WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-SEVENTH LEGISLATURE

REGULAR SESSION, 2006

TWENTY-FOURTH DAY

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Charleston, W. Va.,

Friday, February 3, 2006

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

Prayer was offered by the Reverend Rick Watson, First Baptist Church, Marmet, West Virginia.
Pending the reading of the Journal of Thursday, February 2, 2006,
On motion of Senator Boley, 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 fourth order of business.
Senator Prezioso, 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
Senate Bill No. 329, Authorizing Board of Dental Examiners promulgate legislative rule relating to dental advertising.
Senate Bill No. 343, Authorizing Department of Health and Human Resources promulgate legislative rule relating to assisted living residences.
And,
Senate Bill No. 345, Authorizing Department of Health and Human Resources promulgate legislative rule relating to hospital licensure.
And reports the same back with the recommendation that they each do pass; but under the original double committee references first be referred to the Committee on the Judiciary.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
The bills, under the original double committee references, were then referred to the Committee on the Judiciary.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills were introduced, read by their titles, and referred to the appropriate committees:
By Senators McCabe, Harrison, Sprouse and Foster:
Senate Bill No. 485-- A Bill to amend and reenact §24-6-6b of the Code of West Virginia, 1931, as amended, relating to decreasing the 911 fee on wireless telephones from three dollars to seventy- five cents; reverting the distribution formula for 911 fees to the previous formula; and eliminating the Wireless Tower Fund.
 Referred to the Committee on Transportation and Infrastructure; and then to the Committee on Finance.
By Senators Sharpe and Bailey:
Senate Bill No. 486-- 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 and §32A-4-30, all relating to establishing the Deferred Deposit Loan Act; short title; and definitions.
 Referred to the Committee on Banking and Insurance; and then to the Committee on the Judiciary.
By Senator Bailey (By Request):
Senate Bill No. 487-- A Bill to amend and reenact §11-1C-8 of the Code of West Virginia, 1931, as amended, relating to the hiring of employees by the county assessor; providing that county commissions shall be considered joint employers of the assessor's valuation fund employees; and providing that property purchased with certain valuation fund funds is property of the county.
 Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Chafin and Kessler:
Senate Bill No. 488-- A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §46A-2A-101, §46A-2A-102, §46A-2A-103, §46A-2A-104, §46A-2A-105 and §46A-2A-106, all relating to consumer protection generally; defining certain terms; providing a procedure for consumers to implement a security freeze to prohibit a consumer reporting agency from releasing all or any part of the consumer's credit report or any information derived from it without the express authorization of the consumer in certain circumstances; providing for notice of consumer rights; providing civil penalties for violations; making a violation an unfair or deceptive act or practice; and providing for severability of the provisions of the article under certain circumstances.
 Referred to the Committee on the Judiciary.
By Senators Chafin and Helmick:
Senate Bill No. 489-- A Bill to amend and reenact §12-3A-6 of the Code of West Virginia, 1931, as amended, relating to the authorization of the State Treasurer to provide remittance processing and e-government services for a political subdivision upon its request.
 Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Helmick, Minear, Dempsey, Barnes, Plymale, Edgell, Hunter and Unger:
Senate Bill No. 490-- A Bill to amend and reenact §11-14-5 of the Code of West Virginia, 1931, as amended, relating to exempting the excise tax on gasoline or special fuels sold to county aging programs as defined by the Older Americans Act and designated by the Bureau of Senior Services.
 Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Boley and Barnes:
Senate Bill No. 491-- A Bill to amend and reenact §15-12-2 and §15-12-3a of the Code of West Virginia, 1931, as amended, all relating to including juveniles adjudicated as sexual offenders in the sex offender registry.
 Referred to the Committee on the Judiciary.
By Senator Bailey:
Senate Bill No. 492-- A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §33-6-37, relating to providing that indemnity agreements in motor carrier transportation contracts are void and unenforceable as against public policy.
 Referred to the Committee on Transportation and Infrastructure; and then to the Committee on the Judiciary.
By Senator Love:
Senate Bill No. 493-- A Bill to amend and reenact §62-12-19 of the Code of West Virginia, 1931, as amended, relating to release on parole; and providing that a person who has had his or her parole revoked three times is not eligible for parole and must serve the remainder of his or her term of confinement.
 Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Bowman, Hunter and Kessler:
Senate Bill No. 494-- A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §21-1D-1, §21-1D-2 and §21-1D-3, all relating to requiring employers to provide health insurance to employees working on public improvement projects.
 Referred to the Committee on Banking and Insurance; and then to the Committee on Finance.
By Senators Bowman and Unger:
Senate Bill No. 495-- A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §30-14-12c, relating to the Board of Osteopathy generally; providing for criminal background checks on licensees; and providing for the assessment of a fee for the background check.
 Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Bowman and Prezioso:
Senate Bill No. 496-- A Bill to amend and reenact §20-2-12 of the Code of West Virginia, 1931, as amended, relating to transportation of wildlife outside of the state; penalties; and allowing residents and nonresidents to take legally killed, taken or captured game out of the state.
 Referred to the Committee on Natural Resources.
By Senator Kessler:
Senate Bill No. 497-- A Bill to repeal §59-2-2 of the Code of West Virginia, 1931, as amended, relating to requiring nonresidents to post security for court costs.
 Referred to the Committee on the Judiciary.
By Senators White, Bowman, Prezioso and Dempsey:
Senate Bill No. 498-- A Bill to amend and reenact §20-2-42v of the Code of West Virginia, 1931, as amended, relating to clarifying the language regarding requirements for a Class BG stamp.
 Referred to the Committee on Natural Resources.
Senators McKenzie and Bowman offered the following resolution:
Senate Concurrent Resolution No. 33- Requesting the Division of Highways name the bridge crossing Buffalo Creek on State Route 2 in Wellsburg, Brooke County, the "John G. Chernenko Bridge".
Whereas, John G. Chernenko served this state with honor and distinction as a State Senator, being elected to that position in 1982, 1986 and 1990; and
Whereas, Before serving as State Senator, John G. Chernenko selflessly served this country with great courage and dedication, going well above and beyond the call of duty, as a soldier in the United States Army during World War II. He endured great hardship and sacrifice as a prisoner of war and was awarded the Purple Heart with cluster and Bronze Star (five campaigns) as a result of heroism he exhibited on the field of battle; and
Whereas, In 1961, he continued his service to his country when he was appointed by President John F. Kennedy as United States Marshal for the Northern District of West Virginia, a position to which he was reappointed by President Lyndon B. Johnson in 1965 and in which he served until 1969; and
Whereas, Senator Chernenko served as Majority Whip, Chairman of the Labor Committee and member of the Energy, Industry and Mining, Finance, Government Organization, Health and Human Resources and Military committees, as well as the Select Committee on Redistricting; and
Whereas, As a small token of the Legislature's immense and genuine appreciation for John G. Chernenko's service, dedication and courage as a soldier, legislator and leader, it is fitting that the bridge crossing Buffalo Creek in Wellsburg, Brooke County, be named the "John G. Chernenko Bridge"; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways to name the bridge crossing Buffalo Creek on State Route 2 in Wellsburg, Brooke County, the "John G. Chernenko Bridge"; and, be it
Further Resolved, That the Division of Highways is requested to have made and be placed signs identifying the bridge as the "John G. Chernenko 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, the Department of the United States Army and Marc B. Chernenko.
Which, under the rules, lies over one day.
Senators Yoder and Barnes offered the following resolution:
Senate Concurrent Resolution No. 34- Urging the federal government enact legislation designating the 175-mile corridor along U. S. Route 15 to include Harpers Ferry and Shepherdstown as a National Heritage Area.
Whereas, Urban sprawl has encroached significantly on the important historical places and monuments located along the corridor from Gettysburg, Pennsylvania, to Charlottesville, Virginia; and
Whereas, The heritage area designation will increase the chances of preserving the region's rural heritage, draw new tourism to the area and help market its numerous historic sites; and
Whereas, It is only fitting and proper that this corridor be preserved as a National Heritage Area and designated as the "Hallowed Ground" of which President Lincoln reminded us in his famous Gettysburg address; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby urges the federal government to enact legislation designating the 175-mile corridor along U. S. Route 15 to include Harpers Ferry and Shepherdstown as a National Heritage Area; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the President of the United States and West Virginia's congressional delegation.
 Which, under the rules, lies over one day.
Senators Plymale, Edgell, Dempsey and Unger offered the following resolution:
Senate Concurrent Resolution No. 35- Directing the West Virginia Department of Education, the Office of the Secretary of Education and the Arts and the 4-H and Youth, Family and Adult Development Division of the West Virginia University Extension Service convene and cochair a task force, to be known as the West Virginia After-School Partnership, intended to constructively address issues involving the development and care of school-age children.
Whereas, Recent data shows that the violent juvenile crime rate climbs, and children are most likely to be victims of violence committed by nonfamily members, between the hours immediately following the end of the school day until approximately 6 p.m.; and
Whereas, Children who attend after-school programs spend more time in learning opportunities, academic enrichment and physical activity while spending less time watching television or engaging in risky behavior with their peers; and
Whereas, A post-election national poll conducted for the After-School Alliance shows that eight in ten voters agree that funding should increase for after-school programs and a majority of those polled indicated they would support a tax increase to fund these programs; and
Whereas, A study by the Rose Institute in California concluded that a significantly valuable return to taxpayers of an investment in after-school programs exists and is exemplified by reduced child care costs, improved school performance, increased compensation and reduced crime and welfare costs; and
Whereas, In 2004, the State Department of Education received 32 proposals requesting funding of 21st Century Community Learning Center after-school programs that would have served nearly 30,000 children in the state, but funding was available for only 12 grants serving less than 9,000 children. In 2005, funding was available for only one grant serving 1,000 students although 21 proposals were received; and
Whereas, More than 27 percent of children in kindergarten through twelfth grade in self care in this state would be likely to participate in an after-school program if one were available in the community according to a survey conducted by the After-School Alliance; and
Whereas, A recent report, "Fight Crime: Invest in Kids", indicates that the Child Care Development Block Grant to help low-income parents pay for child care could only serve 25 percent of eligible West Virginia children while stating further that child care center teacher wages in this state average only $13,400, resulting in high staff turnover, inadequately trained staff and low-quality care; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby directs the West Virginia Department of Education, the Office of the Secretary of Education and the Arts and the 4-H and Youth, Family and Adult Development Division of the West Virginia University Extension Service to convene and cochair a task force, to be known as the West Virginia After-School Partnership, intended to constructively address issues involving the development and care of school-age children; and, be it
Further Resolved, That the activities of the West Virginia After-School Partnership shall include: (1) Conducting an assessment of after-school services in West Virginia, including the identification of the number of children and youth served statewide in after-school programs; (2) identifying provider programs and service regions; (3) assessing the need for after-school programs; (4) identifying and describing the needs of providers in sustaining high-quality programs; (5) describing current funding streams supporting after-school programs; and (6) creating a plan to establish a network of partners engaged in after-school programs to promote high-quality programs that are accessible and sustainable; and, be it
Further Resolved, That the West Virginia After-School Partnership shall provide recommendations for public policies to increase the availability and improve the sustainability of high- quality after-school programs and identify sources to further the work of the Partnership from public and private sectors; and, be it
Further Resolved, That the After-School Partnership, coordinated by the West Virginia Department of Education, the Office of the Secretary of Education and the Arts and the 4-H and Youth, Family and Adult Development Division of the West Virginia University Extension Service shall report to the Governor and the Legislature on the West Virginia After-School Partnership during the 2007 legislative session.
 Which, under the rules, lies over one day.
The Senate proceeded to the eighth order of business.
 Eng. Senate Bill No. 57, Relating to designation and operation of traffic signal as flashing signal.
On third reading, coming up in regular order, was 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, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Fanning and McKenzie--2.
 So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 57) passed.
The following amendment to the title of the bill, from the Committee on Transportation and Infrastructure, was reported by the Clerk and adopted:
O n page one, by striking out the title and substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 57--A Bill to amend and reenact §17C-3-5 of the Code of West Virginia, 1931, as amended, relating to allowing a county commission or municipality to request the Commissioner of Highways to designate and operate, during certain times, a traffic control signal as a flashing signal; procedure; and assigning responsibility for costs.
 Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 441, Prohibiting public display of certain autopsy photographs.
On third reading, coming up in regular order, was 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, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Fanning and McKenzie--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 441) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2006.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Fanning and McKenzie--2.
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. 441) takes effect July 1, 2006.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 442, Changing expiration date of graduated driver's licenses.
On third reading, coming up in regular order, was 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, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Fanning and McKenzie--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 442) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2006.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Dempsey, Edgell, Facemyer, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Fanning and McKenzie--2.
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. 442) takes effect July 1, 2006.
 Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 444, Relating to proof of lawful disposal of solid waste.
On third reading, coming up in regular order, was 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, Foster, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Lanham, Love, McCabe, Minard, Minear, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Unger, Weeks, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Fanning and McKenzie--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 444) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate proceeded to the ninth order of business.
Senate Bill No. 461, Clarifying water supply replacement requirements for surface mine operators.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
The Senate proceeded to the tenth order of business.
Com. Sub. for Senate Bill No. 174, Relating to State Police Death, Disability and Retirement Fund benefits.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Com. Sub. for Senate Bill No. 364, Removing sunset provision from West Virginia Jobs Act.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
 Senate Bill No. 479, Paying certain funeral expenses for juvenile probation officers killed in line of duty.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
 Senate Bill No. 480, Relating to time period for paying criminal proceedings costs.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
 Senate Bill No. 481, Relating to domestic violence protective orders served out of state.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
 Senate Bill No. 482, Changing "family law master" to "family court judge".
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. 483, Providing confidentiality of circuit court records involving guardianship of minors.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
 Senate Bill No. 484, Utilizing community corrections programs in pre-trial supervision.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
At the request of Senator Chafin, and by unanimous consent, the Senate returned to the fourth order of business.
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 Bill No. 219, Prohibiting cell phone use by certain minors while driving.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 219 (originating in the Committee on Transportation and Infrastructure)-- A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §17B-2-3b; and to amend and reenact §17B-3- 6 of said code, all relating to prohibiting wireless communication use while driving by a minor holding a level one instruction permit or a level two intermediate driver's license; suspending licenses for violations; and related procedures.
With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on the Judiciary.
Respectfully submitted,
John R. Unger II,
Chair.
 The bill (Com. Sub. for S. B. No. 219), under the original double committee reference, was then referred to the Committee on the Judiciary.
 The Senate proceeded to the twelfth order of business.
Remarks were made by Senators Plymale, Hunter, Sprouse, Deem, Chafin, Barnes, Weeks, Kessler, Yoder and Oliverio.
Senator Weeks requested unanimous consent that the remarks by Senator Yoder be ordered printed in the Appendix to the Journal.
Which consent was not granted, Senator Chafin objecting.
Thereafter, on motion of Senator Weeks, the remarks by Senator Yoder were ordered printed in the Appendix to the Journal.
On motion of Senator Chafin, leaves of absence for the day were granted Senators Fanning and McKenzie.
Pending announcement of a minority party caucus,
On motion of Senator Chafin, the Senate adjourned until Monday, February 6, 2006, at 11 a.m.
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