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Wednesday, January 21, 2004



The House of Delegates met at 11:00 a.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 Tuesday, January 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 given further consideration to:
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, by unanimous vote of the Committee, with the recommendation that it do pass, as amended.
The Clerk announced that, pursuant to House Rule 70a, Delegate Trump had requested H. B. 4032 be removed from the Consent Calendar and be placed upon the House Calendar.


Messages from the Executive


Mr. Speaker, Mr. Kiss, presented the annual report of the West Virginia Massage Therapy Licensure Board, in accordance with section twelve, 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 Division of Motor Vehicles, in accordance with the provisions of the code; which was filed in the Clerk's Office.

Mr. Speaker, Mr. Kiss, presented the 2002 SIDS annual report of the Department of Health and Human Resources, in accordance with section ten, article one, chapter sixteen of the code; which was filed in the Clerk's Office.

Mr. Speaker, Mr. Kiss, presented the Newborn Hearing Screening Project annual report of the Department of Health and Human Resources, in accordance with section one, article twenty-two- a, chapter sixteen of the code; which was filed in the Clerk's Office.

Mr. Speaker, Mr. Kiss, presented the annual report of the Joint Committee on Government and Finance, in accordance with the provisions of the code; which was filed in the Clerk's Office.


Resolutions Introduced


Delegates Sobonya and Howard offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. C. R. 6 - "Requesting the Division of Highways name the bridge located at Howell's Mill near Ona, WV, the 'Rimmer-White Bridge'."

Whereas, In 1850, Peter and "Lou" White settled along the right descending bank of the Mud River at the site of the new bridge. In 1911, Fielding and "Callie" Rimmer moved into a house on the other side of the river at the bridge site. Today, many Rimmer and White descendants live on both sides of the river near the new bridge; and

Whereas, The families and residents of this area desire that this bridge be officially recognized as the Rimmer-White Bridge in honor of their contributions to this community; therefore, be it

Resolved by the Legislature of West Virginia:

That the Legislature hereby names the bridge at Howell's Mill near Ona, WV, in Cabell County, 2 miles North from Route 60 on Howell's Mill Road Country Route 1 and crosses Mud River in West Virginia, the "Rimmer-White Bridge"; and, be it

Further Resolved, That the Clerk of the House is hereby directed to forward a copy of this concurrent resolution to the secretary of transportation, the commissioner of the division of highways and the West Virginia state historic preservation office and to the families of Ruth Rimmer Markin and "Buddy" White.

Delegate Yost offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. C. R. 7 - "Requesting the Governor to take suitable public notice on Saturday, April 24, 2004, and on the last Saturday of April of each succeeding year thereafter, of 'Local Firefighter Day,' in honor, recognition and appreciation of all local firefighters of West Virginia and their families."

Whereas, Local firefighters are first responders to calls for help in a wide variety of emergencies, ranging from floods, fires, snow storms, wrecks and hazardous materials spills, to lost children and beloved pets in need of rescue; and

Whereas, Local firefighters endure long hours of arduous work and training to serve the people of West Virginia; and

Whereas, Services offered by local firefighters are vital to the health, welfare and safety of all the state's citizens; and

Whereas, During emergencies in the state, firefighters suffer prolonged discomfort and frequently risk their lives to protect the lives and property of their fellow citizens; and

Whereas, The hardships, dangers and long hours away from home endured by local firefighters cause loving family members of firefighters to bear many sacrifices and hardships; therefore, be it

Resolved by the Legislature of West Virginia:

That the Governor is hereby requested to take suitable public notice on Saturday, April 24, 2004, and on the last Saturday of April of each succeeding year thereafter, of "Local Firefighters Day," in honor, recognition and appreciation of all West Virginia firefighters and their families; and, be it

Further Resolved: That the Clerk of the House of Delegates is directed to send copies of this resolution to appropriate members of the press, and to Gary Bonnett, President of the West Virginia State Fire Chief's Association, PO Box 7, Rock Cave, WV 26234.


Bills Introduced


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

By Delegate Beane:

H. B. 4085 - "A Bill to amend and reenact §18-10L-3 of the code of West Virginia, 1931, as amended, relating to clarifying certain statutory terms related to the Ron Yost Personal Assistance Services Act"; which was referred to the Committee on Government Organization.

By Delegate Beane:

H. B. 4086 - "A Bill to amend and reenact §9A-1-2 and §9A-1-3 of the code of West Virginia, 1931, as amended, all relating to including Gulf War and Afghanistan conflict veterans on the veterans' council"; which was referred to the Committee on Veterans Affairs and Homeland Security then Government Organization.

By Delegates Browning, Staton and Beane:

H. B. 4087 - "A Bill to amend and reenact §19-20-13 of the code of West Virginia, 1931, as amended; and to further amend said code by adding thereto a new section, designated §19-20-8b, all relating to authorizing county commissions to enact ordinances prohibiting cats from running at large and authorizing county dog wardens or others to seize and impound cats under authority of the ordinance; requiring the giving of notice to owners of impounded cats; and providing owners of cats who cause damage while running loose are liable for the damage"; which was referred to the Committee on Agriculture and Natural Resources then the Judiciary.

By Delegates Browning, G. White and Staton:

H. B. 4088 - "A Bill to amend and reenact §5-10-25 of the code of West Virginia, 1931, as amended, relating to public employees retirement system; and preventing reduction of disability pensions at age sixty-five"; which was referred to the Committee on Pensions and Retirement then Finance.

By Delegates Browning, G. White and Staton:

H. B. 4089 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5-10-22h, relating to providing a one-time supplement to certain public employee retirement system annuitants"; which was referred to the Committee on Pensions and Retirement then Finance.

By Delegates Browning, G. White and Staton:

H. B. 4090 - "A Bill to amend and reenact §5-10B-4 of the code of West Virginia, 1931, as amended, relating to contributions to government employees deferred plans"; which was referred to the Committee on Pensions and Retirement then Finance.

By Delegate Hall:

H. B. 4091 - "A Bill to amend and reenact §61-3-12 of the code of West Virginia, 1931, as amended, relating to the criminal offense of breaking and entering a building other than a dwelling house; expanding the criminal intent element to include the intent to commit any crime; and thereby removing the limited element of an intent to commit a felony or larceny"; which was referred to the Committee on the Judiciary.

By Delegates Iaquinta and Caputo:

H. B. 4092 - "A Bill to amend and reenact §33-30-6 of the code of West Virginia, 1931, as amended, relating to increasing the amount of mine subsidence insurance reinsured by the board of risk management"; which was referred to the Committee on Banking and Insurance then Finance.

By Delegates Sobonya, Canterbury, Hamilton, Howard, Foster, Brown and Sumner:

H. B. 4093 - "A Bill to amend and reenact §17A-3-14 of the code of West Virginia, 1931, as amended, relating to exempting certain recipients of military medals of valor from special registration plate fees"; which was referred to the Committee on Roads and Transportation then Finance.

By Delegates Sobonya, Howard and Crosier:

H. B. 4094 - "A Bill to amend and reenact §11-21-12 of the code of West Virginia, 1931, as amended, relating to providing a state income tax exemption to retired federal employees"; which was referred to the Committee on Finance.

By Delegates Sobonya, Sumner, Howard, Canterbury, Hamilton, Foster and Brown:

H. B. 4095 - "A Bill to amend and reenact §6B-2-5 of the code of West Virginia, 1931, as amended, relating to prohibiting elected or appointed public officials from using their names or likenesses under certain specific circumstances"; which was referred to the Committee on the Judiciary.

By Delegate Stalnaker:

H. B. 4096 - "A Bill to amend and reenact §19-20A-5 of the code of West Virginia, 1931, as amended, relating to vaccination of dogs and cats; increasing the veterinary fee for vaccinating dogs and cats for rabies from four dollars to eight dollars each"; which was referred to the Committee on Agriculture and Natural Resources then Finance.

By Delegates Staton, Amores, Kominar and Pino:

H. B. 4097 - "A Bill to amend and reenact §59-1-11 of the code of West Virginia, 1931, as amended, relating to clarifying those persons or entities responsible for paying certain fees assessed by the clerk of a circuit court for processing of criminal bonds and bailpiece"; which was referred to the Committee on the Judiciary.

By Delegates Sumner, Renner, Sobonya, Schoen and Duke:

H. B. 4098 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §4-13-1, relating to prohibiting the naming of a publicly funded building, road, structure or project for a living elected official by any governmental entity in this state and assessing personal liability for violations"; which was referred to the Committee on the Judiciary.

By Delegates Swartzmiller and Ennis:

H. B. 4099 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §17A-3-1b; and to amend and reenact §17B-2-3 of said code, all relating to the division of motor vehicles generally; requiring registered sex offenders to be issued special driver's licenses and motor vehicle registration plates that identify the holder or owner as a registered sex offender; and providing misdemeanor penalties for failure to comply with the special licensing requirements"; which was referred to the Committee on Roads and Transportation 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. 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.

On the passage of the bills, the yeas and nays were taken (Roll No. 4), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Fragale and Shelton.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bills (H. B. 4040 and H. B. 4045) 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

Com. Sub. for H. B. 3190, Relating to the titling and ownership of property for area vocational education programs; 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 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,
H. B. 4083, Continuing the veterans' council.


House Calendar

Third Reading

Com. Sub. for H. B. 2268, Teachers and substitute teachers as professional educators and addressing the critical need and shortage thereof; on third reading, coming up in regular order, was read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 7), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Fragale and Shelton.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2268) 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. 3052, Retitling the "Clerk of the Circuit Court" as the "Clerk of the Circuit and Family Court"; on third reading, coming up in regular order, was read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 8), and there were--yeas 94, nays 3, absent and not voting 3, with the nays and absent and not voting being as follows:

Nays: Ellem, Frich and R. Thompson.

Absent And Not Voting: Coleman, Fragale and Shelton.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3052) 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. 4039, Relating to the posting of positions for the employment of persons other than professional educators as coaches; on third reading, coming up in regular order, was read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 9), and there were--yeas 89, nays 8, absent and not voting 3, with the nays and absent and not voting being as follows:

Nays: Carmichael, Hamilton, Howard, Manuel, Poling, Sobonya, Sumner and Walters.

Absent And Not Voting: Coleman, Fragale and Shelton.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4039) 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. 166, Reducing allowable blood alcohol content for DUI; on second reading, coming up in regular order, was read a second time.

At the request of Delegate Staton, and by unanimous consent, the bill was advanced to third reading, and the rule was suspended to permit the offering and consideration of amendments on third 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 read a second time.

Delegate Amores moved to amend the bill on page two, following the enacting section, by striking out the remainder of the bill, and inserting in lieu thereof the following:
"ARTICLE 4. OFFENSES AND PENALTIES.
§60A-4-412. Manufacturing, distributing, dispensing or possessing controlled substance, marijuana or counterfeit substance within one thousand feet of park; evidence of property location and boundaries; posting of property; affirmative defenses.


(a) No person may manufacture, distribute, dispense, or possess with intent to distribute a controlled substance or marijuana or a counterfeit substance in, on, or within one thousand feet of any real property which has been dedicated and set apart by the governing authority of any municipality or county for use as a park, playground, recreation center or for any other recreation purposes, unless the manufacture, distribution or dispensing is otherwise allowed by law.

(b) Any person who violates or conspires to violate subsection (a) of this section is guilty of a felony and, upon conviction, shall receive the following punishment:

(1) Upon a first conviction, imprisonment for not more than ten years or a fine of not more than twenty thousand dollars, or both; or

(2) Upon a second or subsequent conviction, imprisonment for not less than five years nor more than twenty years or a fine of not more than forty thousand dollars, or both. The court shall impose a minimum sentence of five years which may not be suspended unless otherwise provided by law; and

(c) A sentence imposed under this section shall be served consecutively to any other sentence imposed.

(d) In a prosecution under this section, a map produced or reproduced by any municipal or county agency or department for the purpose of depicting the location and boundaries of the area on or within one thousand feet of real property set apart for use as a park, playground, recreation center or for any other recreational purposes, or a true copy of the map, shall, if certified as a true copy by the custodian of the record, be admissible and is prima facie evidence of the location and boundaries of the area, if the governing body of the municipality or county has approved the map as an official record of the location and boundaries of the area. A map approved under this section may be revised from time to time by the governing body of the municipality or county. The original of every map approved or revised under this subsection or a true copy of the original map shall be filed with the municipality or county and shall be maintained as an official record of the municipality or county. This subsection does not preclude the prosecution from introducing or relying upon any other evidence or testimony to establish any element of this offense. This subsection does not preclude the use or admissibility of a map or diagram other than the one which has been approved by the municipality or county.

(e) The governing authority of a municipality or county may adopt regulations requiring the posting of signs designating the areas within one thousand feet of any lands or buildings set apart for use as parks, playgrounds, recreation centers or any other recreation purposes as 'Drug-Free Recreation Zones'.

(f) It is an affirmative defense to prosecution for a violation of this section that the prohibited conduct was not carried on for purposes of financial gain. Nothing in this subsection establishes an affirmative defense with respect to any offense under this chapter other than the offense provided in subsection (a) of this section."

Delegate Trump moved to amend the amendment on page three, line ten, by striking out subsection (f) in its entirety.

On the adoption of the amendment to the amendment, Delegate Trump demanded the yeas and nays, which demand was sustained.

The yeas and nays having been ordered, they were taken (Roll No. 10), and there were--yeas 35, nays 62, absent and not voting 3, with the yeas and absent and not voting being as follows:

Yeas: Anderson, Armstead, Ashley, Azinger, Blair, Border, Browning, Calvert, Canterbury, Carmichael, Caruth, Duke, Evans, Faircloth, Frederick, Frich, Hall, Hamilton, Howard, Leggett, Louisos, Overington, Poling, Romine, Schadler, Smirl, Sobonya, Sumner, Susman, Tabb, Trump, Wakim, Walters, Webb and G. White.

Absent And Not Voting: Coleman, Fragale and Shelton.

So, a majority of the members present and voting not having voted in the affirmative, the amendment to the amendment was not adopted.

The question now being on the adoption of the amendment offered by Delegate Amores, the same was put and prevailed.

There being no further amendments, the bill was then ordered to engrossment and third reading.
Com. Sub. for H. B. 4004, Establishing an insurance fraud unit within the office of the insurance commissioner; on second reading, coming up in regular order, was read a second time.

At the request of Delegate Staton, and by unanimous consent, the bill was advanced to third reading with an amendment pending, and the rule was suspended to permit the offering and consideration of amendments on third reading.
Com. Sub. for H. B. 4022, Creating "The All-Terrain Vehicle Safety Regulation Act"; on second reading, coming up in regular order, was read a second time.

At the request of Delegate Staton, and by unanimous consent, the bill was advanced to third reading with amendments pending, and the rule was suspended to permit the offering and consideration of amendments on third reading.

At the request of Delegate Staton, and by unanimous consent, the following bills were advanced to third reading, and the rule was suspended to permit the offering and consideration of amendments on third reading:
Com. Sub. for H. B. 4043, Establishing the priority for early childhood education in the basic skills of reading, mathematics and English language arts,
Com. Sub. for H. B. 4072, Providing for a unified approach to the long-term planning and implementation of technology in the public schools,

And,
H. B. 4084, West Virginia Pharmaceutical Availability and Affordability Act.


First Reading

Com. Sub. for 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; on first reading, coming up in regular order, was read a first time and 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 and Shelton.

At 12:01 p.m., on motion of Delegate Staton, the House of Delegates adjourned until 11:00 a.m., Thursday, January 22, 2004.