WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-SEVENTH LEGISLATURE
REGULAR SESSION, 2006
FIFTY-EIGHTH DAY
____________
Charleston, W. Va., Thursday, March 9, 2006
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by the Reverend Shawn R. Thornton, Senior
Pastor, Bible Center Church, Charleston, West Virginia.
Pending the reading of the Journal of Wednesday, March 8,
2006,
On motion of Senator Bowman, 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.
At the request of Senator Chafin, and by unanimous consent,
the provisions of rule number fifty-four of the Rules of the
Senate, relating to persons entitled to the privileges of the
floor, were suspended in order to grant Rose Meredith, Dee Dee Ross
and Josh Ross privileges of the floor for the day.
The Senate 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 of
Eng. Senate Bill No. 13, Requiring cross-reporting of suspected abuse or neglect of individuals or animals.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 51, Relating to name change
for certain persons.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On
page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 25. CHANGE OF NAME.
§48-25-101. Petition to circuit court or family court for change
of name; contents thereof; notice of application.
(a) Any person desiring a change of his or her own name, or
that of his or her child or ward, may apply therefor to the circuit
court or family court of the county in which he or she resides by
a verified petition setting forth and affirming the following:
(1) That he or she has been a bona fide resident of the county
for at least one year prior to the filing of the petition;
(2) The cause for which the change of name is sought;
(3) The new name desired;
(4) The name change is not for purposes of avoiding debt or
creditors;
(5) The petitioner seeking said name change is not a
registered sex offender pursuant to any state or federal law;
(6) The name change sought is not for purposes of avoiding any
state or federal law regarding identity;
(7) The name change sought is not for any improper or illegal
purpose; and
(8) The petitioner is not a convicted felon in any
jurisdiction.
(b) Notwithstanding the provisions of subsection (a) of this
section, a nonresident of the county may apply for a change of name
if the person was born in the county, was married in the county and
was previously a resident of the county for a period of at least
fifteen years.
(b) (c) Previous to the filing of the petition, the person
shall cause a notice of the time and place that the application
will be made to be published as a Class I legal advertisement in
compliance with the provisions of article three, chapter fifty-nine
of this code. The publication area for the publication is the
county: Provided, That the publication shall contain a provision
that the hearing may be rescheduled without further notice or
publication.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 51--A Bill
to amend and
reenact §48-25-101 of the Code of West Virginia, 1931, as amended, relating to refining procedures for name change; permitting persons
to file for a name change who were born in, married in and
previously were residents in the county for at least fifteen years
where the petition is brought; setting forth requirements for the
verified petition; and providing that a second notice and
publication are not required in the event of a rescheduled hearing.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 51, as
amended by the House of Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 51) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendments, as
to
Eng. Com. Sub. for Senate Bill No. 170, Creating Health
Information Network.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On
page eleven, section four, line five, by striking out the
word "coalitions" and inserting in lieu thereof the word
"collections";
On page eleven, section four, line nine, by striking out the
word "five-a" and inserting in lieu thereof the word "eleven-b";
And,
On page eleven, section four, line eleven, by striking out the
word "eight" and inserting in lieu thereof the word "seven".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 170, as
amended by the House of Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 170) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 213, Continuing Consolidated Public
Retirement Board.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 214, Continuing Real Estate Commission.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 215, Continuing Board of Examiners in
Counseling.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 218, Continuing Capitol Building
Commission.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Com. Sub. for Senate Bill No. 364, Removing sunset provision from West Virginia Jobs Act.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 371, Reducing severance tax on timber.
A message from The Clerk of the House of Delegates announced
the amendment by that body to the title of the bill, passage as
amended, to take effect from passage, and requested the concurrence
of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 396, Authorizing Division
of Rehabilitation Services promulgate legislative rule relating to
Ron Yost Personal Assistance Services Board.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the title of the
bill was reported by the Clerk:
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 396--A Bill to amend and
reenact article 4, chapter 64 of the Code of West Virginia, 1931,
as amended, relating generally to the promulgation of
administrative rules by the Department of Education and the Arts
and the procedures relating thereto; legislative mandate or
authorization for the promulgation of certain legislative rules by
various executive or administrative agencies of the state;
authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in the
State Register; authorizing certain of the agencies to promulgate
certain legislative rules with various modifications presented to
and recommended by the Legislative Rule-Making Review Committee;
authorizing certain of the agencies to promulgate certain
legislative rules as amended by the Legislature; authorizing
certain of the agencies to promulgate certain legislative rules
with various modifications presented to and recommended by the
Legislative Rule-Making Review Committee and as amended by the
Legislature; and authorizing the Division of Rehabilitation
Services to promulgate a legislative rule relating to the Ron Yost
Personal Assistance Services Board.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the title of the bill.
Engrossed Committee Substitute for Senate Bill No. 396, as
amended by the House of Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 396) passed with its House of Delegates
amended 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. 396) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 462, Relating to filing interstate
compacts with Secretary of State.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 1B. COMMISSION ON INTERSTATE COOPERATION.
§29-1B-8. Filing interstate compacts.
(a) Within ninety days of entering into an interstate compact,
a commission, agency or person administering the compact between or
among states or the federal government, having the force of law and
to which this state is a party, shall file with the office of the
Secretary of State:
(1) A copy of the compact accompanied by a signed letter of a
representative of the commission, agency or person administering
the compact stating that the copy is a true and accurate copy of
the adopted compact;
(2) A listing of all other jurisdictions party to the compact
and the date on which each jurisdiction entered into participation;
and
(3) Citations to any act or resolution of the Congress of the
United States consenting to the compact.
(b) The commission, agency or person administering the compact
shall submit, within a reasonable time from when the information
becomes available:
(1) The status of each compact with respect to withdrawals or
additions of participating jurisdictions; and
(2) Any amendment, supplementary agreement or administrative
rule having the force of law and implementing or modifying the
compact.
(c) The office of the Secretary of State shall index these
documents and make them available for inspection upon request of
any person during normal business hours.
(d) The provisions of this section are in addition to other
requirements of law for filing, publication or distribution.
(e) Certified copies of interstate compacts entered into by
this state prior to the effective date of this section and the
information required to be filed under subsection (a) of this
section shall be filed with the office of the Secretary of State by
the commission, agency or person administering the compacts within
ninety days of the effective date of this section.
;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 462--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §29-1B-8, relating to filing interstate compacts in the
office of the Secretary of State; establishing requirements for
compact and associated documents to be filed by entities
administering the compact; requiring further filings when compact
contents, status or membership changes; establishing administrative
requirements for the Secretary of State; allowing public inspection
of compacts; and establishing requirements for compacts entered
into prior to effective date of this section.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Senate Bill No. 462, as amended by the House of
Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 462) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect July
1, 2006, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 473, Creating crime of
reckless driving resulting in serious bodily injury.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page one, by striking out everything after the enacting section
and inserting in lieu thereof the following
:
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-3. Reckless driving; penalties.
(a) Any person who drives any vehicle upon any street or
highway, or upon any residential street, or in any parking area, or
upon the ways of any institution of higher education, whether
public or private, or upon the ways of any state institution, or
upon the property of any county boards of education, or upon any
property within the state park and public recreation system
established by the Director of the Division of Natural Resources
pursuant to section three, article four, chapter twenty of this
code in willful or wanton disregard for the safety of persons or
property is guilty of reckless driving.
(b) The provisions of subsection (a) of this section shall not
apply to those areas which have been temporarily closed for racing
sport events or which may be set aside by the Director of the
Division of Natural Resources within the state park and recreation
system for exclusive use by motorcycles or other recreational
vehicles.
(c) Every person convicted of reckless driving may be punished
by
imprisonment
by fine of fined
not less than twenty-five dollars nor more than five hundred
dollars, or by both such fine and imprisonment, and, on a upon
conviction of a second or subsequent conviction may
punished by imprisonment for confined in jail not less than ten
days nor more than six months, or by a fine of fined not less than
fifty dollars nor more than one thousand dollars, or by both. such
fine and imprisonment
(d) Notwithstanding the provisions of subsection (e) of this
section, any person convicted of a violation of subsection (a) of
this section who in doing so proximately causes another to suffer
serious bodily injury shall, upon conviction, be confined in jail
not less than ten days nor more than six months or fined not less
than fifty dollars nor more than one thousand dollars, or both.
(e) For purposes of subsection (d) of this section, "serious
bodily injury" means bodily injury which creates a substantial risk
of death, which causes serious or prolonged disfigurement,
prolonged impairment of health or prolonged loss or impairment of
the function of any bodily organ.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 473, as
amended by the House of Delegates, was then 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 elected to the Senate 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.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 479, Paying certain funeral expenses for
juvenile probation officers killed in line of duty.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 481, Relating to domestic violence
protective orders served out of state.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 489, Authorizing Treasurer
provide remittance processing and e-government services to
political subdivisions.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 509, Clarifying automobile
franchise law.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Senate Bill No. 516, Finding and declaring claims against
state.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On
page two, section one, line fourteen, by striking out the
word "GENERAL" and inserting in lieu thereof the word "SPECIAL".
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendment to the bill (Eng. S. B. No. 516) and
requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, to take effect from
passage, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Senate Bill No. 529, Updating meaning of certain terms
used in state Personal Income Tax Act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On
page two, section nine, line eleven, by striking out the
word "five" and inserting in lieu thereof the word "four".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 529, as amended by the House of
Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 529) 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. 529) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 530, Updating meaning of certain terms
used in state Corporation Net Income Tax Act.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 551, Relating to involuntary commitment
process for addicted persons.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page twenty-four, section four, line seventy-six, by
striking out the word "person" and inserting in lieu thereof the
words "next of kin".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the bill.
Engrossed Senate Bill No. 551, as amended by the House of
Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 551) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 576, Changing calculation
of prejudgment and post-judgment interest.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 1. GENERAL PROVISIONS; DEFINITIONS.
Part 3. Miscellaneous Provisions Relating
to Domestic Relations.
§48-1-302. Calculation of interest.
(a) If Notwithstanding any other provisions of the code, if an
obligation to pay interest arises under this chapter, the rate of
interest is that specified in section §56-6-31 of this code is ten
percent per annum, and proportionate thereto for a greater or
lesser sum, or for a longer or shorter time. Interest awarded
shall only be simple interest, and nothing in this section may be
construed to permit awarding of compound interest. Interest
accrues only upon the outstanding principal of such obligation. On
and after the ninth day of June, one thousand nine hundred ninety-five, this section will be construed to permit the
accumulation of simple interest and may not be construed to permit
the compounding of interest. Interest which accrued on unpaid
installments accruing before the ninth day of June, one thousand
nine hundred ninety-five, may not be modified by any court,
irrespective of whether such installment accrued simple or compound
interest: Provided, That unpaid installments upon which interest
was compounded before the effective date of this section shall
accrue only simple interest thereon on and after the ninth day of
June, one thousand nine hundred ninety-five.
(b) Notwithstanding any other provision of law, no court may
award or approve prejudgment interest in a domestic relations
action against a party unless the court finds, in writing, that the
party engaged in conduct that would violate subsection (b), Rule 11
of the West Virginia Rules of Civil Procedure. If prejudgment
interest is awarded, the court shall calculate prejudgment interest
from the date the offending representation was presented to the
court pursuant to subsection (a) of this section.
(c) Upon written agreement by both parties, an obligor may
petition the court to enter an order conditionally suspending the
collection of all or part of the interest that has accrued on
past-due child support prior to the date of the agreement:
Provided, That said agreement shall also establish a reasonable
payment plan which is calculated to fully discharge all arrearages
within twenty-four months. Upon successful completion of the
payment plan, the court shall enter an order which permanently relieves the obligor of the obligation to pay the accrued interest.
If the obligor fails to comply with the terms of the written
agreement, then the court shall enter an order which reinstates the
accrued interest.
(d) Amendments to this section enacted by the Legislature
during the two thousand six regular session shall become effective
the first day of January, two thousand seven.
CHAPTER 56. PLEADING AND PRACTICE.
ARTICLE 6. TRIAL.
§56-6-31. Interest on judgment or decree.
(a) Except where it is otherwise provided by law, every
judgment or decree for the payment of money, whether in an action
sounding in tort, contract or otherwise, entered by any court of
this state shall bear interest from the date thereof, whether it be
so stated in the judgment or decree or not: Provided, That if the
judgment or decree, or any part thereof, is for special damages, as
defined below, or for liquidated damages, the amount of such
special or liquidated damages shall bear interest from the date the
right to bring the same shall have accrued, as determined by the
court at the rate in effect for the calendar year in which the
right to bring the same shall have accrued, as determined by the
court and that established rate shall remain constant from that
date until the date of the judgment or decree, notwithstanding
changes in the federal reserve district discount rate in effect in
subsequent years prior to the date of the judgment or decree.
Special damages includes lost wages and income, medical expenses, damages to tangible personal property and similar out-of-pocket
expenditures, as determined by the court. The rate of interest
shall be ten dollars upon one hundred dollars per annum, and
proportionately for a greater or lesser sum, or for a longer or
shorter time, notwithstanding any other provisions of law.
(b) Notwithstanding the provisions of section five, article
six, chapter forty-seven of this code, the rate of interest on
judgments and decrees for the payment of money, including
prejudgment interest, is three percentage points above the Fifth
Federal Reserve District secondary discount rate in effect on the
second day of January of the year in which the judgment or decree
is entered: Provided, That the rate of prejudgment and post-
judgment interest shall not exceed eleven percent per annum or be
less than seven percent per annum. The administrative office of
the Supreme Court of Appeals shall annually determine the interest
rate to be paid upon judgments or decrees for the payment of money
and shall take appropriate measures to promptly notify the courts
and members of the West Virginia State Bar of the rate of interest
in effect for the calendar year in question. Once the rate of
interest is established by a judgment or decree as provided in this
section, that established rate shall thereafter remain constant for that particular judgment or decree, notwithstanding changes in the
Federal Reserve District discount rate in effect in subsequent
years.
(c) Amendments to this section enacted by the Legislature
during the year two thousand six regular session shall become
effective the first day of January, two thousand seven.
;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 576--A Bill to amend and
reenact §48-1-302 of the Code of West Virginia, 1931, as amended;
and to amend and reenact §56-6-31 of said code, all relating to the
rate of interest allowed for certain prejudgment and post-judgment
awards; providing interest rate for domestic relation judgement
obligations; establishing methodology for establishing rates for
judgements or decrees generally; allowing exceptions to established
interest rate based on prior written agreements; requiring the
state Supreme Court of Appeals to annually determine and publish
annual interest rate; providing that the interest rate applies for
the entire term of the judgment or decree; and providing internal
effective dates.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 576, as
amended by the House of Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 576) passed with its House of Delegates
amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 582, Requiring electronic filing of
certain personal income tax returns.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 591, Authorizing Tax Commissioner collect
cost of federal refund offset fees.
A message from The Clerk of the House of Delegates announced
the amendment by that body to the title of the bill, passage as
amended, and requested the concurrence of the Senate in the House
of Delegates amendment, as to
Eng. Senate Bill No. 631, Relating to criminal school truancy complaints.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the title of the
bill was reported by the Clerk:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 631--A Bill to amend and reenact §18-8-4
of the Code of West Virginia, 1931, as amended, relating to
process, service and parties charged in summons or warrants for
violations of compulsory school attendance; authorizing charge of
more than one parent, custodian or guardian in single complaint;
and continuing attempts to serve until executed or end of school
term.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment to the title of the bill.
Engrossed Senate Bill No. 631, as amended by the House of
Delegates, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 631) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 635, Requiring boards of education
maintain certain flood insurance.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the Senate amended title, passage
as amended, of
Eng. House Bill No. 4311, Continuing of the Department of
Environmental Protection.
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. House Bill No. 4855--A Bill making a supplementary
appropriation from the balance of moneys remaining unappropriated
for the fiscal year ending the thirtieth day of June, two thousand
six, to the Department of Education and the Arts - Office of the
Secretary - Lottery Education Fund Interest Earnings - Control
Account, fund 3508, fiscal year 2006, organization 0431; to the
Department of Environmental Protection - Division of Environmental
Protection - Oil and Gas Reclamation Fund, fund 3322, fiscal year
2006, organization 0313; to the Department of Environmental Protection - Division of Environmental Protection - Oil and Gas
Operating Permit and Processing Fund, fund 3323, fiscal year 2006,
organization 0313; to the Department of Environmental Protection -
Division of Environmental Protection - the Underground Storage Tank
Administrative Fund, fund 3325, fiscal year 2006, organization
0313; to the Department of Environmental Protection - Division of
Environmental Protection - Air Pollution Control Fund, fund 3336,
fiscal year 2006, organization 0313; to the Department of
Environmental Protection - Division of Environmental Protection -
Mountaintop Removal Fund, fund 3490, fiscal year 2006, organization
0313; to the Department of Health and Human Resources - Division of
Human Services - Health Care Provider Tax, fund 5090, fiscal year
2006, organization 0511; to the Department of Health and Human
Resources - Division of Human Services - Medical Services Trust
Fund, fund 5185, fiscal year 2006, organization 0511; to the
Department of Military Affairs and Public Safety - West Virginia
Division of Corrections - Parolee Supervision Fees, fund 6362,
fiscal year 2006, organization 0608; to the Department of Military
Affairs and Public Safety - Criminal Justice Services - Court
Security Fund, fund 6804, fiscal year 2006, organization 0620; to
the Department of Transportation - Division of Motor Vehicles -
Insurance Certificate Fees, fund 8215, fiscal year 2006,
organization 0802; to the Public Service Commission - Consumer
Advocate, fund 8627, fiscal year 2006, organization 0926; and to
the Massage Therapy Licensure Board, fund 8671, fiscal year 2006,
organization 0938, by supplementing and amending the appropriation for the fiscal year ending the thirtieth day of June, two thousand
six.
Referred to the Committee on Finance.
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. House Bill No. 4856--A Bill making a supplementary
appropriation from the balance of moneys remaining unappropriated
for the fiscal year ending the thirtieth day of June, two thousand
six, to the Department of Commerce - Miners' Health, Safety and
Training Fund, fund 3355, fiscal year 2006, organization 0314, by
supplementing and amending the appropriation for the fiscal year
ending the thirtieth day of June, two thousand six.
Referred to the Committee on Finance.
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. House Bill No. 4857--A Bill making a supplementary
appropriation of federal funds out of the Treasury from the balance
of moneys remaining unappropriated for the fiscal year ending the
thirtieth day of June, two thousand six, to the Department of
Administration - Children's Health Insurance Agency, fund 8838,
fiscal year 2006, organization 0230; to the Department of Commerce
- Division of Natural Resources, fund 8707, fiscal year 2006,
organization 0310; to the Department of Environmental Protection -
Division of Environmental Protection, fund 8708, fiscal year 2006, organization 0313; to the Department of Health and Human Resources
- West Virginia Health Care Authority, fund 8851, fiscal year 2006,
organization 0507; to the Department of Military Affairs and Public
Safety - Office of the Secretary, fund 8876, fiscal year 2006,
organization 0601; to the Department of Transportation - Public
Port Authority, fund 8830, fiscal year 2006, organization 0806; and
to the Department of Military Affairs and Public Safety - Division
of Criminal Justice Services - Juvenile Accountability Incentive,
fund 8829, fiscal year 2006, organization 0620, by supplementing
and amending the appropriations for the fiscal year ending the
thirtieth day of June, two thousand six.
Referred to the Committee on Finance.
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. House Bill No. 4858--A Bill making a supplementary
appropriation of federal funds out of the Treasury from the balance
of federal moneys remaining unappropriated for the fiscal year
ending the thirtieth day of June, two thousand six, to the
Secretary of State - State Election Fund, fund 8854, fiscal year
2006, organization 1600, by supplementing and amending the
appropriation for the fiscal year ending the thirtieth day of June,
two thousand six.
Referred to the Committee on Finance.
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. 33--Requesting the State of
West Virginia and the United States federal government fully
recognize the counties of Berkeley and Jefferson in the State of
West Virginia as part of the beautiful and historic Shenandoah
Valley.
Whereas, The State of West Virginia was originally part of the
Commonwealth of Virginia until June 20, 1863, and the counties of
Berkeley and Jefferson were not officially annexed by West Virginia
until 1872 upon the ruling of the United States Supreme Court; and
Whereas, The Shenandoah Valley begins at the Potomac River
which forms the northern boundary along Berkeley and Jefferson
counties and continues southwestward to the southern boundary near
the city of Roanoke, Virginia. The valley is flanked to the east
by the Blue Ridge Mountains (in eastern Jefferson County) and to
the west by the Allegheny Mountains (in western Berkeley County).
The Shenandoah River flows northward and empties into the Potomac
River at Harpers Ferry, Jefferson County; and
Whereas, The entire valley was known as the "Breadbasket of
the Confederacy" because of its richness in fertile soils that
sustains life for farms and orchards; and
Whereas, In 1996, the United States Congress established the
Shenandoah Valley Battlefields National Historic District and
Commission. At that time, Berkeley and Jefferson counties were not
included as a part of the program; and
Whereas, Berkeley and Jefferson counties should be eligible to become part of the Shenandoah Valley Battlefields National Historic
District and Commission and be eligible for any other federal
programs that are available for the Shenandoah Valley; therefore,
be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the State of West
Virginia and the United States federal government fully recognize
the counties of Berkeley and Jefferson in the State of West
Virginia as part of the beautiful and historic Shenandoah Valley;
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, West Virginia's congressional delegation, the
Governor, the county commissions of Berkeley and Jefferson counties
and the mayors and city councils of Bolivar, Charles Town, Harpers
Ferry, Hedgesville, Martinsburg, Ranson and Shepherdstown.
Referred to the Committee on Government Organization.
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. 66--Expressing the ideal that
a woman should be added to the West Virginia State Seal in
recognition of the achievements of West Virginia's women.
Whereas, This state has become great largely because of the
hard work and sacrifice of the women of West Virginia; and
Whereas, The many achievements of West Virginia women should be honored and remembered; and
Whereas, Whether she be a doctor, lawyer, educator, judge or
mother, a woman is always on the job, and her work is never done;
and
Whereas, There is no better way to honor and remember the hard
work, accomplishments and sacrifices of West Virginia women than by
revising the State Seal to include a woman; therefore, be it
Resolved by the Legislature of West Virginia:
That the Seal of the great State of West Virginia be revised
to add a woman to honor the achievements of West Virginia women;
and, be it
Further Resolved, That the House of Delegates hereby
recognizes that women shall be honored for their contributions to
the State of West Virginia.
Referred to the Committee on Government Organization.
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. 75--Requesting the Joint
Committee on Government and Finance study the prospect of reducing
medical care costs for state employees by providing incentives to
covered employees to obtain treatment in low-cost foreign health
care facilities accredited by the Joint Commission International.
Whereas, The cost of medical care to the state to cover public
employees has increased dramatically over time and will inevitably
continue to increase in the future, creating a continuing drain of public resources; and
Whereas, Competent medical care in certain foreign countries
is significantly less costly on a monetary basis than similar
medical care that may be obtained in this country; and
Whereas, The Joint Commission International is an accrediting
entity which promotes the improvement of the quality of care in
other nations and which provides accreditation to certain foreign
medical facilities relative to specific medical procedures and
treatment, ensuring that such medical facilities maintain a
threshold modicum of adequate and standard medical care vis a vis
acceptable medical practice in this nation; and
Whereas, The current state of affairs relative to the delivery
of acceptable medical care to public employees at continuously sky-
rocketing monetary costs beckons this legislative body to explore
the prospect of implementing bold and innovative approaches in
addressing the problem; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the prospect of reducing medical care costs for
state employees by providing incentives to covered employees to
obtain treatment in low-cost foreign health care facilities
accredited by the Joint Commission International; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2007, 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 and to draft necessary legislation be paid from
legislative appropriations to the Joint Committee on Government and
Finance.
Referred to the Committee on Rules.
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. 76--Requesting the Joint
Committee on Government and Finance to conduct an interim study on
the improvement of access to oral health care services in states
that allow dental hygienists to administer services to patients in
a variety of settings.
Whereas, West Virginia is in the midst of a long-standing and
well-documented oral health care crisis; and
Whereas, Links between individuals' oral health and overall
health continue to emerge; and
Whereas, Poor oral health remains a neglected epidemic in West
Virginia, especially among certain segments of the population--
80
percent of cavities in children are concentrated in just 25 percent
of the children's population; and
Whereas
, Seventy-two percent of West Virginia's children are
covered by dental insurance, primarily through public programs
(Medicaid, CHIP), with 40 percent having not seen their dentist in
the last six months; and
Whereas
, West Virginia has ranked first among all states in
the percentage of people ages sixty-five and older who have lost
their natural teeth; and
Whereas
, Preventive oral health care services remain an
important component in the prevention and early detection of oral
health care diseases; and
Whereas
, Dental hygienists in West Virginia are formally
educated and state-licensed health care professionals proficient in
administering oral health services without the direct supervision
of a dentist; and
Whereas
, Forty-eight states and the District of Columbia
currently allow dental hygienists to administer oral health care
services in at least one setting under the general supervision of
a dentist; and
Whereas
, General supervision has proven to be a safe practice
that allows for more efficient administration of oral health care
services in the states that currently allow for it; and
Whereas
, General supervision facilitates increased access to
oral health care services by enabling dental hygienists to
administer services to patients in a variety of settings,
particularly for populations currently disenfranchised from the
oral health care system due to their inability to travel to a
dental office; and
Whereas
, The U. S. Surgeon General issued a report that
identified lack of access to oral health care services as one of
the major barriers to care for underserved populations; and
Whereas
, The U. S. Surgeon General urged policymakers to take
action to increase access to oral health care services; therefore,
be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to conduct an interim study on the improvement of access
to oral health care services in states that allow dental hygienists
to administer services to patients in a variety of settings; and,
be it
Further Resolved
, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2007, 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 Committe
e on
Government and Finance.
Referred to the Committee on Rules.
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. 82--Requesting that the Joint
Committee on Government and Finance study the Medicaid Waiver
Program for the elderly and people with disabilities in West
Virginia.
Whereas, A crucial need exists for services provided to the
elderly and people with disabilities through the Medicaid Waiver
Program; and
Whereas, There has been an increase in West Virginia's elderly
population, but a decrease in the number of citizens enrolled in
the Medicaid Aged/Disabled Waiver Program; and
Whereas, A waiting list to participate in the Medicaid
Aged/Disabled Waiver Program continues to grow in West Virginia;
and
Whereas, There is a need for a level of services for seniors
and people with disabilities which cannot be met by Medicaid; and
Whereas, It is in the best interest of all West Virginians to
ensure that our elderly and citizens with disabilities receive the
care and services they need; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Joint Committee on
Government and Finance to study the Medicaid Waiver Program for the
elderly and people with disabilities in West Virginia and the need
for additional state-funded home services for this population; and,
be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2007, on
or before the thirty-first day of January, 2007, 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.
Referred to the Committee on Rules.
At the request of Senator Chafin, and by unanimous consent,
the Senate observed a moment of silence in recognition of Benjamin
Love, grandson of the Honorable Shirley Love, a senator from the
eleventh district, who was seriously injured in an automobile
accident.
Executive Communications
Senator Tomblin (Mr. President) laid before the Senate the
following proclamation form His Excellency, the Governor, extending
this current legislative session until and including the
seventeenth day of March, two thousand six, which was received and
read by the Clerk.
STATE OF WEST VIRGINIA
EXECUTIVE DEPARTMENT
CHARLESTON
A P R O C L A M A T I O N
By the Governor
WHEREAS, The Constitution of West Virginia delineates the
respective powers, duties and responsibilities of the three
separate branches of government; and
WHEREAS, Article VI, Section 22 of the Constitution of West
Virginia provides that the current regular session of the
Legislature not exceed sixty calendar days computed from and including the second Wednesday of January; and
WHEREAS, Pursuant to Article VI, Section 22 of the
Constitution of West Virginia, the 2006 regular session of the
Legislature concludes on the eleventh day of March, two thousand
six, at midnight; and
WHEREAS, Article VI, Section 51 of the Constitution of West
Virginia sets forth the legal authority of the Governor and the
Legislature relating to the preparation and enactment of the Budget
Bill; and
WHEREAS, Subsection D of said section requires the Governor to
issue a proclamation to extend the regular session of the
Legislature if the Budget Bill shall not have been fully acted upon
by the Legislature three days before the expiration of its regular
session.
NOW, THEREFORE, I, JOE MANCHIN III, GOVERNOR of the State of
West Virginia, do hereby issue this Proclamation, in accordance
with Article VI, Section 51, Subsection D(8) of the Constitution of
West Virginia, to extend this regular session of the state
Legislature for consideration of the Budget Bill for an additional
period not to exceed six days; but no matters other than the Budget
Bill and a provision for the cost of said extended session shall be
considered during this extension of the session.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the
Great Seal of the State of West Virginia to be affixed.
DONE at the Capitol in the City of
Charleston, State of West Virginia, on this the eighth day
of March, in the year of our
Lord, Two Thousand Six, and in
the One Hundred Forty-Third year
of the State.
JOE MANCHIN III,
Governor.
By the Governor:
BETTY IRELAND,
Secretary of State.
The Senate proceeded to the fourth order of business.
Senator White, from the Joint Committee on Enrolled Bills,
submitted the following report, which was received:
Your Joint Committee on Enrolled Bills has examined, found
truly enrolled, and on the 9th day of March, 2006, presented to His
Excellency, the Governor, for his action, the following bill,
signed by the President of the Senate and the Speaker of the House
of Delegates:
(S. B. No. 370), Creating personal property tax exemption for
certain property used exclusively in agriculture.
Respectfully submitted,
C. Randy White,
Chair, Senate Committee.
Richard Browning,
Chair, House Committee.
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. Com. Sub. for House Bill No. 3186, Establishing an
Industrial Advisory Board to oversee the application process for
pest control certification exams.
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,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 3186) contained in
the preceding report from the Committee on Government Organization
was taken up for immediate consideration, read a first time,
ordered to second reading and, under the original double committee
reference, was then referred to the Committee on Finance, with
amendments from the Committee on Government Organization pending.
The Senate proceeded to the fifth order of business.
Filed Conference Committee Reports
The Clerk announced the following conference committee report
had been filed at 12:05 p.m. today:
Eng. Com. Sub. for House Bill No. 4021, Relating to a pilot
program authorizing participating health care clinics and private medical practitioners to provide primary and preventive health
services for a prepaid fee.
The Senate proceeded to the sixth order of business.
Senators Prezioso,
Unger, Edgell, Jenkins, Hunter and Foster
offered the following resolution:
Senate Concurrent Resolution No. 84--
Requesting the Joint
Committee on Government and Finance study the public health crisis
created by antibiotic resistance.
Whereas, In 1954 two million pounds of antibiotics were
produced in the United States, compared to over fifty million
pounds produced in 2000. Despite their extraordinary value, the
overuse of these miracle drugs in medicine and agriculture
endangers their continued effectiveness; and
Whereas, Each year in the United States, humans consume over
235 million doses of antibiotics, with 20 percent to 50 percent
being unnecessary. Over 40 percent of the antibiotics produced in
the United States are used in livestock production which also poses
a problem because of human consumption of the livestock; and
Whereas, Every time a person takes an antibiotic, sensitive
bacteria are killed, but some bacteria may become resistant to the
medication and multiply, resulting in the drug becoming ineffective
for treating infections caused by that strain of bacteria; and
Whereas, Antibiotic-resistant microorganisms are becoming an
increasing problem for West Virginia residents, especially
children. Outbreaks of multidrug-resistant strains of
staphylococus aureus (MRSA) are being found among football players in West Virginia schools; and
Whereas, Antibiotic-resistant microorganisms present
challenges to health care providers and infection control
practitioners because treatments for common infections will become
increasingly limited and expensive or nonexistent; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the public health crisis created by antibiotic
resistance; and, be it
Further Resolved, That the Joint Committee on Government and
Finance establish an Antibiotic Resistance Awareness Education
Committee that will undertake a comprehensive review of the various
issues related to overuse of antibiotics and recommendations for
correcting this problem in West Virginia, including, but not
limited to:
(1) Prescription of antibiotics for colds, upper respiratory
tract infections and bronchitis even though national clinical
practice guidelines do not recommend their use for viral
infections;
(2) Contribution to the problem by patients asking for
antibiotics when they are not needed, or by not completing the
entire course of antibiotics prescribed;
(3) Effect on West Virginia hospital stays caused by
antibiotic overuse; and
(4) Recommendations for the Department of Health and Human
Resources, hospitals, health care providers, managed care plans and pharmaceutical companies to work together to develop an educational
campaign to prevent the spread of antibiotic-resistant
microorganisms in West Virginia; and, be it
Further Resolved, That the Antibiotic Resistance Awareness
Education Committee shall consist of two members each from the
House of Delegates and the Senate, including the chairs of the
House and Senate Health and Human Resources committees, to be
appointed by the Speaker of the House of Delegates and the
President of the Senate, respectively; and, be it
Further Resolved, That the Antibiotic Resistance Awareness
Education Committee shall have the following advisory members for
the purpose of providing technical information: A pharmacist, a
physician and an epidemiologist. The advisory members shall be
selected from relevant governmental agencies, including, but not
limited to, the Public Employees Insurance Agency, the Bureau for
Medical Services, the Bureau for Public Health and the Board of
Pharmacy. The advisory appointments shall be made by the Speaker
of the House of Delegates and the President of the Senate; and, be
it
Further Resolved, That the Antibiotic Resistance Awareness
Education Committee report to the Joint Committee on Government and
Finance on or before the thirty-first day of January, 2007, on its
findings, conclusions and recommendations, together with drafts of
any legislation necessary to effectuate its recommendations; and,
be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
Which, under the rules, lies over one day.
Senators McCabe, Hunter and Foster offered the following
resolution:
Senate Concurrent Resolution No. 85--
Recognizing the West
Virginia Land and Mineral Owners Council for its interest in the
reforestation of mined lands.
Whereas, The West Virginia Land and Mineral Owners Council,
along with Southern West Virginia Community and Technical College,
West Virginia State University, West Virginia University Center for
Mine Reclamation, West Virginia Coal Association, West Virginia
Forestry Association and Canaan Valley Institute, is addressing the
economic loss of forest land and how to regenerate productive
forests. These entities are interested in the establishment of a
center to research projects relating to reforestation; and
Whereas, Due to past surface mining reclamation practices,
there are many acres of mined land that are now grassland and
pastureland with little natural regeneration; and
Whereas, The reforestation of mined lands could lead to many
economic benefits, including wood production, recreation and
tourism. Other economic issues include timber value, landowner tax
rates, enhanced recreational opportunities and jobs for local
economies and local tax revenue; and
Whereas, Environmental benefits of reforestation could lead to enhanced wildlife habitats, soil and water conservation and water
quality improvement; and
Whereas, Kentucky and Virginia have large research projects
that are addressing post-mine use, with part of the funding for
these projects coming from the coal mining industry; and
Whereas, The establishment of a center could qualify the
research projects for grants from the United States Office of
Surface Mining and Reclamation; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby recognizes the West Virginia Land
and Mineral Owners Council for its interest in the reforestation of
mined lands; and, be it
Further Resolved, That the Clerk of the Senate is hereby
directed to forward a copy of the this resolution to the West
Virginia Land and Mineral Owners Council.
At the request of Senator McCabe, unanimous consent being
granted, the resolution was taken up for immediate consideration
and reference to a committee dispensed with.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senators McCabe,
Minear, Minard, Dempsey, White, Unger,
Edgell, Oliverio, Hunter, Foster, Plymale and Jenkins
offered the
following resolution:
Senate Resolution No. 47--
Designating March 9, 2006, as "Girl Scout Day in West Virginia".
Whereas, The Girl Scouts of the USA, founded in March, 1912,
by Juliette Gordon Low, has become one of the world's largest
volunteer organizations for girls; and
Whereas, Recognizing that today's girls will be tomorrow's
leaders, the mission of the Girl Scouts of the USA is to build
courage, confidence and character; and
Whereas, Membership in the Girl Scouts of the USA assists
girls ages five to 17 to develop their full potential and
contribute to the improvement of society; and
Whereas, Nearly 14,000 girls and over 4,000 adults are active
in West Virginia's Girl Scout councils; therefore, be it
Resolved by the Senate:
That the Senate hereby recognizes March 9, 2006, as "Girl
Scout Day in West Virginia"; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to the appropriate officials of West
Virginia's Girl Scout councils.
At the request of Senator McCabe, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
Senator Chafin announced that in the meeting of the Committee
on Rules previously held, the committee, in accordance with rule
number seventeen of the Rules of the Senate, had removed from the
Senate second reading calendar, Engrossed Committee Substitute for
House Bill No. 4006.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 82, Requesting Joint
Committee on Government and Finance study payday lending.
On unfinished business, coming up in regular order, was
reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to
the Committee on Rules.
Senate Concurrent Resolution No. 83, Requesting Joint
Committee on Government and Finance study predatory mortgage
lending practices.
On unfinished business, coming up in regular order, was
reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to
the Committee on Rules.
House Concurrent Resolution No. 55, Requesting the Joint
Committee on Government and Finance to study how the divorce and
custody laws prevent or hinder fathers from being involved in
raising their children.
On unfinished business, coming up in regular order, was
reported by the Clerk.
The following amendments to the resolution, from the Committee
on Rules, were reported by the Clerk, considered simultaneously,
and adopted:
On page one, by striking out everything after the title and
inserting in lieu thereof the following:
Whereas, The rate of divorce in the state and the nation has substantially increased on an annual basis in recent years; and
Whereas, The Legislature has substantially reformed divorce
and custody laws in West Virginia in recent years, which
comprehensive changes need to be reviewed to determine which
legislative changes have worked, which have not and which are still
in process; and
Whereas, Divorce and custody laws in West Virginia either
prevent or hinder fathers from being involved in raising their
children; and
Whereas, The phenomenon of children not being raised by their
fathers has had a negative impact on these children; therefore, be
it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to generally study divorce and custody laws in West
Virginia; to review the comprehensive legislative changes in
divorce and custody laws; and to determine which legislative
changes have worked, which have not and which are still in process;
and, be it
Further Resolved, That the Joint Committee on Government and
Finance study the impact on children of not being raised with a
father as an integral part of their lives; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2007, 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,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
House Concurrent Resolution No. 55--Requesting the Joint
Committee on Government and Finance study how the divorce and
custody laws of West Virginia prevent or hinder fathers from being
involved in raising their children and the impact of children being
raised without a father as an integral part of their lives.
The question being on the adoption of the resolution (H. C. R.
No. 55), as amended, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate proceeded to the eighth order of business.
Eng. Com. Sub. for House Bill No. 4008, Relating to
authorizing city and county housing authorities to merge to form a
regional housing authority.
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 H. B. No. 4008) 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. 4048, Placing limitations on the use of
eminent domain.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
Pending extended discussion,
The question being "Shall Engrossed House Bill No. 4048 pass?"
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. H. B. No. 4048) passed.
At the request of Senator McCabe, as chair of the Committee on
Economic Development, and by unanimous consent, the unreported
Economic Development committee amendment to the title of the bill
was withdrawn.
The following amendment to the title of the bill, from the
Committee on Government Organization, 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. House Bill No. 4048--A Bill to amend and reenact §54-1-2
of the Code of West Virginia, 1931, as amended; and to amend said
code by adding thereto a new section, designated §54-1-2a, all
relating to eminent domain; clarifying the term "public use" for
eminent domain purposes; establishing a procedure for municipal
urban renewal authorities to use eminent domain for blighted and
unblighted property; requiring notice of condemnation to property
owners; and requiring a good faith offer prior to condemnation.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 4049, Relating to state funded student
financial aid.
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, 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: Harrison--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. 4049) passed.
At the request of Senator Plymale, as chair of the Committee
on Education, and by unanimous consent, the unreported Education
committee amendment to the title of the bill was withdrawn.
The following amendment to the title of the bill, from the
Committee on Finance, was reported by the Clerk and adopted:
On pages one through three, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. House Bill No. 4049--A Bill to repeal §18B-14-9 of the
Code of West Virginia, 1931, as amended; to repeal §18C-5-8 of said
code; to repeal §18C-7-9 of said code; to repeal §18C-8-1, §18C-8-2
and §18C-8-3 of said code; to amend and reenact §18-30-6 of said
code; to amend and reenact §18B-1B-2 of said code; to amend and
reenact §18B-4-1 of said code; to amend and reenact §18B-10-1 of
said code; to amend and reenact §18C-1-1, §18C-1-3 and §18C-1-4 of
said code; to amend said code by adding thereto a new section,
designated §18C-1-5; to amend and reenact §18C-5-1, §18C-5-2,
§18C-5-3, §18C-5-4, §18C-5-5 and §18C-5-6 of said code; and to amend and reenact §18C-7-2, §18C-7-3, §18C-7-4, §18C-7-5, §18C-7-6
and §18C-7-7 of said code, all relating to higher education
generally; Higher Education Policy Commission; student financial
aid programs; need-based and merit-based student financial aid
programs; West Virginia Prepaid Tuition Trust Program; PROMISE
Scholarship Program; Higher Education Grant Program; increasing
amount to be transferred annually to Prepaid Tuition Trust Escrow
Fund; establishing additional eligibility requirements for Higher
Education Policy Commission members; requiring coordination among
certain public education entities; deleting certain requirement
relating to supervision of Higher Education Policy Commission
staff; establishing conditions limiting tuition and fee increases
for certain students at certain state institutions of higher
education; providing exceptions to cap on tuition and fee
increases; requiring state institutions of higher education to
provide certain information; requiring report to Legislative
Oversight Commission on Education Accountability annually;
expanding certain legislative findings; establishing certain
legislative intent; defining purposes of state-supported financial
aid programs; expanding eligibility for PROMISE scholarship awards
to certain students attending high school outside the state;
creating the Student Financial Aid Advisory Board; providing for
membership of advisory board; specifying powers, duties and
responsibilities of advisory board; providing for reimbursement of
member expenses; continuing Higher Education Grant Program;
specifying purposes of grant program; requiring consultation among entities for student financial aid administration; creating the
"Higher Education Grant Fund" special revenue fund; establishing
legislative intent regarding increased levels of appropriation to
the Higher Education Grant Fund and the PROMISE Scholarship Fund;
modifying PROMISE scholarship eligibility requirements; clarifying
flexibility to change PROMISE eligibility requirements; expanding
membership of PROMISE Scholarship Board of Control; establishing
additional eligibility requirements for members of PROMISE board;
encouraging PROMISE board to use certain staff for administrative
and technical support; specifying additional duties of PROMISE
board; requiring PROMISE board to report annually to Joint Standing
Committee on Education; specifying limits on certain grant awards;
defining purposes of PROMISE Scholarship Program; modifying the
calculation for determining student financial aid award levels for
certain higher education grant recipients; defining terms and
clarifying the definitions of certain terms; requiring promulgation
of legislative rules and emergency rule; limiting authority of
PROMISE board to require scholarship recipients to repay all or
part of scholarship amount; modifying definition of "eligible
institution" for purpose of participating in PROMISE Scholarship
Program; making technical corrections; and repealing obsolete
provisions.
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, 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: Harrison--1.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 4049) 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. House Bill No. 4075, Relating to the dedication of moneys
to the Regional Jail Partial Reimbursement Fund.
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. H.
B. No. 4075) passed.
The following amendment to the title of the bill, from the Committee on Finance, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 4075--A Bill to amend and reenact §59-1-
28a of the Code of West Virginia, 1931, as amended, relating to the
dedication of moneys to the Regional Jail Operations Partial
Reimbursement Fund.
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. H.
B. No. 4075) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4096, Relating to amount of
an appeal bond.
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 H. B. No. 4096) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4120, Authorizing the
termination of water service for delinquent sewer bills where the
sewer service is provided by a Homeowners' Association.
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, 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: Chafin--1.
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 H. B. No. 4120) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4135, Authorizing the
Department of Environmental Protection to promulgate legislative
rules.
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 H. B. No. 4135) 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 H. B. No. 4135) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4172, Authorizing the
Department of Administration to promulgate legislative rules.
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 H. B. No. 4172) 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 through four, by striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 4172--A Bill and reenact
article 2, chapter 64 of the Code of West Virginia, 1931, as
amended, relating generally to the promulgation of administrative
rules by the Department of Administration and the procedures
relating thereto; legislative mandate or authorization for the
promulgation of certain legislative rules by various executive or
administrative agencies of the state; authorizing certain of the
agencies to promulgate certain legislative rules in the form that
the rules were filed in the State Register; authorizing certain of
the agencies to promulgate certain legislative rules with various
modifications presented to and recommended by the Legislative Rule-
Making Review Committee; authorizing certain of the agencies to
promulgate certain legislative rules as amended by the Legislature;
authorizing certain of the agencies to promulgate certain
legislative rules with various modifications presented to and
recommended by the Legislative Rule-Making Review Committee and as
amended by the Legislature; disapproving certain rules; authorizing
the Department of Administration to promulgate a legislative rule
relating to leasing space on behalf of state spending units;
authorizing the Department of Administration to promulgate a
legislative rule relating to selecting design-builders under the
Design-Build Procurement Act; disapproving promulgation of a
legislative rule of the Department of Administration relating to
cannibalization of state property; disapproving promulgation of a
legislative rule of the Department of Administration relating to waste disposal of state property; authorizing the Consolidated
Public Retirement Board to promulgate a legislative rule relating
to benefit determination and appeals; authorizing the Consolidated
Public Retirement Board to promulgate a legislative rule relating
to the Teachers' Defined Benefit Plan; authorizing the Consolidated
Public Retirement Board to promulgate a legislative rule relating
to service credit for accrued and unused sick and annual leave;
authorizing the Consolidated Public Retirement Board to promulgate
a legislative rule relating to the West Virginia State Police;
authorizing the Consolidated Public Retirement Board to promulgate
a legislative rule relating to the Deputy Sheriff Retirement
System; authorizing the Ethics Commission to promulgate a
legislative rule relating to the commission; authorizing the Ethics
Commission to promulgate a legislative rule relating to complaints,
investigations and hearings; authorizing the Ethics Commission to
promulgate a legislative rule relating to lobbying; authorizing the
Ethics Commission to promulgate a legislative rule relating to a
code of conduct for administrative law judges; authorizing the
Ethics Commission to promulgate a legislative rule relating to the
filing of verified time records; authorizing the Ethics Commission
to promulgate a legislative rule relating to compliance audits; and
authorizing the Ethics Commission to promulgate a legislative rule
relating to ethics training requirements for designated public
officials.
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 H. B. No. 4172) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4210, Authorizing the
Department of Commerce to promulgate legislative rules.
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, Helmick, Hunter, Jenkins, Kessler, Lanham,
Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale,
Prezioso, Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: Harrison and Weeks--2.
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 H. B. No. 4210) 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 through three, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 4210--A Bill to amend and
reenact article 10, chapter 64 of the Code of West Virginia, 1931,
as amended, relating generally to the promulgation of
administrative rules by the Department of Commerce and the
procedures relating thereto; legislative mandate or authorization
for the promulgation of certain legislative rules by various
executive or administrative agencies of the state; authorizing
certain of the agencies to promulgate certain legislative rules in
the form that the rules were filed in the State Register;
authorizing certain of the agencies to promulgate certain
legislative rules with various modifications presented to and
recommended by the Legislative Rule-Making Review Committee;
authorizing certain of the agencies to promulgate certain
legislative rules as amended by the Legislature; authorizing
certain of the agencies to promulgate certain legislative rules
with various modifications presented to and recommended by the
Legislative Rule-Making Review Committee and as amended by the
Legislature; authorizing the Division of Forestry to promulgate a
legislative rule relating to ginseng; authorizing the Office of
Miners' Health, Safety and Training to promulgate a legislative
rule relating to safety provisions for clearing crews; authorizing the Division of Natural Resources to promulgate a legislative rule
relating to commercial whitewater outfitters; authorizing the
Division of Natural Resources to promulgate a legislative rule
relating to boating; authorizing the Division of Natural Resources
to promulgate a legislative rule relating to the rules governing
the public use of West Virginia state parks, state forests and
state wildlife management areas under the division; authorizing the
Division of Natural Resources to promulgate a legislative rule
relating to terms defining the terms to be used concerning all
hunting and trapping rules; authorizing the Division of Natural
Resources to promulgate a legislative rule relating to wild boar
hunting; authorizing the Division of Natural Resources to
promulgate a legislative rule relating to special waterfowl
hunting; authorizing the Division of Natural Resources to
promulgate a legislative rule relating to falconry; authorizing the
Division of Natural Resources to promulgate a legislative rule
relating to lifetime hunting, trapping and fishing licenses;
authorizing the Division of Natural Resources to promulgate a
legislative rule relating to miscellaneous permits and licenses;
authorizing the Division of Labor to promulgate a legislative rule
relating to the West Virginia Manufactured Housing Construction and
Safety Standards Board; authorizing the Division of Labor to
promulgate a legislative rule relating to nurse overtime
complaints; and authorizing the Division of Tourism to promulgate
a legislative rule relating to the Direct Advertising Grants
Program.
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, Helmick, Hunter, Jenkins, Kessler, Lanham, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Sharpe, Sprouse, Unger, White, Yoder and Tomblin (Mr.
President)--32.
The nays were: Harrison and Weeks--2.
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 H. B. No. 4210) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4256, Providing a procedure
for removal of county, district or municipal officers.
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 H. B. No. 4256) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4383, Continuing the pilot program offered
through a Community Access Program to coordinate health care
provider reimbursements indefinitely as determined by the insurance
commissioner.
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. H.
B. No. 4383) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4453, Clarifying the powers
and duties of conservation officers as it relates to searches and seizures.
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 H. B. No. 4453) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4454, Relating to wages
withheld from an employee.
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 H. B. No. 4454) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 4454--A Bill to amend and
reenact §21-5-4 of the Code of West Virginia, 1931, as amended,
relating to wages withheld from an employee; and providing that
liquidated damages will equal three times the amount of wages
unpaid when due.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 4458, Relating to the sale of bulk data in
electronic format from the Uniform Commercial Code and Corporation
Data Bases.
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. H.
B. No. 4458) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4470, Updating the definition of "medicare
supplement policy".
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. H.
B. No. 4470) passed.
The following amendment to the title of the bill, from the
Committee on Banking and Insurance, was reported by the Clerk and
adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 4470--A Bill to amend and reenact §33-16-
3d of the Code of West Virginia, 1931, as amended, relating to
group accident and sickness insurance; and updating the definition
of Medicare supplement policy.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 4479, Relating to Manufactured Housing
Construction and Safety Standards.
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. H.
B. No. 4479) 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. H.
B. No. 4479) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 4494, Finding and declaring certain claims
against the state and its agencies to be moral obligations of the
state.
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. H. B. No. 4494) 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. H.
B. No. 4494) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4513, Permitting insurance
fraud investigators to present criminal complaints directly to a
magistrate and to extend the statute of limitations for certain
insurance related misdemeanors to three years.
On third reading, coming up in regular order, with an
unreported Banking and Insurance committee amendment pending, and
with the right having been granted on yesterday, Wednesday, March
8, 2006, for further amendments to be received on third reading,
was reported by the Clerk.
The following amendment to the bill, from the Committee on
Banking and Insurance, was reported by the Clerk:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §33-2-22, to read as
follows:
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-22. Authority of Insurance Commissioner regarding employers
in default to workers' compensation funds; injunctions against
defaulting employers.
(a) Upon termination of the Workers' Compensation Commission,
all of the powers previously conferred upon the Workers'
Compensation Commission in regard to employers defaulting to the
Workers' Compensation Fund, as set forth in article two, chapter
twenty-three of this code, shall transfer to the Insurance
Commissioner in regard to employers that are in default to the Old
Fund, have liability to the uninsured employers' fund or are in
policy default or fail to maintain mandatory workers' compensation
coverage, all as defined in said article.
(b) In any case in which an employer is in default to the Old
Fund, has liability to the uninsured employers fund or is in policy
default or otherwise fails to maintain mandatory workers'
compensation coverage, all as defined in article two-c, chapter
twenty-three of this code, the Insurance Commissioner may bring an
action in the circuit court of Kanawha County to enjoin the
employer from continuing to operate the employer's business:
Provided, That the Insurance Commissioner may, in his or her sole discretion, as an alternative to this action, require the employer
to file a bond in the form prescribed by the commissioner with
satisfactory surety in an amount not less than one hundred fifty
percent of the total payments, interest and penalties due.
(c) In any action instituted pursuant to subsection (b) of
this section, the circuit court shall issue an injunction if the
Insurance Commissioner proves by a preponderance of the evidence
that the employer is in default to the Old Fund, has liability to
the uninsured fund or is in policy default or has otherwise failed
to maintain mandatory workers' compensation coverage.
On motion of Senator Minard, the following amendment to the
Banking and Insurance committee amendment to the bill (Eng. Com.
Sub. for H. B. No. 4513) was reported by the Clerk and adopted:
On page two, section twenty-two, after line sixteen, by adding
a new subsection, designated subsection (d), to read as follows:
(d) Notwithstanding any provision of this code to the
contrary, the commissioner shall have the authority to waive
penalty and interest accrued on moneys due the Old Fund. The
enactment of the provisions of this subsection shall be applied
retrospectively to the first day of January, two thousand six, and
may not be construed to require the commissioner to adjust or
otherwise modify any agreements reached with regard to the payment
of penalty or interest since that date.
The question now being on the adoption of the Banking and
Insurance committee amendment to the bill, as amended, the same was
put and prevailed.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4513), as just amended, 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 H. B. No. 4513) passed.
The following amendment to the title of the bill, from the
Committee on Banking and Insurance, was reported by the Clerk and
adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 4513--A Bill to amend the
Code of West Virginia, 1931, as amended, by adding thereto a new
section, designated §33-2-22, relating to the Insurance
Commissioner's authority; transferring authority of the former
Workers' Compensation Commission to the Insurance Commissioner with
respect to collection of amounts owed by employers; permitting
Insurance Commissioner to accept a bond from defaulting employers; and requiring circuit courts to issue injunction against operation
of business by a defaulting employer.
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 H. B. No. 4513) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 4580, Creating the "special district
excise tax administration fund" in the State Treasury.
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. H.
B. No. 4580) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4630, Creating a Voluntary
Compliance Program based on listed transactions considered abusive
by the Internal Revenue Service.
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 H. B. No. 4630) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 4661, Continuing the Board of Registered Professional Nurses rule relating to dialysis
technicians.
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 H. B. No. 4661) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4679, Relating to qualified charitable
gift annuities.
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. H.
B. No. 4679) passed.
The following amendment to the title of the bill, from the
Committee on Banking and Insurance, was reported by the Clerk and
adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 4679--A Bill to amend the Code of West
Virginia, 1931, as amended, by adding thereto a new article,
designated §33-13B-l, §33-13B-2, §33-13B-3, §33-13B-4, §33-13B-5
and §33-13B-6, all relating to qualified charitable gift annuities;
providing definitions; declaring issuance of certain annuities not
business of insurance; requiring certain notices by issuers; and
providing criminal penalties.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 4698, Changing the filing time for a
subcontractor's lien.
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. H.
B. No. 4698) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. House Bill No. 4774, Allowing the Secretary of State's
Office to amend it rule to allow for the sale of the code of state
rules.
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. H. B. No. 4774) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 4774--A Bill to amend and reenact §29A-2-7
of the Code of West Virginia, 1931, as amended, relating to the
publication of the Code of State Rules; permitting the technical
changes to the procedure governing the publication of the rules;
and allowing the use of electronic media.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Pending announcement of meetings of standing committees of the
Senate, including a minority party caucus,
On motion of Senator Chafin, the Senate recessed until 5:30
p.m. today.
Upon expiration of the recess, the Senate reconvened and,
without objection, returned to the third order of business.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended, and requested the
concurrence of the Senate in the House of Delegates amendment, as
to
Eng. Senate Bill No. 217, Continuing Board of Osteopathy.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page two, section sixteen, line five, by striking out the
word "sixteen" and inserting in lieu thereof the word "eight".
On motion of Senator Bowman, the following amendment to the
House of Delegates amendment to the bill was reported by the Clerk
and adopted:
On page two, section sixteen, line five, by striking out the
word "eight" and inserting in lieu thereof the word "nine".
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendment, as amended.
Engrossed Senate Bill No. 217, as amended, was then 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, 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: None.
Absent: Hunter--1.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 217) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
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. House Bill No. 4859--A Bill
making a supplementary
appropriation for the fiscal year ending the thirtieth day of June,
two thousand six, to the Department of Health and Human Resources -
Division of Health - Tobacco Settlement Expenditure Fund, fund
5124, fiscal year 2006, organization 0506, by supplementing and
amending the appropriation for the fiscal year ending the thirtieth
day of June, two thousand six.
Referred to the Committee on Finance.
The Senate proceeded to the ninth order of business.
Com. Sub. for Senate Bill No. 125, Budget bill.
On second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading.
Senate Bill No. 795, Making supplementary appropriation from
State Fund, General Revenue, to Department of Military Affairs and
Public Safety, Office of Emergency Services.
On second reading, coming up in regular order, was read a
second time.
On motion of Senator Helmick, the following amendments to the
bill were reported by the Clerk, considered simultaneously, and
adopted:
On page three, section one, line fifteen, after the word
"Obligation" by striking out the dash and the word "Surplus";
On page three, section one, line seventeen, after the word
"Expenses" by striking out the dash and the word "Surplus";
And,
On page three, section one, line nineteen, after the word
"Obligation" by striking out the dash and the word "Surplus".
The bill (S. B. No. 795), as amended, was then ordered to
engrossment and third reading.
Eng. Com. Sub. for House Bill No. 2146, Relating to payment to
magistrates who serve temporarily outside their elected counties.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2328, Giving precedential
application to written advisory opinions issued by the ethics
commission's committee on open governmental meetings.
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:
On page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 9A. OPEN GOVERNMENTAL PROCEEDINGS.
§6-9A-11. Request for advisory opinion; maintaining
confidentiality.
(a) Any governing body or member thereof subject to the
provisions of this article may seek advice and information from the
Executive Director of the West Virginia Ethics Commission or
request in writing an advisory opinion from the West Virginia
Ethics Commission Committee on Open Governmental Meetings as to whether an action or proposed action violates the provisions of
this article. The executive director may render oral advice and
information upon request. The committee shall respond in writing
and in an expeditious manner to a request for an advisory opinion.
The opinion shall be is binding on the parties requesting the
opinion.
(b) Any governing body or member thereof that seeks an
advisory opinion and acts in good faith reliance on the opinion has
an absolute defense to any civil suit or criminal prosecution for
any action taken in good faith reliance on the opinion unless the
committee was willfully and intentionally misinformed as to the
facts by the body or its representative.
(c) A governing body or member thereof that acts in good faith
reliance on a written advisory opinion sought by another person or
governing body has an absolute defense to any civil suit or
criminal prosecution for any action taken based upon a written
opinion of the West Virginia ethics commission committee, as long
as underlying facts and circumstances surrounding the action were
the same or substantially the same as those being addressed by the
written opinion.
(c) (d) The committee and commission may take appropriate
action to protect from disclosure information which is properly
shielded by an exception provided for in section four of this
article.
The bill (Eng. Com. Sub. for H. B. No. 2328), as amended, was
then ordered to third reading.
Eng. House Bill No. 2329, Authorizing a court to order a
defendant to contribute monetarily or through hours of service to
a local crime victim's assistance program.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4004, Relating to the use of
a traffic law photo-monitoring device to detect traffic law
violations.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Transportation and Infrastructure, was reported by the Clerk and
adopted:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 6. SPEED RESTRICTIONS.
§17C-6-7a. Prohibition of the use of traffic law photo-monitoring
devices to detect or prove traffic law violations.
(a) As used in this section "traffic law photo-monitoring
device" means an electronic system consisting of a photographic,
video or electronic camera and a means of sensing the presence of
a motor vehicle that automatically produces photographs, videotape
or digital images of the vehicle, its operator or its license
plate.
(b) No police officer may utilize a traffic law
photo-monitoring device to determine compliance with, or to detect a violation of, a municipal or county ordinance or any provision of
this code that governs or regulates the operation of motor
vehicles.
(c) A violation of a county ordinance or an ordinance of a
Class I, II, III or IV municipality, as defined in chapter eight of
this code, or any provision of this code that governs or regulates
the operation of motor vehicles may not be proved by evidence
obtained by the use of a traffic law photo-monitoring device.
(d) The provisions of this section do not prohibit the use of
any device designed to measure and indicate the speed of a moving
object by means of microwaves to obtain evidence to prove the speed
of a motor vehicle including by a Class I, II, III or IV
municipality, as defined in chapter eight of this code, pursuant to
section seven of this article.
(e) The provisions of this section do not prohibit use of a
traffic law photo-monitoring device for any other lawful purposes
other than violations of municipal or county ordinances or any
provision of this code governing moving traffic violations.
The bill (Eng. Com. Sub. for H. B. No. 4004), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 4006, Adding counties to the
Hatfield-McCoy Regional Recreational Authority.
Having been removed from the Senate second reading calendar in
earlier proceedings today, no further action thereon was taken.
Eng. House Bill No. 4007, Relating to updating appraisal
standards employed by the Public Land Corporation.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4018, Relating to the community
corrections subcommittee of the Governor's Committee on Crime,
Delinquency and Correction.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4031, Relating to the
Purchasing Division of the Department of Administration.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4036, Relating to soliciting
or advocating murder, providing criminal penalties and specifying
that the offenses and penalties are cumulative to other offenses
and penalties.
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:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §61-11-8a, to read as
follows:
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-8a. Solicitation to commit certain felonies; classification; defenses.
(a) Any person who solicits another to commit a violation of
the law which constitutes a felony crime of violence against the
person is guilty of a felony and, upon conviction thereof, shall
be:
(1) Confined in a state correctional facility for not less
than three nor more than fifteen years if the offense solicited is
punishable by life imprisonment;
(2) Imprisoned in the state correctional facility for not less
than one nor more three years or fined not more than five thousand
dollars, or both, if the offense solicited is punishable by
incarceration in the state correctional facility for a term of less
than life imprisonment. In the circuit court's discretion a person
so convicted may be ordered confined in jail for a term not to
exceed one year in lieu of incarceration in a state correctional
facility;
(b) (1) As used in this section, "solicitation" means the
willful and knowing instigation or inducement of another to commit
a felony crime of violence against the person of a third person;
and
(2) As used in this section, "felony crime of violence against
the person" means the felony offense set forth in sections one,
nine, ten-b and twelve, article two of this chapter.
(c) In a prosecution under the provisions of this section, it
is not a defense:
(1) That the defendant belongs to a class of persons who by definition are legally incapable in an individual capacity of
committing the crime that is the object of the solicitation; or
(2) That a person whom the defendant solicits could not be
guilty of a crime that is the object of the solicitation.
(d) It is an affirmative and complete defense to a prosecution
under the provisions of this section that the defendant under
circumstances manifesting a voluntary and complete renunciation of
the defendant's criminal intent, after soliciting another person to
engage in conduct constituting a felony, prevented the commission
of the crime.
The bill (Eng. Com. Sub. for H. B. No. 4036), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 4108, Allowing an
osteopathic physician and surgeon to supervise up to three
physician assistants generally.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Health and Human Resources, were reported by the Clerk, considered
simultaneously, and adopted:
On page three, section one, line twenty-two, after the word
"promulgate" by inserting the word "legislative and emergency";
On page nine, section one, lines one hundred forty-eight and
one hundred forty-nine, by striking out the words "during the
preceding one-year period of a minimum of twenty hours";
And,
On page nine, section one, line one hundred fifty-two, after
the word "assistants." by inserting the following: The osteopathy
board shall promulgate legislative rules for minimum continuing
hours necessary for certification renewal. These rules shall
provide for minimum hours equal to or more than the hours necessary
for national certification.
The bill (Eng. Com. Sub. for H. B. No. 4108), as amended, was
then ordered to third reading.
Eng. House Bill No. 4112, Extending the time for the County
Commission of Mineral County, West Virginia, to meet as a levying
body.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Government Organization, was reported by the Clerk and adopted:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
MINERAL COUNTY COMMISSION MEETING AS LEVYING BODY EXTENDED.
§1. Extending time for the Mineral County Commission to meet as a
levying body for an election to continue excess levies for
volunteer fire departments and the ambulance authority.
Notwithstanding the provision of article eight, chapter eleven
of the Code of West Virginia, 1931, as amended, the County
Commission of Mineral County, West Virginia, is hereby authorized
to extend the time for its meeting as a levying body, setting the
levy rate and certifying its actions to the State Tax Commissioner, from between the seventh and twenty-eighth days of March and the
third Tuesday in April until the third Tuesday in May, two thousand
six, for the purpose of presenting to the voters of the county an
election for continuing excess levies to provide funding for the
volunteer fire departments and the ambulance authority.
The bill (Eng. H. B. No. 4112), as amended, was then ordered
to third reading.
Eng. House Bill No. 4116, Increasing the amount of timber that
can be sold on state Wildlife Management Areas, without sealed
bids, from $500 to $5,000.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4192, Authorizing the
Department of Military Affairs and Public Safety to promulgate
legislative rules.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
the Judiciary, were reported by the Clerk, considered
simultaneously, and adopted:
On page six, section one, lines fifty-six and fifty-seven, by
striking out the words "disapproved and not authorized." and
inserting in lieu thereof the following: authorized with the
following amendment:
On page four, subsection 5.2, after the word "qualifications"
by striking out the words "and he or she" and inserting a period and the words "The applicant";
And,
On page six, section one, line sixty-eight, by striking out
the words "disapproved and not".
The bill (Eng. Com. Sub. for H. B. No. 4192), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 4276, Updating the
regulation of the practice of landscape architecture.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4279, Relating to the Massage Therapy
Licensure Board.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4283, Providing a preference to West
Virginia veterans in the awarding of state contracts in the
competitive bidding process.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Military, was reported by the Clerk:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §5A-3-37 and §5A-3-37a of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 3. PURCHASING DIVISION.
§5A-3-37. Preference for resident vendors; preference for vendors
employing state residents; exceptions.
(a) Other provisions of this article notwithstanding,
effective the first day of July, one thousand nine hundred ninety,
through the thirtieth day of June, one thousand nine hundred
ninety-four, in any instance involving the purchase of construction
services for the construction, repair or improvement of any
buildings or portions thereof, where the total aggregate cost
thereof, whether one or a series of contracts are awarded in
completing the project, is estimated by the director to exceed the
sum of fifty thousand dollars and where the director or any state
department is required under the provisions of this article to make
the purchase, construction, repair or improvement upon competitive
bids, the successful bid shall be determined as provided in this
section. Effective beginning the first day of July, one thousand
nine hundred ninety-two, in any instance that a purchase of
commodities or printing by the director or by a state department is
required under the provisions of this article to be made upon
competitive bids, the successful bid shall be determined as
provided in this section. The Secretary of the Department of Tax
and Revenue shall promulgate any rules and regulations necessary to
propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code to:
(i) Determine that vendors have met the residence requirements
described in this section; (ii) establish the procedure for vendors
to certify the residency requirements at the time of submitting their bids; (iii) set standards to determine when resident West
Virginia vendors qualify for veterans status and establish
procedures for certifying veterans status at the time of submitting
bids; (iv) establish a procedure to audit bids which make a claim
for preference permitted by this section and to reject noncomplying
bids; and (iv) (v) otherwise accomplish the objectives of this
section. In prescribing the rules, and regulations the secretary
shall use a strict construction of the residence requirements set
forth in this section. For purposes of this section, a successful
bid shall be determined and accepted as follows:
(1) From an individual resident vendor who has resided in West
Virginia continuously for the four years immediately preceding the
date on which the bid is submitted or from a partnership,
association, corporation resident vendor, or from a corporation
nonresident vendor which has an affiliate or subsidiary which
employs a minimum of one hundred state residents and which has
maintained its headquarters or principal place of business within
West Virginia continuously for four years immediately preceding the
date on which the bid is submitted, if the vendor's bid does not
exceed the lowest qualified bid from a nonresident vendor by more
than two and one-half percent of the latter bid, and if the vendor
has made written claim for the preference at the time the bid was
submitted: Provided, That for purposes of this subdivision, any
partnership, association or corporation resident vendor of this
state, which does not meet the requirements of this subdivision
solely because of the continuous four-year residence requirement, shall be considered to meet the requirement if at least eighty
percent of the ownership interest of the resident vendor is held by
another individual, partnership, association or corporation
resident vendor who otherwise meets the requirements of this
subdivision, including the continuous four-year residency
requirement: Provided, however, That the Secretary of the
Department of Tax and Revenue shall promulgate rules and
regulations propose rules for legislative approval in accordance
with the provisions of article three, chapter twenty-nine-a of this
code relating to attribution of ownership among several resident
vendors for purposes of determining the eighty percent ownership
requirement: Provided further, That a resident West Virginia
vendor who meets the requirements of this subdivision and who
qualifies for veteran status shall receive preference as against a
nonveteran resident West Virginia vendor: And provided further,
That this preference shall apply to the extent the resident veteran
vendor's bid does not exceed the lowest qualified bid from a
nonveteran resident vendor by more than two percent of the latter
bid, and if the resident veteran vendor has certified his or her
veteran status as well as the residency requirements of this
subdivision and has, additionally, made written claim for the
preference, at the time the bid was submitted: And provided
further, That a resident West Virginia vendor who qualifies for
veteran status shall receive a preference only as to contracts upon
which a bid is to be made does not exceed the total amount of two
hundred fifty thousand dollars: And provided further, That the preference for veteran status shall be applied in addition to all
other resident preferences: And provided further, That any
individual, partnership, association, or corporation asserting a
preference for veteran status shall certify the qualifications for
the preference; or
(2) From a resident vendor, if, for purposes of producing or
distributing the commodities or completing the project which is the
subject of the vendor's bid and continuously over the entire term
of the project, on average at least seventy-five percent of the
vendor's employees are residents of West Virginia who have resided
in the state continuously for the two immediately preceding years
and the vendor's bid does not exceed the lowest qualified bid from
a nonresident vendor by more than two and one-half percent of the
latter bid, and if the vendor has certified the residency
requirements of this subdivision and made written claim for the
preference, at the time the bid was submitted: Provided, That a
resident West Virginia vendor who meets the requirements of this
subdivision and who qualifies for veteran status shall receive
preference as against a nonveteran resident West Virginia vendor:
Provided, however, That this preference shall apply to the extent
the resident veteran vendor's bid does not exceed the lowest
qualified bid from a nonveteran resident vendor by more than two
percent of the latter bid, and if the resident veteran vendor has
certified his or her veteran status as well as the residency
requirements of this subdivision and has, additionally, made
written claim for the preference, at the time the bid was submitted: Provided further, That a resident West Virginia vendor
who qualifies for veteran status shall receive a preference only as
to contracts upon which a bid is to be made does not exceed the
total amount of two hundred fifty thousand dollars: And provided
further, That the preference for veteran status shall be applied in
addition to all other resident preferences: And provided further,
That any individual, partnership, association or corporation
asserting a preference for veteran status shall certify the
qualifications for the preference; or
(3) From a nonresident vendor, which employs a minimum of one
hundred state residents or a nonresident vendor which has an
affiliate or subsidiary which maintains its headquarters or
principle principal place of business within West Virginia and
which employs a minimum of one hundred state residents, if, for
purposes of producing or distributing the commodities or completing
the project which is the subject of the vendor's bid and
continuously over the entire term of the project, on average at
least seventy-five percent of the vendor's employees or the
vendor's affiliate's or subsidiary's employees are residents of
West Virginia who have resided in the state continuously for the
two immediately preceding years and the vendor's bid does not
exceed the lowest qualified bid from a nonresident vendor by more
than two and one-half percent of the latter bid, and if the vendor
has certified the residency requirements of this subdivision and
made written claim for the preference, at the time the bid was
submitted; or
(4) From a vendor who meets either the requirements of both
subdivisions (1) and (2) of this subsection or subdivisions (1) and
(3) of this subsection, if the bid does not exceed the lowest
qualified bid from a nonresident vendor by more than five percent
of the latter bid, and if the vendor has certified the residency
requirements above and made written claim for the preference at the
time the bid was submitted: Provided, That a resident West
Virginia vendor who meets the requirements of this subdivision and
who qualifies for veteran status shall receive preference as
against a nonveteran resident West Virginia vendor: Provided,
however, That this preference shall apply to the extent the
resident veteran vendor's bid does not exceed the lowest qualified
bid from a nonveteran resident vendor by more than two percent of
the latter bid, and if the resident veteran vendor has certified
his or her veteran status as well as the residency requirements of
this subdivision and has, additionally, made written claim for the
preference, at the time the bid was submitted: Provided further,
That a resident West Virginia vendor who qualifies for veteran
status shall receive a preference only as to contracts upon which
a bid is to be made does not exceed the total amount of two hundred
fifty thousand dollars: And provided further, That the preference
for veteran status shall be applied in addition to all other
resident preferences: And provided further, That any individual,
partnership, association, or corporation asserting a preference for
veteran status shall certify the qualifications for the preference;
or
(b) If the Secretary of the Department of Tax and Revenue
determines under any audit procedure that a vendor who received a
preference under this section fails to continue to meet the
requirements for the preference at any time during the term of the
project for which the preference was received the secretary may:
(1) Reject the vendor's bid; or (2) assess a penalty against the
vendor of not more than five percent of the vendor's bid on the
project.
(c) Political subdivisions of the state including county
boards of education may grant the same preferences to any vendor of
this state who has made a written claim for the preference at the
time a bid is submitted, but for the purposes of this subsection,
in determining the lowest bid, any political subdivision shall
exclude from the bid the amount of business occupation taxes which
must be paid by a resident vendor to any municipality within the
county comprising or located within the political subdivision as a
result of being awarded the contract which is the object of the
bid; in the case of a bid received by a municipality, the
municipality shall exclude only the business and occupation taxes
as will be paid to the municipality: Provided, That prior to
soliciting any competitive bids, any political subdivision may, by
majority vote of all its members in a public meeting where all the
votes are recorded, elect not to exclude from the bid the amount of
business and occupation taxes as provided in this subsection.
(d) If any of the requirements or provisions set forth in this
section jeopardize the receipt of federal funds, then the requirement or provisions are void and of no force and effect for
that specific project.
(e) If any provision or clause of this section or application
thereof to any person or circumstance is held invalid, the
invalidity shall not affect other provisions or applications of
this section which can be given effect without the invalid
provision or application, and to this end the provisions of this
section are severable.
(f) This section may be cited as the "Jobs for West Virginians
Act of 1990".
§5A-3-37a. Preference for resident vendors; exceptions; reciprocal
preference.
Except where the provisions of section thirty-seven of this
article may apply, in any instance where a purchase of commodities
or printing by the director or by a state spending unit is required
under the provisions of this article to be made upon competitive
bids, preference shall be given to vendors resident in West
Virginia as against vendors resident in any state that gives or
requires a preference for the purchase of commodities or printing
produced, manufactured or performed in that state: Provided, That
a resident West Virginia vendor who qualifies for veterans status
under rules promulgated by the Secretary of the Department of
Revenue pursuant to section thirty-seven of this article shall
receive preference as against a nonveteran resident West Virginia
vendor: Provided, however, That this preference shall apply to the
extent the resident veteran vendor's bid does not exceed the lowest qualified bid from a nonveteran resident vendor by more than two
percent of the latter bid, and if the resident veteran vendor has
certified his or her veteran status as well as the residency
requirements of this subdivision and has, additionally, made
written claim for the preference, at the time the bid was
submitted: Provided further, That a resident West Virginia vendor
who qualifies for veteran status shall receive a preference only as
to contracts upon which a bid is to be made does not exceed the
total amount of two hundred fifty thousand dollars: And provided
further, That the preference for veteran status shall be applied in
addition to all other resident preferences: And provided further,
That any individual, partnership, association, or corporation
asserting a preference for veteran status shall certify the
qualifications for the preference. The amount of the preference
shall be equal to the amount of the preference applied by the other
state.
A vendor shall be deemed to be a resident of this state if
such vendor is an individual, partnership, association or
corporation in good standing under the laws of the State of West
Virginia who: (1) Is a resident of the state or a foreign
corporation authorized to transact business in the state; (2)
maintains an office in the state; (3) has paid personal property
taxes pursuant to article five, chapter eleven of this code on
equipment used in the regular course of supplying services of the
general type offered; and (4) has paid business taxes pursuant to
chapter eleven of this code. In addition, in the case of a vendor selling tangible personal property, a resident vendor is one who
has a stock of materials held in West Virginia for sale in the
ordinary course of business, which stock is of the general type
offered, and which is reasonably sufficient in quantity to meet the
ordinary requirements of customers.
If any of the requirements or provisions set forth in this
section jeopardize the receipt of federal funds, then such
requirements or provision provisions shall be void and of no force
and effect.
The following amendments to the Military committee amendment
to the bill (Eng. H. B. No. 4283), from the Committee on Finance,
were reported by the Clerk, considered simultaneously, and adopted:
On page four, section thirty-seven, line fifteen, after the
word "dollars:" by inserting the following proviso: "And provided
further, That for a partnership, association or corporation to
qualify as a veteran resident vendor, a veteran who is a resident
of this state is required to have at least fifty percent ownership
in the partnership, association or corporation:";
On page five, section thirty-seven, line twenty-one, after the
word "dollars:" by inserting the following proviso: "And provided
further, That for a partnership, association or corporation to
qualify as a veteran resident vendor, a veteran who is a resident
of this state is required to have at least fifty percent ownership
in the partnership, association or corporation:";
On page seven, section thirty-seven, line sixteen, after the
word "dollars:" by inserting the following proviso: "And provided further, That for a partnership, association or corporation to
qualify as a veteran resident vendor, a veteran who is a resident
of this state is required to have at least fifty percent ownership
in the partnership, association or corporation:";
And,
On page ten, section thirty-seven-a, line ten, after the word
"dollars:" by inserting the following proviso: "And provided
further, That for a partnership, association or corporation to
qualify as a veteran resident vendor, a veteran who is a resident
of this state is required to have at least fifty percent ownership
in the partnership, association or corporation:".
The question now being on the adoption of the Military
committee amendment to the bill, as amended, the same was put and
prevailed.
The bill (Eng. H. B. No. 4283), as amended, was then ordered
to third reading.
Eng. Com. Sub. for House Bill No. 4313, Relating to petitions
of appeal of domestic violence emergency protective orders.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4321, Relating to definitions and
modifications of exemptions from notification and licensure with
respect to lead abatement.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4368, Relating to penalties imposed against licensed wine sellers for ABC violations.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4386, Ratifying the National Crime
Prevention and Privacy Compact.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4445, Permitting the Director of the
Division of Forestry to recover costs incurred in fighting fires.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4484, Extending the time for the county
commission of Marion County, West Virginia, to meet as a levying
body.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4489, Testing of electronic
voting machines used for early voting in order to allow their use
on election day.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4510, Removing language requiring the
commission to maintain a registry and census of persons who are
deaf or hard of hearing.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4536, Improving competition
among telephone public utilities providing landline services.
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:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 2E. REQUIREMENTS FOR PHONE SERVICE SALES.
§24-2E-2. Telephone services agreements.
(a) Limitation on termination fees. -- On and after the
effective date of this section, no telephone public utility may, in
connection with its continued provision of landline telephone
service pursuant to an automatic renewal provision contained in a
customer service agreement with a business customer, impose a
termination fee that is greater than the charges for one month's
service, which fee shall be computed by averaging the service
charges invoiced to the terminating customer during the preceding
four months.
(b) Service agreements already automatically renewed. -- If,
as of the effective date of this section, a telephone public
utility is providing landline telephone service to a customer
pursuant to an automatic renewal provision contained in a customer
service agreement with a business customer, the telephone public
utility may not impose a termination fee that is greater than the
charges for two months' service, which fee shall be computed by averaging the service charges invoiced to the terminating customer
during the preceding four months.
(c) Limitation on applicability. --
(1) Nothing herein shall be construed as preventing a
telephone public utility and its business customers from entering
into customer service agreements, governing, among other matters,
any termination fee that may be imposed on the customer for
terminating the service agreement during its initial term.
(2) The provisions of this section do not apply to service
agreements between one telephone public utility and another
telephone public utility.
The bill (Eng. Com. Sub. for H. B. No. 4536), as amended, was
then ordered to third reading.
Eng. House Bill No. 4569, Extending the time for the county
commission of Harrison County, West Virginia, to meet as a levying
body.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4596, Relating to the
Director of the Office of Miners' Health, Safety and Training.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4625, Extending certain
authority to professional personnel designee of school principal.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Education, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 5. AUTHORITY; RIGHTS; RESPONSIBILITY.
§18A-5-1. Authority of teachers and other school personnel;
exclusion of pupils having infectious diseases; suspension or
expulsion of disorderly pupils; corporal punishment abolished.
(a) The teacher shall stand in the place of the parent(s),
guardian(s) or custodian(s) in exercising authority over the school
and shall have control of all pupils enrolled in the school from
the time they reach the school until they have returned to their
respective homes, except that where transportation of pupils is
provided, the driver in charge of the school bus or other mode of
transportation shall exercise such authority and control over the
children while they are in transit to and from the school.
(b) Subject to the rules of the State Board of Education, the
teacher shall exclude from the school any pupil or pupils known to
have or suspected of having any infectious disease, or any pupil or
pupils who have been exposed to such any infectious disease, and
shall immediately notify the proper health officer or medical
inspector of such the exclusion. Any pupil so excluded shall not
be readmitted to the school until such the pupil has complied with
all the requirements of the rules governing such those cases or has
presented a certificate of health signed by the medical inspector
or other proper health officer.
(c) The teacher shall have authority to may exclude from his
or her classroom or school bus any pupil who is guilty of
disorderly conduct; who in any manner interferes with an orderly
educational process; who threatens, abuses or otherwise intimidates
or attempts to intimidate a school employee or a pupil; or who
willfully disobeys a school employee; or who uses abusive or
profane language directed at a school employee. Any pupil excluded
shall be placed under the control of the principal of the school or
a designee. The excluded pupil may be admitted to the classroom or
school bus only when the principal, or a designee, provides written
certification to the teacher that the pupil may be readmitted and
specifies the specific type of disciplinary action, if any, which
was taken. If the principal finds that disciplinary action is
warranted, he or she shall provide written and, if possible,
telephonic notice of such the action to the parent(s), guardian(s)
or custodian(s). When a teacher excludes the same pupil from his
or her classroom or from a school bus three times in one school
year, and after exhausting all reasonable methods of classroom
discipline provided in the school discipline plan, the pupil may be
readmitted to the teacher's classroom only after the principal,
teacher and, if possible, the parent(s), guardian(s) or
custodian(s) of the pupil have held a conference to discuss the
pupil's disruptive behavior patterns, and the teacher and the
principal agree on a course of discipline for the pupil and inform
the parent(s), guardian(s) or custodian(s) of the course of action.
Thereafter, if the pupil's disruptive behavior persists, upon the teacher's request, the principal may, to the extent feasible,
transfer the pupil to another setting.
(d) The Legislature finds that suspension from school is not
appropriate solely for a pupil's failure to attend class.
Therefore, no pupil may be suspended from school solely for not
attending class. Other methods of discipline may be used for the
pupil which may include, but are not limited to, detention, extra
class time or alternative class settings.
(e) Corporal punishment of any pupil by a school employee is
prohibited.
(f) Each county board is solely responsible for the
administration of proper discipline in the public schools of the
county and shall adopt policies consistent with the provisions of
this section to govern disciplinary actions. These policies shall
encourage the use of alternatives to corporal punishment, providing
for the training of school personnel in alternatives to corporal
punishment and for the involvement of parent(s), guardian(s) or
custodian(s) in the maintenance of school discipline. The county
boards of education shall provide for the immediate incorporation
and implementation in the schools of a preventive discipline
program which may include the responsible student program and a
student involvement program which may include the peer mediation
program, devised by the West Virginia Board of Education. Each
board may modify such those programs to meet the particular needs
of the county. The county boards shall provide in-service training
for teachers and principals relating to assertive discipline procedures and conflict resolution. The county boards of education
may also may establish cooperatives with private entities to
provide middle educational programs which may include programs
focusing on developing individual coping skills, conflict
resolution, anger control, self-esteem issues, stress management
and decisionmaking for students and any other program related to
preventive discipline.
(g) For the purpose of this section:
(1) "Pupil or student" shall include includes any child, youth
or adult who is enrolled in any instructional program or activity
conducted under board authorization and within the facilities of or
in connection with any program under public school direction:
Provided, That, in the case of adults, the pupil-teacher
relationship shall terminate when the pupil leaves the school or
other place of instruction or activity; and
(2) "Teacher" shall mean means all professional educators as
defined in section one, article one of this chapter and shall
include the driver of a school bus or other mode of transportation;
and
(3) "Principal" means the principal, assistant principal, vice
principal or the administrative head of the school or a
professional personnel designee of the principal or the
administrative head of the school.
(h) Teachers shall exercise such other authority and perform
such other duties as may be prescribed for them by law or by the
rules of the state board of Education not inconsistent with the provisions of this chapter and chapter eighteen of this code.
§18A-5-1a. Possessing deadly weapons on premises of educational
facilities; possessing a controlled substance on premises of
educational facilities; assaults and batteries committed by
pupils upon teachers or other school personnel; temporary
suspension, hearing; procedure, notice and formal hearing;
extended suspension; sale of narcotic; expulsion; exception;
alternative education.
(a) A principal shall suspend a pupil from school or from
transportation to or from the school on any school bus if the
pupil, in the determination of the principal after an informal
hearing pursuant to subsection (d) of this section, has: (i)
Violated the provisions of subsection (b), section fifteen, article
two, chapter sixty-one of this code; (ii) violated the provisions
of subsection (b), section eleven-a, article seven of said chapter;
or (iii) sold a narcotic drug, as defined in section one hundred
one, article one, chapter sixty-a of this code, on the premises of
an educational facility, at a school-sponsored function or on a
school bus. If a student has been suspended pursuant to this
subsection, the principal shall, within twenty-four hours, request
that the county superintendent recommend to the county board that
the student be expelled. Upon such a request by a principal, the
county superintendent shall recommend to the county board that the
student be expelled. Upon such recommendation, the county board
shall conduct a hearing in accordance with subsections (e), (f) and
(g) of this section to determine if the student committed the alleged violation. If the county board finds that the student did
commit the alleged violation, the county board shall expel the
student.
(b) A principal shall suspend a pupil from school, or from
transportation to or from the school on any school bus, if the
pupil, in the determination of the principal after an informal
hearing pursuant to subsection (d) of this section, has: (i)
Committed an act or engaged in conduct that would constitute a
felony under the laws of this state if committed by an adult; or
(ii) unlawfully possessed on the premises of an educational
facility or at a school-sponsored function a controlled substance
governed by the uniform controlled substances act as described in
chapter sixty-a of this code. If a student has been suspended
pursuant to this subsection, the principal may request that the
superintendent recommend to the county board that the student be
expelled. Upon such recommendation by the county superintendent,
the county board may hold a hearing in accordance with the
provisions of subsections (e), (f) and (g) of this section to
determine if the student committed the alleged violation. If the
county board finds that the student did commit the alleged
violation, the county board may expel the student.
(c) A principal may suspend a pupil from school, or
transportation to or from the school on any school bus, if the
pupil, in the determination of the principal after an informal
hearing pursuant to subsection (d) of this section: (i) Threatened
to injure, or in any manner injured, a pupil, teacher, administrator or other school personnel; (ii) willfully disobeyed
a teacher; (iii) possessed alcohol in an educational facility, on
school grounds, a school bus or at any school-sponsored function;
(iv) used profane language directed at a school employee or pupil;
(v) intentionally defaced any school property; (vi) participated in
any physical altercation with another person while under the
authority of school personnel; or (vii) habitually violated school
rules or policies. If a student has been suspended pursuant to
this subsection, the principal may request that the superintendent
recommend to the county board that the student be expelled. Upon
such recommendation by the county superintendent, the county board
may hold a hearing in accordance with the provisions of subsections
(e), (f) and (g) of this section to determine if the student
committed the alleged violation. If the county board finds that
the student did commit the alleged violation, the county board may
expel the student.
(d) The actions of any pupil which may be grounds for his or
her suspension or expulsion under the provisions of this section
shall be reported immediately to the principal of the school in
which the pupil is enrolled. If the principal determines that the
alleged actions of the pupil would be grounds for suspension, he or
she shall conduct an informal hearing for the pupil immediately
after the alleged actions have occurred. The hearing shall be held
before the pupil is suspended unless the principal believes that
the continued presence of the pupil in the school poses a
continuing danger to persons or property or an ongoing threat of disrupting the academic process, in which case the pupil shall be
suspended immediately and a hearing held as soon as practicable
after the suspension.
The pupil and his or her parent(s), guardian(s) or
custodian(s), as the case may be, shall be given telephonic notice,
if possible, of this informal hearing, which notice shall briefly
state the grounds for suspension.
At the commencement of the informal hearing, the principal
shall inquire of the pupil as to whether he or she admits or denies
the charges. If the pupil does not admit the charges, he or she
shall be given an explanation of the evidence possessed by the
principal and an opportunity to present his or her version of the
occurrence. At the conclusion of the hearing or upon the failure
of the noticed student to appear, the principal may suspend the
pupil for a maximum of ten school days, including the time prior to
the hearing, if any, for which the pupil has been excluded from
school.
The principal shall report any suspension the same day it has
been decided upon, in writing, to the parent(s), guardian(s) or
custodian(s) of the pupil by regular United States mail. The
suspension also shall be reported to the county superintendent and
to the faculty senate of the school at the next meeting after the
suspension.
(e) Prior to a hearing before the county board, the county
board shall cause a written notice which states the charges and the
recommended disposition to be served upon the pupil and his or her parent(s), guardian(s) or custodian(s), as the case may be. The
notice shall state clearly whether the board will attempt at
hearing to establish the student as a dangerous student, as defined
by section one, article one of this chapter. The notice also shall
include any evidence upon which the board will rely in asserting
its claim that the student is a dangerous student. The notice
shall set forth a date and time at which the hearing shall be held,
which date shall be within the ten-day period of suspension imposed
by the principal.
(f) The county board shall hold the scheduled hearing to
determine if the pupil should be reinstated or should or, under the
provisions of this section, must be expelled from school. If the
county board determines that the student should or must be expelled
from school, it may also may determine whether the student is a
dangerous student pursuant to subsection (g) of this section. At
this, or any hearing before a county board conducted pursuant to
this section, the pupil may be represented by counsel, may call his
or her own witnesses to verify his or her version of the incident
and may confront and cross-examine witnesses supporting the charge
against him or her. Such The a hearing shall be recorded by
mechanical means unless recorded by a certified court reporter.
Any such The hearing may be postponed for good cause shown by the
pupil but he or she shall remain under suspension until after the
hearing. The State Board may adopt other supplementary rules of
procedure to be followed in these hearings. At the conclusion of
the hearing the county board shall either: (1) Order the pupil reinstated immediately at the end of his or her initial suspension;
(2) suspend the pupil for a further designated number of days; or
(3) expel the pupil from the public schools of the county.
(g) A county board that did not intend prior to a hearing to
assert a dangerous student claim, that did not notify the student
prior to the hearing that such a dangerous student determination
would be considered and that determines through the course of the
hearing that the student may be a dangerous student shall schedule
a second hearing within ten days to decide the issue. The hearing
may be postponed for good cause shown by the pupil, but he or she
remains under suspension until after the hearing.
A county board that expels a student, and finds that the
student is a dangerous student, may refuse to provide alternative
education. However, after a hearing conducted pursuant to this
section for determining whether a student is a dangerous student,
when the student is found to be a dangerous student, is expelled
and is denied alternative education, a hearing shall be conducted
within three months after the refusal by the board to provide
alternative education to reexamine whether or not the student
remains a dangerous student and whether the student shall be
provided alternative education. Thereafter, a hearing for the
purpose of reexamining whether or not the student remains a
dangerous student and whether the student shall be provided
alternative education shall be conducted every three months for so
long as the student remains a dangerous student and is denied
alternative education. During the initial hearing, or in any subsequent hearing, the board may consider the history of the
pupil's conduct as well as any improvements made subsequent to the
expulsion. If it is determined during any of the hearings that the
student is no longer a dangerous student or should be provided
alternative education, the student shall be provided alternative
education during the remainder of the expulsion period.
(h) The superintendent may apply to a circuit judge or
magistrate for authority to subpoena witnesses and documents, upon
his or her own initiative, in a proceeding related to a recommended
student expulsion or dangerous student determination, before a
county board conducted pursuant to the provisions of this section.
Upon the written request of any other party, the superintendent
shall apply to a circuit judge or magistrate for the authority to
subpoena witnesses, documents or both on behalf of the other party
in a proceeding related to a recommended student expulsion or
dangerous student determination before a county board. If the
authority to subpoena is granted, the superintendent shall subpoena
the witnesses, documents or both requested by the other party.
Furthermore, if the authority to subpoena is granted, it shall be
exercised in accordance with the provisions of section one, article
five, chapter twenty-nine-a of this code.
Any hearing conducted pursuant to this subsection may be
postponed: (1) For good cause shown by the pupil; (2) when
proceedings to compel a subpoenaed witness to appear must be
instituted; or (3) when a delay in service of a subpoena hinders
either party's ability to provide sufficient notice to appear to a witness. A pupil remains under suspension until after the hearing
in any case where a postponement occurs.
The county boards are directed to report the number of pupils
determined to be dangerous students to the State Board of
Education. The State Board will compile the county boards'
statistics and shall report its findings to the Legislative
Oversight Commission on Education Accountability.
(i) Pupils may be expelled pursuant to the provisions of this
section for a period not to exceed one school year, except that if
a pupil is determined to have violated the provisions of subsection
(a) of this section the pupil shall be expelled for a period of not
less than twelve consecutive months: Provided, That the county
superintendent may lessen the mandatory period of twelve
consecutive months for the expulsion of the pupil if the
circumstances of the pupil's case demonstrably warrant. Upon the
reduction of the period of expulsion, the county superintendent
shall prepare a written statement setting forth the circumstances
of the pupil's case which warrant the reduction of the period of
expulsion. The county superintendent shall submit the statement to
the county board, the principal, the faculty senate and the local
school improvement council for the school from which the pupil was
expelled. The county superintendent may use the following factors
as guidelines in determining whether or not to reduce a mandatory
twelve-month expulsion:
(1) The extent of the pupil's malicious intent;
(2) The outcome of the pupil's misconduct;
(3) The pupil's past behavior history; and
(4) The likelihood of the pupil's repeated misconduct.
(j) In all hearings under this section, facts shall be found
by a preponderance of the evidence.
(k) For purposes of this section, nothing herein may be
construed to be in conflict with the federal provisions of the
Individuals with Disabilities Education Act, of 1990 (PL 101-476)
20 U. S. C. §1400, et seq.
(l) Each suspension or expulsion imposed upon a pupil under
the authority of this section shall be recorded in the uniform
integrated regional computer information system (commonly known as
the West Virginia Education Information System) described in
subsection (f), section twenty-six, article two, chapter eighteen
of this code.
(1) The principal of the school at which the pupil is enrolled
shall create an electronic record within twenty-four hours of the
imposition of the suspension or expulsion.
(2) Each record of a suspension or expulsion shall include the
pupil's name and identification number, the reason for the
suspension or expulsion, and the beginning and ending dates of the
suspension or expulsion.
(3) The State Board of Education shall collect and disseminate
data so that any principal of a public school in West Virginia can
review the complete history of disciplinary actions taken by West
Virginia public schools against any pupil enrolled or seeking to
enroll at that principal's school. The purposes of this provision are to allow every principal to fulfill his or her duty under
subsection (b), section fifteen-f, article five, chapter eighteen
of this code to determine whether a pupil requesting to enroll at
a public school in West Virginia is currently serving a suspension
or expulsion from another public school in West Virginia and to
allow principals to obtain general information about pupils'
disciplinary histories.
(m) Principals may exercise any other authority and perform
any other duties to discipline pupils consistent with state and
federal law, including policies of the State Board of Education.
(n) Each county board is solely responsible for the
administration of proper discipline in the public schools of the
county and shall adopt policies consistent with the provisions of
this section to govern disciplinary actions.
(o) For the purpose of this section, "principal" means the
principal, assistant principal, vice principal or the
administrative head of the school or a professional personnel
designee of the principal or the administrative head of the school.
The bill (Eng. Com. Sub. for H. B. No. 4625), as amended, was
then ordered to third reading.
Eng. House Bill No. 4632, Relating to employing homeland
security and emergency service personnel.
On second reading, coming up in regular order, was read a
second time.
At the request of Senator Chafin, unanimous consent being
granted, the bill was advanced to third reading with the unreported Judiciary committee amendment pending and the right for further
amendments to be considered on that reading.
Eng. House Bill No. 4651, Relating to continuing the statewide
poison center generally.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Health and Human Resources, were reported by the Clerk, considered
simultaneously, and adopted:
On page two, by striking out the article heading and inserting
in lieu thereof a new article heading, to read as follows:
ARTICLE 11B. WEST VIRGINIA POISON CENTER.;
And,
On page four, section two, lines eleven through thirteen, by
striking out the following: The Higher Education Policy Commission
shall allocate funds as necessary to operate, continue, certify and
maintain the West Virginia Poison Center.
The bill (Eng. H. B. No. 4651), as amended, was then ordered
to third reading.
Eng. Com. Sub. for House Bill No. 4694, Relating to abuse and
neglect of children.
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:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 1. PURPOSES; DEFINITIONS.
§49-1-3. Definitions relating to abuse and neglect.
(a) "Abused child" means a child whose health or welfare is
harmed or threatened by:
(1) A parent, guardian or custodian who knowingly or
intentionally inflicts, attempts to inflict or knowingly allows
another person to inflict, physical injury or mental or emotional
injury, upon the child or another child in the home; or
(2) Sexual abuse or sexual exploitation; or
(3) The sale or attempted sale of a child by a parent,
guardian or custodian in violation of section sixteen, article
four, chapter forty-eight of this code; or
(4) Domestic violence as defined in section two hundred two,
article twenty-seven, chapter forty-eight of this code.
In addition to its broader meaning, physical injury may
include an injury to the child as a result of excessive corporal
punishment.
(b) "Abusing parent" means a parent, guardian or other
custodian, regardless of his or her age, whose conduct, as alleged
in the petition charging child abuse or neglect, has been adjudged
by the court to constitute child abuse or neglect.
(c) "Battered parent" means a parent, guardian or other
custodian who has been judicially determined not to have condoned
the abuse or neglect and has not been able to stop the abuse or
neglect of the child or children due to being the victim of domestic violence as defined by section two hundred two, article
twenty-seven, chapter forty-eight of this code, which domestic
violence was perpetrated by the person or persons determined to
have abused or neglected the child or children.
(c) (d) "Child abuse and neglect" or "child abuse or neglect"
means physical injury, mental or emotional injury, sexual abuse,
sexual exploitation, sale or attempted sale or negligent treatment
or maltreatment of a child by a parent, guardian or custodian who
is responsible for the child's welfare, under circumstances which
harm or threaten the health and welfare of the child.
(d) (e) "Child abuse and neglect services" means social
services which are directed toward:
(1) Protecting and promoting the welfare of children who are
abused or neglected;
(2) Identifying, preventing and remedying conditions which
cause child abuse and neglect;
(3) Preventing the unnecessary removal of children from their
families by identifying family problems and assisting families in
resolving problems which could lead to a removal of children and a
breakup of the family;
(4) In cases where children have been removed from their
families, providing services to the children and the families so as
to reunify such children with their families, or some portion
thereof;
(5) Placing children in suitable adoptive homes when
reunifying the children with their families, or some portion thereof, is not possible or appropriate; and
(6) Assuring the adequate care of children who have been
placed in the custody of the department or third parties.
(e) (f) "Imminent danger to the physical well-being of the
child" means an emergency situation in which the welfare or the
life of the child is threatened. Such emergency situation exists
when there is reasonable cause to believe that any child in the
home is or has been sexually abused or sexually exploited, or
reasonable cause to believe that the following conditions threaten
the health or life of any child in the home:
(1) Nonaccidental trauma inflicted by a parent, guardian,
custodian, sibling or a babysitter or other caretaker;
(2) A combination of physical and other signs indicating a
pattern of abuse which may be medically diagnosed as battered child
syndrome;
(3) Nutritional deprivation;
(4) Abandonment by the parent, guardian or custodian;
(5) Inadequate treatment of serious illness or disease;
(6) Substantial emotional injury inflicted by a parent,
guardian or custodian; or
(7) Sale or attempted sale of the child by the parent,
guardian or custodian.
(f) (g) "Legal guardianship" means the permanent relationship
between a child and caretaker, established by order of the circuit
court having jurisdiction over the child, pursuant to the
provisions of this chapter and chapter forty-eight of this code.
(g) (h) "Multidisciplinary team" means a group of
professionals and paraprofessionals representing a variety of
disciplines who interact and coordinate their efforts to identify,
diagnose and treat specific cases of child abuse and neglect.
Multidisciplinary teams may include, but are not limited to,
medical, educational, child care and law-enforcement personnel,
social workers, psychologists and psychiatrists. Their goal is to
pool their respective skills in order to formulate accurate
diagnoses and to provide comprehensive coordinated treatment with
continuity and follow-up for both parents and children. "Community
team" means a multidisciplinary group which addresses the general
problem of child abuse and neglect in a given community and may
consist of several multidisciplinary teams with different
functions.
(h) (i) (1) "Neglected child" means a child:
(A) Whose physical or mental health is harmed or threatened by
a present refusal, failure or inability of the child's parent,
guardian or custodian to supply the child with necessary food,
clothing, shelter, supervision, medical care or education, when
such refusal, failure or inability is not due primarily to a lack
of financial means on the part of the parent, guardian or
custodian; or
(B) Who is presently without necessary food, clothing,
shelter, medical care, education or supervision because of the
disappearance or absence of the child's parent or custodian;
(2) "Neglected child" does not mean a child whose education is conducted within the provisions of section one, article eight,
chapter eighteen of this code.
(i) (j) "Parenting skills" means a parent's competencies in
providing physical care, protection, supervision and psychological
support appropriate to a child's age and state of development.
(j) (k) "Sexual abuse" means:
(A) As to a child who is less than sixteen years of age, any
of the following acts which a parent, guardian or custodian shall
engage in, attempt to engage in, or knowingly procure another
person to engage in, with such child, notwithstanding the fact that
the child may have willingly participated in such conduct or the
fact that the child may have suffered no apparent physical injury
or mental or emotional injury as a result of such conduct:
(i) Sexual intercourse;
(ii) Sexual intrusion; or
(iii) Sexual contact;
(B) As to a child who is sixteen years of age or older, any of
the following acts which a parent, guardian or custodian shall
engage in, attempt to engage in, or knowingly procure another
person to engage in, with such child, notwithstanding the fact that
the child may have consented to such conduct or the fact that the
child may have suffered no apparent physical injury or mental or
emotional injury as a result of such conduct:
(i) Sexual intercourse;
(ii) Sexual intrusion; or
(iii) Sexual contact;
(C) Any conduct whereby a parent, guardian or custodian
displays his or her sex organs to a child, or procures another
person to display his or her sex organs to a child, for the purpose
of gratifying the sexual desire of the parent, guardian or
custodian, of the person making such display, or of the child, or
for the purpose of affronting or alarming the child.
(k) (l) "Sexual contact" means sexual contact as that term is
defined in section one, article eight-b, chapter sixty-one of this
code.
(l) (m) "Sexual exploitation" means an act whereby:
(1) A parent, custodian or guardian, whether for financial
gain or not, persuades, induces, entices or coerces a child to
engage in sexually explicit conduct as that term is defined in
section one, article eight-c, chapter sixty-one of this code;
(2) A parent, guardian or custodian persuades, induces,
entices or coerces a child to display his or her sex organs for the
sexual gratification of the parent, guardian, custodian or a third
person, or to display his or her sex organs under circumstances in
which the parent, guardian or custodian knows such display is
likely to be observed by others who would be affronted or alarmed.
(m) (n) "Sexual intercourse" means sexual intercourse as that
term is defined in section one, article eight-b, chapter sixty-one
of this code.
(n) (o) "Sexual intrusion" means sexual intrusion as that term
is defined in section one, article eight-b, chapter sixty-one of
this code.
(o) (p) "Parental rights" means any and all rights and duties
regarding a parent to a minor child, including, but not limited to,
custodial rights and visitational rights and rights to participate
in the decisions affecting a minor child.
(p) (q) "Placement" means any temporary or permanent placement
of a child who is in the custody of the state in any foster home,
group home or other facility or residence.
(q) (r) "Serious physical abuse" means bodily injury which
creates a substantial risk of death, which causes serious or
prolonged disfigurement, prolonged impairment of health or
prolonged loss or impairment of the function of any bodily organ.
(r) (s) "Siblings" means children who have at least one
biological parent in common or who have been legally adopted by the
same parents or parent.
(s) (t) "Time-limited reunification services" means
individual, group and family counseling, inpatient, residential or
outpatient substance abuse treatment services, mental health
services, assistance to address domestic violence, services
designed to provide temporary child care and therapeutic services
for families, including crisis nurseries and transportation to or
from any such services, provided during fifteen of the most recent
twenty-two months a child has been in foster care, as determined by
the earlier date of the first judicial finding that the child is
subjected to abuse or neglect, or the date which is sixty days
after the child is removed from home.
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§49-6-2. Petition to court when child believed neglected or
abused-right to counsel; improvement period; hearing; priority
of proceeding; transcript.
(a) In any proceeding under the provisions of this article,
the child, his or her or parents and his or her legally established
custodian or other persons standing in loco parentis to him or her
shall have the right to be represented by counsel at every stage of
the proceedings and shall be informed by the court of their right
to be so represented and that if they cannot pay for the services
of counsel, that counsel will be appointed. Counsel of the child
shall be appointed in the initial order. If the order gives
physical custody of the child to the state, the initial order shall
appoint counsel for the parents or, if the parents are separated or
divorced, the parents or parent or other person or persons standing
in loco parentis who had physical custody of the child for the
majority of the time in the period immediately preceding the
petition: Provided, That such representation shall only continue
after the first appearance if the parent or other persons standing
in loco parentis cannot pay for the services of counsel. Counsel
for other parties shall only be appointed upon request for
appointment of counsel. If the requesting parties have not
retained counsel and cannot pay for the services of counsel, the
court shall, by order entered of record, appoint an attorney or
attorneys to represent the other party or parties and so inform the
parties. Under no circumstances may the same attorney represent
both the child and the other party or parties, nor shall the same attorney represent both parents or custodians. However, one
attorney may represent both parents or custodians where both
parents or guardians consent to this representation after the
attorney fully discloses to the client the possible conflict and
where the attorney assures the court that she or he is able to
represent each client without impairing her or his professional
judgment; however, if more than one child from a family is involved
in the proceeding, one attorney may represent all the children. A
parent who has been judicially determined to be battered shall be
entitled to his or her own attorney. The court may allow to each
attorney so appointed a fee in the same amount which appointed
counsel can receive in felony cases. Any attorney appointed
pursuant to this section shall by the first day of July, one
thousand nine hundred ninety-three, and three hours per year each
year thereafter, receive a minimum of three hours of continuing
legal education training on representation of children, child abuse
and neglect: Provided, however, That where no attorney who has
completed this training is available for such appointment, the
court shall appoint a competent attorney with demonstrated
knowledge of child welfare law to represent the child. Any
attorney appointed pursuant to this section shall perform all
duties required as an attorney licensed to practice law in the
State of West Virginia.
(b) In any proceeding brought pursuant to the provisions of
this article, the court may grant any respondent an improvement
period in accord with the provisions of this article. During such period, the court may require temporary custody with a responsible
person which has been found to be a fit and proper person for the
temporary custody of the child or children or the state Department
or other agency during the improvement period. An order granting
such improvement period shall require the Department to prepare and
submit to the court a family case plan in accordance with the
provisions of section three, article six-d of this chapter.
(c) In any proceeding pursuant to the provisions of this
article, the party or parties having custodial or other parental
rights or responsibilities to the child shall be afforded a
meaningful opportunity to be heard, including the opportunity to
testify and to present and cross-examine witnesses. The petition
shall not be taken as confessed. A transcript or recording shall
be made of all proceedings unless waived by all parties to the
proceeding. The rules of evidence shall apply. Where relevant,
the court shall consider the efforts of the state Department to
remedy the alleged circumstances. At the conclusion of the
hearing, the court shall make a determination based upon the
evidence and shall make findings of fact and conclusions of law as
to whether such child is abused or neglected and, if applicable,
whether the parent, guardian or custodian is a battered parent, all
of which shall be incorporated into the order of the court. The
findings must be based upon conditions existing at the time of the
filing of the petition and proven by clear and convincing proof.
(d) Any petition filed and any proceeding held under the
provisions of this article shall, to the extent practicable, be given priority over any other civil action before the court, except
proceedings under article two-a, chapter forty-eight of this code
and actions in which trial is in progress. Any petition filed
under the provisions of this article shall be docketed immediately
upon filing. Any hearing to be held at the end of an improvement
period and any other hearing to be held during any proceedings
under the provisions of this article shall be held as nearly as
practicable on successive days and, with respect to said hearing to
be held at the end of an improvement period, shall be held as close
in time as possible after the end of said improvement period and
shall be held within sixty days of the termination of such
improvement period.
(e) Following the court's determination, it shall be inquired
of the parents or custodians whether or not appeal is desired and
the response transcribed. A negative response shall not be
construed as a waiver. The evidence shall be transcribed and made
available to the parties or their counsel as soon as practicable,
if the same is required for purposes of further proceedings. If an
indigent person intends to pursue further proceedings, the court
reporter shall furnish a transcript of the hearing without cost to
the indigent person if an affidavit is filed stating that he or she
cannot pay therefor.
§49-6-3. Petition to court when child believed neglected or abused
-- Temporary custody.
(a) Upon the filing of a petition, the court may order that
the child alleged to be an abused or neglected child be delivered for not more than ten days into the custody of the state department
or a responsible person found by the court to be a fit and proper
person for the temporary care of the child pending a preliminary
hearing, if it finds that: (1) There exists imminent danger to the
physical well-being of the child; and (2) there are no reasonably
available alternatives to removal of the child, including, but not
limited to, the provision of medical, psychiatric, psychological or
homemaking services in the child's present custody: Provided, That
where the alleged abusing person, if known, is a member of a
household, the court shall not allow placement pursuant to this
section of the child or children in said home unless the alleged
abusing person is or has been precluded from visiting or residing
in said home by judicial order. In a case where there is more than
one child in the home, or in the temporary care, custody or control
of the alleged offending parent, the petition shall so state, and
notwithstanding the fact that the allegations of abuse or neglect
may pertain to less than all of such children, each child in the
home for whom relief is sought shall be made a party to the
proceeding. Even though the acts of abuse or neglect alleged in
the petition were not directed against a specific child who is
named in the petition, the court shall order the removal of such
child, pending final disposition, if it finds that there exists
imminent danger to the physical well-being of the child and a lack
of reasonable available alternatives to removal. The initial order
directing such custody shall contain an order appointing counsel
and scheduling the preliminary hearing, and upon its service shall require the immediate transfer of custody of such child or children
to the department or a responsible relative which may include any
parent, guardian, or other custodian. The court order shall state:
(1) That continuation in the home is contrary to the best interests
of the child and why; and (2) whether or not the department made
reasonable efforts to preserve the family and prevent the placement
or that the emergency situation made such efforts unreasonable or
impossible. The order may also direct any party or the department
to initiate or become involved in services to facilitate
reunification of the family.
(b) Whether or not the court orders immediate transfer of
custody as provided in subsection (a) of this section, if the facts
alleged in the petition demonstrate to the court that there exists
imminent danger to the child, the court may schedule a preliminary
hearing giving the respondents at least five days' actual notice.
If the court finds at the preliminary hearing that there are no
alternatives less drastic than removal of the child and that a
hearing on the petition cannot be scheduled in the interim period,
the court may order that the child be delivered into the temporary
custody of the department or a responsible person or agency found
by the court to be a fit and proper person for the temporary care
of the child for a period not exceeding sixty days: Provided, That
the court order shall state: (1) That continuation in the home is
contrary to the best interests of the child and set forth the
reasons therefor; (2) whether or not the department made reasonable
efforts to preserve the family and to prevent the child's removal from his or her home; (3) whether or not the department made
reasonable efforts to preserve the family and to prevent the
placement or that the emergency situation made such efforts
unreasonable or impossible; and (4) what efforts should be made by
the department, if any, to facilitate the child's return home:
Provided, however, That if the court grants an improvement period
as provided in section twelve of this article, the sixty-day limit
upon temporary custody is waived.
(c) If a child or children shall, in the presence of a child
protective service worker, be in an emergency situation which
constitutes an imminent danger to the physical well-being of the
child or children, as that phrase is defined in section three,
article one of this chapter, and if such worker has probable cause
to believe that the child or children will suffer additional child
abuse or neglect or will be removed from the county before a
petition can be filed and temporary custody can be ordered, the
worker may, prior to the filing of a petition, take the child or
children into his or her custody without a court order: Provided,
That after taking custody of such child or children prior to the
filing of a petition, the worker shall forthwith appear before a
circuit judge or a juvenile referee of the county wherein custody
was taken, or if no such judge or referee be available, before a
circuit judge or a juvenile referee of an adjoining county, and
shall immediately apply for an order ratifying the emergency
custody of the child pending the filing of a petition. The circuit
court of every county in the state shall appoint at least one of the magistrates of the county to act as a juvenile referee, who
shall serve at the will and pleasure of the appointing court, and
who shall perform the functions prescribed for such position by the
provisions of this subsection. The parents, guardians or
custodians of the child or children may be present at the time and
place of application for an order ratifying custody, and if at the
time the child or children are taken into custody by the worker,
the worker knows which judge or referee is to receive the
application, the worker shall so inform the parents, guardians or
custodians. The application for emergency custody may be on forms
prescribed by the supreme court of appeals or prepared by the
prosecuting attorney or the applicant, and shall set forth facts
from which it may be determined that the probable cause described
above in this subsection exists. Upon such sworn testimony or
other evidence as the judge or referee deems sufficient, the judge
or referee may order the emergency taking by the worker to be
ratified. If appropriate under the circumstances, the order may
include authorization for an examination as provided for in
subsection (b), section four of this article. If a referee issues
such an order, the referee shall by telephonic communication have
such order orally confirmed by a circuit judge of the circuit or an
adjoining circuit who shall on the next judicial day enter an order
of confirmation. If the emergency taking is ratified by the judge
or referee, emergency custody of the child or children shall be
vested in the department until the expiration of the next two
judicial days, at which time any such child taken into emergency custody shall be returned to the custody of his or her parent or
guardian or custodian unless a petition has been filed and custody
of the child has been transferred under the provisions of section
three of this article.
(d) For purposes of the court's consideration of temporary
custody pursuant to the provisions of subsection (a) or (b) of this
section, the department is not required to make reasonable efforts
to preserve the family if the court determines:
(1) The parent has subjected the child, another child of the
parent or any other child residing in the same household or under
the temporary or permanent custody of the parent to aggravated
circumstances which include, but are not limited to, abandonment,
torture, chronic abuse and sexual abuse;
(2) The parent has:
(A) Committed murder of the child's other parent, another
child of the parent or any other child residing in the same
household or under the temporary or permanent custody of the
parent;
(B) Committed voluntary manslaughter of the child's other
parent, another child of the parent, or any other child residing in
the same household or under the temporary or permanent custody of
the parent;
(C) Attempted or conspired to commit such a murder or
voluntary manslaughter or been an accessory before or after the
fact to either such crime; or
(D) Committed unlawful or malicious wounding that results in serious bodily injury to the child, or the child's other parent, to
another child of the parent or any other child residing in the same
household or under the temporary or permanent custody of the
parent; or
(3) The parental rights of the parent to a sibling another
child have been terminated involuntarily.
§49-6-5. Disposition of neglected or abused children.
(a) Following a determination pursuant to section two of this
article wherein the court finds a child to be abused or neglected,
the department shall file with the court a copy of the child's case
plan, including the permanency plan for the child. The term case
plan means a written document that includes, where applicable, the
requirements of the family case plan as provided for in section
three, article six-d of this chapter and that also includes at
least the following: A description of the type of home or
institution in which the child is to be placed, including a
discussion of the appropriateness of the placement and how the
agency which is responsible for the child plans to assure that the
child receives proper care and that services are provided to the
parents, child and foster parents in order to improve the
conditions in the parent(s) home; facilitate return of the child to
his or her own home or the permanent placement of the child; and
address the needs of the child while in foster care, including a
discussion of the appropriateness of the services that have been
provided to the child. The term "permanency plan" refers to that
part of the case plan which is designed to achieve a permanent home for the child in the least restrictive setting available. The plan
must document efforts to ensure that the child is returned home
within approximate time lines for reunification as set out in the
plan. Reasonable efforts to place a child for adoption or with a
legal guardian may be made at the same time reasonable efforts are
made to prevent removal or to make it possible for a child to
safely return home. If reunification is not the permanency plan
for the child, the plan must state why reunification is not
appropriate and detail the alternative placement for the child to
include approximate time lines for when such placement is expected
to become a permanent placement. This case plan shall serve as the
family case plan for parents of abused or neglected children.
Copies of the child's case plan shall be sent to the child's
attorney and parent, guardian or custodian or their counsel at
least five days prior to the dispositional hearing. The court
shall forthwith proceed to disposition giving both the petitioner
and respondents an opportunity to be heard. The court shall give
precedence to dispositions in the following sequence:
(1) Dismiss the petition;
(2) Refer the child, the abusing parent, the battered parent
or other family members to a community agency for needed assistance
and dismiss the petition;
(3) Return the child to his or her own home under supervision
of the department;
(4) Order terms of supervision calculated to assist the child
and any abusing parent or battered parent or parents or custodian which prescribe the manner of supervision and care of the child and
which are within the ability of any parent or parents or custodian
to perform;
(5) Upon a finding that the abusing parent or battered parent
or parents are presently unwilling or unable to provide adequately
for the child's needs, commit the child temporarily to the custody
of the state department, a licensed private child welfare agency or
a suitable person who may be appointed guardian by the court. The
court order shall state: (A) That continuation in the home is
contrary to the best interests of the child and why; (B) whether or
not the department has made reasonable efforts, with the child's
health and safety being the paramount concern, to preserve the
family, or some portion thereof, and to prevent or eliminate the
need for removing the child from the child's home and to make it
possible for the child to safely return home; (C) what efforts were
made or that the emergency situation made such efforts unreasonable
or impossible; and (D) the specific circumstances of the situation
which made such efforts unreasonable if services were not offered
by the department. The court order shall also determine under what
circumstances the child's commitment to the department shall
continue. Considerations pertinent to the determination include
whether the child should: (i) Be continued in foster care for a
specified period; (ii) be considered for adoption; (iii) be
considered for legal guardianship; (iv) be considered for permanent
placement with a fit and willing relative; or (v) be placed in
another planned permanent living arrangement, but only in cases where the department has documented to the circuit court a
compelling reason for determining that it would not be in the best
interests of the child to follow one of the options set forth in
subparagraphs (i), (ii), (iii) or (iv) of this paragraph. The
court may order services to meet the special needs of the child.
Whenever the court transfers custody of a youth to the department,
an appropriate order of financial support by the parents or
guardians shall be entered in accordance with section five, article
seven of this chapter; or
(6) Upon a finding that there is no reasonable likelihood that
the conditions of neglect or abuse can be substantially corrected
in the near future and, when necessary for the welfare of the
child, terminate the parental, custodial or and guardianship rights
and/or responsibilities of the abusing parent and commit the child
to the permanent sole custody of the nonabusing parent, if there be
one, or, if not, to either the permanent guardianship of the
department or a licensed child welfare agency. The court may award
sole custody of the child to a nonabusing battered parent. If the
court shall so find, then in fixing its dispositional order the
court shall consider the following factors: (A) The child's need
for continuity of care and caretakers; (B) the amount of time
required for the child to be integrated into a stable and permanent
home environment; and (C) other factors as the court considers
necessary and proper. Notwithstanding any other provision of this
article, the court shall give consideration to the wishes of a
child fourteen years of age or older or otherwise of an age of discretion as determined by the court regarding the permanent
termination of parental rights. No adoption of a child shall take
place until all proceedings for termination of parental rights
under this article and appeals thereof are final. In determining
whether or not parental rights should be terminated, the court
shall consider the efforts made by the department to provide
remedial and reunification services to the parent. The court order
shall state: (i) That continuation in the home is not in the best
interest of the child and why; (ii) why reunification is not in the
best interests of the child; (iii) whether or not the department
made reasonable efforts, with the child's health and safety being
the paramount concern, to preserve the family, or some portion
thereof, and to prevent the placement or to eliminate the need for
removing the child from the child's home and to make it possible
for the child to safely return home, or that the emergency
situation made such efforts unreasonable or impossible; and (iv)
whether or not the department made reasonable efforts to preserve
and reunify the family, or some portion thereof, including a
description of what efforts were made or that such efforts were
unreasonable due to specific circumstances.
(7) For purposes of the court's consideration of the
disposition custody of a child pursuant to the provisions of this
subsection, the department is not required to make reasonable
efforts to preserve the family if the court determines:
(A) The parent has subjected the child, another child of the
parent or any other child residing in the same household or under the temporary or permanent custody of the parent to aggravated
circumstances which include, but are not limited to, abandonment,
torture, chronic abuse and sexual abuse;
(B) The parent has:
(i) Committed murder of the child's other parent, another
child of the parent or any other child residing in the same
household or under the temporary or permanent custody of the
parent;
(ii) Committed voluntary manslaughter of the child's other
parent, another child of the parent or any other child residing in
the same household or under the temporary or permanent custody of
the parent;
(iii) Attempted or conspired to commit such a murder or
voluntary manslaughter or been an accessory before or after the
fact to either such crime; or
(iv) Committed a felonious assault that results in serious
bodily injury to the child, or the child's other parent, to another
child of the parent or any other child residing in the same
household or under the temporary or permanent custody of the
parent; or
(C) The parental rights of the parent to a sibling another
child have been terminated involuntarily.
(b) As used in this section, "no reasonable likelihood that
conditions of neglect or abuse can be substantially corrected"
shall mean that, based upon the evidence before the court, the
abusing adult or adults have demonstrated an inadequate capacity to solve the problems of abuse or neglect on their own or with help.
Such conditions shall be considered to exist in the following
circumstances, which shall not be exclusive:
(1) The abusing parent or parents have habitually abused or
are addicted to alcohol, controlled substances or drugs, to the
extent that proper parenting skills have been seriously impaired
and such person or persons have not responded to or followed
through the recommended and appropriate treatment which could have
improved the capacity for adequate parental functioning;
(2) The abusing parent or parents have willfully refused or
are presently unwilling to cooperate in the development of a
reasonable family case plan designed to lead to the child's return
to their care, custody and control;
(3) The abusing parent or parents have not responded to or
followed through with a reasonable family case plan or other
rehabilitative efforts of social, medical, mental health or other
rehabilitative agencies designed to reduce or prevent the abuse or
neglect of the child, as evidenced by the continuation or
insubstantial diminution of conditions which threatened the health,
welfare or life of the child;
(4) The abusing parent or parents have abandoned the child;
(5) The abusing parent or parents have repeatedly or seriously
injured the child physically or emotionally, or have sexually
abused or sexually exploited the child, and the degree of family
stress and the potential for further abuse and neglect are so great
as to preclude the use of resources to mitigate or resolve family problems or assist the abusing parent or parents in fulfilling
their responsibilities to the child; or
(6) The abusing parent or parents have incurred emotional
illness, mental illness or mental deficiency of such duration or
nature as to render such parent or parents incapable of exercising
proper parenting skills or sufficiently improving the adequacy of
such skills; or
(7) The battered parent's parenting skills have been seriously
impaired and said person has willfully refused or is presently
unwilling or unable to cooperate in the development of a reasonable
treatment plan or has not adequately responded to or followed
through with the recommended and appropriate treatment plan.
(c) The court may, as an alternative disposition, allow the
parents or custodians an improvement period not to exceed six
months. During this period the court shall require the parent to
rectify the conditions upon which the determination was based. The
court may order the child to be placed with the parents, or any
person found to be a fit and proper person, for the temporary care
of the child during the period. At the end of the period, the
court shall hold a hearing to determine whether the conditions have
been adequately improved and at the conclusion of the hearing shall
make a further dispositional order in accordance with this section.
§49-6-5b. When efforts to terminate parental rights required.
(a) Except as provided in subsection (b) of this section, the
department shall file or join in a petition or otherwise seek a
ruling in any pending proceeding to terminate parental rights:
(1) If a child has been in foster care for fifteen of the most
recent twenty-two months as determined by the earlier of the date
of the first judicial finding that the child is subjected to abuse
or neglect or the date which is sixty days after the child is
removed from the home;
(2) If a court has determined the child is abandoned; or
(3) If a court has determined the parent has committed murder
or voluntary manslaughter of another of his or her children or the
other parent of his or her children; has attempted or conspired to
commit such murder or voluntary manslaughter or has been an
accessory before or after the fact of either crime; has committed
unlawful or malicious wounding resulting in serious bodily injury
to the child or to another of his or her children or to the other
parent of his or her children; or the parental rights of the parent
to a sibling have been terminated involuntarily.
(b) The department may determine not to file a petition to
terminate parental rights when:
(1) At the option of the department, the child has been placed
with a relative;
(2) The department has documented in the case plan made
available for court review a compelling reason, including, but not
limited to, the child's age and preference regarding termination or
the child's placement in custody of the department based on any
proceedings initiated under article five of this chapter, that
filing the petition would not be in the best interests of the
child; or
(3) The department has not provided, when reasonable efforts
to return a child to the family are required, the services to the
child's family as the department deems necessary for the safe
return of the child to the home.
On motion of Senator Kessler, the following amendment to the
bill (Eng. Com. Sub. for H. B. No. 4694) was next reported by the
Clerk and adopted:
On page two, by striking out the enacting section and
inserting in lieu thereof a new enacting section, to read as
follows:
That §49-1-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §49-5-3 of said code be amended and
reenacted; and that §49-6-2, §49-6-5 and §49-6-5b of said code be
amended and reenacted, all to read as follows:.
The bill (Eng. Com. Sub. for H. B. No. 4694), as amended, was
then ordered to third reading.
Eng. House Bill No. 4721, Relating to the authorization of
special messengers appointed by the County Clerk to deliver the
ballot box to the central county center.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4790, Prescribing and
modifying the duties of the Secretary of the Department of Health
and Human Resources in child welfare placement.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Health and Human Resources, was reported by the Clerk and adopted:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That §49-2B-17 of the Code of West Virginia, 1931, as amended
be repealed; and that §49-2B-1, §49-2B-2, §49-2B-3, §49-2B-4, §49-
2B-5, §49-2B-6, §49-2B-7, §49-2B-8, §49-2B-9, §49-2B-10, §49-2B-11,
§49-2B-12, §49-2B-13, §49-2B-14, §49-2B-15 and §49-2B-16 of said
code be amended and reenacted, all to read as follows:
ARTICLE 2B. DUTIES OF SECRETARY OF HEALTH AND HUMAN RESOURCES FOR
CHILD WELFARE.
§49-2B-1. Policy and purpose.
(a) It is the policy of the state to assist a child and the
child's family as the basic unit of society through efforts to
strengthen and preserve the family unit. In the event of a
temporary or permanent absence of parents or the separation of a
child from the family unit for care or treatment purposes, it is
the policy of the state to assure that a child receives care and
nurturing as close as possible to society's expectations of a
family's care and nurturing of its child. The state has a duty to
assure that proper and appropriate care is given and maintained.
(b) It is also the policy of this state to ensure that those
persons and entities offering quality child care services are not
over-encumbered by licensure certification and registration
requirements and that the extent of regulation of child care
facilities and child placing agencies be moderately proportionate to the size of the facility.
(c) Through licensure, approval certification and registration
of child care facilities and child welfare agencies, the state
exercises its benevolent police power to protect the user of a
service from risks against which he or she would have little or no
competence for self protection. Licensure, approval, certification
and registration processes shall, therefore, continually balance
the child's rights and need for protection with the interests,
rights and responsibility of the service providers.
(d) In order to carry out the above policy, the Legislature
enacts this article to protect and prevent harm to children
separated from their families and to enhance their continued growth
and well-being while in care.
(e) The purposes of this article are:
(1) To protect the health, safety and well-being of children
in substitute care by preventing improper and harmful care;
(2) To establish statewide rules for regulating programs as
defined in this article;
(3) To encourage and assist in the improvement of child care
programs;
(4) To ensure that persons and entities offering child care
services are not unduly burdened by licensure certification and
regulation registration requirements; and
(5) To ensure that all child care programs be safe, reliable
and geared to the ages and needs of the children they serve, meet
basic health and safety standards, and employ people who have the training and experience needed to work with children.
(f) In order to carry out these purposes, the powers of the
child welfare licensing board created by chapter nineteen, Acts of
the Legislature, one thousand nine hundred forty-five, are hereby
transferred to the Commissioner of Human Services, along with the
other powers granted by this article.
§49-2B-2. Definitions.
As used in this article, unless the context otherwise
requires:
(a) "Approval" means a finding by the commissioner secretary
that a facility operated by the state has met the requirements set
forth in the rules promulgated pursuant to this article.
(b) "Certificate of approval" means a statement of the
commissioner secretary that a facility operated by the state has
met the requirements set forth in the rules promulgated pursuant to
this article.
(c) "Certificate of license" means a statement issued by the
commissioner secretary authorizing an individual, corporation,
partnership, voluntary association, municipality or county, or any
agency thereof, to provide specified services for a limited period
of time in accordance with the terms of the certificate.
(d) "Certificate of registration" means a statement issued by
the commissioner secretary to a family day child care home,
informal family child care home or relative family child care home,
upon receipt of a self-certification statement of compliance with
the rules promulgated pursuant to the provisions of this article.
(e) "Certification" means a statement issued by the
commissioner to a family day care facility upon satisfactory
inspection, approval and certification that the facility has
complied with the applicable rules promulgated by the commissioner.
(f) (e) "Child" for the purpose of residential services under
this article means any person under eighteen years of age or is a
transitioning adult.
(f) "Child" for the purpose of child care services means an
individual who meets one of the following conditions:
(1) Is under thirteen years of age.
(2) Is thirteen to eighteen years of age and under court
supervision.
(3) Is thirteen to eighteen years of age and presenting a
significant delay of at least twenty-five percent in one or more
areas of development, or a six (6) month delay in two or more areas
as determined by an early intervention program, special education
program or other multi-disciplinary team.
(g) "Child care" means responsibilities assumed and services
performed in relation to a child's physical, emotional,
psychological, social and personal needs and the consideration of
the child's rights and entitlements, but does not include secure
detention or incarceration under the jurisdiction of the Division
of Juvenile Services, created under section two, article five-e of
this chapter. It includes the provision of child care services or
residential services.
(h) "Child placing agency" means a child welfare agency organized for the purpose of placing children in private family
homes for foster care or ro adoption. The function of a child-
placing agency may include the investigation and certification of
foster family homes and foster family group homes as provided in
this chapter. The function of a child placing agency may also
include the supervision of children who are sixteen or seventeen
years old and living unlicensed residences.
(i) "Child welfare agency" means any agency or facility
maintained by the state or any county or municipality thereof, or
any agency or facility maintained by an individual, firm,
corporation, association or organization, public or private, to
receive children for care and maintenance or for placement in
residential care facilities, including, without limitation, private
homes, or any facility that provides care for unmarried mothers and
their children: Provided, That the term does not include juvenile
detention facilities or juvenile correctional facilities operated
by or under contract with the division of juvenile services,
created under section two, article five-e of this chapter, nor any
other facility operated by that division for the secure housing or
holding of juveniles committed to its custody.
(j) "Commissioner" means the commissioner of human services.
(k) (h) "Day Child care center" means a facility operated by
a child welfare agency maintained by the state or any county or
municipality thereof, or any agency or facility maintained by an
individual, firm, corporation, association or organization, public
or private for the care of thirteen or more children on a nonresidential basis. for child care services in any setting, if
the facility is open for more than thirty days per year per child.
(i) "Child care services" means direct care and protection of
children during a portion of a 24-hour day outside of the child's
own home which provides experiences to children that foster their
healthy development and education.
(j) "Child-placing agency" means a child welfare agency
organized for the purpose of placing children in private family
homes for foster care or for adoption. The function of a child-
placing agency may include the investigation and certification of
foster family homes and foster family group homes as provided in
this chapter. The function of a child-placing agency may also
include the supervision of children who are sixteen or seventeen
years old and living unlicensed residences.
(k) "Child welfare agency" means any agency or facility
maintained by the state or any county or municipality thereof, or
any agency or facility maintained by an individual, firm,
corporation, association or organization, public or private, to
receive children for care and maintenance or for placement in
residential care facilities, including, without limitation, private
homes, or any facility that provides care for unmarried mothers and
their children: Provided, That the term does not include juvenile
detention facilities or juvenile correctional facilities operated
by or under contract with the Division of Juvenile Services,
created under section two, article five-e of this chapter, nor any
other facility operated by that division for the secure housing or holding of juveniles committed to its custody.
(l) "Department" means the Department of Health and Human
Resources.
(m) "Facility" means a place or residence, including
personnel, structures, grounds and equipment, used for the care of
a child or children on a residential or other basis for any number
of hours a day in any shelter or structure maintained for that
purpose: Provided, That the term does not include any juvenile
detention facility or juvenile correctional facility operated by or
under contract with the Division of Juvenile Services, created
pursuant to section two, article five-e of this chapter, for the
secure housing or holding of juveniles committed to its custody.
(n) "Family day child care home" means a facility which is
used to provide nonresidential child care services for compensation
in other than the child's own home. a provider's residence. The
provider may care for four to six children, at one time including
children who are living in the household, who are under six years
of age. No more than two of the total number of children may be
under twenty-four months of age.
(o) "Family day child care facility" means any facility which
is used to provide nonresidential child care services for
compensation for seven to twelve children, including children who
are living in the household, who are under six years of age. No
more than four of the total number of children may be under twenty-
four months of age. A facility may be in a provider's residence or
a separate building.
(p) "Foster family group home" means a private residence which
is used for the care on a residential basis of six, seven or eight
children who are unrelated by blood, marriage or adoption to any
adult member of the household.
(q) (p) "Foster family home" means a private residence which
is used for the care on a residential basis of no more than five
children who are unrelated by blood, marriage or adoption to any
adult member of the household.
(r) "Group home" means any facility, public or private, which
is used to provide residential child care for ten or fewer
children.
(s) "Group home facility" means any facility, public or
private, which is used to provide residential care for eleven or
more children: Provided, That the term does not include any
juvenile detention facility or juvenile correctional facility
operated by or under contract with the division of juvenile
services, created pursuant to section two, article five-e of this
chapter, for the secure housing or holding of juveniles committed
to its custody.
(q) "Informal family child care" means a home that is used to
provide nonresidential child care services for compensation for
three or fewer children, including children who are living in the
household, who are under six years of age. Care is given in the
provider's own home to at least one child who is not related to the
caregiver.
(t) (r) "License" means the grant of official permission to a facility to engage in an activity which would otherwise be
prohibited.
(s) "Out-of-school time" means a child care service which
offers activities to children before and after school, on school
holidays, when school is closed due to emergencies and on school
calendar days set aside for teacher activities.
(u) (t) "Registration" means the process by which a family day
child care home, informal family child care home or a relative
family child care home self-certifies compliance with the rules
promulgated pursuant to this article.
(v) (u) "Residential child care" or "child care on a
residential basis services" means child care which includes the
provision of nighttime shelter and the personal discipline and
supervision of a child by guardians, custodians or other persons or
entities on a continuing or temporary basis. It may include care
and or treatment for transitioning adults: Provided, That the term
does not include or apply to any juvenile detention facility or
juvenile correctional facility operated by the Division of Juvenile
Services, created pursuant to section two, article five-e of this
chapter, for the secure housing or holding of juveniles committed
to its custody.
(v) "Relative family child care" means a home that provides
nonresidential child care services only to children related to the
caregiver. The caregiver is a grandparent, great grandparent,
aunt, uncle, great-aunt, great-uncle or adult sibling of the
child(ren) receiving care. Care is given in the provider's home.
(w) "Rule" means a statement issued by the commissioner
secretary of the standard to be applied in the various areas of
child care.
(x) "Transitioning adult" means an individual with a transfer
plan to move to an adult setting who meets one of the following
conditions:
(1) Is eighteen years of age but under twenty-one years of
age, was in departmental custody upon reaching eighteen years of
age and committed an act of delinquency before reaching eighteen
years of age, remains under the jurisdiction of the juvenile court,
and requires supervision and care to complete an education and or
treatment program which was initiated prior to the eighteenth
birthday.
(2) Is eighteen years of age but under twenty-one years of
age, was adjudicated abused, neglected or in departmental custody
upon reaching eighteen years of age and enters into a contract with
the Department to continue in an educational, training or treatment
program which was initiated prior to the eighteenth birthday.
(w) (y) "Secretary" means the Secretary of the Department of
Health and Human Resources.
(x) (z) "Variance" means a declaration that a rule may be
accomplished in a manner different from the manner set forth in the
rule.
(aa) "Waiver" means a declaration that a certain rule is
inapplicable in a particular circumstance.
§49-2B-3. Licensure, certification, approval and registration requirements.
(a) Any person, corporation or child welfare agency, other
than a state agency, which operates a residential child care
facility, a child-placing agency or a day care center shall obtain
a license from the department.
(b) Any residential child care facility, day care center or
any child-placing agency operated by the state shall obtain
approval of its operations from the commissioner secretary:
Provided, That this requirement does not apply to any juvenile
detention facility or juvenile correctional facility operated by or
under contract with the Division of Juvenile Services, created
pursuant to section two, article five-e of this chapter, for the
secure housing or holding of juveniles committed to its custody.
The facilities and placing agencies shall maintain the same
standards of care applicable to licensed facilities, centers or
placing agencies of the same category.
(c) Any family day care facility which operates in this state,
including family day care facilities approved by the department for
receipt of funding, shall obtain a statement of certification from
the department.
(d) Every family day care home which operates in this state,
including family day care homes approved by the department for
receipt of funding, shall obtain a certificate of registration from
the department.
(e) This section does not apply to:
(1) A kindergarten, preschool or school education program which is operated by a public school or which is accredited by the
state Department of Education, or any other kindergarten, preschool
or school programs which operate with sessions not exceeding four
hours per day for any child;
(2) An individual or facility which offers occasional care of
children for brief periods while parents are shopping, engaging in
recreational activities, attending religious services or engaging
in other business or personal affairs;
(3) Summer recreation camps operated for children attending
sessions for periods not exceeding thirty days;
(4) Hospitals or other medical facilities which are primarily
used for temporary residential care of children for treatment,
convalescence or testing;
(5) Persons providing family day care solely for children
related to them; or
(6) Any juvenile detention facility or juvenile correctional
facility operated by or under contract with the Division of
Juvenile Services, created pursuant to section two, article five-e
of this chapter, for the secure housing or holding of juveniles
committed to its custody.
(f) The commissioner secretary is hereby authorized to issue
an emergency rule relating to conducting a survey of existing
facilities in this state in which children reside on a temporary
basis in order to ascertain whether they should be subject to
licensing under this article or applicable licensing provisions
relating to behavioral health treatment providers.
(g) Any informal family child care home or relative family
child care home may voluntarily register and obtain a certificate
of registration from the department.
§49-2B-4. Rules.
(a) The commissioner secretary shall promulgate rules in
accordance with the provisions of chapter twenty-nine-a of this
code regarding the licensure, approval, certification and
registration of child care facilities and the implementation of the
provisions of this article. The rules shall provide at a minimum
the requirement that every residential child care facility shall be
subject to an annual time study regarding the quantification of
staff supervision time at each facility. Every residential child
care facility shall participate in the time study at the request of
the department.
(b) The commissioner secretary shall review the rules
promulgated pursuant to the provisions of this article at least
once every five years, making revisions when necessary or
convenient.
(c) On or before the first day of July, two thousand six, the
department shall promulgate emergency rules pursuant to the
provisions of article three, chapter twenty-nine-a of this code
that creates requirements for informal family child care homes and
relative family child care homes that voluntarily register with the
department. All individuals, facilities, entities, programs,
agencies or family child care homes subject to said emergency rules
shall have one hundred eighty days to come into compliance after promulgation of such rules.
§49-2B-5. Penalties; injunctions.
(a) Any individual or corporation which operates a child
welfare agency, residential child care facility or day child care
center without a license when a license is required is guilty of a
misdemeanor and, upon conviction thereof, shall be punished by
imprisonment in jail not exceeding one year, or a fine of not more
than five hundred dollars, or both fined and imprisoned.
(b) Any family child care facility which operates without
certification a license when certification a license is required is
guilty of a misdemeanor and, upon conviction thereof, shall be
punished by a fine of not more than five hundred dollars.
(c) Where a violation of this article or a rule promulgated by
the commissioner secretary may result in serious harm to children
under care, the commissioner secretary may seek injunctive relief
against any person, corporation, child welfare agency, child
placing agency, day child care center, family day child care
facility, family day child care home or governmental official
through proceedings instituted by the attorney general, or the
appropriate county prosecuting attorney, in the circuit court of
Kanawha County or in the circuit court of any county where the
children are residing or may be found.
§49-2B-6. Conditions of licensure, approval and registration.
(a) A license or approval is effective for a period of up to
two years from the date of issuance, unless revoked or modified to
provisional status based on evidence of a failure to comply with the provisions of this article or any rules promulgated pursuant to
this article. The license or approval shall be reinstated upon
application to the commissioner secretary and a determination of
compliance.
(b) A statement of certification is effective for a period of
two years from the date of issuance, unless revoked or modified to
provisional status based on evidence of a failure to comply with
the provisions of this article or any rules promulgated pursuant to
this article. The statement of certification shall be reinstated
upon application to the commissioner and a determination of
compliance.
(c) A certificate of registration is effective for a period of
two years from the date of issuance, unless revoked based on
evidence of a failure to comply with the provisions of this article
or any rules promulgated pursuant to this article. The certificate
of registration shall be reinstated upon application to the
commissioner including a statement of assurance of continued
compliance with the rules promulgated pursuant to this article.
(d) The license, approval certification or registration issued
under this article is not transferable and applies only to the
facility and its location stated in the application. The license,
approval or certification shall be publicly displayed: Provided,
that family day care homes, foster family homes, foster family
group homes and group homes shall be required to display licenses,
statements of certification or registration upon request rather
than by posting.
(e) A provisional license, certification or approval:
(1) An initial license, certification or approval to a new
facility which has been unable to demonstrate full compliance
because the facility is not fully operational; or
(2) A temporary license, certification or approval to an
established licensed or certified facility which is temporarily
unable to conform to the provisions of this article or the rules
promulgated hereunder.
(f) A provisional license, certification or approval shall
expire six months from the date of issuance and may be reinstated
no more than two times. The issuance of a provisional license,
certification or approval shall be contingent upon the submission
to the commissioner of an acceptable plan to overcome identified
deficiencies within the period of the provisional license or
approval.
(b) An initial six-month license or approval shall be issued
to an applicant establishing a new service found to be in
compliance on initial review with regard to policy, procedure,
organization, risk management, human resources, service environment
and record-keeping regulations;
(c) A provisional license or approval may be issued when a
licensee is not in compliance with this rule but does not pose a
significant risk to the rights, well-being, health and safety of a
consumer. It shall expire not more than six months from date of
issuance and not be consecutively reissued unless the provisional
recommendation is that of the State Fire Marshal.
(d) A renewal license or approval may be issued of any
duration up to two years at the discretion of the secretary. In
the event a renewal license is not issued, the facility must make
discharge plans for residents and cease operation within thirty
days of the expiration of the license.
(e) A certificate of registration is effective for a period up
to two years from the date of issuance, unless revoked based on
evidence of a failure to comply with the provisions of this article
or any rules promulgated pursuant to this article. The certificate
of registration shall be reinstated upon application to the
secretary, including a statement of assurance of continued
compliance with the rules promulgated pursuant to this article.
(f) The license, approval or registration issued under this
article is not transferable and applies only to the facility and
its location stated in the application. The license, registration
or approval shall be publicly displayed: Provided, That foster and
adoptive family homes, informal family child care homes and
relative family child care homes shall be required to display
registration certificates of registration or approval upon request
rather than by posting.
(g) Provisional certificates of registration shall may be
issued to family day child care homes.
(h) The commissioner secretary, as a condition of issuing a
license, certification, registration or approval, may:
(1) Limit the age, sex or type of problems of children allowed
admission to a particular facility;
(2) Prohibit intake of any children; or
(3) Reduce the number of children which the agency, facility
or home operated by the agency is licensed, approved, certified or
registered to receive.
§49-2B-7. Waivers and variances to rules.
Waivers or variances of rules may be granted by the
commissioner secretary if the health, safety or well-being of a
child would not be endangered thereby. The commissioner secretary
shall promulgate by rule criteria and procedures for the granting
of waivers or variances so that uniform practices may be maintained
throughout the state.
§49-2B-8. Application for license or approval.
(a) Any person or corporation or any governmental agency
intending to act as a child welfare agency shall apply for a
license, statement of certification, approval or registration
certificate to operate child care facilities regulated by this
article. Applications for licensure, certification, approval or
registration shall be made separately for each child care facility
to be licensed, approved, certified or registered.
(b) The commissioner secretary shall prescribe forms and
reasonable application procedures including, but not limited to,
fingerprinting of applicants and other persons responsible for the
care of children for submission to the State Police and, if
necessary, to the Federal Bureau of Investigation for criminal
history record checks.
(c) Before issuing a license, certification or approval, the commissioner secretary shall investigate the facility, program and
persons responsible for the care of children. The investigation
shall include, but not be limited to, review of resource need,
reputation, character and purposes of applicants, a check of
personnel criminal records, if any, and personnel medical records,
the financial records of applicants and consideration of the
proposed plan for child care from intake to discharge.
(d) Before a family day care home registration is granted, the
commissioner secretary shall make inquiry as to the facility,
program and persons responsible for the care of children. The
inquiry shall include self-certification by the prospective family
day care home of compliance with standards, including, but not
limited to:
(1) Physical and mental health of persons present in the home
while children are in care;
(2) Criminal and child abuse or neglect history of persons
present in the home while children are in care;
(3) Discipline;
(4) Fire and environmental safety;
(5) Equipment and program for the children in care;
(6) Health, sanitation and nutrition.
(e) Further inquiry and investigation may be made as the
commissioner secretary may direct.
(f) The commissioner secretary shall make a decision on each
application within sixty days of its receipt and shall provide to
unsuccessful applicants written reasons for the decision.
§49-2B-9. Supervision and consultation required.
(a) The commissioner secretary shall provide supervision to
ascertain compliance with the rules promulgated pursuant to this
article through regular monitoring, visits to facilities,
documentation, evaluation and reporting. The commissioner secretary
shall be responsible for training and education, within fiscal
limitations, specifically for the improvement of care in family day
child care homes and facilities. The commissioner secretary shall
consult with applicants, the personnel of child welfare agencies
and children under care to assure the highest quality child care
possible.
(b) The director of the department of health and the State
Fire Marshal shall cooperate with the commissioner secretary in the
administration of the provisions of this article by providing such
reports and assistance as may be requested by the commissioner
secretary.
§49-2B-10. Investigative authority.
(a) The commissioner secretary shall enforce the provisions of
this article.
(b) An on-site evaluation of every facility regulated pursuant
to this article, except certified family day care facilities and
registered family child day care homes, informal family child care
and relative family child care homes shall be conducted no less
than once per year by announced or unannounced visits.
(c) Every certified family day care facility shall be
satisfactorily inspected by the department prior to issuance of certification. Future inspections shall occur at not longer than
two year intervals or upon receipt by the department of a complaint
about the facility.
(d) (c) A random sample of not less than five percent of the
total number of registered family day child care homes, informal
family child care homes and relative family child care homes shall
be monitored annually through on-site evaluations.
(e) (d) The commissioner secretary shall have access to the
premises, personnel, children in care and records of each facility
subject to inspection, including, but not limited to, case records,
corporate and financial records and board minutes. Applicants for
licenses, approvals, certifications and certificates of
registration shall consent to reasonable on-site administrative
inspections, made with or without prior notice, as a condition of
licensing, approval, certification or registration.
(e) When a complaint is received by the commissioner secretary
alleging violations of licensure, approval certification or
registration requirements, the commissioner secretary shall
investigate the allegations. The commissioner secretary may notify
the facility's director before or after a complaint is investigated
and shall cause a written report of the results of the
investigation to be made.
(f) The commissioner secretary may enter any unlicensed,
uncertified unregistered or unapproved child care facility or
personal residence for which there is probable cause to believe
that the facility or residence is operating in violation of this article. Such entries shall be made with a law-enforcement officer
present. The commissioner secretary may enter upon the premises of
any unregistered residence only after two attempts by the
commissioner secretary to bring this facility into compliance.
§49-2B-11. Revocation; provisional licensure and approval.
(a) The commissioner secretary may revoke or make provisional
the licensure or certification registration of any home facility or
child welfare agency regulated pursuant to this article if a
facility materially violates any provision of this article, or any
terms or conditions of the license, certification registration or
approval issued, or fails to maintain established requirements of
child care: Provided, That the provisions of this section shall
not apply to family day child care homes.
(b) The commissioner secretary may revoke the certificate of
registration of any family day child care home if a facility
materially violates any provision of this article, or any terms or
conditions of the registration certificate issued, or fails to
maintain established requirements of child care.
§49-2B-12. Closing of facilities by the secretary; placement of
children.
When the commissioner secretary finds that the operation of a
child care facility constitutes an immediate danger of serious harm
to children served by the facility, the commissioner secretary
shall issue an order of closure terminating operation of the
facility. When necessary, the commissioner secretary shall place
or direct the placement of the children in a residential child care facility which has been closed into appropriate facilities. A
facility closed by the commissioner secretary may not operate
pending administrative or judicial review with out court order.
§49-2B-13. Administrative and judicial review.
Any person, corporation, governmental official or child
welfare agency, aggrieved by a decision of the commissioner
secretary made pursuant to the provisions of this article may
contest the decision upon making a request for a hearing by the
commissioner secretary within thirty days of receipt of notice of
the decision. Administrative and judicial review shall be made in
accordance with the provisions of article five, chapter twenty-
nine-a of this code. Any decision issued by the commissioner
secretary may be made effective from the date of issuance.
Immediate relief there from may be obtained upon a showing of good
cause made by verified petition to the circuit court of Kanawha
County or the circuit court of any county where the affected
facility or child welfare agency may be located. The dependency of
administrative or judicial review shall not prevent the
commissioner secretary from obtaining injunctive relief pursuant to
section five of this article.
§49-2B-14. Annual reports; directory; licensing reports and
recommendations.
(a) The commissioner secretary shall submit on or before the
first day of January of each year a report to the Governor, and
upon request to members of the Legislature, concerning the
regulation of child welfare agencies, child placing agencies, day child care centers, family day child care facilities, family day
child care homes, informal family child care homes, relative family
child care homes and child care facilities during the year. The
report shall include, but not be limited to, data on the number of
children and staff at each facility (except family day child care,
informal family child care homes and relative family child care,
applications received, types of licenses, certifications, approvals
and registrations granted, denied, made provisional or revoked and
any injunctions obtained or facility closures ordered.
(b) The commissioner secretary also shall compile annually a
directory of licensed, certified and approved child care providers
including a brief description of their program and facilities, the
program's capacity and a general profile of children served. A
listing of family day child care homes shall also be compiled
annually.
(c) Licensing reports and recommendations for licensure and
certification which are a part of the yearly review of each
licensed facility shall be sent to the facility director. Copies
shall be available to the public upon written request to the
commissioner secretary.
§49-2B-15. Education of the public.
The secretary shall provide ongoing education of the public in
regard to the requirements of this article through the use of mass
media and other methods as are deemed appropriate and within fiscal
limitations.
§49-2B-16. Implementation of the Integrated Pest Management Program.
By the fifteenth day of August, one thousand nine hundred
ninety-five, the secretary shall implement the Integrated Pest
Management Program promulgated under rules by the Department of
Agriculture under authority of section four, article sixteen-a,
chapter nineteen of this code.
The bill (Eng. Com. Sub. for H. B. No. 4790), as amended, was
then ordered to third reading.
Eng. House Bill No. 4842, Relating to the Skiing
Responsibility Act.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 4854, Expert opinions of licensed
psychologists in the treatment and evaluation of children and
taking testimony of child witnesses.
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:
On page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 6B. PROTECTION AND PRESERVATION OF STATEMENTS AND
TESTIMONY OF CHILD WITNESS.
§62-6B-3. Findings of fact required for taking testimony of child
witness by closed-circuit television; considerations for
court.
(a) Upon a written motion filed by the prosecuting attorney,
and upon findings of fact determined pursuant to subsection (b) of
this section, a circuit court may order that the testimony of a
child witness may be taken at a pretrial proceeding or at trial
through the use of live, two-way closed-circuit television.
(b) Prior to ordering that the testimony of a child witness
may be taken through the use of live, two-way closed-circuit
television, the circuit court must find by clear and convincing
evidence, after conducting an evidentiary hearing on this issue,
that:
(1) The child is an otherwise competent witness;
(2) That, absent the use of live, two-way closed-circuit
television, the child witness will be unable to testify due solely
to being required to be in the physical presence of the defendant
while testifying;
(3) The child witness can only testify if live, two-way
closed-circuit television is used in the trial; and
(4) That the state's ability to proceed against the defendant
without the child witness' live testimony would be substantially
impaired or precluded.
(c) The court shall consider the following factors in
determining the necessity of allowing a child witness to testify by
the use of live, two-way closed-circuit television:
(1) The age and maturity of the child witness;
(2) The facts and circumstances of the alleged offense;
(3) The necessity of the child's live testimony to the prosecution's ability to proceed;
(4) Whether or not the facts of the case involve the alleged
infliction of bodily injury to the child witness or the threat of
bodily injury to the child or another; and
(5) Any mental or physical handicap of the child witness.
(d) In determining whether to allow a child witness to testify
through live, two-way closed-circuit television the court shall
appoint a psychiatrist, doctoral-level licensed psychologist with
at least five years clinical experience or a licensed clinical
social worker with at least five years of significant clinical
experience in the treatment and evaluation of children who shall
serve as an advisor or friend of the court to provide the court
with an expert opinion as to whether, to a reasonable degree of
professional certainty, the child witness will suffer severe
emotional harm, be unable to testify based solely on being in the
physical presence of the defendant while testifying and that the
child witness does not evidence signs of being subjected to undue
influence or coercion. The opinion of the psychiatrist, doctoral-
level licensed psychologist or licensed clinical social worker
shall be filed with the circuit court at least thirty days prior to
the final hearing on the use of live, two-way closed-circuit
television and the defendant shall be allowed to review the opinion
and present evidence on the issue by the use of an expert or
experts or otherwise.
The bill (Eng. H. B. No. 4854), as amended, was then ordered
to third reading.
The Senate proceeded to the tenth order of business.
The following bills on first reading, coming up in regular
order, were each read a first time and ordered to second reading:
Eng. Com. Sub. for House Bill No. 3119, Providing that the
Division of Natural Resources may not reduce the habitat land
acreage available for hunting and shooting.
Eng. Com. Sub. for House Bill No. 4272, Clarifying the
language regarding requirements for a Class BG stamp.
Eng. House Bill No. 4295, Establishing a bird dog training
permit.
Eng. Com. Sub. for House Bill No. 4456, Removing limitations
on beaver trapping.
Eng. House Bill No. 4487, Allowing an individual, who is at
least sixteen years of age, to be in the vehicle to assist the
Class Q permittee.
And,
Eng. House Bill No. 4685, Arthritis Prevention Education Act.
At the request of Senator Plymale, unanimous consent being
granted, the Senate returned to the sixth order of business.
Petitions
Senator Plymale presented a petition from Kelli Caseman and
numerous West Virginia Asthma Coalition members, requesting funding
to increase the number of school nurses in public schools.
Referred to the Committee on Finance.
Senator Unger presented a petition from Tony Menello and
numerous West Virginia residents, requesting the Legislature to support the inclusion of music therapy in the MR/DD Waiver Program
to allow for Medicaid reimbursement.
Referred to the Committee on Health and Human Resources.
At the request of Senator Chafin, and by unanimous consent,
the Senate returned to the fourth order of business.
Senator Tomblin (Mr. President), from the Committee on Rules,
submitted the following report, which was received:
Your Committee on Rules has had under consideration
Senate Concurrent Resolution No. 2, Requesting Joint Committee
on Government and Finance study post-construction stormwater
runoff.
Senate Concurrent Resolution No. 5, Requesting Joint Committee
on Government and Finance study affordable housing for State
Police.
Senate Concurrent Resolution No. 50, Requesting Joint
Committee on Government and Finance study income adequacy.
Senate Concurrent Resolution No. 65, Requesting Joint
Committee on Government and Finance direct Legislative Oversight
Commission on Health and Human Resources Accountability study
feasibility of subjecting state hospitals and long-term care
facilities to state rules and statutes.
Senate Concurrent Resolution No. 66, Requesting Joint
Committee on Government and Finance study employment process of
public school coaches.
Senate Concurrent Resolution No. 73, Requesting Joint
Committee on Government and Finance study legislation relating to disposable contact lens antitrust litigation.
And,
Senate Concurrent Resolution No. 80, Requesting Joint
Committee on Government and Finance study all-terrain vehicle
safety regulations.
And reports the same back with the recommendation that they
each be adopted.
Respectfully submitted,
Earl Ray Tomblin,
Chairman ex officio.
Senator Tomblin (Mr. President), from the Committee on Rules,
submitted the following report, which was received:
Your Committee on Rules has had under consideration
Senate Concurrent Resolution No. 69, Requesting Joint
Committee on Government and Finance study voluntary farmland
protection programs.
And has amended same.
And reports the same back with the recommendation that it be
adopted, as amended.
Respectfully submitted,
Earl Ray Tomblin,
Chairman ex officio.
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. 2016, Increasing the maximum number of magistrate court deputy clerks that may be appointed from sixty-two
to seventy-two.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 6, 2006;
And,
Eng. Com. Sub. for House Bill No. 3201, Relating to the
compensation of secretary-clerks to family court judges.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 6, 2006;
And reports the same back with the recommendation that they
each do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bills (Eng. H. B. No. 2016 and Eng. Com. Sub. for H.
B. No. 3201) contained in the preceding report from the Committee
on Finance were each taken up for immediate consideration, read a
second time and ordered to third reading.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2118, Providing for
reimbursement to the bail bondsman for the amount of a forfeited
bond under certain circumstances.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2118) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2235, Increasing salaries
for magistrate clerks, magistrate assistants and magistrate deputy
clerks.
Eng. House Bill No. 3295, Increasing certain fees charged to
collect delinquent taxes.
And,
Eng. Com. Sub. for House Bill No. 4032, Relating to
authorizing the Consolidated Public Retirement Board to recover the
payment and a fee, as provided by legislative rule, from a
participating employer who fails to timely pay amounts due.
And reports the same back with the recommendation that they
each do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bills (Eng. Com. Sub. for H. B. No. 2235, Eng. H. B.
No. 3295, Eng. Com. Sub. for H. B. No. 4032) contained in the
preceding report from the Committee on Finance were each taken up
for immediate consideration, read a first time and ordered to
second reading.
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. Com. Sub. for House Bill No. 2306, Requiring that annual
reports be recorded on CD-Rom for distribution.
And has amended same.
Eng. House Bill No. 4849, Relating to the West Virginia Sunset
Law.
And has amended same.
And,
Eng. House Bill No. 4850, Expediting the sunrise application
process.
And has amended same.
And reports the same back with the recommendation that they
each do pass, as amended.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being
granted, the bills (Eng. Com. Sub. for H. B. No. 2306, Eng. H. B.
No. 4849 and Eng. H. B. No. 4850) contained in the preceding report
from the Committee on Government Organization were each taken up
for immediate consideration, read a first time and ordered to
second reading.
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
Eng. Com. Sub. for House Bill No. 2312, Relating to minimum
grab bar standards for hotel and motel rooms that are specifically
designated or intended for use by handicapped or disabled guests.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 3213, Creating the offenses
of malicious assault, unlawful assault, battery and recidivism of
battery, assault on a driver, conductor, captain or other person in
charge of any vehicle used for public conveyance.
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,
Jeffrey V. Kessler,
Chair.
At the request of Senator Helmick, as chair of the Committee
on Finance, unanimous consent was granted to dispense with the
second committee reference of the bill contained in the foregoing
report from the Committee on the Judiciary.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 3213) was taken up
for immediate consideration, read a first time and ordered to
second reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4023, Raising the minimum
wage in accordance with legislation now pending before Congress.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 8, 2006;
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4030, Relating to limiting
the administration of a Voluntary Contribution Fund or similar
benefit plan by members and employees of the West Virginia State
Police.
With an amendment from the Committee on the Judiciary pending;
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 7, 2006;
And reports the same back with the recommendation that it do
pass as amended by the Committee on the Judiciary to which the bill
was first referred.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4034, Removing the
requirement that a no longer disabled employee must return to his
or her former job.
With amendments from the Committee on Pensions pending;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Pensions to which the bill was
first referred.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4034) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration, read a first time and ordered to second
reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4100, Providing a salary
increase for elected county officials.
And has amended same.
And,
Eng. Com. Sub. for House Bill No. 4490, Relating generally to
the regulation of selling new or used vehicles.
And has amended same.
And reports the same back with the recommendation that they
each do pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, one of the bills (Eng. Com. Sub. for H. B. No. 4100)
contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered
to second reading.
At the request of Senator Helmick, and by unanimous consent,
one of the bills (Eng. Com. Sub. for H. B. No. 4490) contained in
the preceding report from the Committee on Finance 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 (Eng. Com. Sub. for H. B. No. 4490) was then read a
second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On page thirteen, section three, line twelve, by striking out
the words "for a period of at least five years".
The bill, as amended, was ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4490) 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 H. B. No. 4490) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 4107, Clearly defining the
offense of abuse or neglect of incapacitated adults or elder
persons which result in the death of such persons, to include the
offense of murder.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4107) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
On motion of Senator Kessler, the bill was rereferred to the
Committee on the Judiciary.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 4119, Creating the ATV
Responsibility Act
.
And has amended same.
Now on second reading, having been read a first time and
referred to the Committee on the Judiciary on March 7, 2006;
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4119) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration and 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 15. ATV RESPONSIBILITY ACT.
§20-15-1. Legislative findings.
The West Virginia Legislature finds that trail-oriented
recreation for off-highway vehicle enthusiasts offered by the
Hatfield-McCoy Trail significantly contributes to the economy of
West Virginia and is enjoyed by a large and growing number of
residents and nonresidents alike. Since it is recognized that
there are inherent risks in the operation of such off-highway
vehicles which should be understood by each operator and which
cannot be eliminated by authorized outfitters or licensees, it is
the purpose of this article to define the areas of responsibility
and affirmative acts which authorized outfitters must perform or
risk being liable for loss, damage or injury suffered by
participants, and to define the risk which the participants
expressly assume and for which there can be no recovery.
§20-15-2. Definitions.
The terms in this article have the following meaning, unless
the context clearly requires a different meaning:
(1) "All-terrain vehicle" or "ATV" shall mean any motor
vehicle, fifty-two inches or less in width, having an unladen
weight of eight hundred pounds or less, traveling on four or more
low pressure tires with a seat designed to be straddled by the
rider, designed for or capable of travel over unimproved terrain.
(2) "Motorcycle" means any motor vehicle having a seat or
saddle for the use of the rider and designed to travel on not more
than two wheels in contact with the ground.
(3) "Authorized outfitter" or "licensee" means a commercial
outfitter, which is a person, partnership, limited liability
company ("LLC"), corporation, other organization or any combination
thereof, licensed by the Hatfield-McCoy Regional Recreation
Authority, who operate from any temporary or permanent camp,
private or public lodge, or private home, who provide guided tours
or the rental of all-terrain vehicles or motorcycles for use on
assigned lands for monetary profit or gain.
(4) "Participant" means any person using the services or
equipment of an authorized outfitter or licensee, including
passengers of an all-terrain vehicle or motorcycle.
§20-15-3. Scope.
The provisions of this article shall only apply to authorized
outfitters or licensees licensed by the Hatfield-McCoy Regional
Recreation Authority and any participant as defined in section two
of this article.
§20-15-4. Duties of authorized outfitters or licensees.
(a) Every authorized outfitter or licensee shall:
(1) Mark for identification purposes all equipment and
vehicles used in the business;
(2) Maintain all equipment and vehicles used in the business
in such condition that the equipment and vehicles are safe to
operate or use as intended and recommended by the manufacturer;
(3) Provide facilities, equipment and services, conforming to
safety and other requirements established by the rules promulgated
by the Hatfield-McCoy Regional Recreation Authority;
(4) Provide facilities, equipment and services as advertised
or as agreed to by the authorized outfitter or licensee and the
participant;
(5) Provide protective helmets which are size appropriate and
which meet the current performance specifications established by
the American National Standards Institute standard, Z 90.1, the
United States Department of Transportation Federal Motor Vehicle
Safety Standard No. 218 or Snell safety standards for protective
headgear for vehicle users as defined by subdivision (5),
subsection (a), section one, article one, chapter seventeen-f of
this code to all persons using all-terrain vehicles or motorcycles;
(6) Make reasonable and prudent efforts to determine the
ability of a participant to safely operate an all-terrain vehicle
or motorcycle and to provide all-terrain vehicles or motorcycles
which are age and size appropriate as recommended by the
manufacturer;
(8) Make certain that every guide offered to participants by
the authorized outfitter or licensee has a current standard first
aid training certificate and CPR certificate issued by the American
Red Cross or its equivalent and ATV safety training through the ATV
Safety Institute;
(9) Make certain that employees carry first aid kits when
acting as guides; and
(10) Make known to any participant any dangerous condition as
to trail lands, facilities or equipment to be traversed or used
which the outfitter or licensee knows or through the exercise of
due diligence should know by advising the participant in writing or
by conspicuously posting warning signs upon the premises.
(b) An authorized outfitter or licensee may not rent or lease
an all-terrain vehicles or motorcycles to a person under the age of
eighteen years or allow any owner-operated all-terrain vehicle or
motorcycle on any guided tour when operated by any person under the
age of eighteen years without first obtaining a written statement,
signed by the minor's parent or guardian certifying that:
(1) Any machine to be operated by the minor or his parent or
guardian is of a model that is recommended by the manufacturer as
appropriate to the minor's age and size;
(2) All rules governing the use of the vehicle and the
Hatfield-McCoy Recreation Area have been explained to the minor in
sufficient detail to enable the minor to abide by the rules; and
(3) Any minor under the age of sixteen will remain under the
supervision of and the sight of the parent or guardian at all
times.
(c) An authorized outfitter or licensee shall provide a
participant with written notification of his or her duties as
prescribed in section five of this article, and the participant
shall sign the notification and shall be kept on file by the
outfitter or licensee for not less than five years.
§20-15-5. Duties of participants.
(a) All participants:
(1) Shall comply with any requirements established by law,
including those in section one, article one, chapter seventeen-f of
this code which define those acts prohibited by operators of
all-terrain vehicles;
(2) Shall comply with the rules or regulations established for
use of the Hatfield-McCoy Recreation Area;
(3) Shall, as to the operator or licensee, expressly assume
the risk of and legal responsibility for any injury, loss or damage
to person or property which results from participation in operating
an all-terrain vehicle or motorcycle owned by the authorized
outfitter or licensee and caused by any of the following:
(A) Variations in terrain, slope or angle of terrain;
(B) Surface or subsurface conditions including: Rocks, trees
or other forms of forest growth or debris;
(C) Collisions with signs, markers, width restrictors,
culverts, bridges, pipes, equipment, vehicles or any other objects
or fixtures used in trail management, maintenance, construction or
development;
(D) Collisions with signs, markers, pipes, equipment, vehicles
or any component thereof used in natural resource maintenance,
development or extraction;
(E) Collisions with electrical transmission poles, towers,
lines, guy wires or any component thereof;
(4) Shall obey all rules or instructions announced by the
authorized outfitter or licensee, with regard to the operation of the all-terrain vehicle or motorcycle he or she is operating; and
(5) Shall wear all safety equipment provided by the authorized
outfitter or licensee or which might otherwise be required by law.
(b) Each participant shall have the sole individual
responsibility for:
(1) Knowing the range of his or her own ability to negotiate
any slope or trail;
(2) Operating the ATV or motorcycle within the limits of the
participant's own ability;
(3) Maintaining reasonable control of speed and course at all
times;
(4) Heeding all posted warnings;
(5) Operating only on trails designated by the Hatfield-McCoy
Regional Recreation Authority; and
(6) Refraining from acting in a manner which may cause or
contribute to the injury of any person.
(c) If while riding an ATV or motorcycle any participant
collides with any object or person, the responsibility for the
collision shall be solely that of the participant or participants
involved and not that of the authorized outfitter or licensee
unless the authorized outfitter or licensee or his or her agent
caused the collision in a tortious manner.
(d) After an accident, a participant may not leave the area
where the accident took place without:
(1) Leaving personal identification, including his or her name
and address;
(2) Notifying the proper authorities; and
(3) Obtaining assistance when he or she knows or reasonably
should know that any other person involved in the accident is in
need of medical or other assistance.
(e) Where a participant is a lawful passenger, that
participant may not distract or perform any act which might
interfere with the safe operation of the all-terrain vehicle or
motorcycle of which he or she is a passenger.
(f) Any person under the age of sixteen years shall remain
under the direct supervision and within sight of a parent or
guardian both of whom must otherwise comply with state or federal
laws and any rules or regulations promulgated thereunder.
(g) A participant may not make any alterations or tamper with
the all-terrain vehicle or motorcycle he or she is operating or of
which he or she is a passenger in any way which would interfere
with the continued safe operation of that machine.
§20-15-6. Liability of authorized outfitters and licensees.
(a) Any authorized outfitter or licensee is liable for injury,
loss or damage caused by failure to follow the duties set forth in
section four of this article where the violation of duty is
causally related to the injury, loss or damage suffered.
(b) An authorized outfitter or licensee is not liable for any
injury, loss or damage caused by the negligence of any person who
is not an agent or employee of the authorized outfitter or
licensee.
(c) An authorized outfitter or licensee is not liable for any injury, loss or damage caused by a participant's violation of any
duty described in section five of this article.
(d) An authorized outfitter or licensee is not liable for any
injury, loss or damage caused solely by the participant's failure
to negotiate the terrain or environment over which or through which
the participant is operating his or her all-terrain vehicle or
motorcycle as described in section five of this article.
§20-15-7. Liability of participants.
Any participant is liable for injury, loss or damage resulting
from violations of the duties established in section five of this
article where the violation of duty is causally related to the
injury, loss or damage suffered.
§20-15-8. Authorized outfitters required to carry insurance.
Every authorized outfitter or licensee shall carry public
liability insurance in limits of not less than three hundred
thousand dollars per occurrence.
The bill
(Eng. Com. Sub. for H. B. No. 4119)
, as amended, was
then ordered to third reading.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 4296, Providing employer
immunity from liability for disclosing job-related information
concerning an employee or former employee to a prospective
employer.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4296) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 4307, Extending the weekend driving
privileges of antique motor vehicles and motorcycles.
With amendments from the Committee on Transportation and
Infrastructure pending;
Now on second reading, having been read a first time and
referred to the Committee on the Judiciary on March 7, 2006;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Transportation and
Infrastructure to which the bill was first referred.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. H. B. No. 4307) contained in the preceding
report from the Committee on the Judiciary was taken up for
immediate consideration and read a second time.
The following amendments to the bill, from the Committee on
Transportation and Infrastructure, were reported by the Clerk and
adopted:
On page two, section three-a, line three, by striking out the
word "antique";
And,
On page two, section three-a, line five, by striking out the
word "antique".
The bill
(Eng. H. B. No. 4307)
, as amended, was then ordered
to third reading.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 4308, Limiting the definition of
conviction for purposes of administrative license revocation
proceedings.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. H. B. No. 4308) contained in the preceding
report from the Committee on the Judiciary was taken up for
immediate consideration, read a first time and ordered to second
reading.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 4309, Relating to the
collection of racial profiling data.
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.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4309) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time, ordered to
second reading and, 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 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. 4312, Increasing the compensation of child
support enforcement attorneys.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 8, 2006;
And,
Eng. Com. Sub. for House Bill No. 4498, Relating to fees for
licensing of money service businesses.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 6, 2006;
And reports the same back with the recommendation that they
each do pass.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 4353, Requiring law enforcement officers
have a valid complaint, signed by a magistrate or municipal judge,
with a showing of probable cause before reporting said offense to
the Commissioner of the Department of Motor Vehicles.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. H. B. No. 4353) contained in the preceding
report from the Committee on the Judiciary was taken up for
immediate consideration, read a first time and ordered to second
reading.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 4355, Providing for the temporary
detention of juveniles who are the named respondent in an emergency
domestic violence protective order when the juvenile resides with
the petitioner.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. H. B. No. 4355) contained in the preceding
report from the Committee on the Judiciary was taken up for
immediate consideration, read a first time and ordered to second
reading.
Senator Plymale, from the Committee on Education, submitted
the following report, which was received:
Your Committee on Education has had under consideration
Eng. House Bill No. 4406, Removing the requirement to evaluate
certain classroom teachers at least every three years.
And has amended same.
And,
Eng. House Bill No. 4578, Extending the expiration date of
provisions permitting retired teachers to accept employment as
substitutes in areas of critical need and shortage for an unlimited
number of days without affecting retirement benefits.
And has amended same.
And reports the same back with the recommendation that they
each do pass, as amended.
Respectfully submitted,
Robert H. Plymale,
Chair.
At the request of Senator Plymale, unanimous consent being
granted, the bills (Eng. H. B. Nos. 4406 and 4578) contained in the
preceding report from the Committee on Education were each taken up
for immediate consideration, read a first time and ordered to
second reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4431, Allowing the clerk of
the county commission to set reasonable fees charged for electronic
or other medium versions of documents recorded in the office of
clerk of the county commission.
With amendments from the Committee on the Judiciary pending;
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 2, 2006;
And reports the same back with the recommendation that it do
pass as amended by the Committee on the Judiciary to which the bill
was first referred.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 4481, Establishing a
permissive provision for using ballot-scanning devices for election
night tabulations.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4481) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
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
Eng. Com. Sub. for House Bill No. 4488, Creating a commission
to complete a comprehensive study of the state's behavioral health
system.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
At the request of Senator Prezioso, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4488) contained in
the preceding report from the Committee on Health and Human
Resources 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 (Eng. Com. Sub. for H. B. No. 4488) was then read a
second time.
The following amendments to the bill, from the Committee on
Health and Human Resources, were reported by the Clerk, considered
simultaneously, and adopted:
On page two, section one, line seven, after the word "abuse"
by striking out the comma and inserting the word "and";
On page two, section one, lines seven and eight, by striking
out the words "and undiagnosed and untreated developmental
disabilities";
On page three, section one, lines twenty-six and twenty-seven,
after the word "abuse" by striking out the comma and the words
"developmental disabilities";
On page five, section three, line twenty-seven, by striking
out the word "and";
And,
On page five, section three, line twenty-nine, after the word
"Churches" by changing the period to a semicolon and inserting the
following:
(6) One member from a list provided by the West Virginia
Chapter of the National Association of Social Workers;
(7) One member from a list provided by the West Virginia
Hospital Association;
(8) One member who is a psychologist from a list provided by the West Virginia Psychological Association; and
(9) One member who is a physician with a specialty in
psychiatry from a list provided by the West Virginia Medical
Association.
The bill, as amended, was ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
4488) 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 H. B. No. 4488) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 4550, Clarifying current law requiring
legislative approval of final designation of streams of special
concern.
Now on second reading, having been read a first time and
referred to the Committee on the Judiciary on March 8, 2006;
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. H. B. No. 4550) contained in the preceding
report from the Committee on the Judiciary was taken up for
immediate consideration, read a second time and ordered to third
reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4565, Establishing section
of vital statistics in Bureau for Public Health.
With amendments from the Committee on Government Organization
pending;
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 6, 2006;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Government Organization to
which the bill was first referred.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 4588, Creating a crime for
concealing a human body of a victim of a murder, voluntary
manslaughter or involuntary manslaughter and prescribing penalties
therefor.
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.
At the request of Senator Helmick, as chair of the Committee
on Finance, unanimous consent was granted to dispense with the
second committee reference of the bill contained in the foregoing
report from the Committee on the Judiciary.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 4588) was taken up
for immediate consideration, read a first time and ordered to
second reading.
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. 4595, Authorizing the Board of Treasury
Investments to retain, rather than require it to retain, one
employee with a chartered financial analyst designation.
And,
Eng. House Bill No. 4622, Increasing coal bed methane permit
fees.
And reports the same back with the recommendation that they
each do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bills (Eng. H. B. Nos. 4595 and 4622) contained in the
preceding report from the Committee on Finance were each taken up
for immediate consideration, read a first time and ordered to
second reading.
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. 4598, Eliminating the requirement for
combined oil and gas returns for purposes of property taxes, and to
further define the information that may be released.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 7, 2006;
And,
Eng. Com. Sub. for House Bill No. 4601, Increasing the amount transferred to the Special Operating Fund in the State Treasury for
the Auditor's Public Utilities Division and dedicate the increased
amount to pay for public utility litigation expenses.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 7, 2006;
And reports the same back with the recommendation that they
each do pass.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 4606, Removing the requirement that
complaints against licensees under the Real Estate Licensing Act be
verified.
Now on second reading, having been read a first time and
referred to the Committee on the Judiciary on March 7, 2006;
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. H. B. No. 4606) contained in the preceding
report from the Committee on the Judiciary was taken up for immediate consideration, read a second time and ordered to third
reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4626, Including private
schools, parochial schools, church schools, and other schools
operated by a religious order in state student teaching programs.
With amendments from the Committee on Education pending;
And has also amended same.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 7, 2006;
And reports the same back with the recommendation that it do
pass as last amended by the Committee on Finance.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Plymale, from the Committee on Education, submitted
the following report, which was received:
Your Committee on Education has had under consideration
Eng. House Bill No. 4689, Relating to increasing beginning
teacher salaries.
And has amended same.
And,
Eng. Com. Sub. for House Bill No. 4690, Making West Virginia
University Institute of Technology a division of West Virginia University.
And has amended same.
And reports the same back with the recommendation that they
each do pass, as amended; but under the original double committee
references first be referred to the Committee on Finance.
Respectfully submitted,
Robert H. Plymale,
Chair.
At the request of Senator Plymale, unanimous consent being
granted, the bills (Eng. H. B. No. 4689 and Eng. Com. Sub. for H.
B. No. 4690) contained in the preceding report from the Committee
on Education were each taken up for immediate consideration, read
a first time, ordered to second reading and, under the original
double committee references, were then referred to the Committee on
Finance, with amendments from the Committee on Education pending.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 4728, Increasing the membership of the
Environmental Protection Advisory Council from seven to eight
members.
With an amendment from the Committee on Agriculture pending;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Agriculture to which the bill
was first referred.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. H. B. No. 4728) contained in the preceding
report from the Committee on the Judiciary was taken up for
immediate consideration, read a first time and ordered to second
reading.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 4792, Authorizing the purchasing of
certain services from a bank or trust company or an affiliate of a
bank or trust company.
With amendments from the Committee on Banking and Insurance
pending;
Now on second reading, having been read a first time and
referred to the Committee on the Judiciary on March 7, 2006;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Banking and Insurance to which
the bill was first referred.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. H. B. No. 4792) contained in the preceding
report from the Committee on the Judiciary was taken up for immediate consideration and read a second time.
The following amendment to the bill, from the Committee on
Banking and Insurance, was reported by the Clerk and adopted:
O
n page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 6. INVESTMENTS BY FIDUCIARIES.
§44-6-10. Purchase of service or product through or directly from
bank or trust company or affiliate.
(a) A bank or trust company acting in any fiduciary capacity,
including, but not limited to, the capacities described in this
article, may purchase any service or product, including, but not
limited to, insurance or securities: underwritten or otherwise
distributed by the bank, the trust company or by an affiliate;
through or directly from the bank, the trust company or an
affiliate; or from a syndicate or selling group that includes the
bank, the trust company or an affiliate: Provided, That the
purchase is otherwise prudent under article six-c of this chapter;
the compensation for the service or product is reasonable; and the
transaction is not prohibited by the instrument governing the
fiduciary relationship. The compensation charged for the service
or product may be in addition to the compensation that the bank or
trust company is otherwise entitled to receive from the fiduciary
account.
(b) A bank or trust company shall disclose at least annually
any purchase authorized by this section that was made by the bank
or trust company during that reporting period. The disclosure shall be given, in writing or electronically, to all persons
entitled to receive statements of account activity. The disclosure
shall include a description of any capacities in which the bank or
trust company or an affiliate acts for the issuer of the securities
or the provider of the products or services and a declaration of
the fact that the bank or trust company or an affiliate may have an
interest in the products or services.
(c) This section applies to the purchase of securities made at
the time of the initial offering of the securities or at any time
thereafter.
The bill
(Eng. H. B. No. 4792)
, as amended, was then ordered
to third reading.
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. 4847, Relating to group limited health
benefits insurance plans.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 7, 2006;
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 4855, Making a supplementary appropriation
to the department of education and the arts, department of
environmental protection, department of health and human resources,
etc...
Eng. House Bill No. 4856, Making a supplementary appropriation
to the department of commerce - miners' health, safety and training
fund.
Eng. House Bill No. 4857, Making a supplementary appropriation
to the department of administration - children's health insurance
agency, to the department of commerce - division of natural
resources, to the department of transportation - public port
authority, etc...
And,
Eng. House Bill No. 4858, Supplementary appropriation,
secretary of state - state election fund.
And reports the same back with the recommendation that they
each do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bills (Eng. H. B. Nos. 4855, 4856, 4857 and 4858)
contained in the preceding report from the Committee on Finance
were each taken up for immediate consideration, read a first time
and ordered to second reading.
Pending announcement of meetings of standing committees of the
Senate, including the Committee on Rules,
On motion of Senator Chafin, the Senate adjourned until
tomorrow, Friday, March 10, 2006, at 11 a.m.
____________