of time in which an insured may apply for renewal beyond the original expiration date of the policy; and allowing insurance companies to impose a processing fee upon insurers who renew a policy within thirty days beyond the original expiration date of the policy; creating an insurance fraud unit within the insurance commission; regulating insurance fraud; subjecting farmers' mutual insurance companies, fraternal benefit societies, certain hospital, medical, dental and health services corporations, health care corporations, and health maintenance organization; defining terms; establishing an insurance fraud unit within the division of insurance; authorizing the promulgation of rules and requiring the filing of annual reports; establishing powers and duties of the unit; outlining investigative powers and procedures; providing confidentiality and immunity of the unit operations; prohibiting insurance fraud; establishing criminal penalties and fines; authorizing prosecution for fraudulent acts; authorizing special prosecutors; specifying duties of insurers; authorizing funding by an assessment of insurers; establishing the West Virginia insurance fraud prevention act; defining legislative intent and terms; creating misdemeanor and felony offenses for the commission of fraudulent acts; creating penalties, exceptions and immunities; and modifying joint and several liability by specifying that there is only joint liability if the liability of a defendant exceeds ten percent,"
With the recommendation that the committee substitute do pass.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub for H. B. 4004) was taken up for immediate consideration, read a first time and then ordered to second reading.


Leaves of Absence

At the request of Delegate Staton, and by unanimous consent, leaves of absence for the day were granted Delegates Coleman, Fragale, Shelton and Wakim.
At 5:10 p.m., on motion of Delegate Staton, the House of Delegates adjourned until 11:00 a.m., Wednesday, January 21, 2004.