(CLERK'S NOTE: SEE PRINTED JOURNAL FOR OFFICIAL VERSION)

WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-SEVENTH LEGISLATURE

REGULAR SESSION, 2005

FIFTEENTH DAY

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Charleston, W. Va., Wednesday, February 23, 2005

The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)

Prayer was offered by Minister Christopher Gallagher, Pine Grove Church of Christ, Scott Depot, West Virginia.
Pending the reading of the Journal of Tuesday, February 22, 2005,
On motion of Senator Caruth, the Journal was approved and the further reading thereof dispensed with.
On motion of Senator Love, the special order of business set for this position on the calendar (consideration of executive nominations) was postponed and made a special order of business for Saturday, April 9, 2005, at 11 a.m.
The Senate proceeded to the second order of business and the introduction of guests.
The Senate then proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 2177--A Bill to amend and reenact §17A-3-23 of the Code of West Virginia, 1931, as amended, relating to establishing a new license plate that designates city or municipality law-enforcement departments; and specifying the design and one-time fee.
Referred to the Committee on Transportation and Infrastructure; and then to the Committee on Finance.
The Senate proceeded to the fourth order of business.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 49, Repealing section of code relating to inspection of jails.
Senate Bill No. 104, Repealing section of code relating to working prisoners by county commissions.
Senate Bill No. 183, Allowing withdrawal from inmate's savings account in certain cases.
And,
Senate Bill No. 184, Repealing section authorizing wardens to offer rewards for escaped convicts.
And reports the same back with the recommendation that they each do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Plymale, from the Committee on Education, submitted the following report, which was received:
Your Committee on Education has had under consideration
Senate Bill No. 94, Relating to school activities on instructional support and enhancement days.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 94 (originating in the Committee on Education)--A Bill to amend and reenact §18-5-45 of the Code of West Virginia, 1931, as amended, relating to the school calendar; and providing additional flexibility for instructional support and enhancement days.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Robert H. Plymale,
Chair.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Com. Sub. for Senate Bill No. 154, Relating to beneficial use of water treatment plant sludge.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 162, Modifying time authority may allocate tax credits under Capital Company Act.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Plymale, from the Committee on Education, submitted the following report, which was received:
Your Committee on Education has had under consideration
Senate Bill No. 212, Relating to incremental salary increases for certain faculty members of higher education.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Robert H. Plymale,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on Finance.
Senator Minard, from the Committee on Banking and Insurance, submitted the following report, which was received:
Your Committee on Banking and Insurance has had under consideration
Senate Bill No. 229, Relating to reports of financial institutions to Division of Banking.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Joseph M. Minard,
Chair.
Senator Plymale, from the Committee on Education, submitted the following report, which was received:
Your Committee on Education has had under consideration
Senate Bill No. 248, Relating to requirement that technology expenditures be made in accordance with Education Technology Strategic Plan.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Robert H. Plymale,
Chair.
Senator Minard, from the Committee on Banking and Insurance, submitted the following report, which was received:
Your Committee on Banking and Insurance has had under consideration
Senate Bill No. 253, Permitting Insurance Commissioner waive or reduce penalty for late filing of tax returns.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Joseph M. Minard,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on Finance.
Senator Minard, from the Committee on Banking and Insurance, submitted the following report, which was received:
Your Committee on Banking and Insurance has had under consideration
Senate Bill No. 254, Relating to reinsurance intermediaries.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but with the further recommendation that it first be referred to the Committee on Finance.
Respectfully submitted,
Joseph M. Minard,
Chair.
On motion of Senator Minard, the bill (S. B. No. 254) contained in the foregoing report from the Committee on Banking and Insurance was then referred to the Committee on Finance, with amendments from the Committee on Banking and Insurance pending.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills and joint resolution were introduced, read by their titles, and referred to the appropriate committees:
By Senators Bailey, Kessler, Minard and Dempsey:
Senate Bill No. 255
--
A Bill to amend and reenact §18B-10-7 of the Code of West Virginia, 1931, as amended, relating to granting tuition waivers to the children and spouses of parole and probation officers killed in the line of duty.
Referred to the Committee on Education; and then to the Committee on Finance.
By Senators Bailey, Dempsey, Fanning, Love and Sharpe:
Senate Bill No. 256
--
A Bill to repeal §33-22-2a of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §33-17-6a; and to amend and reenact §33-22-2 of said code, all relating to flood insurance; requiring that certain insurance documents include a notice regarding the absence of flood insurance and the possible availability of such insurance from other sources; requiring that farmer's mutual insurance companies include the notice; and clarifying that the Insurance Fraud Prevention Act applies to farmer's mutual insurance companies.
Referred to the Committee on Banking and Insurance.
By Senators Edgell, Bailey, Dempsey, Love, Facemyer, Fanning and Sharpe:
Senate Bill No. 257
--A Bill to amend and reenact §19-1A-3 and §19-1A-3a of the Code of West Virginia, 1931, as amended, all relating to digging, growing, collecting, gathering, possessing and selling ginseng; defining certain terms; authorizing Division of Forestry to regulate ginseng; providing rule-making authority; establishing ginseng harvest seasons; requiring permits to grow or dig ginseng or to act as dealer; providing exceptions to the permit requirement; setting forth other permit requirements; requiring records be kept; authorizing certain inspections; requiring ginseng to be certified; providing for denial, suspension or revocation of permit; and establishing civil and criminal penalties.
Referred to the Committee on Agriculture; and then to the Committee on the Judiciary.
By Senator Hunter:
Senate Bill No. 258
--
A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §46A-2-140, relating to requiring that the required monthly minimum payment on credit card debt be set at an amount equal to the monthly interest accrued on the outstanding balance.
Referred to the Committee on the Judiciary.
By Senators Hunter, Dempsey and Unger:
Senate Bill No. 259
--
A Bill to amend and reenact §30-7B-4, §30-7B-8 and §30-7B-10 of the Code of West Virginia, 1931, as amended, all relating to directing funds from the Center for Nursing Fund to loan forgiveness programs; continuing the Center for Nursing until 2013; and requiring the Center for Nursing to collect information on workers' compensation-related injuries.
Referred to the Committee on Health and Human Resources; and then to the Committee on Finance.
By Senator Harrison:
Senate Bill No. 260
--
A Bill to amend and reenact §11-14C-5 of the Code of West Virginia, 1931, as amended; and to amend and reenact §11-15-9 of said code, all relating to reducing the excise tax on all gasoline and special fuel sold in this state in the two consecutive years before the tax is scheduled to be reduced from the current twenty and one-half cents to fifteen and one-half cents; providing for a graduated elimination of consumers sales tax on food over a six-year period; and naming this legislation the "Make West Virginia Competitive Tax Relief Act".
Referred to the Committee on Finance.
By Senators Tomblin (Mr. President) and Sprouse (By Request of the Executive):
Senate Bill No. 261
--
A Bill to submit the Pension Bond Amendment to the Constitution of the state to the voters of the state for ratification or rejection at a special election to be held throughout the state on the fourth day of June, two thousand five; calling the special election; directing that the proposed amendment be submitted to the voters of the state at the special election and how such amendment is to be numbered, designated and summarized; providing for publication of the proposed amendment and publication of notice of the special election and the form thereof; providing that no question or issue other than the ratification or rejection of the proposed amendment shall be voted upon at the special election; providing for an official ballot and ballot labels; providing for one board of election officials in each precinct and for recounts; providing for the conduct of and procedures for the special election; providing that the costs and expenses of the special election be paid out of the State Treasury; and providing for a proclamation of the result of the special election by the Secretary of State.
Referred to the Committee on the Judiciary.
By Senators Foster, Love, Sharpe and Dempsey:
Senate Bill No. 262
--
A Bill to amend and reenact §15-2A-2, §15-2A-5, §15-2A-6, §15-2A-7, §15-2A-8, §15-2A-9, §15-2A-10, §15- 2A-11, §15-2A-12, §15-2A-13, §15-2A-14 and §15-2A-19 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto three new sections, designated §15-2A-11a, §15-2A-11b and §15-2A-21, all relating to amending definitions; acquiring retirement credited service through member's use of accrued annual or sick leave days; establishing starting date for payment of annuity; clarifying disability provisions; and technical corrections.
Referred to the Committee on Pensions; and then to the Committee on Finance.
By Senator Foster:
Senate Bill No. 263
--
A Bill to amend and reenact §5-5-3 of the Code of West Virginia, 1931, as amended, relating to the rights of members' unused, accrued leave in final average salary.
Referred to the Committee on Pensions; and then to the Committee on Finance.
By Senators Foster and Dempsey:
Senate Bill No. 264
--
A Bill to amend and reenact §18-7B-2, §18-7B-7, §18-7B-9, §18-7B-11, §18-7B-12a and §18-7B-16 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §18-7B-20, all relating to amending certain definitions; clarifying participation requirement; providing employer deadlines for deposit of contributions; establishing when payments are to be made into and out of the suspension account; adding the Internal Revenue Service provisions concerning incidental death benefits; clarifying that all years of employee service will be counted for vesting purposes; prohibiting involuntary cash-outs effective the thirtieth day of June, two thousand five; and technical corrections.
Referred to the Committee on Pensions; and then to the Committee on Finance.
By Senators Helmick and Sharpe:
Senate Bill No. 265
--
A Bill to amend and reenact §62-8-1 of the Code of West Virginia, 1931, as amended, relating to including jails within the context of certain criminal acts by incarcerated persons; providing a specific crime for setting fire to a correctional facility or jail; and including the Executive Director of the Regional Jail and Correctional Facility Authority relative to the applicability of the phrase "a person imprisoned or otherwise in custody of" to the statutory provisions.
Referred to the Committee on the Judiciary.
By Senators Hunter, Minard, White, McKenzie and Dempsey:
Senate Bill No. 266
--
A Bill to amend and reenact §21-11-4, §21-11-5, §21-11-7, §21-11-10 and §21-11-14 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §21-11-21, all relating to licensed contractors; increasing the membership of the West Virginia Contractor's Licensing Board; individuals eligible to take examination; additional information requested from applicants; presumption in disputes without written contract; criteria for rejecting license application or renewal; and proof of license prerequisite to civil action.
Referred to the Committee on Government Organization; and then to the Committee on the Judiciary.
By Senators Kessler, Helmick, Plymale, Prezioso, Boley, McKenzie, Minard, Dempsey, Barnes and Jenkins:
Senate Bill No. 267
--A Bill to amend and reenact §49-5-13d of the Code of West Virginia, 1931, as amended, relating to teen court programs; and authorizing counties to adopt a mandatory fee to fund such teen court programs.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Kessler, Helmick, Plymale, Prezioso, Boley, McKenzie, Unger, Foster, Barnes and Jenkins:
Senate Bill No. 268
--A Bill to amend and reenact §11-16-19 of the Code of West Virginia, 1931, as amended; and to amend and reenact §60-3A-24 of said code, all relating to underage possession of nonintoxicating beer and alcoholic liquor; and conforming state law to federal requirements by providing that violation by a person under the age of eighteen constitutes a status offense instead of a misdemeanor.
Referred to the Committee on the Judiciary.
By Senators Bowman, McKenzie, Kessler, Edgell, McCabe and Helmick:
Senate Joint Resolution No. 8
--
Proposing an amendment to the Constitution of the State of West Virginia, amending section 1, article X thereof, relating to allowing the county of Ohio to institute a two-rate property tax levy to replace current constitutional property tax levies in that county only; requiring approval by the voters of Ohio County; permitting lower rates on improvements than on land; numbering and designating such proposed amendment; and providing a summarized statement of the purpose of such proposed amendment.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
Senators Prezioso, Hunter, Sharpe, Unger, Boley, Foster, Dempsey and Jenkins offered the following resolution:
Senate Concurrent Resolution No. 26--Requesting the Joint Committee on Government and Finance direct the Legislative Oversight Commission on Health and Human Resources Accountability to oversee the development of the state Mental Health Plan to ensure that the process moves toward the development of improved care for the mental health needs of the citizens of West Virginia.
Whereas, The Mental Health Plan, the State Health Plan, the (Behavioral) Health Criteria for Performance Excellence and Healthy People 2010, as well as other goal-setting recommendation plans, contain some discussion of the topic of mental health, the degree of which depends on the particular document; and
Whereas, Community-based mental health care creates an environment of stability for those afflicted with mental health problems who receive family-based treatment in their communities of residence; and
Whereas, Federal Comprehensive Community Mental Health Services Program grants are available to develop comprehensive, community-based systems of care for youth with serious emotional disturbances and their families, but may only be applied to in- state treatment. According to the Department of Health and Human Resources, over 400 juveniles are in out-of-state care facilities at any given time, for a total cost of more than $22 million per year in out-of-state expenditures, due to a lack of adequate care systems within the state; and
Whereas, The appropriate treatment of juveniles with serious emotional disturbances and their families requires a collaborative state effort from multiple agencies, including, but not limited to: The Department of Health and Human Resources, the Bureau for Behavioral Health and Health Facilities, the Bureau for Children and Families, the Department of Education and the Division of Juvenile Services; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to direct the Legislative Oversight Commission on Health and Human Resources Accountability to oversee the development of the state Mental Health Plan to ensure that the process moves toward the development of improved care for the mental health needs of the citizens of West Virginia; and, be it
Further Resolved, That the Department of Health and Human Resources report to the Legislative Oversight Commission on Health and Human Resources Accountability on September 1, 2005, and December 31, 2005, on the status and implementation of the Mental Health Plan; and, be it
Further Resolved, The Department of Health and Human Resources should explore the possibilities of developing a comprehensive multiagency mental health plan in the State of West Virginia, identify the core services needed in West Virginia communities in order to provide adequate care to February 22, 2005residents, address the development of community-based treatment options and financial assistance opportunities available to avoid out-of-state placements and make every effort to establish a financial base that can adequately fund needed mental health services; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2006, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
Which, under the rules, lies over one day.
Senators Edgell and Kessler offered the following resolution:
Senate Resolution No. 9--
Encouraging the Ormet Corporation enter into meaningful discussions to sell the Ormet Reduction and Rolling Mill facilities to entities which will continue its operation to the benefit of workers, retirees, local businesses and the surrounding communities.
Whereas, The Ormet Reduction and Rolling Mill facilities in Hannibal, Ohio, have, for over a quarter century, economically benefitted the citizens of Wetzel, Marshall and Tyler counties of West Virginia; and
Whereas, Its 1,300 employees and the surrounding communities in West Virginia suffered a loss of income and tax revenue with the shutdown of the Ormet Reduction and Rolling Mill facilities; and
Whereas, Retiree benefits are now threatened by the bankruptcy of Ormet Corporation; and
Whereas, Parties have shown an interest in purchasing the Ormet Reduction and Rolling Mill facilities at Hannibal, Ohio, and subsequently are negotiating a fair and equitable agreement with the workers of the facilities; therefore, be it
Resolved by the Senate:
That the Senate hereby encourages the Ormet Corporation to enter into meaningful discussions to sell the Ormet Reduction and Rolling Mill facilities to entities which will continue its operation to the benefit of workers, retirees, local businesses and the surrounding communities; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to Mike Williams, Interim President and Chief Executive Officer of the Ormet Corporation, and the Honorable Barbara J. Sellers, Judge, United States Bankruptcy Court, Southern District of Ohio.

At the request of Senator Kessler, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
Senators Sprouse, Dempsey, Minear, Unger, Tomblin (Mr. President), Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sharpe, Weeks, White and Yoder offered the following resolution:
Senate Resolution No. 10--
Designating the month of March, 2005, as "American Red Cross Month".
Whereas, The American Red Cross was founded in 1881 and chartered by the United States Congress in 1905; and
Whereas, The American Red Cross, one of the most recognized humanitarian organizations, provides food, clothing, shelter and mental health support to victims of disasters; and
Whereas, The American Red Cross has trained thousands of West Virginians in CPR, first aid, lifeguard techniques, water safety and HIV/AIDS education; and
Whereas, The American Red Cross continues to recruit West Virginians in seeking blood donations and blood products for critical medical treatments; and
Whereas, The generous contributions of time and money by the American people help the Red Cross restore vital services to families in times of need; therefore, be it
Resolved by the Senate:
That the Senate hereby designates the month of March, 2005, as "American Red Cross Month"; and, be it
Further Resolved, That the Senate hereby recognizes the many contributions of the American Red Cross to the State of West Virginia, the United States of America and the world; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the appropriate representatives of the American Red Cross.

At the request of Senator Sprouse, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
On motion of Senator Chafin, the Senate recessed for one minute.
Upon expiration of the recess, the Senate reconvened and resumed business under the sixth order.
Petitions

Senators Kessler and Edgell presented a petition from Jan Watson and numerous West Virginia residents, requesting the Legislature to enact stricter sentencing laws pertaining to drunk driving offenses.
Referred to the Committee on the Judiciary.
At the request of Senator Chafin, unanimous consent being granted, the Senate returned to the fourth order of business.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 269 (originating in the Committee on Finance)- -A Bill supplementing, amending, reducing and increasing items of the existing appropriations from the State Road Fund to the Department of Transportation, Division of Highways, fund 9017, fiscal year 2005, organization 0803, by supplementing and amending the appropriations for the fiscal year ending the thirtieth day of June, two thousand five.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Walt Helmick,
Chair.
The Senate proceeded to the ninth order of business.
Com. Sub. for Senate Bill No. 17, Establishing requirements for receipt of public money by business entities.
On second reading, coming up in regular order, was read a second time.
On motions of Senators Jenkins and Oliverio, the following amendment to the bill was reported by the Clerk and adopted:
On page three, section seventeen, line twenty-two, after the word "entity" by inserting the words "but does not include payment to a business entity that is a vendor of the state or a political subdivision".
At the request of Senator Bowman, and by unanimous consent, the bill (Com. Sub. for S. B. No. 17), as just amended, was advanced to third reading with the right for further amendments to be considered on that reading.
The Senate proceeded to the tenth order of business.
Senate Bill No. 122, Allowing certain state-chartered banks to organize as limited liability companies.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
The Senate proceeded to the eleventh order of business and the introduction of guests.
The Senate then proceeded to the twelfth order of business.
Remarks were made by Senator Plymale.
Thereafter, at the request of Senator Helmick, and by unanimous consent, the remarks by Senator Plymale were ordered printed in the Appendix to the Journal.
Pending announcement of meetings of standing committees of the Senate, including a minority party caucus,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Thursday, February 24, 2005, at 11 a.m.
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