(CLERK'S NOTE: SEE PRINTED JOURNAL FOR OFFICIAL VERSION)
WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-SEVENTH LEGISLATURE
REGULAR SESSION, 2005
THIRTY-SEVENTH DAY
____________

Charleston, W. Va., Thursday, March 17, 2005

The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by the Right Reverend Mary Adelia McLeod, Retired Bishop of the Episcopal Diocese of Vermont, Charleston, West Virginia.
Pending the reading of the Journal of Wednesday, March 16, 2005,
On motion of Senator Helmick, the Journal was approved and the further reading thereof dispensed with.
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 concurrence by that body in the passage, to take effect July 1, 2005, of
Eng. Senate Bill No. 146, Establishing Unborn Victims of Violence Act.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 9--Requesting the Division of Highways to name the bridge in Curtin, West Virginia, the "Larry 'Joe' Markle Bridge".
Whereas, When Joe was three years old, he was hit by a car leaving him mentally and physically challenged; and
Whereas, Since then, Joe's passion in life is riding to and from the bridge and greeting everyone who enters or leaves Curtin; and
Whereas, A few years ago, the state rebuilt the bridge and Joe made his rounds as if he were the bridge foreman; and
Whereas, When the bridge was completed, a yellow ribbon was put across the bridge and Joe rode his bike across it breaking the ribbon with hands held high in the air celebrating the new bridge and his favorite hangout; and
Whereas, Recently, Joe's health declined when he started having congestive heart failure and his breath was too short to ride his bike; and
Whereas, Joe became depressed because he could not ride his bike to the bridge; and
Whereas, Since then, a pacemaker has given Joe new life and energy to ride back to the bridge and man his position as the unofficial "greeter" on the bridge for Curtin; and
Whereas, The members of the Legislature would like to honor Joe for his dedication and passion for life by naming the bridge in Curtin, West Virginia, the "Larry 'Joe' Markle Bridge"; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways to name the bridge in Curtin, West Virginia, the "Larry 'Joe' Markle Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby requested to erect appropriate signage at the entryway of each end of the bridge; and, be it
Further Resolved, That the Clerk of the House is hereby directed to forward a copy of this resolution to the Commissioner of Highways and to Larry "Joe" Markle.
Referred to the Committee on Transportation and Infrastructure.
Executive Communications
The Clerk then presented a communication from His Excellency, the Governor, advising that on March 15, 2005, he had approved Enr. Senate Bill No. 269.
The Senate proceeded to the fourth order of business.
Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Senate Bill No. 31, Requiring Chief Technology Officer maintain central cross index of forms.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 31 (originating in the Committee on Government Organization)--A Bill to amend and reenact §5-1B-2 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §5-1B-4a, all relating to requiring the Chief Technology Officer to maintain a central cross index repository of forms used by state agencies; definitions; and additional powers and duties of the Chief Technology Officer.
Senate Bill No. 498, Continuing Prosecuting Attorneys Institute.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 498 (originating in the Committee on Government Organization)--A Bill to amend and reenact §7-4-6 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §7-4-6a, all relating to the West Virginia Prosecuting Attorneys Institute; clarifying the scope of responsibility of the Institute to include services to the entire staff of prosecutors; authorizing the Institute to train state and local law-enforcement and investigative personnel; allowing the Institute to accept moneys for reimbursement of expenses; and continuation of the West Virginia Prosecuting Attorneys Institute.
And,
Senate Bill No. 522, Extending time for Hurricane council to meet as levying body.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 522 (originating in the Committee on Government Organization)--A Bill to extend the time for the City Council of Hurricane to meet as a levying body for the purpose of presenting to the voters of the city an election authorizing continuation of an additional city levy to maintain the present salaries of its paid fire and paid police departments, to repair and service existing fire-fighting and police equipment and to purchase additional fire-fighting and police equipment where necessary, from between the seventh and twenty-eighth days of March and the third Tuesday in April until the thirty-first day of May, two thousand five.
With the recommendation that the three committee substitutes do pass.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being granted, one of the bills (Com. Sub. for S. B. No. 522) contained in the preceding report from the Committee on Government Organization was taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
The bill was read a second time and ordered to engrossment and third reading.
Engrossed Committee Substitute for Senate Bill No. 522 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 522) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 522) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Edgell, from the Committee on Agriculture, submitted the following report, which was received:
Your Committee on Agriculture has had under consideration
Senate Bill No. 61, Creating transition program for tobacco farmers; funding.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 61 (originating in the Committee on Agriculture)--A Bill to amend and reenact §4-11A-3 of the Code of West Virginia, 1931, as amended; to amend and reenact §19-1-4 of said code; and to amend said code by adding thereto a new section, designated §19-1-4e, all relating to the Tobacco Settlement Fund; duties of the Commissioner of the Department of Agriculture; duty to assist farmers to make the transition from growing tobacco to growing other crops or pursuing other agricultural-related businesses; creating the "Transition Program for Tobacco Farmers' Fund"; and creating the "Transition Program for Tobacco Farmers".
With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Larry J. Edgell,
Chair.
The bill (Com. Sub. for S. B. No. 61), under the original double committee reference, was then referred to the Committee on Finance.
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. 191 (originating in the Committee on Judiciary), Relating to implementation of modified mental hygiene procedures.
And reports back a committee substitute for same with the following title:
Com. Sub. for Com. Sub. for Senate Bill No. 191 (originating in the Committee on Finance)--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §27-5-11, relating to mental hygiene proceedings generally; authorizing implementation of a modified mental hygiene procedure in limited number of counties relating to persons who are medication-dependent and who have had at least one prior conviction within the previous twenty-four months related to mental illness or two prior hospitalizations within the previous twenty-four months due to mental illness; directing cooperation of Secretary of Department of Health and Human Resources and Supreme Court of Appeals in developing modified procedures; authorizing use of treatment compliance orders in certain judicial circuits; authorization for hospitalization and treatment for up to seventy- two hours prior to probable cause hearing for medication-dependent individuals who meet requirements; reporting requirements; expiration date; time limits; requirements of petitions; procedures; required findings; hearings; and forms required for procedures.
With the recommendation that the committee substitute for committee substitute do pass.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Senate Bill No. 197, Relating to members on Joint Legislative Oversight Commission on State Water Resources.
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 the Judiciary.
Respectfully submitted,
Edwin J. Bowman,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on the Judiciary.
Senator Edgell, from the Committee on Agriculture, submitted the following report, which was received:
Your Committee on Agriculture has had under consideration
Senate Bill No. 277, Creating Animal Regulation Act.
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,
Larry J. Edgell,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on Finance.
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. 288, Authorizing rental of vocational rehabilitation facilities by school groups or certain other organizations.
And has amended same.
And,
Senate Bill No. 467, Authorizing Director of Division of Protective Services assess, charge and collect fees.
And has amended same.
And reports the same back with the recommendation that they each do pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Senate Bill No. 348, Clarifying when audits are required of state funds or grants.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 348 (originating in the Committee on Government Organization)--A Bill to amend and reenact §12-4-14 of the Code of West Virginia, 1931, as amended, relating to persons who receive state funds or grants; clarifying when audits of state funds or grants are required; and adding criminal penalties.
With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Edwin J. Bowman,
Chair.
The bill (Com. Sub. for S. B. No. 348), under the original double committee reference, was then referred to the Committee on Finance.
Senator Oliverio, from the Committee on Labor, submitted the following report, which was received:
Your Committee on Labor has had under consideration
Senate Bill No. 367, Authorizing Division of Labor promulgate legislative rule relating to Manufactured Housing Construction and Safety Standards Board.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on the Judiciary.
Respectfully submitted,
Michael A. Oliverio II,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on the Judiciary, with an amendment from the Committee on Labor pending.
Senator Edgell, from the Committee on Agriculture, submitted the following report, which was received:
Your Committee on Agriculture has had under consideration
Senate Concurrent Resolution No. 24, Recognizing and supporting continued promotion of state apiary industry.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
Larry J. Edgell,
Chair.
Senator Unger, from the Committee on Transportation and Infrastructure , submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Senate Concurrent Resolution No. 44, Requesting Division of Highways name bridge on Frame Road near Elkview "Dewey Russell Crowder Memorial Bridge".
Senate Concurrent Resolution No. 45, Requesting Division of Highways name bridge on Route 16 and Route 50 near Ellenboro in Ritchie County "West Virginia State Trooper Larry G. Hacker Memorial Bridge".
And,
Senate Concurrent Resolution No. 47, Requesting Division of Highways name bridge near Seebert, Pocahontas County, "Tom Edgar Memorial Bridge".
And reports the same back with the recommendation that they each be adopted.
Respectfully submitted,
John R. Unger II,
Chair.
Senator Unger, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Senate Concurrent Resolution No. 53, Requesting Division of Highways name portion of Route 16 in Fayette County "Hank Williams, Sr., Memorial Road".
And has amended same.
And reports the same back with the recommendation that it be adopted, as amended.
Respectfully submitted,
John R. Unger II,
Chair.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2510, Allowing public sector moneys to be used to satisfy the matching requirements of the workforce initiative in certain circumstances.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Edgell, from the Committee on Agriculture, submitted the following report, which was received:
Your Committee on Agriculture has had under consideration
Eng. Com. Sub. for House Bill No. 2663, Relating to digging, growing, collecting, gathering, possessing and selling ginseng.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on the Judiciary.
Respectfully submitted,
Larry J. Edgell,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on the Judiciary, with an amendment from the Committee on Agriculture pending.
Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Eng. House Bill No. 2666, Continuation of the Department of Health and Human Resources.
Eng. House Bill No. 2667, Continuation of the West Virginia Commission for the Deaf and Hard-of-Hearing.
Eng. House Bill No. 2846, Continuation of the Real Estate Appraiser Licensing and Certification Board.
Eng. House Bill No. 2892, Continuation of the Bureau for Child Support Enforcement.
And,
Eng. House Bill No. 2893, Continuation of the James "Tiger" Morton Catastrophic Illness Commission.
And reports the same back with the recommendation that they each do pass.
Respectfully submitted,
Edwin J. Bowman,
Chair.
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 Caruth, Sprouse, Guills and Minear:
Senate Bill No. 564- A Bill to amend and reenact §23-4-2 of the Code of West Virginia, 1931, as amended, relating to deliberate intent actions generally.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senator Unger:
Senate Bill No. 565- A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §16- 1-9c, relating to inspections of individual water supply systems and individual wastewater systems; defining terms; providing for certification of inspectors; and requiring the Department of Health and Human Resources to propose legislative rules related to inspections and certifications.
Referred to the Committee on Natural Resources; and then to the Committee on Finance.
By Senator Unger:
Senate Bill No. 566-A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §21A-2-24, relating to the Bureau of Employment Programs; conducting comparative cost-of-living studies within the fifty-five counties of the state; and reporting the results of the study to the Joint Committee on Government and Finance by the first day of December every year.
Referred to the Committee on Labor; and then to the Committee on Finance.
By Senators Unger, Oliverio, Jenkins, Minard and Harrison:
Senate Bill No. 567-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 National Guard and active military duty personnel killed in the line of duty.
Referred to the Committee on Military; and then to the Committee on Finance.
By Senator Jenkins:
Senate Bill No. 568- A Bill to amend and reenact §31C-4-1 of the Code of West Virginia, 1931, as amended, relating to adding certain stated geographical areas as one of the several groups to which members must belong.
Referred to the Committee on the Judiciary.
By Senator Dempsey:
Senate Bill No. 569-A Bill to amend and reenact §18-5-13 of the Code of West Virginia, 1931, as amended, relating to county boards of education generally; and providing that county boards of education shall disburse any surplus funds to supplement the salaries of teachers and service personnel.
Referred to the Committee on Education; and then to the Committee on Finance.
By Senators Bowman, Kessler, Plymale and Unger:
Senate Bill No. 570- A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §8- 15-9a, relating to mandating paid fire departments of Class I and Class II municipalities perform a study regarding achieving full compliance with NFPA 1710 by the thirtieth day of June, two thousand six.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senator Unger:
Senate Bill No. 571- A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §60-3A-3a; and to amend said code by adding thereto a new section, designated §60-7-9, all relating to requiring employees of licensed private clubs and retail outlets selling alcoholic beverages to take the techniques for education and alcohol management course or other similar alcohol awareness education course provided or approved by the Alcohol Beverage Control Commissioner.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Unger and Love:
Senate Bill No. 572-A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §8- 12-12a, relating to authorizing municipalities to permit certain veterans to park free.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Unger, Barnes and Harrison:
Senate Bill No. 573- A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §60-7-4b; and to amend and reenact §60-7-5 of said code, all relating to requiring a public hearing prior to the issuance of an initial license for a private club or upon the transfer of a license to a private club at a new location.
Referred to the Committee on the Judiciary.
By Senators Unger, Oliverio, Barnes, Harrison and Foster:
Senate Bill No. 574- A Bill to amend and reenact §11-16-19 of the Code of West Virginia, 1931, as amended; and to amend and reenact §60-6-9 of said code, all relating to prohibiting open nonintoxicating beer and alcoholic beverage containers in passenger areas of motor vehicles; providing a penalty for violation; and making the state's laws applying to the use and possession of beer and alcoholic beverages in motor vehicles conform to federal law.
Referred to the Committee on Transportation and Infrastructure; and then to the Committee on the Judiciary.
By Senators Bowman, McKenzie, Kessler and Edgell:
Senate Bill No. 575- A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §20-2-5g; and to amend and reenact §20-2-46e of said code, all relating to permitting persons with certain physical disabilities to use a crossbow during a designated crossbow hunting season.
Referred to the Committee on Natural Resources.
By Senators McCabe and Minard:
Senate Bill No. 576-A Bill to amend and reenact §33-25D-2 of the Code of West Virginia, 1931, as amended, relating to Prepaid Limited Health Service Organizations Act; adding pharmaceutical services, vision care services, dental care services and podiatric care services to the definition of "limited health service"; and authorizing the Insurance Commissioner to add other services to such definition.
Referred to the Committee on Banking and Insurance; and then to the Committee on the Judiciary.
By Senators Weeks and Bailey:
Senate Bill No. 577-A Bill to amend and reenact §18A-4-7b of the Code of West Virginia, 1931, as amended, relating to placing a limit of ten years on the amount of time that a teacher who returns to work after terminating employment may retain his or her accrued seniority.
Referred to the Committee on Education.
By Senator Unger:
Senate Bill No. 578- A Bill to amend and reenact §6-13-1 of the Code of West Virginia, 1931, as amended; and to amend and reenact §29-6-10 of said code, all relating to providing a preference for filling vacancies in state agencies to West Virginia veterans who, because of injuries sustained while serving on active duty with the National Guard after the eleventh day September, two thousand one, are released from the National Guard.
Referred to the Committee on Military; and then to the Committee on the Judiciary.
By Senators Weeks, Dempsey, Sharpe, McKenzie, Lanham, Boley, Love, Caruth, Harrison, Guills and Barnes:
Senate Bill No. 579- A Bill to amend and reenact §17C-5A-1, §17C-5A-1a, §17C-5A-2, §17C-5A-2a, §17C-5A-3, §17C-5A-3a and §17C- 5A-4 of the Code of West Virginia, 1931, as amended, all relating to providing for judicial procedures for suspension and revocation of licenses for driving under the influence of alcohol, controlled substances or drugs; eliminating the administrative procedures for suspension and revocation; providing that a judicial officer upon certain findings or a conviction shall suspend or revoke a license for driving under the influence of alcohol, controlled substances or drugs; providing a procedure for judicial reinstatement of a suspended or revoked license; and making certain technical changes.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Facemyer, Edgell and Love:
Senate Bill No. 580-A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §19- 16-10, relating to prohibiting any body other than the Legislature from regulating seed registration, sale, labeling, storage, transportation, distribution, notification of use or use.
Referred to the Committee on Agriculture; and then to the Committee on Government Organization.
By Senators Bailey and Sharpe:
Senate Bill No. 581- A Bill to amend and reenact §32A-3-1 and §32A-3-3 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new article, designated §32A-4- 1, §32A-4-2, §32A-4-3, §32A-4-4, §32A-4-5, §32A-4-6, §32A-4-7, §32A-4-8, §32A-4-9, §32A-4-10, §32A-4-11, §32A-4-12, §32A-4-13, §32A-4-14, §32A-4-15, §32A-4-16, §32A-4-17, §32A-4-18, §32A-4-19, §32A-4-20, §32A-4-21, §32A-4-22, §32A-4-23, §32A-4-24, §32A-4-25, §32A-4-26, §32A-4-27, §32A-4-28, §32A-4-29, §32A-4-30 and §32A-4- 31, all relating to establishing the Deferred Deposit Loan Act; short title; and definitions.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Yoder, Sprouse, Barnes and Minear:
Senate Joint Resolution No. 12- Proposing an amendment to the Constitution of the State of West Virginia, amending section 36, article VI thereof, relating to gambling; 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 Bailey and Weeks offered the following resolution:
Senate Concurrent Resolution No. 54- Requesting the Division of Highways name the bridge located on Route 19 between the Flat Top Post Office and Egeria Road, which crosses the West Virginia Turnpike, the "Mills/ Hatcher Memorial Bridge".
Whereas, Denzell Mills was born December 30, 1948, the son of James and Cleo (Walker) Mills of Egeria, Mercer County; and
Whereas, Larry Hatcher was born September 12, 1946, the son of to Arland and Rachel (Walker) Hatcher of Egeria, Mercer County; and
Whereas, Cousins Denzell Mills and Larry Hatcher were the sons of sisters and the grandsons of Ned and Della Walker and the great- grandsons of Jake Walker, who settled in the Egeria area in the 1800s; and
Whereas, Denzell Mills joined the Army in April, 1967, and was deployed to Vietnam in September, 1967; and
Whereas, Larry Hatcher joined the Army in October, 1964, and was deployed to Vietnam in May, 1965; and
Whereas, PFC Denzell Mills was awarded the Bronze Star and the Purple Heart before he was killed in action 33 days after he arrived in Vietnam; and
Whereas, PFC Larry Hatcher, whose request to serve a third tour of duty was denied, passed away February 2, 1992, due to exposure to Agent Orange; and
Whereas, These two dedicated cousins paid the ultimate sacrifice for our state and our nation; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways name the bridge located on Route 19 between the Flat Top Post Office and Egeria Road, which crosses the West Virginia Turnpike, the "PFC Mills/Hatcher 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 and to the families of Denzell Mills and Larry Hatcher.
Which, under the rules, lies over one day.
Senators Fanning, Bailey, Dempsey, Facemyer and Minear offered the following resolution:
Senate Concurrent Resolution No. 55- Requesting the Director of the Office of Emergency Services immediately repair inoperative Integrated Flood Warning System rain and stream gauges to a minimum operational efficiency rating of 90 percent and provide ongoing maintenance.
Whereas, The Office of Emergency Services operates the Integrated Flood Warning System, known as IFLOWS, which is made up of a computer-operated communications network and rain and stream gauges; and
Whereas, Flood warnings and flood watches in West Virginia are issued by the National Weather Service based upon information obtained from IFLOWS rain and stream gauges located throughout the state; and
Whereas, Advanced flood warning is critical to saving lives, reducing property damage and reducing disruption of commerce and human activities; and
Whereas, In July, 2003, the National Weather Service recognized West Virginia as having the largest and most reliable IFLOWS network of the 13 states in the eastern district with an operational efficiency rating over 90 percent; and
Whereas, In July, 2004, the operational efficiency rating was at 60 percent and remained at the same level four months later; and
Whereas, The National Weather Service has been providing an annual grant to the IFLOWS program which provides nearly 25 percent of program funding; and
Whereas, Beginning this year, IFLOWS grants to states are being competitively awarded on merit, and the ability of a state to maintain its IFLOWS network is a key criteria by which a state will be judged; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Director of the Office of Emergency Services immediately repair inoperative Integrated Flood Warning System rain and stream gauges to a minimum operational efficiency rating of 90 percent and provide ongoing maintenance; and, be it
Further Resolved, That the Director of the Office of Emergency Services report to the Joint Committee on Government and Finance on or before the first day of June, 2004, and thereafter as may be required, as to the operational efficiency of the IFLOWS network.
Which, under the rules, lies over one day.
At the request of Senator Chafin, and by unanimous consent, the Senate returned 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. 582 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §51-2A-2 of the Code of West Virginia, 1931, as amended, relating to granting concurrent jurisdiction to the family court and the circuit court to set support obligations in abuse and neglect cases.
Senate Bill No. 583 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §51-2A-11, §51-2A-14 and §51-2A-16 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §51-2A- 12a, all relating to appealing orders from the family court to the circuit court.
Senate Bill No. 584 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §48-11-106 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto four new sections, designated §48-11-106a, §48-11-106b, §48-11-106c and §48-11-106d, all relating to allowing the Bureau for Child Support Enforcement to enter administrative orders for modification of child support amounts; and providing for review of the administrative order by the family court.
And,
Senate Bill No. 585 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §49-5-17 of the Code of West Virginia, 1931, as amended, relating to juvenile proceedings and confidentiality of juvenile records; and permitting disclosure of same under specified circumstances.
And reports the same back with the recommendation that they each do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Unger, from the Committee on Transportation and Infrastructure , submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Senate Concurrent Resolution No. 56 (originating in the Committee on Transportation and Infrastructure )--Requesting the Joint Committee on Government and Finance study highway authorities in the State of West Virginia.
Whereas, Various highway authorities have been created by legislative acts to promote and secure funding for the construction of roadways throughout the state and additional authorities may be created; and
Whereas, The number, organization and effectiveness of these groups are of interest to the citizens of West Virginia; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study highway authorities in the State of West Virginia; 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.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
John R. Unger II,
Chair.
The Senate proceeded to the ninth order of business.
Com. Sub. for Senate Bill No. 121, Allowing renewal of hunting license or stamp without actual certificate of training document.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Engrossed Committee Substitute for Senate Bill No. 121 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 121) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Com. Sub. for Senate Bill No. 159, Creating Consolidated Local Government Act.
On second reading, coming up in regular order, was read a second time.
On motion of Senator Bowman, the following amendments to the bill were reported by the Clerk, considered simultaneously, and adopted:
On page twelve, section one, line two, by striking out the word "ten" and inserting in lieu thereof the word "fifteen";
On page twelve, section one, lines five and six, by striking out the words "an affected municipality, county or metro government" and inserting in lieu thereof the words "each affected municipality for a municipal consolidation each affected county for a county consolidation and each affected principal city, county and metro government for a metro or metro-metro consolidation";
On page fourteen, section three, line seven, by striking out the words "government officials" and inserting in lieu thereof the words "county commissioners";
On page fifteen, section four, line twelve, by striking out the words "government official" and inserting in lieu thereof the words "county commissioner";
On page sixteen, section four, line fifteen, by striking out the words "government officials" and inserting in lieu thereof the words "county commissioners";
On page twenty-five, section seven, line five, by striking out the word "ten" and inserting in lieu thereof the word "fifteen";
On page thirty, section seven, line five, by striking out the word "ten" and inserting in lieu thereof the word "fifteen";
On page thirty-two, section four, line two, after the word "and" by inserting the words "a majority of the qualified voters in";
On page thirty-two, section four, line two, by striking out the word "approves" and inserting in lieu thereof the word "approve";
And,
On page thirty-five, section eight, line four, by striking out the word "ten" and inserting in lieu thereof the word "fifteen".
On motion of Senator Harrison, the following amendments to the bill (Com. Sub. for S. B. No. 159) were next reported by the Clerk and considered simultaneously:
On page seven, section three, after line thirty-four, by adding a new subdivision, designated subdivision (9), to read as follows:
(9) "Unincorporated area" and "total unincorporated area" mean all lands and resident estates of a county that are not included within the corporate, annexed areas or legal service areas of an incorporated or chartered municipality, city, town or village located in the State of West Virginia.;
On page thirty-two, section four, line one, after the word "city" by inserting a comma and the words "and the total unincorporated area,";
On page thirty-three, section five, line two, after the word "city," by inserting the words "or the total unincorporated area,";
And,
On page thirty-four, section five, line twenty, after the word "city," by inserting the words "or the total unincorporated area,".
Following discussion,
The question being on the adoption of Senator Harrison's amendments to the bill, the same was put.
The result of the voice vote being inconclusive, Senator Weeks demanded a division of the vote.
A standing vote being taken, there were twelve "yeas" and twenty "nays".
Whereupon, the President declared Senator Harrison's amendments to the bill rejected.
The bill (Com. Sub. for S. B. No. 159), as amended, was ordered to engrossment and third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Bowman, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr. President)--29.
The nays were: Boley, Caruth, Guills, Minear and Weeks--5.
Absent: None.
Engrossed Committee Substitute for Senate Bill No. 159 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Bowman, Chafin, Dempsey, Edgell, Facemyer, Fanning, Foster, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--28.
The nays were: Boley, Caruth, Deem, Guills, Minear and Yoder--6.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 159) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Bill No. 166, Authorizing sale of certain land on Buffalo Creek, Logan County.
On second reading, coming up in regular order, was read a second time.
The following amendments to the bill, from the Committee on Finance, were reported by the Clerk, considered simultaneously, and adopted:
On page one, section one, lines one and two, by striking out the words "is hereby authorized to" and inserting in lieu thereof the word "may";
And,
On page one, section one, line three, by striking out the word "to".
The bill (S. B. No. 166), as amended, was ordered to engrossment and third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Engrossed Senate Bill No. 166 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 166) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 166) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Bill No. 262, Relating to State Police Retirement System.
On second reading, coming up in regular order, was read a second time.
The following amendments to the bill, from the Committee on Pensions, were reported by the Clerk, considered simultaneously, and adopted:
On page twenty-five, section eleven-b, line eleven, after the word "Governor" by inserting a comma and the words "Legislative Librarian";
And,
On page thirty-six, section twenty-one, lines four through eight, by striking out all of the proviso.
The bill (S. B. No. 262), as amended, was ordered to engrossment and third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Engrossed Senate Bill No. 262 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 262) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator Chafin, and by unanimous consent, the Senate returned to the sixth order of business, which agenda includes the making of main motions.
On motion of Senator Chafin, the Senate requested the return from the House of Delegates of
Eng. Senate Bill No. 262, Relating to State Police Retirement System.
Passed by the Senate immediately hereinbefore,
The bill still being in the possession of the Senate.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 262) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Bill No. 264, Relating to Teachers Defined Contribution Retirement System.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Engrossed Senate Bill No. 264 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 264) passed.
The following amendment to the title of the bill, from the Committee on Pensions, was reported by the Clerk and adopted:
On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
Eng. 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; changing permanent total disability requirements for new hires, 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.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 264) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Bill No. 425, Relating to Deputy Sheriff Retirement System.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Engrossed Senate Bill No. 425 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 425) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 425) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Bill No. 476, Allowing use of red-colored artificial light when hunting coyotes.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Engrossed Senate Bill No. 476 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 476) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 2129, Creating misdemeanor offense of motion picture piracy.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
O n page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-58. Unlawful operation of a recording device.
(a) Any person who knowingly operates the audiovisual recording function of any device in a motion picture theater, while a motion picture is being exhibited, without the written consent of the motion picture theater owner is guilty of a felony. Upon the first conviction for violation of this section, the person shall be fined not less than five hundred dollars nor more than one thousand dollars or confined in a state correctional center not less than one nor more than ten years or, in the discretion of the court, be confined in a regional jail facility for not more than one year or both fined and confined. For second and subsequent violations, the person shall be fined not less than one thousand dollars nor more than five thousand dollars or imprisoned in a state correctional center for not less than two years nor more than fifteen years or both fined and imprisoned.
(b) The term "audiovisual recording function" means the capability of a device to record or transmit a motion picture or any part thereof by means of any technology now known or later developed.
(c) The term "motion picture theater" means a movie theater, screening room or other venue that is being utilized primarily for the exhibition of a motion picture at the time of the offense.
(d) The owner or lessee of a motion picture theater, or the authorized agent or employee of the owner or lessee, who alerts law-enforcement authorities of an alleged violation of this section shall not be liable in any civil action arising out of measures taken by the owner, lessee, agent or employee in the course of subsequently detaining a person that the owner, lessee, agent or employee in good faith believe to have violated this section while awaiting the arrival of law-enforcement authorities, unless the plaintiff can show by clear and convincing evidence that such measures were manifestly unreasonable or the period of detention was unreasonably long.
(e) This section does not prevent any lawfully authorized investigative, law-enforcement protective or intelligence-gathering employee or agent of the local, state or federal government from operating any audiovisual recording device in a motion picture theater as part of lawfully authorized investigative, protective, law-enforcement or intelligence-gathering activities.
(f) Nothing in this section prevents prosecution, instead, under any other provision of law providing for greater penalty.
The bill (Eng. H. B. No. 2129), as amended, was ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 2129) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--33.
The nays were: Boley--1.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 2129) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
Eng. House Bill No. 2129--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-3-58, relating to the unlawful use of an audio-visual recording device in a motion picture theater; defining certain terms; providing immunity for theater owner who detains person violating this section; and providing penalties.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate proceeded to the tenth order of business.
Com. Sub. for Senate Bill No. 30, Relating to reducing insurance fraud.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Com. Sub. for Com. Sub. for Senate Bill No. 147, Creating Methamphetamine Laboratory Eradication Act.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Senate Bill No. 256, Requiring insurance companies inform policyholders if flood damage not covered.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Senate Bill No. 270, Relating to examination of insurance and health care entities.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Senate Bill No. 278, Relating to lists of stockholders of banking institutions and bank holding companies.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Com. Sub. for Senate Bill No. 433, Relating to Environmental Protection Advisory Council.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Senate Bill No. 459, Relating to reinsurance and insolvency liability.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Senate Bill No. 488, Permitting conversion of domestic corporation to domestic limited liability company.
On first reading, coming up in regular order, was reported by the Clerk.
On motion of Senator Chafin, the bill was recommitted to the Committee on the Judiciary.
Senate Bill No. 491, Repealing article establishing compact for out-of-state parolee supervision.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Eng. House Bill No. 2478, Relating to removing the prohibition against brewers of nonintoxicating beer requiring distributors to submit certain financial documents.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Eng. House Bill No. 2869, Relating to permit the conversion of a domestic corporation to a domestic limited liability company.
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 Senators Prezioso, Dempsey and Bowman.
At the request of Senator Guills, and by unanimous consent, the Senate returned to the sixth order of business.
Petitions
Senator Guills presented a petition from Garry Campbell and numerous Summers County residents, supporting Senate Bill No. 418 (Providing insurance reform by expanding and providing funding and expanded powers for Office of Consumer Advocacy) and House Bill No. 2820 (Providing for insurance reform by expanding and providing for funding, and expanded powers for the office of consumer advocacy).
Referred to the Committee on the Judiciary.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Friday, March 18, 2005, at 11 a.m.
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