__________*__________

Thursday, January 29, 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 Wednesday, January 28, 2004, being the first order of business, when the further reading thereof was dispensed with and the same approved.
Delegate Staton asked and obtained unanimous consent that his prayer of January 28, 2004, be printed in the Appendix to the Journal.


Committee Reports


Chairman Proudfoot, from the Committee on Political Subdivisions, submitted the following report, which was received:

Your Committee on Political Subdivisions has had under consideration:

H. B. 4115, Authorizing civilian process servers employed by a county sheriff to carry deadly weapons,

And reports the same back, with amendment, with the recommendation that it do pass, as amended, but that it first be referred to the Committee on the Judiciary.

In accordance with the former direction of the Speaker, the bill (H. B. 4115) was referred to the Committee on the Judiciary.

Chairman Ennis, from the Committee on Veterans Affairs and Homeland Security, submitted the following report, which was received:

Your Committee on Veterans Affairs and Homeland Security has had under consideration:

H. B. 3049, Waiving the requirement that a training course in handling and firing handguns must be completed prior to the issuance of a concealed weapons permit for veterans who served during a period of armed conflict,

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 Judiciary.

In accordance with the former direction of the Speaker, the bill (H. B. 3049) was referred to the Committee on the Judiciary.

Chairman Ennis, from the Committee on Veterans Affairs and Homeland Security, submitted the following report, which was received:

Your Committee on Veterans Affairs and Homeland Security has had under consideration:

H. B. 4086, Including Gulf War and Afghanistan conflict veterans on the veterans' council,

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 Government Organization.

In accordance with the former direction of the Speaker, the bill (H. B. 4086) was referred to the Committee on Government Organization.

Chairman H. White, from the Committee on Banking and Insurance, submitted the following report, which was received:

Your Committee on Banking and Insurance has had under consideration:

H. B. 2914, Relating to the rehabilitation and liquidation of insurers subject to the regulatory authority of the West Virginia insurance commissioner,

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 the Judiciary.

In accordance with the former direction of the Speaker, the bill (H. B. 2914) was referred to the Committee on the Judiciary.

Chairman Perdue, from the Committee on Health and Human Resources, submitted the following report, which was received:

Your Committee on Health and Human Resources 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 the same back, with amendment, with the recommendation that it do pass, as amended, but that it first be referred to the Committee on the Judiciary.

In accordance with the former direction of the Speaker, the bill (H. B. 4117) was referred to the Committee on the Judiciary.

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

Your Committee on Education has had under consideration:

H. B. 4130, Providing for the employment of a highly qualified and fully certified substitute teacher to perform the duties of a teacher who is in attendance of a meeting or professional development function held by or at the direction of the department of education,

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

Com. Sub. for H. B. 4130 - "A Bill to amend and reenact §18-5-4 of the code of West Virginia, 1931, as amended, relating to condition precedent to required attendance by teachers at meetings or professional development functions held by or at direction of state department of education,"

With the recommendation that the committee substitute do pass, but that it first be referred to the Committee on Finance.

In accordance with the former direction of the Speaker, the bill (Com. Sub. for H. B. 4130) was referred to the Committee on Finance.

Chairman Cann, from the Committee on Industry and Labor, Economic Development and Small Business, submitted the following report, which was received:

Your Committee on Industry and Labor, Economic Development and Small Business has had under consideration:

H. B. 4131, Requiring certain reporting to the legislative oversight commission on workforce investment for economic development,


And reports the same back, by unanimous vote of the Committee, with the recommendation that it do pass, and with the recommendation that second reference of the bill to the Committee on Finance be dispensed with.

In the absence of objection, reference of the bill (H. B. 4131) to the Committee on Finance was abrogated.

Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (H. B. 4131) will be placed on the Consent Calendar.

Chairman Cann, from the Committee on Industry and Labor, Economic Development and Small Business, submitted the following report, which was received:

Your Committee on Industry and Labor, Economic Development and Small Business has had under consideration:

H. B. 4132, Relating to the West Virginia guaranteed work force program,

And reports the same back, by unanimous vote of the Committee, with a title amendment, with the recommendation that it do pass, as amended, and with the recommendation that second reference of the bill to the Committee on Finance be dispensed with.

In the absence of objection, reference of the bill (H. B. 4132) to the Committee on Finance was abrogated.

Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (H. B. 4132) will be placed on the Consent Calendar.

Delegate Spencer, from the Joint Committee on Enrolled Bills, submitted the following report, which was received:

Your Joint Committee on Enrolled Bills has examined, found truly enrolled, and on the 28th day of January, 2004, presented to His Excellency, the Governor, for his action, the following bill, signed by the President of the Senate and the Speaker of the House of Delegates:

(S. B. 190), Relating to filing fee for certain United States candidates.


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. 10, Honoring the late A. James Manchin by declaring that Route 250 in Marion County, currently known as "The Husky Highway", shall continue to exist in honor of A. James Manchin.

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. 50 - "A Bill to amend and reenact §17-24-7 of the code of West Virginia, 1931, as amended, relating to providing a limitation of liability for remediation costs for certain owners of real property where waste tires existed when the owners were not responsible for the accumulation of the waste tires on the property; authorizing the division of highways to recover from prior owners of the property in certain circumstances; and requiring notice of the existence of illegal waste tire piles to be filed by the county clerk"; which was referred to the Committee on the Judiciary.

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had agreed to the appointment of a Committee of Conference of five from each house on the disagreeing votes of the two houses as to

S. B. 166, Reducing allowable blood alcohol content for DUI.

The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:

Senators Kessler, Ross, Hunter, Minard and McKenzie.

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. 11 - "Requesting the Division of Highways officially name the bridge crossing the Ohio River on U. S. Route 35 near Point Pleasant, Mason County, 'The Silver Memorial Bridge' in honor of the 46 men and women who tragically lost their lives when the former Silver Bridge suddenly collapsed."

Whereas, On December 15, 1967, at approximately 5:00 p.m., the Silver Bridge collapsed with 64 people in 31 vehicles on the Bridge at the time. The tragedy affected not only the communities of Point Pleasant, West Virginia, and Gallipolis, Ohio, but also the nation; and

Whereas, President Lyndon B. Johnson immediately established a task force to begin an intensive study of the Bridge's collapse. On February 7, 1968, President Johnson ordered a federal- state program for immediate reconstruction of the Bridge; and

Whereas, The members of the seventy-sixth Legislature of West Virginia would like to honor the lives of Kathy Byus and Maxine Turner, whose bodies were never recovered from the Ohio River; and the lives of Albert Adler, Jr., Julius Bennett, Leo Blackman, Kristye Boggs, Margaret Boggs, Hilda Byus, Kimberly Byus, Melvin Cantrell, Thomas Cantrell, Donna Casey, Cecil Counts, Horace Cremeans, Harold Cundiff, Alonzo Darst, Aimme Duff, James Hawkins, Bobby Head, Forrest Higley, Alva Lane, Thomas Lee, G. H. Mabe, Darlene Mayes, Gerald McMannus, James Maxwell, James Meadows, Timothy Meadows, Frederick Miller, Ronnie Moore, Darlus Nibert, Nora Nibert, James Pullen, Leo Sanders, Ronald Sims, Charles Smith, Oma Smith, Maxine Sturgeon, Denzil Taylor, Glenna Taylor, Robert Towe, Victor Turner, Marvin Wamsley, Lillian Wedge, Paul Wedge and James White, whose bodies were recovered from the River; therefore, be it

Resolved by the Legislature of West Virginia:

That the Legislature hereby requests the Division of Highways officially name the bridge crossing the Ohio River on U. S. Route 35 near Point Pleasant, Mason County, "The Silver Memorial Bridge" in honor of the 46 men and women who tragically lost their lives when the former Silver Bridge suddenly collapsed; and, be it

Further Resolved, That the Division of Highways cause an appropriate sign to be placed at both ends of the bridge which designates the bridge as "The Silver Memorial Bridge"; and, be it

Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Secretary of the Department of Transportation.


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 Beane:

H. B. 4158 - "A Bill to amend and reenact §5A-3-36 of the code of West Virginia, 1931, as amended, relating to providing a procedure for removing property from the state's inventory of removable property"; to the Committee on Government Organization.

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

H. B. 4159 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §6C-2-1, §6C-2-2, §6C-2-3, §6C-2-4, §6C-2-5, §6C-2-6 and §6C-2-7; and to amend and reenact §15-2C-1 and §15-2C-4 of said code, all relating to requiring state employing units to conduct background checks on prospective employees, employees considered for promotions or transfers and individuals seeking to provide services through personal service contracts"; to the Committee on Government Organization then Finance.

By Delegate Beane:

H. B. 4160 - "A Bill to amend and reenact §9-6-9 of the code of West Virginia, 1931, as amended, relating to investigating and interviewing alleged adult victims of abuse or neglect"; to the Committee on the Judiciary.

By Delegates Doyle and Manuel:

H. B. 4161 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §7-1-3oo, relating to requiring county commission approval in certain circumstances of the construction or expansion of a water or sewage utility in the county before the construction or expansion may be authorized by the public service commission; providing definitions; and inapplicability of provisions to construction or expansion in municipalities"; to the Committee on Political Subdivisions then the Judiciary.

By Delegates Fleischauer, Foster, Warner, Kominar, Hatfield, Perdue and Susman:

H. B. 4162 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated section §17-2A-24, relating to the commissioner of highways generally; providing for the establishment and administration of a safe routes to school program; and setting forth certain priorities"; to the Committee on Education then Finance.

By Delegates Fleischauer, Houston, Susman, Brown, Caputo, Yost and Morgan:

H. B. 4163 - "A Bill to amend and reenact §8-12-5 of the code of West Virginia, 1931, as amended, relating to providing solid waste collection service in territory annexed by a municipality; and providing that an existing certified solid waste motor carrier may continue to operate in the annexed territory, but that a customer in the annexed territory may choose to have garbage collection service provided by the municipality"; to the Committee on Political Subdivisions then the Judiciary.

By Delegates Hamilton, Sobonya, Wakim, Ennis, Iaquinta, Azinger and Browning:

H. B. 4164 - "A Bill to amend and reenact §11-5-1 of the code of West Virginia, 1931, as amended, relating to exempting one motor vehicle owned by a resident of this state on active duty in the United States military from ad valorem taxes for any taxable year the person is in the military"; to the Committee on Finance.

By Delegates Palumbo, Foster, Amores, Houston, Craig and Fleischauer:

H. B. 4165 - "A Bill to amend and reenact §17C-15-49 of the code of West Virginia, 1931, as amended, relating to making the offense of failure to wear safety belts a primary offense"; to the Committee on the Judiciary.

By Delegates Palumbo, Staton, Kominar, Amores, Craig and Webster:

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 in deeds for easements and rights-of- way for mineral leases"; to the Committee on the Judiciary.

By Delegates Stemple, Beach, Coleman, Swartzmiller, Williams, Yeager and Anderson:

H. B. 4167 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article designated §19-9B-1, §19-9B-2, §19-9B-3, §19-9B-4, §19-9B-5, §19-9B-6, §19-9B-7, §19-9B-8, §19-9B-9, §19-9B-10, §19-9B-11, §19-9B-12, §19-9B-13, §19-9B-14, §19-9B- 15, §19-9B-16, §19-9B-17, §19-9B-18, §19-9B-19, §19-9B-20, §19-9B-21, §19-9B-22 and §19-9B- 23, all relating to regulating the possession and sale of domestic and exotic animals; creating exotic animal control board and technical advisory committee; duties; rule-making; jurisdiction of member agencies; bonding requirements; requiring pet shop registration; requiring record keeping; requiring possession permit to keep certain animals; permitting requirements; exemptions; establishing care and treatment requirements; requiring insurance; authorizing inspections; seizing and quarantining animals; and establishing penalties and fees"; to the Committee on Agriculture and Natural Resources then Government Organization.

By Delegates R. M. Thompson, Perry, Frich, Iaquinta, G. White and Hrutkay:

H. B. 4168 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §46A-6K-1, §46A-6K-2, §46A-6K-3, §46A-6K-4, §46A-6K-5 and §46A-6K-6, all relating to having funds available for settlement of a real estate mortgage transaction; defining applicability of the law; providing definition of terms used; providing for duty of lender and settlement agent in a loan settlement; maintaining validity of loan documents; and providing a penalty for violations of the article"; to the Committee on Banking and Insurance then the Judiciary.

By Delegate Yost:

H. B. 4169 - "A Bill to amend and reenact §50-5-7 of the code of West Virginia, 1931, as amended, relating to limiting the right to a jury trial in misdemeanor criminal cases in magistrate court when the misdemeanor is also charged with a felony offense; and providing for a preliminary hearing on both the misdemeanor and felony offenses"; to the Committee on 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. 4055, Creating a compact between states for the protection and return of juvenile offenders, runaways and other juveniles,

And,
H. B. 4108, Authorizing sun screening devices that exceed statutory limits to be used in law-enforcement K-9 and other emergency vehicles that haul animals.

On the passage of the bills, the yeas and nays were taken (Roll No. 53), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:

Absent And Not Voting: Ashley, Coleman, Perdue, Shelton and Webster.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bills (H. B. 4055 and H. B. 4108) 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.

Delegate Webster noted to the Clerk that she was absent when the vote was taken on Roll No. 53, and that had she been present, she would have voted "Yea" thereon.


Second Reading

H. B. 4097, Clarifying those persons or entities responsible for paying certain fees assessed by the clerk of the circuit court for processing of criminal bonds and bailpiece; 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. 4101, Creating an affirmative defense for certain civil and criminal actions arising from the sale of certain alcoholic drinks and nonintoxicating beer by licensed private clubs to persons under the age of twenty-one whose age is verified by use of scanner technology
Com. Sub. for H. B. 4104, Creating the felony crime of scanning device or reencoder fraud,

And,
H. B. 4157, Continuing the rural health advisory panel.


House Calendar

Second Reading

H. B. 4017, Prohibiting retailer licensees use of gambling names and symbols in advertising, signage and directions to retail establishments offering limited video lottery games; on second reading, coming up in regular order, was read a second time.

Delegate Carmichael moved to amend the bill on page three, section seven hundred two, line twenty-four, following the word "commission", by inserting the words "and are a minimum of 5,000 feet from any public or private school, church, synagogue, mosque, or other site of worship".

Delegate Staton arose to a point of order as to the germaneness of the amendment.

The Speaker stated that the fundamental purpose of the bill was to restrict signage and the fundamental purpose of the amendment was to restrict the location of video lottery businesses, and ruled the fundamental purpose of the amendment was not germane to the fundamental purpose of the bill.

Delegates Trump and Armstead moved to amend the bill on page five, section seven hundred two, following line seventy, by adding thereto a new subsection, designated subsection (20), as follows:

"(20)
Prohibit all persons from playing video lottery games after July 1, 2004."


Debate transpired on the impending amendment, and Delegate Hrutkay arose to a point of order as to the germaneness of the amendment.

The Speaker again stated that the fundamental purpose of the bill was to restrict signage and the fundamental purpose of the amendment was to cease operation of video lottery machines in 2004, and ruled the fundamental purpose of the amendment was not germane to the fundamental purpose of the bill.

Delegates Trump and Armstead then moved to amend the bill on page five, section seven hundred two, after line seventy, by inserting the following:

"Notwithstanding any provision of this article to the contrary, the limited video lottery retailer's license of any limited video lottery retailer licensee who violates any provision of this section shall be revoked by the commission."

The Speaker put the question on the foregoing amendment, which did not prevail.

Delegates Trump and Armstead moved to amend the bill on page four, section seven hundred two, after line fifty-five, by inserting the following:

"Notwithstanding any provision of this article to the contrary, the limited video lottery retailer's license of any limited video lottery retailer licensee who violates the provisions of this subdivision shall be revoked by the commission."

On the adoption of 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. 56), and there were--yeas 31, nays 65, absent and not voting 4, with the yeas and absent and not voting being as follows:

Yeas: Anderson, Armstead, Ashley, Azinger, Blair, Border, Calvert, Canterbury, Carmichael, Caruth, Duke, Ellem, Evans, Faircloth, Frederick, Frich, Hall, Hamilton, Howard, Leggett, Louisos, Overington, Romine, Schadler, Schoen, Smirl, Sobonya, Sumner, Trump, Walters and Webb.

Absent And Not Voting: Coleman, Perdue, Shelton and Webster.
So, a majority of the members present and voting not having voted in the affirmative, the amendment was not adopted.

Delegate Webster noted to the Clerk that she was absent when the vote was taken on Roll No. 56, and that had she been present, she would have voted "Nay" thereon.

Delegate Wakim moved to amend the bill on page four, section seven hundred two, line fifty-five, after the word "location", by striking out the period and inserting in lieu thereof the following proviso: "Provided, That the prohibition of the use of a word or wording or symbol commonly associated with gambling shall not apply to any signs, displays directions or advertising which were erected or displayed by a licensee or were part of the name of a licencee prior to the first day of July, two thousand one."

Debate ensued on the pending amendment, and Delegate Wakim then asked and obtained unanimous consent that the amendment be withdrawn.

The Clerk then reported an amendment offered by Delegates Michael and Amores, on page one, after the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:

"That the code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §29-22B-702a, to read as follows:
ARTICLE 22B. LIMITED VIDEO LOTTERY.
§29-22B-702a. Limitations on signage and other advertising; legislative rule.

(a) A limited video lottery retailer shall not display a name for the retailer's establishment on the exterior of the establishment unless the name has been approved, in writing, by the lottery commission.
(b) A limited video lottery retailer shall display a sign on the exterior of the establishment that identifies the establishment as a limited video lottery retailer only if the sign is of a uniform size and design produced and distributed to retailers by the lottery commission. No other signage or advertising identifying an establishment as a limited video lottery retailer is permitted.
(c) The lottery commission shall propose for promulgation legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code, describing the words or symbols commonly associated with gambling or video lottery gaming that are prohibited from use in the name of an approved location or used in conjunction with the name. The proposed rule may prohibit the use of a word notwithstanding the fact that the word sought to be used is part of the legal name of the owner or operator of the establishment. The initial rule promulgated in accordance with the provisions of this section may be filed as and shall constitute an emergency rule within the meaning of section fifteen, article three, chapter twenty-nine-a of this code."
Delegate Wakim was recognized and requested to be excused from voting on the foregoing amendment to H. B. 4017 under the provisions of House Rule 49.
The Speaker stated that the Rules of the House, as well as the provisions contained in Jefferson's Manual and the precedents of the U.S. House of Representatives, provide that a member may be excused from voting on a question if there be a direct personal or pecuniary interest therein, and that Jefferson's Manual further provides that while a member should not vote on the direct questions affecting himself, such member does vote on incidental questions, and that in this case, the incidental question was the pending amendment, and, therefore, declined to excuse Delegate Wakim from voting.
On the adoption of the amendment, the yeas and nays were demanded, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 57), and there were--yeas 61, nays 32, absent and not voting 7, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Ashley, Azinger, Blair, Border, Calvert, Canterbury, Carmichael, Caruth, Ellem, Evans, Faircloth, Fleischauer, Frederick, Frich, Hall, Hamilton, Howard, Leach, Leggett, Louisos, Overington, Poling, Romine, Schadler, Schoen, Smirl, Sobonya, Sumner, Trump and Walters.
Absent And Not Voting: Coleman, DeLong, Ennis, Perdue, Shelton, Swartzmiller and Yost.
So, a majority of the members present and voting having voted in the affirmative, the amendment was adopted.
There being no further amendments, the bill was then ordered to engrossment and third reading.


First Reading

H. B. 4119, Allowing a phase-in of the transfer of hotel taxing authority when a municipality annexes a hotel to allow the retirement of any debt incurred by the county or to otherwise phase in the transfer of taxing authority to the municipality; 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, Perdue and Shelton.
At 1:20 p.m., on motion of Delegate Staton, the House of Delegates adjourned until 10:00 a.m., Friday, January 30, 2004.