WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-SEVENTH LEGISLATURE
REGULAR SESSION, 2006
THIRTY-FIFTH DAY
____________
Charleston, W. Va., Tuesday, February 14, 2006
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by the Reverend Richard G. Mahan, St.
Timothy Lutheran Church, Charleston, West Virginia.
Pending the reading of the Journal of Monday, February 13,
2006,
On motion of Senator Deem, 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 passage by that body and requested the concurrence of the
Senate in the passage of
Eng. Com. Sub. for House Bill No. 2312--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §16-6-14a, relating to the requirements for designated handicapped-accessible rooms in motels and hotels; and
requiring tubs and showers in every hotel or motel room that has
been designated or held out to be handicapped accessible to include
grab bars on all walls of the tub or shower, consistent with
applicable design standards of the Americans with Disabilities Act
of 1990.
Referred to the Committee on Health and Human Resources.
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. House Bill No. 4041--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §55-7-19a, relating to providing limited immunity from
civil damages for persons who volunteer their services to public
health departments; and providing that the limitation of liability
does not apply to intentional tortious conduct or acts or omissions
constituting gross negligence.
Referred to the Committee on the Judiciary.
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. House Bill No. 4065--A Bill to amend and reenact §62-12-
23 of the Code of West Virginia, 1931, as amended, relating to
notification of parole hearings; victim's right to be heard; and adding to the crimes committed by an offender for which the
preparation of a parole hearing notification form and notification
of release on parole is required.
Referred to the Committee on the Judiciary.
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. 4107--A Bill to amend and
reenact º61-2-29 of the Code of West Virginia, 1931, as amended;
and to amend said code by adding thereto four new sections,
designated º61-2-29a, º61-2-29b, º61-2-29c and §61-2-29d, all
relating to protecting incapacitated persons and the elderly;
defining terms; and providing enhanced periods of incarceration for
the offense of abuse or neglect of incapacitated adults or elder
persons which result in the death of such persons.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced
the passage by that body, to take effect from passage, and
requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4240--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §18B-3C-13, relating to changing the name of
the Community and Technical College of Shepherd to Blue Ridge
Community and Technical College.
Referred to the Committee on Education.
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. 17--Requesting the Governor of
the State of West Virginia and the West Virginia Development Office
to put the highest priority on putting forward locations in the
southern coalfield counties for the proposed coal conversion
facilities.
Whereas, The United States faces foreign and domestic threats
to the petroleum and natural gas resources so vital to our economy;
and
Whereas, West Virginia has an estimated 50 billion tons of
coal reserves; and
Whereas, Coal liquefaction and other conversion processes can
turn each ton of coal into as much as three barrels of liquid fuel;
and
Whereas, Governor Joe Manchin III has established the West
Virginia Coal Conversion Initiative to bring the public and private
sectors together to build coal conversion facilities and related
infrastructures in the Mountain State; and
Whereas, Such facilities would bring much-needed jobs,
economic development and take the state away from a dependence on
outside fuels; and
Whereas, Southern West Virginia is located within 500 miles of
half of the nation's population and much of West Virginia's coal
reserves lie in the southern coalfields; and
Whereas, The West Virginia Turnpike, U. S. Route 19 and the
soon to be built King Coal Highway, Tolsia Highway and Coalfields
Expressway make southern West Virginia more accessible than ever to
the markets of the East Coast, Midwest and South; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Governor of the State
of West Virginia and the West Virginia Development Office to put
the highest priority on putting forward locations in the southern
coalfield counties for the proposed coal conversion facilities;
and, be it
Further Resolved, That the Clerk of the House is hereby
directed to forward a copy of this resolution to the Governor of
the State of West Virginia, the West Virginia Development Office
and the Wyoming County Commission.
Referred to the Committee on Economic Development.
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. 32--Designating December 6
annually as "Miner's Day" in appreciation, honor and remembrance of
the accomplishments and sacrifices of miners in this state.
Whereas, The worst mining disaster in American history
occurred in the community of Monongah, West Virginia, on December
6, 1907, resulting in the deaths of 361 miners; and
Whereas, This year in West Virginia mining disasters have
occurred on January 2, 2006, at Tallmansville in Upshur County and
on January 20, 2006, at Melville in Logan County, resulting in the
deaths of 14 brave miners; and
Whereas, The total number of West Virginia miners who have
perished in mining disasters exceeds 2,626; and
Whereas, These disasters are sober reminders of the risks that
miners are routinely exposed to in their work; therefore, be it
Resolved by the Legislature of West Virginia:
That December 6 be designated annually as "Miner's Day" in
appreciation, honor and remembrance of the accomplishments and
sacrifices of miners in this state; and, be it
Further Resolved, That on December 6 each year part of the day
be set aside for quiet contemplation to honor those brave miners
who have perished in our state's mines; and, be it
Further Resolved, The Clerk of the House of Delegates is
hereby requested to forward a copy of this resolution to the
Governor.
Referred to the Committee on Energy, Industry and Mining.
The Senate proceeded to the fourth order of business.
Senator Fanning, from the Committee on Natural Resources, submitted the following report, which was received:
Your Committee on Natural Resources has had under
consideration
Senate Bill No. 96, Authorizing boat safety checks by
conservation officers.
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,
John Pat Fanning,
Chair.
The bill, under the original double committee reference, was
then referred to the Committee on the Judiciary.
Senator Hunter, from the Committee on Military, submitted the
following report, which was received:
Your Committee on Military has had under consideration
Senate Bill No. 98, Exempting military retirement benefits
from personal income tax.
And,
Senate Bill No. 451, Tolling licensure and registration fees
for certain active duty military.
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 Finance.
Respectfully submitted,
Jon Blair Hunter,
Chair.
The bills, under the original double committee references,
were then referred to the Committee on Finance.
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. 124, Creating Public Campaign Financing Act.
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 Finance.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
The bill, under the original double committee reference, was
then referred to the Committee on Finance, with an amendment from
the Committee on the Judiciary pending.
Senator Hunter, from the Committee on Military, submitted the
following report, which was received:
Your Committee on Military has had under consideration
Senate Bill No. 222, Creating fund to reimburse life insurance
premiums for certain National Guard members.
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 Banking and Insurance.
Respectfully submitted,
Jon Blair Hunter,
Chair.
The bill, under the original double committee reference, was
then referred to the Committee on Banking and Insurance.
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. 245, Creating Consolidated Local Government
Act.
And reports back a committee substitute for same with the
following title:
Com. Sub. for Senate Bill No. 245 (originating in the
Committee on Finance)--A Bill to repeal §8-8-1, §8-8-2, §8-8-3,
§8-8-4, §8-8-5, §8-8-6, §8-8-7, §8-8-8, §8-8-9, §8-8-10, §8-8-11,
§8-8-12, §8-8-13, §8-8-14, §8-8-15, §8-8-16, §8-8-17 and §8-8-18 of
the Code of West Virginia, 1931, as amended; and to amend said code
by adding thereto a new chapter, designated §7A-1-1, §7A-1-2,
§7A-1-3, §7A-1-4, §7A-2-1, §7A-2-2, §7A-2-3, §7A-2-4, §7A-3-1,
§7A-3-2, §7A-3-3, §7A-3-4, §7A-3-5, §7A-3-6, §7A-3-7, §7A-4-1,
§7A-4-2, §7A-4-3, §7A-5-1, §7A-5-2, §7A-5-3, §7A-5-4, §7A-5-5, §7A-5-6, §7A-5-7, §7A-5-8, §7A-6-1, §7A-6-2, §7A-6-3, §7A-6-4,
§7A-6-5, §7A-6-6, §7A-6-7, §7A-7-1, §7A-7-2, §7A-7-3, §7A-7-4,
§7A-7-5, §7A-7-6, §7A-7-7, §7A-7-8 and §7A-8-1, all relating to
creating the Consolidated Local Government Act; stating legislative
findings and definitions; authorizing municipal consolidation,
county consolidation and metro consolidation; setting forth powers
of consolidated governments; establishing powers to be construed
broadly; stating local consolidated government to be treated like
municipality in municipal consolidation, county in county
consolidation and municipality and county in metro consolidation;
addressing jurisdiction and limitations of consolidated local
governments; commencing consolidation by petition from voters or
resolution by governing bodies; creating charter review committees;
stating powers and duties of charter review committees; allowing
reimbursement of expenses for committee members; submitting charter
review committee budget to governing bodies; studying
consolidation; addressing territory, fiscal impact, name, seat,
representation, governing body, effective date, transition of
service and dissolution in charter; drafting proposed charter;
providing multiple public hearings; providing for notice of
hearing; approving proposed charter and submitting proposed charter
to governing bodies to hold elections; providing election by voters
of each affected local government for municipal consolidation,
county consolidation and metro consolidation; providing for notice of election and ballot; allocating payment for cost of elections;
permitting reconsideration of second proposed charter if first is
defeated; leaving municipalities incorporated in metro
consolidation; disallowing new consolidation effort for two years
after defeat; allowing subsequent joining of local governments to
consolidated local government after one year of consolidation; and
permitting charter to be amended.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Hunter, from the Committee on Military, submitted the
following report, which was received:
Your Committee on Military has had under consideration
Senate Bill No. 265, Adding names of certain deceased veterans
to Veterans Memorial Monument.
And reports back a committee substitute for same with the
following title:
Com. Sub. for Senate Bill No. 265 (originating in the
Committee on Military)--A Bill to amend the Code of West Virginia,
1931, as amended, by adding thereto a new section, designated º29-
1I-6, relating to adding to the West Virginia Veterans Memorial
Monument the names of West Virginia veterans who died in action in
Bosnia, Kosovo, Afghanistan and Iraq; and adding names of those members of the military who may die in the ongoing Bosnia, Kosovo,
Afghanistan and Iraq conflicts.
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,
Jon Blair Hunter,
Chair.
The bill (Com. Sub. for S. B. No. 265), under the original
double committee reference, was then referred to the Committee on
Finance.
Senator Fanning, from the Committee on Natural Resources,
submitted the following report, which was received:
Your Committee on Natural Resources has had under
consideration
Senate Bill No. 379, Authorizing Division of Natural Resources
promulgate legislative rule relating to rules governing public use
of state parks, forests and wildlife management areas.
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,
John Pat Fanning,
Chair.
The bill, under the original double committee reference, was
then referred to the Committee on the Judiciary, with amendments
from the Committee on Natural Resources pending.
Senator Fanning, from the Committee on Natural Resources,
submitted the following report, which was received:
Your Committee on Natural Resources has had under
consideration
Senate Bill No. 384, Authorizing Division of Natural Resources
promulgate legislative rule relating to lifetime hunting, trapping
and fishing licenses.
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,
John Pat Fanning,
Chair.
The bill, under the original double committee reference, was
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 Chafin and Hunter:
Senate Bill No. 561--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §61-2-31, relating to railroad employees; and
establishing criminal penalties for interfering with medical
treatment of a railroad employee injured during the course of
employment.
Referred to the Committee on Health and Human Resources; and
then to the Committee on the Judiciary.
By Senators Chafin and Love:
Senate Bill No. 562--A Bill to amend and reenact §61-3-39f of
the Code of West Virginia, 1931, as amended, relating to providing
authorization for private citizens to file certain criminal
complaints directly with the magistrate court.
Referred to the Committee on the Judiciary.
By Senators Chafin and Deem:
Senate Bill No. 563--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new article,
designated §30-2A-1, §30-2A-2, §30-2A-3, §30-2A-4, §30-2A-5,
§30-2A-6, §30-2A-7, §30-2A-8, §30-2A-9, §30-2A-10, §30-2A-11,
§30-2A-12, §30-2A-13, §30-2A-14 and §30-2A-15, all relating to
regulating the advertising of legal services; establishing an
Attorneys' Advertising Commission; and providing provisions
addressing the advertising of fees, filing of advertisements,
obtaining advisory opinions, reviewing of proposed advertisements, direct contact with prospective clients, waiver and forfeiture of
fees for prohibited solicitation, communications concerning a
lawyer's service, contents of advertisements and firm names and
letterheads.
Referred to the Committee on the Judiciary; and then to the
Committee on Finance.
By Senators Yoder, Barnes, Unger and McCabe:
Senate Bill No. 564--A Bill to establish a volunteer litter
reporting pilot project in Berkeley County.
Referred to the Committee on the Judiciary.
Senator Facemyer offered the following resolution:
Senate Concurrent Resolution No. 39--Requesting the Division
of Highways name the bridge located in Red House, Putnam County,
the "Ross Booth Memorial Bridge".
Whereas, Ross Booth worked as a carpenter and helped build
this bridge which was completed in 1957; and
Whereas, Ross Booth worked and helped construct many bridges
located on the western section of Interstate 64; and
Whereas, Ross Booth was injured on one of those bridge
construction sites on Interstate 64 and was unable to work again;
and
Whereas, It is fitting that this bridge in Red House, Putnam
County, be named in his honor; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways
name the bridge on Route 35 in Red House, Putnam County, the "Ross
Booth Memorial 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
"Ross Booth 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 the family of the late Ross
Booth.
Which, under the rules, lies over one day.
At the request of Senator Chafin, unanimous consent being
granted, the Senate returned to the fourth order of business.
Senator Hunter, from the Committee on Military, submitted the
following report, which was received:
Your Committee on Military has had under consideration
Senate Bill No. 565 (originating in the Committee on
Military)--A Bill to amend the Code of West Virginia, 1931, as
amended, by adding thereto a new article, designated §18-19A-1,
§18-19A-2, §18-19A-3 and §18-19A-4, all relating to providing an
educational opportunities benefit for certain spouses of those who
have died as a result of certain military service.
And reports the same back with the recommendation that it do
pass; but with the further recommendation that it first be referred to the Committee on Education.
Respectfully submitted,
Jon Blair Hunter,
Chair.
On motion of Senator Hunter, the bill (S. B. No. 565)
contained in the foregoing report from the Committee on Military
was then referred to the Committee on Education.
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. 566 (originating in the Committee on the
Judiciary)--A Bill to amend and reenact §14-2A-3 and §14-2A-19a of
the Code of West Virginia, 1931, as amended, all relating to
increasing the maximum payment for crime scene cleanup costs
involving real property damaged by a methamphetamine laboratory;
redefining claimant to include as a victim the owner of real
property damaged by a methamphetamine laboratory; amending
exclusions for motor vehicle claims to include instances in which
a third party leaves the scene of the accident; redefining work
loss to include the loss of income from work by a parent or
guardian of a minor child who was the victim of a crime; redefining
allowable expense to include reasonable travel expenses for out-of-
state travel to return a minor or incapacitated adult who has been
unlawfully taken from the state; specifying the maximum amounts for such travel expenses; imposing certain duties and restrictions on
health care providers that file an assignment of benefits with the
court; and tolling of statute of limitations to collect unpaid
medical bills until the claim is processed by the court.
And reports the same back with the recommendation that it do
pass; but with the further recommendation that it first be referred
to the Committee on Finance.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
On motion of Senator Kessler, the bill (S. B. No. 566)
contained in the foregoing report from the Committee on the
Judiciary was then referred to the Committee on Finance.
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. 567 (originating in the Committee on
Transportation and Infrastructure)--A Bill to amend and reenact
§5B-1-2 of the Code of West Virginia, 1931, as amended; to amend
and reenact §5B-2A-1, §5B-2A-3 and §5B-2A-4 of said code; to amend
and reenact §5D-1-4 of said code; to amend and reenact §5F-2-1 of
said code; to amend said code by adding thereto a new chapter,
designated §5H-1-1 and §5H-1-2; and to amend and reenact §22-3A-7 of said code, all relating to the creation of the Division of
Energy within the Department of Commerce; charging the Division of
Energy to develop energy policies; placing the office of Coalfield
Community Development within the Division of Energy; creating the
position of the Executive Director of the Division of Energy;
charging the Executive Director of the Division of Energy to
administer functions of the West Virginia Public Energy Authority;
providing the executive director acts under the authority of the
Secretary of Commerce; providing the executive director has
authority over the office of the Coalfield Community Development
and the Energy Efficiency Program of the West Virginia Development
Office; providing the Public Energy Authority, the office of the
Coalfield Community Development, executive director and other
public agencies develop an energy policy and development plan and
seek public input thereof; providing the executive director is a
nonvoting member of the Public Energy Authority; requiring the
submission of an energy policy and development plan to the Governor
and Joint Committee on Government and Finance; setting forth the
matters to be addressed in the energy policy and development plan;
providing that the executive director shall prepare an energy use
database; providing that the executive director shall promote
initiatives to enhance the nation's energy security; providing that
the executive director shall encourage the development of energy
infrastructure and strategic resources that will ensure the continuity of governmental operations in situations of emergency,
inoperativeness or disaster; and providing funding for the Division
of Energy.
And reports the same back with the recommendation that it do
pass; but with the further recommendation that it first be referred
to the Committee on Finance.
Respectfully submitted,
John R. Unger II,
Chair.
On motion of Senator Unger, the bill (S. B. No. 567) contained
in the foregoing report from the Committee on Transportation and
Infrastructure was then referred to the Committee on Finance.
The Senate proceeded to the eighth order of business.
Eng. Senate Bill No. 166, Restructuring Parole Board.
On third reading, coming up in regular order, was reported by
the Clerk.
On motion of Senator Bowman, the bill was referred to the
Committee on Finance.
Eng. Com. Sub. for Senate Bill No. 473, Creating crime of
reckless driving resulting in serious bodily injury.
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, 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. 473) 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, 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. 473) takes effect July 1, 2006.
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.
Com. Sub. for Senate Bill No. 183, Creating certain special
license plates.
On second reading, coming up in regular order, was reported by
the Clerk.
At the request of Senator Facemyer, unanimous consent being
granted, the bill was laid over one day, retaining its place on the
calendar.
Senate Bill No. 556, Relating to state parks and recreation
system operational contracts.
On second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading.
Senate Bill No. 557, Removing requirement for Shady Spring
Turnpike interchange construction; restoring tolls to prior rates.
On second reading, coming up in regular order, was read a
second time.
At the request of Senator Chafin, and by unanimous consent,
the bill was advanced to third reading with the right for
amendments to be considered on that reading.
The Senate proceeded to the twelfth order of business.
Remarks were made by Senators Boley, Sprouse, Kessler,
Facemyer, Weeks, Deem and Plymale.
The Senate proceeded to the thirteenth order of business.
At the respective requests of Senators Facemyer and Yoder,
unanimous consent being granted, it was ordered that the Journal show had Senators Facemyer and Yoder been present in the chamber on
yesterday, Monday, February 13, 2006, they would have voted "yea"
on the passage of Engrossed Committee Substitute for Senate Bill
No. 270, Engrossed Senate Bill No. 462 and Engrossed Senate Bill
No. 505.
At the request of Senator Edgell, and by unanimous consent,
the Senate returned to the twelfth order of business.
Remarks were made by Senator Edgell.
Pending announcement of meetings of standing committees of the
Senate,
On motion of Senator Chafin, the Senate adjourned until
tomorrow, Wednesday, February 15, 2006, at 11 a.m.
____________