WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-EIGHTH LEGISLATURE

REGULAR SESSION, 2007

FIFTY-SIXTH DAY

____________

Charleston, W. Va., Tuesday, March 6, 2007

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

Prayer was offered by the Reverend Bill McCoy, First Presbyterian Church, Charleston, West Virginia. Students from J. E. Robins Elementary School, Charleston, West Virginia, then led the Senate in the recitation of the Pledge of Allegiance.
Pending the reading of the Journal of Monday, March 5, 2007,
On motion of Senator Oliverio, the Journal was approved and the further reading thereof dispensed with.
The Senate proceeded to the second order of business and the introduction of guests.
The Senate then proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 18, Requiring third party reimbursement for kidney disease screening.
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. 66, Relating to WV Community Corrections Fund.
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. 134, Requiring employers provide contribution information to State Teachers Retirement System.
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:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §18-7A-13a, §18-7A-14 and §18-7A-23 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 7A. STATE TEACHERS RETIREMENT SYSTEM.
§18-7A-13a. Resumption of service by retired teachers.
(a) For the purpose of this section, reemployment of a former or retired teacher as a teacher shall in no way impair such the teacher's eligibility for a prior service pension, or any other benefit provided by this article.
(b) Retired teachers, who qualified for an annuity because of age or service, may not receive prior service allowance from the retirement board when employed as a teacher and when regularly employed by the State of West Virginia. The payment of such the allowance shall be discontinued on the first day of the month within which such employment begins, and shall be resumed on the first day of the month succeeding the month within which such employment ceases. The annuity paid any such the teacher on first retirement resulting from the Teachers' Accumulation Fund and the Employers' Accumulation Fund shall continue throughout the governmental service and thereafter according to the option selected by the teacher upon first retirement.
(c) Retired teachers, who qualified for an annuity because of disability, shall receive no further retirement payments, if the retirement board finds that the disability of the teacher no longer exists; payment shall be discontinued on the first day of the month within which such the finding is made. If such the retired teacher returns to service as a teacher, he or she shall contribute to the Teachers' Accumulation Fund as a member of the system. His or her prior service eligibility, if any, shall not be impaired because of his or her disability retirement. His or her accumulated contributions and interest which were transferred to the benefit fund upon his or her retirement shall be returned to his or her individual account in the Teachers' Accumulation Fund, minus retirement payments received which were not supported by such contributions and interest. Upon subsequent retirement, he or she shall receive credit for all of his or her contributory experience, anything to the contrary in this article notwithstanding.
(d) Notwithstanding any provision of this code to the contrary, a person who retires under the system provided by this article may subsequently become employed on either a full-time, part-time basis or contract basis by any institution of higher education without any loss of retirement annuity or retirement benefits if the person's retirement commences between the effective date of the enactment of this section in two thousand two and the thirty-first day of December, two thousand two: Provided, That such the person shall not be eligible to participate in any other state retirement system provided by this code.
(e) The retirement board is herewith authorized to require of the retired teachers and their employers such reports as it deems necessary to effectuate the provisions of this section.
§18-7A-14. Contributions by members; contributions by employers.
(a) At the end of each month every member of the retirement system shall contribute six percent of that member's monthly gross salary to the retirement board: Provided, That any member employed by the West Virginia Board of Directors of the State College System or the Board of Trustees of the University System at an a state institution of higher education under its control shall contribute on the member's full earnable compensation, unless otherwise provided in section fourteen-a of this article. The sums are due the Teachers Retirement System at the end of each calendar month in arrears and shall be paid not later than fifteen days following the end of the calendar month. Each remittance shall be accompanied by a detailed summary of the sums withheld from the compensation of each member for that month on forms, either paper or electronic, provided by the Teachers Retirement System for that purpose.
(b) Annually, the contributions of each member shall be credited to the member's account in the Teachers Retirement System Fund. The contributions shall be deducted from the salaries of the members as prescribed in this section, and every member shall be considered to have given consent to the deductions. No deductions, however, shall be made from the earnable compensation of any member who retired because of age or service, and then resumed service unless as provided in section thirteen-a of this article.
(c) The aggregate of employer contributions, due and payable under this article, shall equal annually the total deductions from the gross salary of members required by this section. Beginning the first day of July, one thousand nine hundred ninety-four, the rate shall be seven and one-half percent; beginning on the first day of July, one thousand nine hundred ninety-five, the rate shall be nine percent; beginning on the first day of July, one thousand nine hundred ninety-six, the rate shall be ten and one-half percent; beginning on the first day of July, one thousand nine hundred ninety-seven, the rate shall be twelve percent; beginning on the first day of July, one thousand nine hundred ninety-eight, the rate shall be thirteen and one-half percent; and beginning on the first day of July, one thousand nine hundred ninety-nine and thereafter, the rate shall be fifteen percent: Provided, That the rate shall be seven and one-half percent for any individual who becomes a member of the Teachers Retirement System for the first time on or after the first day of July, two thousand five or any individual who becomes a member of the Teachers Retirement System as a result of the merger contemplated in article seven-c of this chapter.
(d) Payment by an employer to a member of the sum specified in the employment contract minus the amount of the employee's deductions shall be considered to be a full discharge of the employer's contractual obligation as to earnable compensation.
(e) Each contributor shall file with the retirement board or with the employer to be forwarded to the retirement board an enrollment form showing the contributor's date of birth and other data needed by the retirement board.
§18-7A-23. Withdrawal and death benefits.
(a) Benefits upon withdrawal from service prior to retirement under the provisions of this article shall be as follows:
(a) (1) A contributor who withdraws from service for any cause other than death or retirement shall, upon application, be paid his or her accumulated contributions plus refund interest up to the end of the fiscal year preceding the year in which application is made, but in no event shall interest be paid beyond the end of five years following the year in which the last contribution was made: Provided, That such contributor, at the time of application, is then no longer under contract, verbal or otherwise, to serve as a teacher; or
(b) (2) If such contributor has completed twenty years of total service, he or she may elect to receive at retirement age an annuity which shall be computed as provided in this article: Provided, That if such contributor has completed at least five, but fewer than twenty, years of total service in this state, he or she may elect to receive at age sixty-two an annuity which shall be computed as provided in this article. The contributor must notify the retirement board in writing concerning such the election. If such the contributor has completed fewer than five years of service in this state, he or she shall be subject to the provisions as outlined in subsection (a) above subdivision (1) of this subsection.
(b) Benefits upon the death of a contributor prior to retirement under the provisions of this article shall be paid as follows:
(1) If the contributor was at least fifty years old and if his or her total service as a teacher was at least twenty-five years at the time of his or her death, then the surviving spouse of the deceased, provided the spouse is designated as the sole refund beneficiary, is eligible for an annuity computed as though the deceased were actually a retired teacher at the time of death, and had selected a survivorship option which pays the spouse the same monthly amount which would have been received by the deceased; or
(2) If the facts do not permit payment under the preceding paragraph (1) subdivision (1) of this subsection, then the following sum shall be paid to the refund beneficiary of the contributor: The contributor's accumulated contributions with refund interest up to the year of his or her death plus the amount of an amount equal to his or her accumulated employee contributions. The latter sum shall emanate from the Employer's Accumulation Fund.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 134--A Bill to amend and reenact §18-7A- 13a, §18-7A-14 and §18-7A-23 of the Code of West Virginia, 1931, as amended, all relating to the State Teachers Retirement System; establishing deadline for remittance of contributions due the State Teachers Retirement System; requiring that a summary of amounts of contributions withheld accompany the remittance; and clarifying certain terms used in the language of the statute.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Senate Bill No. 134, 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, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--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. 134) 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. 149, Repealing code section relating to Child Assessment or In-State Placement Fund.
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. 180, Offering tax-free distributions from certain retirement plans to pay certain premiums for public safety officers.
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 three, section six-a, line thirty, after the word "includes" by inserting the words "premiums for".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Senate Bill No. 180, 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, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--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. 180) 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, to take effect July 1, 2007, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 181, Relating to per diem compensation of Board of Banking and Financial Institutions' members.
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 five, section one, line seventy-two, after the word "board" by inserting the words "not to exceed the amount authorized for expenses by section five, article two-a, chapter four of this code for the members of the Legislature for interim duties".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 181, 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, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
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. 181) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2007.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
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. 181) takes effect July 1, 2007.
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. Com. Sub. for Senate Bill No. 182, Requiring Division of Banking employ same frequency of examination schedules as certain federal regulators.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Senate Bill No. 183, Providing Board of Banking and Financial Institutions authority to approve acquisitions of out-of-state banks.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Senate Bill No. 208, Providing Supreme Court and Consolidated Public Retirement Board notice when judge retires.
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. 387, Guaranteeing certain veterans bronze military grave markers.
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:
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 §24F-1-3a, to read as follows:
ARTICLE 1. VETERANS' GRAVE MARKERS.

§24F-1-3a. Setting of department of veterans affairs' grave markers by cemeteries and companies that set and install memorial monument markers.

All cemeteries, cemetery associations, cemetery companies and perpetual care cemetery companies, irrespective of how each may be defined in articles five, five-a and five-b, chapter thirty-five of this code, and companies that set and install memorial monument markers shall not deny a person or entity the opportunity for installation and maintenance of United States department of veterans' affairs grave markers at the graves of deceased United States armed forces veterans for the total charges authorized by section two, article one, chapter twenty-four-f of this code.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 387--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §24F-1-3a, relating to the opportunity to install certain deceased veterans' grave markers.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Senate Bill No. 387, 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, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--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. 387) 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. 389, Defining blue catfish as game fish.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Senate Bill No. 398, Authorizing Division of Motor Vehicles to suspend or refuse to register certain interstate commerce motor carriers.
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. 413, Clarifying procedures for seizing abandoned, neglected or cruelly treated animals.
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:
Eng. Senate Bill No. 413--A Bill to amend and reenact §7-10-4 of the Code of West Virginia, 1931, as amended, relating to hearings before magistrates involving the seizure of abandoned, neglected or cruelly treated animals.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the title of the bill.
Engrossed Senate Bill No. 413, 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, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--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. 413) 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 amendment, as to
Eng. Com. Sub. for Senate Bill No. 414, Establishing flat fee for certain services by circuit clerks.
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:
By striking out everything after the enacting section and inserting in lieu thereof the following language:
CHAPTER 38. LIENS.

ARTICLE 5B. SUGGESTION OF THE STATE AND POLITICAL SUBDIVISIONS; GARNISHMENT AND SUGGESTION OF PUBLIC OFFICERS.

§38-5B-4. Notice to judgment debtor of execution against salary or wages; time for service on officer of suggestee; fee.

A certified copy of an execution issued under this article against salary or wages shall be served by the clerk of the court who issued the execution upon the judgment debtor. Such service shall be made by the court or the clerk of the court who issued the execution by enclosing the copy in a postpaid wrapper , addressed to the judgment debtor or his agent authorized to accept service of process, and forwarding the same by registered mail, return receipt requested or his or her agent authorized to accept service of process, by certified mail, return receipt requested, and delivery restricted to the addressee. The day and hour of such mailing shall be clearly noted on the face of the original execution and the officer to whom it is delivered for collection shall not make service upon the proper officer until the expiration of five days from that time. The fee for service of notice under this section shall be twenty-five cents without any additional allowance for postage, registry fee, or other expenses incurred in effecting service.
CHAPTER 59. FEES, ALLOWANCES AND COSTS;

NEWSPAPERS; LEGAL ADVERTISEMENTS.

ARTICLE 1. FEES AND ALLOWANCES.
§59-1-11. Fees to be charged by clerk of circuit court.
(a) The clerk of a circuit court shall charge and collect for services rendered as such by the clerk the following fees and such fees which shall be paid in advance by the parties for whom such services are to be rendered:
(1) For instituting any civil action under the rules of civil procedure, any statutory summary proceeding, any extraordinary remedy, the docketing of civil appeals or any other action, cause, suit or proceeding, one hundred forty-five dollars, of which thirty dollars of that amount shall be deposited in the Courthouse Facilities Improvement Fund created by section six, article twenty-six, chapter twenty-nine of this code and ten dollars shall be deposited in the special revenue account created in section six hundred three, article twenty-six, chapter forty-eight of this code to provide legal services for domestic violence victims;
(2) For instituting an action for medical professional liability, two hundred sixty dollars, of which ten dollars of that amount shall be deposited in the Courthouse Facilities Improvement Fund created by section six, article twenty-six, chapter twenty-nine of this code;
(3) Beginning on and after the first day of July, one thousand nine hundred ninety-nine, for instituting an action for divorce, separate maintenance or annulment, one hundred thirty-five dollars;
(4) For petitioning for the modification of an order involving child custody, child visitation, child support or spousal support, eighty-five dollars; and
(5) For petitioning for an expedited modification of a child support order, thirty-five dollars.
(b) In addition to the foregoing fees, the following fees shall likewise be charged and collected:
(1) For preparing an abstract of judgment, five dollars;
(2) For any transcript, copy or paper made by the clerk for use in any other court or otherwise to go out of the office, for each page, fifty cents;
(3) For action on suggestion, ten twenty-five dollars;
(4) For issuing an execution, ten twenty-five dollars;
(5) For issuing or renewing a suggestee execution, including copies, postage, registered or certified mail fees and the fee provided by section four, article five-a, chapter thirty-eight of this code, three twenty-five dollars;
(6) For vacation or modification of a suggestee execution, one dollar;
(7) For docketing and issuing an execution on a transcript of judgment from magistrate's court, three dollars;
(8) For arranging the papers in a certified question, writ of error, appeal or removal to any other court, ten dollars, of which five dollars of that amount shall be deposited in the Courthouse Facilities Improvement Fund created by section six, article twenty-six, chapter twenty-nine of this code;
(9) For postage and express and for sending or receiving decrees, orders or records, by mail or express, three times the amount of the postage or express charges;
(10) For each subpoena, on the part of either plaintiff or defendant, to be paid by the party requesting the same, fifty cents;
(11) For additional service (plaintiff or appellant) where any case remains on the docket longer than three years, for each additional year or part year, twenty dollars; and
(12) For administering funds deposited into a federally insured interest-bearing account or interest-bearing instrument pursuant to a court order, fifty dollars, to be collected from the party making the deposit. A fee collected pursuant to this subdivision shall be paid into the general county fund.
(c) The clerk shall tax the following fees for services in any criminal case against any defendant convicted in such court:
(1) In the case of any misdemeanor, eighty-five dollars; and
(2) In the case of any felony, one hundred five dollars, of which ten dollars of that amount shall be deposited in the Courthouse Facilities Improvement Fund created by section six, article twenty-six, chapter twenty-nine of this code.
(d) The clerk of a circuit court shall charge and collect a fee of twenty-five dollars per bond for services rendered by the clerk for processing of criminal bonds and the fee shall be paid at the time of issuance by the person or entity set forth below:
(1) For cash bonds, the fee shall be paid by the person tendering cash as bond;
(2) For recognizance bonds secured by real estate, the fee shall be paid by the owner of the real estate serving as surety;
(3) For recognizance bonds secured by a surety company, the fee shall be paid by the surety company;
(4) For ten percent recognizance bonds with surety, the fee shall be paid by the person serving as surety; and
(5) For ten percent recognizance bonds without surety, the fee shall be paid by the person tendering ten percent of the bail amount.
In instances in which the total of the bond is posted by more than one bond instrument, the above fee shall be collected at the time of issuance of each bond instrument processed by the clerk and all fees collected pursuant to this subsection (d) shall be deposited in the Courthouse Facilities Improvement Fund created by section six, article twenty-six, chapter twenty-nine of this code. Nothing in this subsection may be construed as authorizing the clerk to collect the above fee from any person for the processing of a personal recognizance bond; and.
(e) The clerk of a circuit court shall charge and collect a fee of ten dollars for services rendered by the clerk for processing of bailpiece and the fee shall be paid by the surety at the time of issuance. All fees collected pursuant to this subsection (e) shall be deposited in the Courthouse Facilities Improvement Fund created by section six, article twenty-six, chapter twenty-nine of this code.
(f) No such clerk shall be required to handle or accept for disbursement any fees, cost or amounts, of any other officer or party not payable into the county treasury, except it be on order of the court or in compliance with the provisions of law governing such fees, costs or accounts.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 414, 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, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
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. 414) 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. 416, Creating misdemeanor offenses for attempting to defeat drug or alcohol screening test.
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. 431, Regulating agricultural liming materials.
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. 489, Relating to PROMISE scholarship graduates report to Legislative Oversight Commission on Work Force Investment for Economic Development.
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:
Eng. Senate Bill No. 489--A Bill to amend and reenact §5B-2B-4 and §5B-2B-6 of the Code of West Virginia, 1931, as amended, all relating to reports to the Legislative Oversight Commission on Workforce Investment for Economic Development and the Legislative Oversight Commission on Education Accountability generally; requiring a yearly report on the status and any memoranda of understanding which have been entered into for West Virginia one- stop system operations; and requiring a yearly report on the success of efforts to link PROMISE scholarship graduates to West Virginia employment opportunities.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the title of the bill.
Engrossed Senate Bill No. 489, 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, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--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. 489) 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 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. 512, Prohibiting requirement of polygraph examination in certain sexual offense allegations.
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:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 6. MISCELLANEOUS PROVISIONS CONCERNING CRIMINAL PROCEDURE.

§62-6-8. Alleged victim of sexual offense may not be required to submit to a polygraph examination or other truth telling device as a condition of investigating an alleged offense nor may prosecutors or law-enforcement officers decline to proceed if the victim refuses such examination.

No law-enforcement officer, prosecutor or any other government official may ask or require the adult, youth or child victim of an alleged sexual offense, as set forth in the provisions of section six, article eight, chapter sixty-one; section six, article twelve, chapter sixty-one; section five, article eight-D, chapter sixty-one; and article eight-B, chapter sixty-one, or any other sexual offense as defined under state or local law, to submit to a polygraph examination or other truth-testing examination as a condition for proceeding with the investigation of the alleged offense. No law-enforcement officer, prosecutor or any other government official may refuse to proceed with an investigation, warrant, indictment, information or prosecution of the alleged offense because the alleged victim refused to submit to such an examination.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 512--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §62-6-8, relating to prohibiting law- enforcement officers or prosecutors from asking or requiring an adult, youth or child victim of an alleged sexual offense to submit to a polygraph examination or other truth telling device as a condition for proceeding with the investigation of the offense; and establishing that refusal to undergo such testing shall not prevent investigation of the offense.
On motion of Senator Kessler, the following amendment to the House of Delegates amendments to the bill was reported by the Clerk and adopted:
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 512--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §62-6-8, relating to prohibiting law- enforcement officers or prosecutors from asking or requiring an adult, youth or child victim of an alleged sexual offense to submit to a polygraph examination or other truth testing device as a condition for proceeding with the investigation of the offense; and establishing that refusal to undergo such testing shall not prevent investigation of the offense.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments, as amended.
Engrossed Committee Substitute for Senate Bill No. 512, as amended, was then put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
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. 512) passed with its Senate amended 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 concurrence by that body in the passage of
Eng. Senate Bill No. 596, Requiring municipal elections' personnel participate in training.
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, to take effect July 1, 2007, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 603, Establishing 21st Century Tools for 21st Century Schools Technology Initiative.
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:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §18-2E-7 and §18-9A-10 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 2E. HIGH QUALITY EDUCATIONAL PROGRAMS.

§18-2E-7. Providing for twenty-first century instruction and learning in all public schools.

(a) The Legislature finds that:
(1) The knowledge and skills children need to succeed in the twenty-first century are changing dramatically and that West Virginia students must develop proficiency in twenty-first century content, technology tools and learning skills to succeed and prosper in life, in school and on the job;
(2) Students must be equipped to live in a multitasking, multifaceted, technology-driven world;
(3) The provision of twenty-first century technologies and software resources in grades pre-kindergarten through twelve is necessary to meet the goal that high school graduates will be prepared fully for college, other post-secondary education or gainful employment;
(4) This goal reflects a fundamental belief that the youth of the state exit the system equipped with the skills, competencies and attributes necessary to succeed, to continue learning throughout their lifetimes and to attain self-sufficiency;
(5) To promote twenty-first century learning, teachers must be competent in twenty-first century content and learning skills and must be equipped to fully integrate technology to transform instructional practice and to support twenty-first skills acquisition;
(6) For students to learn twenty-first century skills, students and teachers must have equitable access to high quality, twenty-first century technology tools and resources;
(7) When aligned with standards and curriculum, technology- based assessments can be a powerful tool for teachers; and
(8) Teachers must understand how to use technology to create classroom assessments for accurate, timely measurements of student proficiency in attainment of academic content and twenty-first century skills.
(b) The state board shall ensure that the resources to be used to provide technology services to students in grades pre- kindergarten through twelve are included in a West Virginia 21st Century Strategic Technology Learning Plan to be developed by the Department of Education as an integral component of the county and school electronic strategic improvement plans as required in section five of this article. The provision of technologies and services to students and teachers shall be based on a plan developed by each individual school team and aligned with the goals and objectives of the West Virginia 21st Century Strategic Technology Learning Plan. This plan shall be an integral component of the county and school electronic strategic improvement plans as required in section five of this article. Funds shall be allocated equitably to county school systems following peer review of the plans that includes providing necessary technical assistance prior to submission and allows timely review and approval by the West Virginia Department of Education. Technology tools, including hardware, software, network cabling, network electronics and related professional development, shall be purchased pursuant to the provisions of article three, chapter five-a of this code in the amount equal to anticipated revenues being appropriated and based on the approved county and school plans. County allocations that support this legislation shall adhere to state contract prices: Provided, That contingent upon approval of the county technology plan, counties that identify, within that plan, specific software or peripheral equipment not listed on the state contract, but necessary to support implementation of twenty-first century skills, may request the West Virginia Department of Education to secure state purchasing prices for those identified items. Total expenditure to purchase these additional items may not exceed ten percent of the annual county allocation. To the extent practicable, the technology shall be used:
(1) To maximize student access to learning tools and resources at all times including during regular school hours, before and after school or class, in the evenings, on weekends and holidays and for public education, noninstructional days and during vacations; and
(2) For student use for homework, remedial work, independent learning, career planning and adult basic education.
(c) The implementation of this section should provide a technology infrastructure capable of supporting multiple technology-based learning strategies designed to enable students to achieve at higher academic levels. The technology infrastructure should facilitate student development by addressing the following areas:
(1) Mastery of rigorous core academic subjects in grades prekindergarten through eight by providing software, other technology resources or both aligned with state standards in reading, mathematics, writing, science, social studies, twenty- first century learning skills and twenty-first century learning tools;
(2) Mastery of rigorous core academic subjects in grades nine through twelve by providing appropriate twenty-first century technology tools aligned with state standards for learning skills and technology tools;
(3) Attainment of twenty-first century skills outcomes for all students in the use of technology tools and learning skills;
(4) Proficiency in new, emerging twenty-first century content;
(5) Participation in relevant, contextual instruction that uses dynamic, real-world contexts that are engaging and meaningful for students, making learning relevant to life outside of school and bridging the gap between how students live and how they learn in school;
(6) Ability to use digital and emerging technologies to manage information, communicate effectively, think critically, solve problems, work productively as an individual and collaboratively as part of a team and demonstrate personal accountability and other self-directional skills;
(7) Providing students with information on post-secondary educational opportunities, financial aid and the skills and credentials required in various occupations that will help them better prepare for a successful transition following high school;
(8) Providing greater access to advanced and other curricular offerings than could be provided efficiently through traditional on-site delivery formats, including increasing student access to quality distance learning curricula and online distance education tools;
(9) Providing resources for teachers in differentiated instructional strategies, technology integration, sample lesson plans, curriculum resources and online staff development that enhance student achievement; and
(10) Providing resources to support basic skills acquisition and improvement at the above mastery and distinguished levels.
(d) Developed with input from appropriate stakeholder groups, the West Virginia 21st Century Strategic Technology Learning Plan shall be an integral component of the electronic strategic county and school improvement plans as required in section five of this article. The West Virginia 21st Century Strategic Technology Learning Plan shall be comprehensive and shall address, but not necessarily be limited to, the following provisions:
(1) Allocation of adequate resources to provide students with equitable access to twenty-first century technology tools, including instructional offerings and appropriate curriculum, assessment and technology integration resources aligned to both the content and rigor of state content standards as well as to learning skill and technology tools;
(2) Providing students and staff with equitable access to a technology infrastructure that supports the acquisition of twenty- first century skills, including the ability to access information, solve problems, communicate clearly, make informed decisions, acquire new knowledge, construct products, reports and systems, and access online assessment systems;
(3) Inclusion of various technologies that enable and enhance the attainment of twenty-first century skills outcomes for all students;
(4) Collaboration with various partners, including parents, community organization, higher education, schools of education in colleges and universities, employers and content providers;
(5) Seeking of applicable federal government funds, philanthropic funds, other partnership funds or any combination of those types of funds to augment state appropriations and encouraging the pursuit of funding through grants, gifts, donations or any other sources for uses related to education technology;
(6) Sufficient bandwidth to support teaching and learning and to provide satisfactorily for instructional management needs;
(7) Protection of the integrity and security of the network, as well as student and administrative workstations;
(8) Flexibility to adjust the plan based on developing technology, federal and state requirements and changing local school and county needs;
(9) Incorporation of findings based upon validation from research-based evaluation findings from previous West Virginia- based evaluation projects;
(10) Continuing study of emerging technologies for application in a twenty-first century learning environment and inclusion in the technology plan, as appropriate;
(11) An evaluation component to determine the effectiveness of the program and make recommendations for ongoing implementation;
(12) A program of embedded, sustained professional development for teachers that is strategically developed to support a twenty- first century education for all students and that aligns with state standards for technology, integrates twenty-first century skills into educational practice and supports the implementation of twenty-first century software, technology and assessment resources in the classroom;
(13) Providing for uniformity in technological hardware and software standards and procedures;
(14) The strategy for ensuring that the capabilities and capacities of the technology infrastructure is adequate for acceptable performance of the technology being implemented in the public schools;
(15) Providing for a comprehensive, statewide uniform, integrated education management and information system for data collection and reporting to the Department of Education, as provided in section twenty-six, article two of this chapter and commonly referred to as the West Virginia Education Information System;
(16) Providing for an effective model for the distance delivery, virtual delivery or both types of delivery of instruction in subjects where there exists low student enrollment or a shortage of certified teachers or where the delivery method substantially improves the quality of an instructional program such as the West Virginia Virtual School;
(17) Providing a strategy to implement, support and maintain technology in the public schools;
(18) Providing a strategy to provide ongoing support and assistance to teachers in integrating technology into twenty-first century instruction such as with technology integration specialists;
(19) A method of allowing public education to take advantage of appropriate bulk purchasing abilities and to purchase from competitively bid contracts initiated through the southern regional education board educational technology cooperative and the America TelEdCommunications Alliance;
(20) Compliance with United States Department of Education regulations and Federal Communications Commission requirements for federal E-rate discounts; and
(21) Other provisions as considered appropriate, necessary or both to align with applicable guidelines, policies, rules, regulations and requirements of the West Virginia Legislature, the Board of Education and the Department of Education.
(e) Any state code and budget references to the Basic Skills/Computer Education Program and the SUCCESS Initiative will be understood to refer to the statewide technology initiative referenced in this section, commonly referred to as the 21st Century Tools for 21st Century Schools Technology Initiative.
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.

§18-9A-10. Foundation allowance to improve instructional programs.

(a) For each school year, beginning on the first day of July, one thousand nine hundred ninety-eight, and thereafter, the sum of the allocations shall be the amount appropriated by the Legislature for those purposes: The total allowance to improve instructional programs shall be the sum of the following:
(1) For instructional improvement in accordance with county and school electronic strategic improvement plans required by section five, article two-e of this chapter, an amount equal to fifteen percent of the increase in the local share amount for the next school year above any required allocation pursuant to section six-b of this article shall be added to the amount of the appropriation for this purpose for the immediately preceding school year. The sum of these amounts shall be distributed to the counties as follows:
(A) One hundred fifty thousand dollars shall be allocated to each county;
(2) (B) Distribution to the counties of the remainder of these funds shall be made proportional to the average of each county's average daily attendance for the preceding year and the county's second month net enrollment. Moneys allocated by provision of this section shall be used to improve instructional programs according to a plan for instructional improvement which the affected county board shall file with the state board by the first day of August of each year, to be approved by the state board by the first day of September of that year if the plan substantially complies with standards to be adopted by the state board: the county and school electronic strategic improvement plans required by section five, article two-e of this chapter and approved by the state board: Provided, That notwithstanding any other provision of this code to the contrary, moneys allocated by provision of this section may also be used in the implementation and maintenance of the uniform integrated regional computer information system.
(3) Up to twenty-five percent of this allocation may be used to employ professional educators and service personnel in counties after all applicable provisions of sections four, and five of this article have been fully utilized.
Prior to the use of any funds from this section for personnel costs, the county board must receive authorization from the state superintendent of schools. The state superintendent shall require the district county board to demonstrate: (1) The need for the allocation; (2) efficiency and fiscal responsibility in staffing; and (3) sharing of services with adjoining counties and the regional educational service agency for that county in the use of the total local district board budget; and (4) employment of technology integration specialists to meet the needs for implementation of the West Virginia 21st Century Strategic Technology Learning Plan. District County boards shall make application for available funds for the next fiscal year by the first day of May of each year. On or before the first day of June, the state superintendent shall review all applications and notify applying district county boards of the distribution of the allocation. The funds shall be distributed during the fiscal year appropriate. The state superintendent shall require the county board to demonstrate the need for an allocation for personnel based upon the county's inability to meet the requirements of state law or state board policy: Provided, That the funds available for personnel under this section may not be used to increase the total number of professional noninstructional personnel in the central office beyond four. The instructional improvement plan shall be made available for distribution to the public at the office of each affected county board; plus
(2) For the purposes of the West Virginia 21st Century Strategic Technology Learning Plan provided for in section seven, article two-e of this chapter, an amount equal to fifteen percent of the increase in the local share amount for the next school year above any required allocation pursuant to section six-b of this article shall be added to the amount of the appropriation for this purpose for the immediately preceding school year. For the two thousand seven - two thousand eight school year, the amount of the appropriation for this purpose for the immediately preceding school year means the amount of the appropriation to the department of education's technology infrastructure network for school system technology acquisitions for fiscal year two thousand seven. The sum of these amounts shall be allocated to the counties as provided in section seven, article two-e of this chapter to meet the objectives of the West Virginia 21st Century Strategic Technology Learning Plan; plus
(b) (3) An amount not less than the amount required to meet debt service requirements on any revenue bonds issued prior to the first day of January, one thousand nine hundred ninety-four, and the debt service requirements on any revenue bonds issued for the purpose of refunding revenue bonds issued prior to the first day of January, one thousand nine hundred ninety-four, shall be paid into the school building capital improvements fund created by section six, article nine-d of this chapter, and shall be used solely for the purposes of that article. The school building capital improvements fund shall not be utilized to meet the debt services requirement on any revenue bonds or revenue refunding bonds for which moneys contained within the school building debt service fund have been pledged for repayment pursuant to that section.
(b) When the school improvement bonds secured by funds from the school building capital improvements fund mature, the state board of education shall annually deposit an amount equal to twenty-four million dollars from the funds allocated in this section into the school construction fund created pursuant to the provisions of section six, article nine-d, chapter eighteen of this code to continue funding school facility construction and improvements.
(c) Any project funded by the School Building Authority shall be in accordance with a comprehensive educational facility plan which must be approved by the state board and the School Building Authority.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 603--A Bill to amend and reenact §18-2E-7 and §18-9A-10 of the Code of West Virginia, 1931, as amended, all relating to establishing a 21st Century Tools for 21st Century Schools Technology Initiative to replace and enhance current technology programs and provide formula funding therefore; findings; requiring a West Virginia 21st Century Strategic Technology Learning Plan and setting forth specific areas it should address; requiring that the provision of technologies and services to students and teachers be based on a plan aligned with the goals of the West Virginia 21st Century Strategic Technology Learning Plan; allocation of technology funds; purchasing; use of technology and technology infrastructure; including funding stream in public school support plan from proportion of growth in local share; and including employment of technology integration specialists as justification prior to authorization to expend certain funds.
On motion of Senator Chafin, the Senate refused to concur in the foregoing House amendments to the bill (Eng. Com. Sub. for S. B. No. 603) 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 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. 641, Defining term "PSC motor carrier inspectors and enforcement officers" for criminal provisions purposes.
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:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-10b. Malicious assault; unlawful assault; battery and recidivism of battery; assault on police officers, conservation officers, probation officers, humane officers, emergency medical service personnel, firefighters, fire marshal, Division of Forestry employees, Public Service Commission motor carrier inspectors, Public Service Commission weight enforcement officers, employees of an urban mass transportation system and county or state correctional employees; penalties.

(a) Malicious assault. -- Any person who maliciously shoots, stabs, cuts or wounds or by any means causes bodily injury with intent to maim, disfigure, disable or kill a police officer, probation officer, conservation officer, humane officer, emergency medical service personnel, firefighter, State Fire Marshal or employee, Division of Forestry employee, county correctional employee or state correctional employee, employee of an urban mass transportation system, or Public Service Commission motor carrier inspector or Public Service Commission weight enforcement officer acting in his or her official capacity and the person committing the malicious assault knows or has reason to know that the victim is a police officer, probation officer, conservation officer, humane officer, emergency medical service personnel, firefighter, State Fire Marshal or employee, Division of Forestry employee, county correctional employee, state correctional employee, employee of an urban mass transportation system, or Public Service Commission motor carrier inspector or Public Service Commission weight enforcement officer acting in his or her official capacity is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for not less than three nor more than fifteen years.
(b) Unlawful assault. -- Any person who unlawfully but not maliciously shoots, stabs, cuts or wounds or by any means causes a police officer, probation officer, conservation officer, humane officer, emergency medical service personnel, firefighter, State Fire Marshal or employee, Division of Forestry employee, county correctional employee or state correctional employee, employee of an urban mass transportation system, or Public Service Commission motor carrier inspector or Public Service Commission weight enforcement officer acting in his or her official capacity bodily injury with intent to maim, disfigure, disable or kill him or her and the person committing the unlawful assault knows or has reason to know that the victim is a police officer, probation officer, conservation officer, humane officer, emergency medical service personnel, firefighter, State Fire Marshal or employee, Division of Forestry employee, county correctional employee, state correctional employee, employee of an urban mass transportation system, or Public Service Commission motor carrier inspector or Public Service Commission weight enforcement officer acting in his or her official capacity is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for not less than two nor more than five years.
(c) Battery. -- Any person who unlawfully, knowingly and intentionally makes physical contact of an insulting or provoking nature with a police officer, probation officer, conservation officer, humane officer, emergency medical service personnel, firefighter, State Fire Marshal or employee, Division of Forestry employee, county correctional employee, state correctional employee, employee of a mass transportation system, or Public Service Commission motor carrier inspector or Public Service Commission weight enforcement officer acting in his or her official capacity, or unlawfully and intentionally causes physical harm to a police officer, probation officer, conservation officer, humane officer, emergency medical service personnel, firefighter, State Fire Marshal or employee, Division of Forestry employee, county correctional employee, state correctional employee, employee of an urban mass transportation system, or Public Service Commission motor carrier inspector or Public Service Commission weight enforcement officer acting in such capacity, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than one month nor more than twelve months, fined the sum of five hundred dollars, or both. If any person commits a second such offense, he or she is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for not less than one year nor more than three years or fined the sum of one thousand dollars or both fined and confined. Any person who commits a third violation of this subsection is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility not less than two years nor more than five years or fined not more than two thousand dollars or both fined and confined.
(d) Assault. -- Any person who unlawfully attempts to commit a violent injury to the person of a police officer, probation officer, conservation officer, humane officer, emergency medical service personnel, firefighter, State Fire Marshal or employee, Division of Forestry employee, county correctional employee, state correctional employee, employee of a mass transportation system, or Public Service Commission motor carrier inspector or Public Service Commission weight enforcement officer acting in his or her official capacity, or unlawfully commits an act which places a police officer, probation officer, conservation officer, humane officer, emergency medical service personnel, firefighter, Division of Forestry employee, county correctional employee or state correctional employee, employee of a mass transportation system, or Public Service Commission motor carrier inspector or Public Service Commission weight enforcement officer acting in his or her official capacity in reasonable apprehension of immediately receiving a violent injury, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than twenty-four hours nor more than six months, fined not more than two hundred dollars, or both fined and confined.
(e) For purposes of this section:
(1) "Police officer" means any person employed by the State Police, any person employed by the state to perform law-enforcement duties, any person employed by a political subdivision of this state who is responsible for the prevention or detection of crime and the enforcement of the penal, traffic or highway laws of this state or employed as a special police officer as defined in section forty-one, article three of this chapter.
(2) "Employee of an urban mass transportation system" means any person employed by an urban mass transportation system as such is defined in section three, article twenty-seven, chapter eight of this code or by a system that receives federal transit administration funding under 49 U. S. C. §5307 or §5311.
(3) "Division of Forestry employee" means an officer, agent, employee or servant, whether full-time or not, of the Division of Forestry.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 641--A Bill to amend and reenact §61-2-10b of the Code of West Virginia, 1931, as amended, relating to malicious assault, unlawful assault, battery and recidivism of battery on a police officer; including malicious assault, unlawful assault, battery and recidivism of battery on a Public Service Commission weight enforcement officer as a crime; and providing criminal penalties.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 641, 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, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
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. 641) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
The Senate proceeded to the fourth order of business.
Senator Foster, from the Committee on Pensions, submitted the following report, which was received:
Your Committee on Pensions has had under consideration
Eng. House Bill No. 2130, Eliminating any reduction in the benefit of a deputy sheriff who is disabled on the job.
And,
Eng. Com. Sub. for House Bill No. 2717, Enacting a retirement system for Emergency Medical Services Personnel.
And reports the same back with the recommendation that they each do pass; but under the original double committee references first be referred to the Committee on Finance.
Respectfully submitted,
Dan Foster,
Chair.
The bills, under the original double committee references, were then referred to the Committee on Finance.
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. 2145, Defining limited use residence elevators in public places.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Edwin J. Bowman,
Chair.
Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Eng. Com. Sub. for House Bill No. 2527, Revising the sunrise review process.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Edwin J. Bowman,
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. 2670, Authorizing the Department of Commerce to promulgate legislative rules.
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. 2670) 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 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. 2747, Regulating plumbers and fire protection workers.
And has amended same.
And,
Eng. Com. Sub. for House Bill No. 2800, Relating to the practice of medical imaging and radiation therapy.
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,
Edwin J. Bowman,
Chair.
At the request of Senator Helmick, as chair of the Committee on Finance, unanimous consent was granted to dispense with the second committee references of the bills contained in the foregoing report from the Committee on Government Organization.
The Senate proceeded to the sixth order of business.
Senators White, Hunter, Bailey, Oliverio, Love, Fanning, Barnes, McKenzie, Wells, McCabe, Unger, Jenkins, Kessler, Stollings, Plymale and Foster offered the following resolution:
Senate Concurrent Resolution No. 65--Requesting the Joint Committee on Government and Finance study developing tourism attractions and amenities in less-developed counties of West Virginia.
Whereas, West Virginia is rich with cultural and historical sites, most of which are located in rural areas of the state; and
Whereas, Workforce development is essential to benefit small tourism entities and rural areas of West Virginia; and
Whereas, It is in the best interests of the state to induce the creation, expansion and improvement of tourism attractions and amenities within the counties of West Virginia that are less developed and have high unemployment rates; and
Whereas, The development of tourism attractions and amenities will help relieve unemployment by preserving and creating jobs in counties that are less developed, as well as generate tax revenues for the support of essential public services in those counties; and
Whereas, A thorough study should examine how to attract the development of tourism attractions and amenities in counties of West Virginia that are less developed. This study should include discussions of possible tax incentives to be offered in order to enlarge the interests of businesses and investors; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study developing tourism attractions and amenities in less developed counties of West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2008, 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 Hunter, Bailey, Edgell, Minard, Oliverio, Wells, Boley, Hall, Sypolt, Unger, Jenkins, McKenzie, Kessler, Stollings, Plymale and Foster offered the following resolution:
Senate Concurrent Resolution No. 66--Requesting the Joint Committee on Government and Finance study the family support mechanisms for dealing with mental health, alcohol and substance abuse issues for veterans.
Whereas, There has been increasing expert and public acknowledgment that the human cost of war extends beyond the injuries and disabilities that arise during the term of military service which can cause serious mental health disorders; and
Whereas, Numerous studies demonstrate that as much as 58 percent of combat veterans may have been so traumatized by the mental demands of preparing for and participating in battle that they developed post-traumatic stress disorder; and
Whereas, Some veterans who have been exposed to combat have become involved in alcohol and substance abuse; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study family support mechanisms for dealing with mental health, alcohol and substance abuse for veterans; and, be it
Further Resolved, That the Joint Committee on Government and Finance compile an inventory of mental health resources currently available throughout West Virginia and identify where there are gaps in services available to veterans and where there is strong community support for services and how this state can optimize, coordinate and initiate services; and, be it
Further Resolved, That the Joint Committee on Government and Finance determine the best means to apprise the federal government of the concerns of West Virginians regarding mental health issues affecting our combat veterans and to encourage the federal government to meet its responsibilities in this regard; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2008, 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 Minard, McCabe, Unger, Jenkins, Oliverio and Foster offered the following resolution:
Senate Resolution No. 43--Designating March 6, 2007, as "West Virginia Home School Day".
Whereas, The State of West Virginia is committed to excellence in education; and
Whereas, The State of West Virginia recognizes that parental involvement and individualized attention to educational success are unique and basic components of home schooling; and
Whereas, Home-schooled students exhibit self-confidence and good citizenship and are prepared academically to meet the challenges of today's society; and
Whereas, Contemporary studies continue to confirm that children who are educated at home score exceptionally well on national achievement tests and score above the national average on SAT and ACT tests; and
Whereas, Home-schooled students have shown to be competitive with publicly and privately schooled students at the college level; therefore, be it
Resolved by the Senate:
That the Senate hereby designates March 6, 2007, as "West Virginia Home School Day"; and, be it
Further Resolved, That the Senate recognizes students, teachers and families involved with home schooling in West Virginia for their dedication to excellence in education; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the West Virginia Home Educators Association and the Christian Home Educators of West Virginia.
At the request of Senator Minard, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
On motion of Senator Chafin, the Senate recessed for one minute.
Upon expiration of the recess, the Senate reconvened and resumed business under the sixth order.
Senators Hunter, Sypolt, Jenkins and Plymale offered the following resolution:
Senate Resolution No. 44--Congratulating the Preston High School JROTC Rifle Team on winning its sixth consecutive West Virginia state high school rifle championship.
Whereas, The Preston High School JROTC Rifle "A" Team won its sixth consecutive West Virginia state high school rifle championship; and
Whereas, The Preston High School JROTC Rifle "A" Team will be traveling to Fort Benning, Georgia, to compete in the JROTC Eastern Championships; and
Whereas, The Preston High School JROTC Rifle "A" Team, coached by Lieutenant Colonel William Miller and consisting of members Captain Rustin Ault, Amanda Garlitz, Brandon Caratello and Alex Noss, is to be commended for its dedication and effort; therefore, be it
Resolved by the Senate:
That the Senate hereby congratulates the Preston High School JROTC Rifle "A" Team for winning its sixth consecutive West Virginia state high school rifle championship; and, be it
Further Resolved, That the Senate commends the Preston High School JROTC Rifle "A" Team coach and members for their excellent marksmanship; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to Lieutenant Colonel William Miller and each member of the Preston High School JROTC Rifle "A" Team.
At the request of Senator Hunter, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
On motion of Senator Chafin, the Senate recessed for one minute.
Upon expiration of the recess, the Senate reconvened and proceeded to the seventh order of business.
Senate Concurrent Resolution No. 28, Designating December, 2007, as "West Virginia Legislature's Back to School Month".
On unfinished business, coming up in regular order, was reported by the Clerk.
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.
Senate Concurrent Resolution No. 62, Requesting Division of Highways name bridge in Berkeley County "Allensville Memorial Bridge".
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Transportation and Infrastructure.
The Senate proceeded to the eighth order of business.
Eng. Com. Sub. for House Bill No. 2718, Authorizing West Virginia Lottery Table Games at State Racetracks.
On third reading, coming up in regular order, was reported by the Clerk.
Following extended discussion and a point of inquiry to the President, with resultant response thereto,
On motion of Senator Kessler, the Senate reconsidered its action by which on yesterday, Monday, March 5, 2007, it adopted Senator Helmick's amendment to the bill, as amended.
The vote thereon having been reconsidered,
The question again being on the adoption of Senator Helmick's amendment to the bill, as amended.
Thereafter, on motion of Senator Kessler, the following amendment to Senator Helmick's amendment to the bill, as amended, was reported by the Clerk and adopted:
On pages eleven and twelve, section two, subsection (b), subdivision (1), by striking out the words "the four existing".
The question now being on the adoption of Senator Helmick's amendment to the bill (Eng. Com. Sub. for H. B. No. 2718), as amended, the same was put and prevailed.
The bill, as just amended, was again ordered to third reading.
Having been engrossed, the bill was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Bowman, Chafin, Edgell, Facemyer, Fanning, Foster, Green, Hunter, Kessler, Love, McCabe, McKenzie, Minard, Stollings, Sypolt, Wells, White, Yoder and Tomblin (Mr. President)--20.
The nays were: Barnes, Boley, Caruth, Deem, Guills, Hall, Helmick, Jenkins, Oliverio, Plymale, Prezioso, Sprouse and Unger--13.
Absent: Sharpe--1.

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. 2718) passed.
At the request of Senator Kessler, as chair of the Committee on the Judiciary, unanimous consent being granted, the unreported Judiciary committee amendment to the title of the bill was withdrawn.
At the request of Senator Helmick, as chair of the Committee on Finance, and by unanimous consent, the unreported Finance committee amendment to the title of the bill was withdrawn.
On motion of Senator Helmick, the following amendment to the title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2718--A Bill to amend and reenact §29-22-18 of the Code of West Virginia, 1931, as amended; to amend and reenact §29-22A-10c of said code; to amend said code by adding thereto a new article, designated §29-22C-1, §29-22C-2, §29-22C-3, §29-22C-4, §29-22C-5, §29-22C-6, §29-22C-7, §29-22C-8, §29-22C-9, §29-22C-10, §29-22C-11, §29-22C-12, §29-22C-13, §29-22C- 14, §29-22C-15, §29-22C-16, §29-22C-17, §29-22C-18, §29-22C-19, §29-22C-20, §29-22C-21, §29-22C-22, §29-22C-23, §29-22C-24, §29- 22C-25, §29-22C-26, §29-22C-27, §29-22C-28, §29-22C-29, §29-22C-30, §29-22C-31, §29-22C-32, §29-22C-33 and §29-22C-34; and to amend and reenact §29-25-1 of said code, all relating to authorization of West Virginia Lottery table games generally; providing for Lottery Commission operation and administration expenses; providing recoupment criteria and changing the recoupment period for the Capital Reinvestment Fund; West Virginia Lottery Racetrack Table Games Act; authorizing West Virginia Lottery table games at licensed horse and dog racetracks; providing for legislative findings, including constitutional considerations; providing definitions; providing for Lottery Commission regulation of gaming activities; duties and powers of Lottery Commission; authorizing the Lottery Commission to promulgate rules; authorizing the Lottery Commission and director to hire necessary staff; placing requirements and limitations on lottery employees; providing for duties, powers and administrative expenses of the Lottery Commission; requiring local option elections to approve licensure of West Virginia Lottery table games at racetrack facilities; procedure for elections; providing for reconsideration elections; providing for licensees to engage in activities related to operation of West Virginia Lottery table games at racetrack facilities; providing qualifications for applicant for license to operate West Virginia Lottery table games at a racetrack facility; providing floor plan requirements; authorizing management service contracts; coordination of licensed activities; providing license application requirements; establishing an annual license surcharge for failure to construct certain hotel facilities; extending of time for construction; racetrack table games licensee qualifications; establishing license fees; requirement for surety bond; issuance of licenses and prohibiting transfer, assignment, sale or pledge as collateral; requiring audits and reports of licensees; providing duties of racetrack table games licensees; preference in hiring for table games jobs; providing that the state owns exclusive right to conduct table games and may grant a license to operate West Virginia Lottery table games to qualified licensees; providing duties for racetrack table games licensees; licensees to hold state harmless from any and all claims; providing reporting requirements for table games licensees; establishing requirements for licensees to supply gaming equipment or services; establishing requirements of license for employees of operator of racetracks with West Virginia Lottery table games; establishing requirements for management services provider license; establishing license fees; prohibitions to granting of a license; providing grounds for denial, revocation, suspension or reprimand of license; establishing hearing procedures; providing for expiration and renewal of licenses; requiring renewal fees; requiring Lottery Commission to give notice regarding license expiration and renewal to licensees; specifying information to be included on license; requiring display and availability of license; requiring notice of change of address; requiring commission approval of West Virginia Lottery table games rules of play; resolution of disputes over game rules by Lottery Commission; requiring licensees to provide written notice to players of games of chance of game rules and payouts; providing for method to determine betting limits and operations and services by racetrack licensees; requiring the posting of betting limits and other requirements relating to operations and services; establishing limitations for offering complimentary goods and services; providing conditions for sale of alcohol; providing for contract agreements and costs for services and training of the State Police; exclusive jurisdiction of State Police over felony offenses committed at a racetrack; authorizing inspections and seizure of certain property; authorizing certain warrantless searches of person and property; imposing privilege tax on adjusted gross receipts of racetrack with West Virginia Lottery table games; providing procedure for filing and payment of said tax; exempting racetrack licensees from certain taxes; prohibition on credits against privilege tax; creating West Virginia Lottery Racetrack Table Games Fund; providing for distribution of amounts from said fund; creating Community-Based Service Fund; appropriation of moneys for senior services by the Legislature; creating State Debt Reduction Fund; authorizing expenditures from said fund; authorizing and limiting use of funds by counties and municipalities; clarifying and limiting expenses of the Lottery Commission for administration and enforcement of article; providing prohibited wagers and other activities; prohibiting certain wagering methods; establishing criminal offenses and penalties; providing for forfeiture of certain property; providing civil penalties; providing for the preemption of certain local laws, ordinance and rules; providing for exemption from certain federal laws relating to shipment of gambling devices; and revising legislative findings relating to authorization of West Virginia Lottery table games at a well-established resort hotel.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Thereafter, at the request of Senator Prezioso, and by unanimous consent, the remarks by Senator Bowman regarding the passage of Engrossed Committee Substitute for House Bill No. 2718 were ordered printed in the Appendix to the Journal.
At the request of Senator Edgell, unanimous consent being granted, the remarks by Senator Kessler regarding the passage of Engrossed Committee Substitute for House Bill No. 2718 were ordered printed in the Appendix to the Journal.
At the request of Senator Prezioso, and by unanimous consent, the remarks by Senator Oliverio regarding the passage of Engrossed Committee Substitute for House Bill No. 2718 were ordered printed in the Appendix to the Journal.
At the request of Senator Bowman, unanimous consent being granted, the remarks by Senator McKenzie regarding the passage of Engrossed Committee Substitute for House Bill No. 2718 were ordered printed in the Appendix to the Journal.
The Senate proceeded to the ninth order of business.
Eng. House Bill No. 2349, Continuing the Board of Registration for Sanitarians.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. House Bill No. 2568, Extending the sunset provision regarding racial profiling analysis.
On second reading, coming up in regular order, was read a second time.
The following amendments to the bill, from the Committee on Government Organization, were reported by the Clerk, considered simultaneously, and adopted:
On page one, section three, lines one and two, by striking out the words "on the first day of January, two thousand five";
On page two, section three, line five, by striking out the words "emergency and";
On page four, section three, line forty-nine, by striking out the word "On" and inserting in lieu thereof the words "Annually, on";
On page four, section three, lines forty-nine and fifty, by striking out the words "two thousand six, and each year thereafter,";
On page four, section three, line fifty-eight, by striking out the words "shall become effective after" and inserting in lieu thereof the words "were effective";
And,
On page five, section three, line sixty-three, by striking out the word "nine" and inserting in lieu thereof the word "eight".
The bill (Eng. H. B. No. 2568), as amended, was then ordered to third reading.
Eng. House Bill No. 2574, Continuing the Board of Social Work Examiners.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. House Bill No. 2586, Continuing the Board of Veterinary Medicine.
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:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 10. VETERINARIANS.
§30-10-20. Continuation of the Board of Veterinary Medicine.
Pursuant to the provisions of article ten, chapter four of this code, the West Virginia Board of Veterinary Medicine shall continue to exist until the first day of July, two thousand seven eighteen, unless sooner terminated, continued or reestablished.
The bill (Eng. H. B. No. 2586), as amended, was then ordered to third reading.
Eng. House Bill No. 2587, Continuing the Board of Optometry.
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, section eleven, by striking out the section caption and substituting therefor a new section caption, to read as follows:
§30-8-11. Continuation of the Board of Optometry.

The bill (Eng. H. B. No. 2587), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2590, Authorizing the Department of Revenue to promulgate legislative rules.
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:
B
y striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 7. AUTHORIZATION FOR THE DEPARTMENT OF REVENUE TO PROMULGATE LEGISLATIVE RULES.

§64-9-1. Alcohol Beverage Control Commission.
(a) The legislative rule filed in the State Register on the twenty-fifth day of July, two thousand six, authorized under the authority of section ten, article seven, chapter sixty of this code, relating to the Alcohol Beverage Control Commission (private club licensing, 175 CSR 2), is authorized with the following amendments:
On page one, by redesignating subdivision 2.5.1. as subsection 2.6. and renumbering the remaining subsections accordingly;
On page fifteen, subdivision 6.7.1., after the word "effect" by striking out the comma and the word "and";
And,
On page fifteen, subdivision 6.7.2. following the word "rule" by inserting a comma and the following: "and
6.7.3. A suspension order suspending a license in the interest of public safety, as specified in W. Va. Code §60-7-13a".
(b)
The legislative rule filed in the State Register on the twenty-eighth day of July, two thousand six, authorized under the authority of section six, article three-a, chapter sixty of this code, relating to the Alcohol Beverage Control Commission (licensing of retail liquor stores, 175 CSR 5), is authorized with the following amendments:
On page fifteen, by redesignating paragraph 8.1.1.a. as subdivision 8.1.2. and by renumbering the remaining subdivision accordingly;
And,
On page fifteen, subdivision 8.1.1.a., line two, after the word "for" by striking out the word "the" and inserting in lieu thereof the word "a" and after the word "investigation", by inserting the following: "undertaken pursuant to subdivision 8.1.1. of this rule".
(c) The legislative rule filed in the State Register on the twenty-eighth day of July, two thousand six, authorized under the authority of section twenty-two, article sixteen, chapter eleven of this code, relating to the Alcohol Beverage Control Commission (nonintoxicating beer licensing and operations procedures, 176 CSR 1), is authorized with the following amendments:
On page four, by redesignating paragraph 3.1.2.a. as subdivision 3.1.3. and renumbering the remaining subdivision accordingly;
On page four, paragraph 3.1.2.a., line two, after the words "by the ABCC for" by striking out the word "the" and inserting in lieu thereof the word "a" and after the word "investigation" by inserting the following: "undertaken pursuant to subdivision 3.1.2. of this rule";
On page twelve, subdivision 3.2.2, on line three, after the word "manufacturer" by striking out the words "whose chief place of business is outside of the State of West Virginia"; and
On page twenty-seven, following paragraph 13.2.1.3, by inserting a new paragraph designated as 13.2.1.4, to read as follows:
"13.2.1.4. The provisions of this rule and W. Va. Code § 11- 16-1 et. seq. shall be part of all franchise agreements subject to the provisions of W. Va. Code § 11-16-21 and may not be altered by the parties.";
On page twenty, subdivision 6.1.14, by striking out the word "and" and the comma;
On page twenty, subdivision 6.1.15, by changing the period to a semicolon and inserting the word "and" and a comma;
And,
On page twenty, following subdivision 6.1.15, by inserting a new subdivision, designated as 6.1.16, to read as follows:
"6.1.16. For any person to manufacture, sell, transport, deliver, furnish, purchase, consume or possess any nonintoxicating beer except as provided by the laws of this state or rules lawfully promulgated by the Commissioner.".
§64-7-2. Insurance Commissioner.
(a) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand six, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twentieth day of December, two thousand six, relating to the Insurance Commissioner (rate filing requirements for title insurance companies, 114 CSR 77), is authorized
with the following amendment:
On page one, section 3, subsection 3.3, line thirty-five, following the words "household purposes", by striking out the comma and the words "where the insurance affords coverage in whole or in part to the person occupying the property".
(b) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand six, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twentieth day of December, two thousand six, relating to the Insurance Commissioner (individual limited health benefits plans, 114 CSR 78), is authorized with the following amendments:
On page two, section five, subsection 5.3, line eighteen, by striking out the word "An" and inserting in lieu thereof the following: "Except as provided in section three, article fifteen-d, chapter thirty-three of the Code of West Virginia, an";
And,
On page three, section six, after subsection 6.3., by inserting a new subsection, designated subsection 6.4., to read as follows:
"6.4. Before approving any plan or policy under this rule, the Commissioner must find that the plan or policy furthers the legislative purpose of W. Va. Code §33-15D-1, et seq., by providing substantial preventative care and primary care benefits. This subsection does not apply to any plan or policy approved by the Commissioner prior to the effective date of this rule unless and until the provider of the plan or policy makes a subsequent filing with regard to such plan or policy."
(c) The legislative rule filed in the State Register on the twenty-seventh day of July, two thousand six, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twentieth day of December, two thousand six, relating to the Insurance Commissioner (group limited health benefits plans, 114 CSR 79), is authorized with the following amendment:
On page two, section seven, after subsection 7.3., by inserting a new subsection, designated subsection 7.4., to read as follows:
"7.4. Before approving any plan or policy under this rule, the Commissioner must find that the plan or policy furthers the legislative purpose of W. Va. Code §33-16F-1, et seq., by providing substantial preventative care and primary care benefits. This subsection does not apply to any plan or policy approved by the Commissioner prior to the effective date of this rule unless and until the provider of the plan or policy makes a subsequent filing with regard to such plan or policy.".
§64-7-3. Racing Commission.
The legislative rule filed in the State Register on the twenty-eighth day of July, two thousand six, authorized under the authority of section six, article twenty-three, chapter nineteen of this code, modified by the Racing Commission to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the seventeenth day of January, two thousand seven, relating to the Racing Commission (thoroughbred racing, 178 CSR 1), is authorized with the following amendments:
On page four, subsection 2.53, after the word "substance" by striking out the comma;
On page fifty-eight, subsection 66.10., after the word "electrolytes." by striking out the words "Prerace-testing" and inserting in lieu thereof the words "Pre-race testing";
On page fifty-eight, subsection 66.10., after the words "If testing" by striking out the words "post race" and inserting in lieu thereof the word "post-race";
On page fifty-eight, subsection 66.10., after the words "dioxide concentration." by striking out the word "If" and capitalizing the word "the";
On page fifty-eight, subsection 66.10., after the words "racing chemist" by inserting the words "shall inform the stewards if he or she";
On page fifty-eight, subsection 66.10., after the words "per liter" by changing the comma to a period and by striking out the remainder of the subsection;
On page fifty-eight, subsection 66.11., by striking out the word "shall" and inserting in lieu thereof the word "do";
On page sixty-three, by striking out subdivision 73.2.1. through subparagraph 73.2.1.1.e. and inserting in lieu thereof the following:
"73.2.a. Acting with reasonable cause, the stewards or a designated representative of the Racing Commission may direct any licensee, occupational permit holder or employee to deliver a specimen of urine in the presence of a designated person or subject himself of herself to the taking of a sample of blood or other bodily fluids by a designated person."
And,
On pages sixty-three and sixty-four, by redesignating subdivisions 73.2.2. through 7.3.5. as subdivisions 73.2.b. through 73.2.e
.
§64-7-4. Tax Department.
(a) The legislative rule filed in the State Register on the twenty-fifth day of July, two thousand six, authorized under the authority of section five, article ten, chapter eleven of this code, modified by the Tax Department to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the second day of November, two thousand six, relating to the Tax Department (abusive tax shelters, 110 CSR 10J), is authorized with the following amendments:
On page five, paragraph 3.2.17.1., on line three, by striking out "3.2.13.1" and inserting in lieu thereof "3.2.13";
On page fifteen, subdivision 6.3.2., by striking out the words "Makes or causes another person to make a false or fraudulent statement with respect to securing a tax benefit or a gross valuation as to any material matter, and";
And,
On page seventeen, subdivision 7.3.2., by striking out the subdivision in its entirety and renumbering the remaining subdivision.
(b) The legislative rule filed in the State Register on the twenty-second day of December, two thousand five, authorized under the authority of section five, article ten, chapter eleven of this code, modified by the Tax Department to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the eighth day of June, two thousand six, relating to the Tax Department (Consumers Sales and Service Tax and Use Tax - reduced sales tax on food, 110 CSR 15H), is authorized with the following amendment:
On page eight, section 5.1, line one, after the word "Section", by striking out "2" and inserting in lieu thereof "3".
The bill (Eng. Com. Sub. for H. B. No. 2590), as amended, was then ordered to third reading.
Eng. House Bill No. 2712, Regarding whether a bank's application to establish a branch presents a significant supervisory concern or significant legal or policy issue.
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. 2741, Relating to worthless checks.
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:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §61-3-39a, §61-3-39b, §61-3-39f and §61-3-39h of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-39a. Making, issuing, etc., worthless checks on a preexisting debt; penalty.

(a) It is unlawful for any person, firm or corporation to make, draw, issue, utter or deliver any check, draft or order for the payment of money or its equivalent on a preexisting debt upon any bank or other depository, knowing or having reason to know there is not sufficient funds on deposit in or credit with the bank or other depository with which to pay the check, draft or order upon presentation. The making, drawing, issuing, uttering or delivering of any check, draft or order on a preexisting debt, for or on behalf of any corporation, or its name, by any officer or agent of the corporation, shall subject the officer or agent to the penalty of this section to the same extent as though the check, draft or order was his or her own personal act.
(b) This section shall not apply to any such check, draft or order when the payee or holder knows or has been expressly notified prior to the acceptance of same or has reason to believe that the drawer did not have on deposit or to his or her credit with the drawee sufficient funds to ensure payment as aforesaid, nor shall this section apply to any post-dated check, draft or order. This section shall not apply when the insufficiency of funds or credit is caused by any adjustment to the drawer's account by the bank or other depository without notice to the drawer or is caused by the dishonoring of any check, draft or order deposited in the account unless there is knowledge or reason to believe that the check, draft or order would be dishonored.
(c) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than two hundred dollars; and upon a third or subsequent conviction thereof, shall be fined not more than two hundred dollars, or confined in the county or regional jail not more than ten days, or both.
§61-3-39b. Payment as defense.
Payment of a dishonored check, draft or order, shall not constitute made to the magistrate clerk within ten days after the notice mailed to the defendant pursuant to section thirty-nine-g of this article, constitutes a complete defense or ground for dismissal of charges brought under section thirty-nine or thirty- nine-a of this article. Payment of a dishonored check, including any authorized charges or costs, shall constitute a defense or grounds for dismissal of charges brought under section thirty-nine- a of this article.
§61-3-39f. Manner of filing complaint for warrant; form.
(A) Notwithstanding the provisions of section one, article one, chapter sixty-two of this code, a complaint for warrant for violations of section thirty-nine or thirty-nine-a of this article need not be made upon oath before a magistrate but may be made upon oath before any magistrate court clerk or other court officer authorized to administer oaths or before a notary public in any county of the state and may be delivered by mail or otherwise to the magistrate court of the county wherein venue lies: Provided, That nothing in this section changes the authority and responsibility of the prosecuting attorney to prosecute any person or persons for violations of section thirty-nine or thirty-nine-a of this article.
(B) A complaint for warrant for violations of section thirty- nine-a of this article shall be deemed sufficient if it is in form substantially as follows:
"State of West Virginia
County of, to wit:
, upon oath complains that:
(a) Within one year past, on the day
of , 19 20, in the county stated above,
("the maker") unlawfully
issued and delivered to a check, draft or order with the following words and figures:
19 20
No

(Name of Bank)
Pay to the Order of$Dollars
For when the maker did not have funds on deposit in or credit with this bank with which to pay the check, draft or order upon presentation against the peace and dignity of the State of West Virginia. The complainant therefore prays a warrant issue and that the maker be apprehended and held to answer the warrant and dealt with in relation thereto according to the law.
(b) At the time the check, draft or order was delivered and before it was accepted there was either on the check or on a record in the possession of the complainant the following information regarding the identity of the maker:
(1) Name (2) Residence address
(3) Business address
(4) Mailing address
(5) Motor vehicle operator's number
(6) Home phone
(7) Work phone
(8) Place of employment
That since the time the check, draft or order was delivered the complainant has ascertained to the best of his or her knowledge and belief the following facts concerning the maker:
Full name
Home address
Home phone noBusiness phone no
Place of employment
Race SexHeight
Date of birth
Day
Month
Year

, Complainant

Address
Phone No.

(c) The complainant's bank or financial institution has imposed on or collected from the complainant a service charge in the amount of $in connection with the check, draft or order described above.
Taken, subscribed and sworn to before me, this day of, 19 20

(Title)
My commission expires the day of, 19 20"
(C) The failure to supply information indicated in parts (b) or (c) of the foregoing complaint for warrant shall not affect the sufficiency thereof of the complaint.
§61-3-39h. Payment of costs in worthless check cases; disposition of certain costs.

(a) In any prosecution under section thirty-nine or thirty- nine-a of this article, the costs as that may otherwise be imposed against the drawer of any check, draft or order shall be imposed on the person initiating the prosecution if:
(1) Payment of the check, draft or order is accepted by the payee or holder thereof after the filing of a complaint for warrant; if and the charge is subsequently withdrawn or dismissed at the request of the complainant: Provided, That the provisions of this subdivision do not apply where a charge is dismissed and restitution is paid as a condition of a plea agreement. The defendant shall be assessed costs for the prosecution of each charge of which he or she stands convicted and the fee for court costs assessed pursuant to section thirty-nine-g of this article for each charge dismissed as a result of the plea agreement;
(2) The payee or holder had reason to believe that the check, draft or order would be dishonored; or if
(3) The same check, draft or order was postdated; or if
(4) The matter is dismissed for failure to prosecute.
(b) Costs collected by magistrate court for issuance of notice as authorized by section thirty-nine-g of this article may not be paid into the special county fund created by the provisions of section four, article three, chapter fifty of this code but shall be accounted for separately and retained by the county in a fund designated the Worthless Check Fund until the sheriff shall issue issues warrants in furtherance of the allowable expenses specifically provided for by this section. Such costs may not be included in any calculation of the amount of funds to be retained by the county under the provisions of section four, article three, chapter fifty of this code.
(c) A county may, after agreement with the court administrator's office of the Supreme Court of Appeals, appropriate and spend from the Worthless Check Fund herein established such sums as shall be are necessary to pay or defray the expenses of providing a deputy sheriff to serve warrants for worthless check offenses and to pay or defray the expenses of providing additional deputy clerks in the office of the magistrate court clerk. After payment of these expenses, or after a determination that these services are not necessary, a county may appropriate and spend from the fund the sums necessary to defray:
(1) The expenses of providing bailiff and service of process services by the sheriff; to defray
(2) The cost of acquiring or renting magistrate court offices and providing utilities and telephones therefor and telephone service to such offices; to defray
(3) The cost of complying with section thirty-nine-i herein of this article; and to defray
(4) The expenses of such other services which are to be provided to magistrate courts by the county.
The bill (Eng. Com. Sub. for H. B. No. 2741), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2748, Relating to the receipt and transfer of scrap metal.
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:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 3. CRIMES AGAINST PROPERTY

§61-3-49. Purchase of nonferrous metals or steel railroad track and track materials by scrap metal purchasing businesses, salvage yards, or recycling facilities; certificates, records and reports of such purchases; criminal penalties.

(a) Any person in the business of purchasing scrap metal, any salvage yard owner or operator, or any public or commercial recycling facility owner or operator, or any agent or employee thereof, who purchases any form of copper, aluminum, brass, lead or other nonferrous metal of any kind, or steel railroad track and track material, shall make a record of such purchase. Such record shall accurately list the name, permanent and business addresses and telephone number of the seller, the motor vehicle license number of any vehicle used to transport the nonferrous metal or steel to the place of purchase, the time and date of the transaction and a complete description of the kind and character of the nonferrous metal or steel railroad track and track material purchased. The person purchasing the nonferrous metal or steel railroad track and track material shall also require from the seller, and retain in the record, a signed certificate of ownership of the nonferrous metal or steel railroad track and track material being sold or authorization from the owner to sell. comply with the provisions of this section.
(b) The purchaser of such metals shall make and maintain a record of each transaction which shall contain the following information:
(1) Full name, permanent home and business addresses and telephone number, if available, of the seller;
(2) A description and the motor vehicle license number of any vehicle used to transport any form of copper, aluminum, brass, lead or other nonferrous metal or steel to the place of purchase;
(3) The time and date of the transaction;
(4) A complete description of the kind, character and weight of the copper, aluminum, brass, lead or other nonferrous metal or steel railroad track and track material purchased; and
(5) A statement whether the copper, aluminum, brass, lead or other nonferrous metal or steel railroad track and track material was purchased, taken as collateral for a loan or taken on consignment.
(c) The person purchasing the copper, aluminum, brass, lead or other nonferrous metal or steel railroad track and track material shall also require and retain from the seller the following information:
(1) A signed certificate of ownership of the copper, aluminum, brass, lead or other nonferrous metal or steel railroad track and track material being sold or signed authorization from the owner to sell; and
(2) A photocopy of a valid driver's license or identification card issued by the West Virginia Division of Motor Vehicles of the person delivering the copper, aluminum, brass, lead or other nonferrous metal or steel railroad track and track material or, in lieu thereof, any other identification card containing a photograph of the seller as issued by any state or federal agency of the United States:
Provided, That if the buyer has a copy of the seller's photo identification on file, the buyer may reference the identification that is on file without making a separate photocopy for each transaction.
(d) A law-enforcement officer may at any time during an investigation require the purchaser of any copper, aluminum, brass, lead or other nonferrous metal or steel railroad track and track material to present such items for inspection, upon demand. A law- enforcement officer may obtain a warrant to take into custody a representative sample of any copper, aluminum, brass, lead or other nonferrous metal or steel railroad track or track material which he or she has probable cause to believe may have been misappropriated, stolen or taken under false pretenses. Upon the entry of a final determination and order by a court of competent jurisdiction, copper, aluminum, brass, lead or other nonferrous metal or steel railroad track or track material found to have been misappropriated, stolen or taken under false pretenses may be returned to the proper owner of such material.
(e) Any person employed by a public utility or railroad to investigate the theft of utility or railroad property shall be permitted to inspect the purchased copper, aluminum, brass, lead or other nonferrous metal or steel railroad track or track material that is in the possession of the buyer for the purpose of detecting and identifying stolen utility or railroad property.
(f)
It shall be unlawful for any of the aforementioned persons to purchase any copper, aluminum, brass, lead or other nonferrous metal or steel railroad track and track material without obtaining the certificate of ownership, or authorization from the owner to sell, on the part of the seller information set forth in subsections (b) and (c) of this section. Such record and certificate information shall be available for inspection by any law-enforcement officer or any investigator employed by a public utility or railroad to investigate the theft of public utility or railroad property and must be maintained by the purchaser for not less than one year after the date of the purchase.
(b) Should the transaction involve one hundred or more pounds of copper, steel railroad track, track material or aluminum in any form, the purchaser of the copper, steel railroad track, track material or aluminum, or his or her agent, shall report in writing to the chief of police of the municipality or the sheriff of the county wherein he or she is transacting business and to the local detachment of the Division of Public Safety all the information obtained. The report must be filed within seventy-two hours after the transaction. The provisions of this subsection do not apply to purchases made at wholesale under contract or as a result of a bidding process. (c) (g) Nothing in this section applies to scrap purchases by manufacturing facilities that melt, or otherwise alter the form of scrap metal and transform it into a new product or to the purchase or transportation of food and beverage containers or other nonindustrial materials having a marginal value per individual unit.
(d) (h) Any person who knowingly or with fraudulent intent violates any provision of this section, including the knowing failure to make a report or the knowing falsification of any required information, is guilty of a misdemeanor and, upon conviction of a first offense thereof, shall be fined not less than five hundred one thousand dollars nor more than two three thousand dollars; upon conviction of a second offense thereof shall be fined not less than two thousand dollars and not more than four thousand dollars and any business license held by that person shall be suspended for six months; and upon conviction of a third or subsequent offense thereof shall be fined not less than three thousand dollars and not more than five thousand dollars, any business licenses held by that person shall be revoked. Any person convicted for a third or subsequent offense under this section and any member of his or her immediate family shall be prohibited from applying for, holding or obtaining any business license which would permit them to own, conduct or operate any business which would involve the purchase of scrap metal or the operation of any salvage yard or recycling facility for a period of two years.
For purposes of this section, the term "immediate family" means the spouse, child, step-child, parents, mother-in-law and father-in-law of any person convicted pursuant to this section.

The bill (Eng. Com. Sub. for H. B. No. 2748), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2776, Relating to the West Virginia Residential Mortgage Lender, Broker and Servicer Act.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Banking and Insurance, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §31-17-1, §31-17-2 and §31-17-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 17. WEST VIRGINIA RESIDENTIAL MORTGAGE LENDER, BROKER AND SERVICER ACT.

§31-17-1. Definitions and general provisions.
As used in this article:
(1) "Primary mortgage loan" means a consumer loan made to an individual which is secured, in whole or in part, by a primary mortgage or deed of trust upon any interest in real property used as an owner-occupied residential dwelling with accommodations for not more than four families;
(2) "Subordinate mortgage loan" means a consumer loan made to an individual which is secured, in whole or in part, by a mortgage or deed of trust upon any interest in real property used as an owner-occupied residential dwelling with accommodations for not more than four families, which property is subject to the lien of one or more prior recorded mortgages or deeds of trust;
(3) "Person" means an individual, partnership, association, trust, corporation or any other legal entity, or any combination thereof;
(4) "Lender" means any person who makes or offers to make or accepts or offers to accept or purchases or services any primary or subordinate mortgage loan in the regular course of business. A person is considered to be acting in the regular course of business if he or she makes or accepts, or offers to make or accept, more than five primary or subordinate mortgage loans in any one calendar year;
(5) "Broker" means any person acting in the regular course of business who, for a fee or commission or other consideration, negotiates or arranges, or who offers to negotiate or arrange, or originates, processes or assigns a primary or subordinate mortgage loan between a lender and a borrower. A person is considered to be acting in the regular course of business if he or she negotiates or arranges, or offers to negotiate or arrange, or originates, processes or assigns any primary or subordinate mortgage loans in any one calendar year; or if he or she seeks to charge a borrower or receive from a borrower money or other valuable consideration in any primary or subordinate mortgage transaction before completing performance of all broker services that he or she has agreed to perform for the borrower;
(6) "Brokerage fee" means the fee or commission or other consideration charged by a broker or loan originator for the services described in subdivision (5) of this section;
(7) "Additional charges" means every type of charge arising out of the making or acceptance of a primary or subordinate mortgage loan, except finance charges, including, but not limited to, official fees and taxes, reasonable closing costs and certain documentary charges and insurance premiums and other charges which definition is to be read in conjunction with and permitted by section one hundred nine, article three, chapter forty-six-a of this code;
(8) "Finance charge" means the sum of all interest and similar charges payable directly or indirectly by the debtor imposed or collected by the lender incident to the extension of credit as coextensive with the definition of "loan finance charge" set forth in section one hundred two, article one, chapter forty- six-a of this code;
(9) "Commissioner" means the Commissioner of Banking of this state;
(10) "Applicant" means a person who has applied for a lender's, broker's or loan originator's license;
(11) "Licensee" means any person duly licensed by the commissioner under the provisions of this article as a lender, broker or loan originator;
(12) "Amount financed" means the total of the following items to the extent that payment is deferred:
(a) The cash price of the goods, services or interest in land, less the amount of any down payment, whether made in cash or in property traded in;
(b) The amount actually paid or to be paid by the seller pursuant to an agreement with the buyer to discharge a security interest in or a lien on property traded in; and
(c) If not included in the cash price:
(i) Any applicable sales, use, privilege, excise or documentary stamp taxes;
(ii) Amounts actually paid or to be paid by the seller for registration, certificate of title or license fees; and
(iii) Additional charges permitted by this article;
(13) "Affiliated" means persons under the same ownership or management control. As to corporations, limited liability companies or partnerships, where common owners manage or control a majority of the stock, membership interests or general partnership interests of one or more such corporations, limited liability companies or partnerships, those persons are considered affiliated. In addition, persons under the ownership or management control of the members of an immediate family shall be considered affiliated. For purposes of this section, "immediate family" means mother, stepmother, father, stepfather, sister, stepsister, brother, stepbrother, spouse, child and grandchildren;
(14) "Servicing" or "servicing a residential mortgage loan" means through any medium or mode of communication the collection or remittance for, or the right or obligation to collect or remit for another lender, note owner or noteholder, payments of principal, interest, including sales finance charges in a consumer credit sale, and escrow items as insurance and taxes for property subject to a residential mortgage loan; and
(15) "Loan originator" means an individual who, on behalf of a single licensed mortgage broker, under the direct supervision and control of such mortgage broker a licensee who is engaged in brokering activity, and in exchange for compensation by that broker, performs any of the services described in subsection (5) of this section.
§31-17-2. License required for lender, broker or loan originator; exemptions.

(a) No person shall may engage in this state in the business of lender, broker or loan originator unless and until he or she shall first obtain obtains a license to do so from the commissioner, which license remains unexpired, unsuspended and unrevoked, and no foreign corporation shall may engage in business in this state unless it is registered with the Secretary of State to transact business in this state.
(b) An entity applying for or holding both a lender and broker license shall license all of its individual loan originators if that entity brokers a majority of its residential mortgage loans.  The determination of whether an entity brokers the majority of its residential mortgage loans is based upon the most recent annual report filed with the division pursuant to section eleven of this article.  A new applicant applying for both a lender license and a broker license shall license all of its loan originators unless the applicant can demonstrate, through data compiled for other state regulators, that it acts as a lender for a majority of its residential mortgage loans made.
(b) (c) Brokerage fees, additional charges and finance charges imposed by licensed mortgage brokers, lenders and loan originators are exempt from the tax imposed by article fifteen, chapter eleven of this code beginning on the first day of January, two thousand four.
(c) (d) The provisions of this article do not apply to loans made by the following:
(1) Federally insured depository institutions;
(2) Regulated consumer lender licensees;
(3) Insurance companies;
(4) Any other lender licensed by and under the regular supervision and examination for consumer compliance of any agency of the federal government;
(5) Any agency or instrumentality of this state, federal, county or municipal government or on behalf of the agency or instrumentality;
(6) By a nonprofit community development organization making mortgage loans to promote home ownership or improvements for the disadvantaged which loans are subject to federal, state, county or municipal government supervision and oversight; or
(7) Habitat for Humanity International, Inc., and its affiliates providing low-income housing within this state.
Loans made subject to this exemption may be assigned, transferred, sold or otherwise securitized to any person and shall remain exempt from the provisions of this article, except as to reporting requirements in the discretion of the commissioner where the person is a licensee under this article. Nothing herein shall prohibit a broker licensed under this article from acting as broker of an exempt loan and receiving compensation as permitted under the provisions of this article.
(d) (e) A person or entity designated in subsection (c) of this section may take assignments of a primary or subordinate mortgage loan from a licensed lender and the assignments of said loans that they themselves could have lawfully made as exempt from the provisions of this article under this section do not make that person or entity subject to the licensing, bonding, reporting or other provisions of this article except as the defense or claim would be preserved pursuant to section one hundred two, article two, chapter forty-six-a of this code.
(e) (f) The placement or sale for securitization of a primary or subordinate mortgage loan into a secondary market by a licensee may not subject the warehouser or final securitization holder or trustee to the provisions of this article: Provided, That the warehouser, final securitization holder or trustee under an arrangement is either a licensee, or person or entity entitled to make exempt loans of that type under this section, or the loan is held with right of recourse to a licensee.
§31-17-11. Records and reports; examination of records; analysis.
(a) Every lender and broker licensee shall maintain at his or her place of business in this state, if any, or if he or she has no place of business in this state at his or her principal place of business outside this state, such books, accounts and records relating to all transactions within this article as are necessary to enable the commissioner to enforce the provisions of this article. All the books, accounts and records shall be preserved, exhibited to the commissioner and kept available as provided herein for the reasonable period of time as the commissioner may by rules require. The commissioner is hereby authorized to prescribe by rules the minimum information to be shown in the books, accounts and records.
(b) Each licensee shall file with the commissioner on or before the fifteenth day of March of each year a report under oath or affirmation concerning his or her business and operations in this state for the preceding license year in the form prescribed by the commissioner.
(c) The commissioner may, at his or her discretion, make or cause to be made an examination of the books, accounts and records of every lender or broker licensee pertaining to primary and subordinate mortgage loans made in this state under the provisions of this article, for the purpose of determining whether each lender and broker licensee is complying with the provisions hereof and for the purpose of verifying each lender or broker licensee's annual report. If the examination is made outside this state, the licensee shall pay the cost thereof in like manner as applicants are required to pay the cost of investigations outside this state.
(d) The commissioner shall publish annually an aggregate analysis of the information furnished in accordance with the provisions of subsection (b) or (c) of this section, but the individual reports shall not be public records and shall not be open to public inspection.
(e) The commissioner may enter into cooperative and information-sharing agreements with regulators in other states or with federal authorities to discharge his or her responsibilities under this article.

The bill (Eng. Com. Sub. for H. B. No. 2776), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2870, Authorizing the court to order payment into the Domestic Violence Legal Services Fund under certain circumstances.
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. 2973, Declaring certain claims against the state to be moral obligations of the state and directing the Auditor to issue warrants for the payment thereof.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. House Bill No. 2988, Relating to the West Virginia Tax Procedure and Administration Act.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. House Bill No. 2990, Making technical corrections to assure the proper collection of offset fees.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. House Bill No. 3073, Relating to prohibiting financial institutions from establishing or maintaining a branch in West Virginia on, or within one and one-half miles of, the premises or property of an affiliate, under certain circumstances.
On second reading, coming up in regular order, was read a second time.
The following amendments to the bill, from the Committee on Banking and Insurance, were reported by the Clerk, considered simultaneously, and adopted:
O
n page sixteen, section thirteen, line one hundred forty-two, after the word "institution," by inserting the words "banking institution,";
And,
On page sixteen, section thirteen, line one hundred forty-five, by striking out the word "if" and inserting in lieu thereof the words "at which".
The bill (Eng. H. B. No. 3073), as amended, was then ordered to third reading.
Eng. House Bill No. 3117, Clarifying that contractors must have a state contractors license in order to submit a bid with the State of West Virginia.
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 two, section six, lines one and two, by striking out the words "On or after the first day of October, one thousand nine hundred ninety-one, no" and inserting in lieu thereof the word "No".
The bill (Eng. H. B. No. 3117), 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. 2380, Exempting the purchase of certain drugs, durable medical goods, etc., from the consumers sales and service tax.
Eng. Com. Sub. for House Bill No. 2422, Providing cost-saving measures in connection with providing medical care in regional jails.
Eng. House Bill No. 2578, Continuing current mental health parity laws for group insurance plans.
Eng. Com. Sub. for House Bill No. 2583, Relating to the expansion of newborn testing.
Eng. Com. Sub. for House Bill No. 2804, Eliminating time schedules for utility relocation on highway projects.
Eng. Com. Sub. for House Bill No. 2808, Increasing the fee for issuance of one-trip permits.
Eng. Com. Sub. for House Bill No. 2877, Funding entities ensuring public safety on state highways.
Eng. House Bill No. 2989, Relating to certain tax shelters used to avoid paying state income taxes.
Eng. House Bill No. 2991, Authorizing the Tax Commissioner to conduct criminal record checks of prospective employees of the Tax Division.
Eng. House Bill No. 3072, Relating to defining "charitable exemptions" for purposes of the municipal business and occupation tax.
And,
Eng. Com. Sub. for House Bill No. 3161, Relating to the theft of oil, natural gas, water, telecommunications, electric and solid waste service.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate recessed until 6 p.m. today.
Upon expiration of the recess, the Senate reconvened and, at the request of Senator Chafin, and by unanimous consent, returned to the fourth order of business.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2027, Allowing awards under the crime victims compensation program to be made to victims of identity theft.
Now on second reading, having been read a first time and referred to the Committee on Finance on March 5, 2007;
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Unger, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Eng. House Bill No. 2028, Increasing the required bond for certain businesses regulated by the Division of Motor Vehicles to fifty thousand dollars.
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,
John R. Unger II,
Chair.
At the request of Senator Unger, unanimous consent being granted, the bill (Eng. H. B. No. 2028) contained in the preceding report from the Committee on Transportation and Infrastructure 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 Transportation and Infrastructure 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. Com. Sub. for House Bill No. 2051, Including lasers as a method of proving the speed of vehicles.
And has amended same.
Eng. Com. Sub. for House Bill No. 2714, Revising requirements for parking areas designated for use by persons with mobility impairments.
And has amended same.
And,
Eng. Com. Sub. for House Bill No. 2875, Providing a procedure in which to fill a vacancy on a county commission in the event the remaining commissioners cannot agree.
And has amended same.
And reports the same back with the recommendation that they each do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bills (Eng. Com. Sub. for H. B. Nos. 2051, 2714 and 2875) contained in the preceding report from the Committee on the Judiciary were each 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. Com. Sub. for House Bill No. 2070, Extending PEIA coverage to certain long-term substitute education employees.
And has amended same.
Eng. Com. Sub. for House Bill No. 2558, Relating to donation and transfer of surplus personal computers and other information systems, technology and equipment for educational purposes.
And has amended same.
And,
Eng. Com. Sub. for House Bill No. 2777, Relating to compensation of public school teachers and school personnel.
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. Com. Sub. for H. B. Nos. 2070, 2558 and 2777) 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 Fanning, from the Committee on Natural Resources, submitted the following report, which was received:
Your Committee on Natural Resources has had under consideration
Eng. Com. Sub. for House Bill No. 2078, Clarifying the procedure for tagging bear, bobcats, deer and wild turkey taken while hunting.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
John Pat Fanning,
Chair.
At the request of Senator Fanning, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2078) contained in the preceding report from the Committee on Natural Resources was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Fanning, from the Committee on Natural Resources, submitted the following report, which was received:
Your Committee on Natural Resources has had under consideration
Eng. Com. Sub. for House Bill No. 2126, Exempting land-based finfish from aquaculture facilities from certain sludge management requirements.
Eng. Com. Sub. for House Bill No. 2206, Prohibiting a person not the owner of a dog from removing tags, collars or apparel from a dog without the permission of the owner.
And,
Eng. Com. Sub. for House Bill No. 2840, Relating to transportation of wildlife outside of the state.
And reports the same back with the recommendation that they each do pass; but under the original double committee references first be referred to the Committee on the Judiciary.
Respectfully submitted,
John Pat Fanning,
Chair.
At the request of Senator Fanning, unanimous consent being granted, Engrossed Committee Substitute for House Bill No. 2126 contained in the preceding report from the Committee on Natural Resources 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 the Judiciary.
At the request of Senator Kessler, as chair of the Committee on the Judiciary, unanimous consent was granted to dispense with the second committee references of Engrossed Committee Substitute for House Bill No. 2206 and Engrossed Committee Substitute for House Bill No. 2840 contained in the foregoing report from the Committee on Natural Resources.
At the request of Senator Fanning, unanimous consent being granted, the bills (Eng. Com. Sub. for H. B. Nos. 2206 and 2840) were each taken up for immediate consideration, read a first time and ordered to second reading.
Senator Unger, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Eng. House Bill No. 2481, Allowing a registrant to transfer the registration of a Class C vehicle to another Class C type vehicle titled in the name of the registrant.
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,
John R. Unger II,
Chair.
At the request of Senator Unger, unanimous consent being granted, the bill (Eng. H. B. No. 2481) contained in the preceding report from the Committee on Transportation and Infrastructure 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.
Senator Unger, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Eng. House Bill No. 2503, Authorizing the Division of Motor Vehicles to issue an identification card to West Virginia residents who already possess a valid driver's license.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on the Judiciary.
Respectfully submitted,
John R. Unger II,
Chair.
At the request of Senator Unger, unanimous consent being granted, the bill (Eng. H. B. No. 2503) contained in the preceding report from the Committee on Transportation and Infrastructure 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 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. House Bill No. 2526, Allowing acupuncturists to form limited liability companies.
Eng. Com. Sub. for House Bill No. 2787, Creation of the Address Confidentiality Program.
Eng. House Bill No. 2956, Relating to civil actions filed in the courts of the state.
Eng. Com. Sub. for House Bill No. 3093, Providing a form for a combined medical power of attorney and living will.
And,
Eng. House Bill No. 3270, Relating to the compensation and expenses of fiduciaries.
And reports the same back with the recommendation that they each do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bills (Eng. H. B. No. 2526, Eng. Com. Sub. for H. B. No. 2787, Eng. H. B. No. 2956, Eng. Com. Sub. for H. B. No. 3093 and Eng. H. B. No. 3270) contained in the preceding report from the Committee on the Judiciary were each 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. 2575, Relating to commercial driver's licences (CDL).
Eng. House Bill No. 2825, Eliminating the provision that allowed private clubs segregated on the basis of race or color to obtain a license to sell alcoholic beverages.
Eng. Com. Sub. for House Bill No. 2926, Relating to providing notification that a domestic violence protective order has been extended.
And,
Eng. House Bill No. 3018, Limiting the duplication of publication costs in the administration of certain estates.
And reports the same back with the recommendation that they each do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Plymale, from the Committee on Education, submitted the following report, which was received:
Your Committee on Education has had under consideration
Eng. Com. Sub. for House Bill No. 2585, Relating to the renewal of teaching certificates and permanent certification.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Robert H. Plymale,
Chair.
At the request of Senator Plymale, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2585) contained in the preceding report from the Committee on Education 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. 2616, Authorizing the Department of Administration to promulgate legislative rules.
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. 2616) 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 Fanning, from the Committee on Natural Resources, submitted the following report, which was received:
Your Committee on Natural Resources has had under consideration
Eng. House Bill No. 2703, Authorizing certain students receiving instruction in fly fishing to fly fish while under the supervision of an instructor without obtaining a license.
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,
John Pat Fanning,
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 Natural Resources.
At the request of Senator Fanning, unanimous consent being granted, the bill (Eng. H. B. No. 2703) 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. 2763, Relating to persons performing financial examinations of insurers.
With an amendment from the Committee on Banking and Insurance pending;
And has also amended same.
And reports the same back with the recommendation that it do pass as last amended by the Committee on the Judiciary.
Respectfully submitted,
Jeffrey V. Kessler,
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. 2801, Providing a fifty thousand dollar death benefit to the families of firefighters and EMS personnel who are killed in the line of duty.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Walt Helmick,
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. 2931, Providing for payment of tuition and fees for members of the West Virginia National Guard enrolled in graduate study.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2931) 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 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. 2938, Including motor carrier inspectors and enforcement officers in the definition of law-enforcement officer.
Now on second reading, having been referred to the Committee on the Judiciary on March 2, 2007;
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Jeffrey V. Kessler,
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. 2945, Providing for tax credits for apprenticeship training in construction trades.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2955, Continuing a flat-rate excise tax on motor fuel at $.205.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2955) 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. House Bill No. 2992, Decreasing the health care provider tax imposed on gross receipts of providers of nursing facility services.
And,
Eng. Com. Sub. for House Bill No. 3048, Providing credit for specified high technology manufacturers.
And reports the same back with the recommendation that they each do pass.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Plymale, from the Committee on Education, submitted the following report, which was received:
Your Committee on Education has had under consideration
Eng. Com. Sub. for House Bill No. 3167, Allowing teachers employed by a statewide service personnel association to count this service towards retirement credit.
And reports the same back with the recommendation that it do pass; but under the original triple committee reference first be referred to the Committee on Pensions; and then to the Committee on Finance.
Respectfully submitted,
Robert H. Plymale,
Chair.
At the request of Senator Plymale, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 3167) contained in the preceding report from the Committee on Education was taken up for immediate consideration, read a first time, ordered to second reading and, under the original triple committee reference, was referred to the Committee on Pensions; and then to the Committee on Finance.
Senator Fanning, from the Committee on Natural Resources, submitted the following report, which was received:
Your Committee on Natural Resources has had under consideration
House Concurrent Resolution No. 48, Requesting the Joint Committee on Government and Finance to study sustainable funding methods to conserve land important to West Virginia's natural resources and economy.
And reports the same back with the recommendation that it be adopted; but under the original double committee reference first be referred to the Committee on Rules.
Respectfully submitted,
John Pat Fanning,
Chair.
The resolution, under the original double committee reference, was then referred to the Committee on Rules.
On motion of Senator Chafin, a leave of absence for the day was granted Senator Sharpe.
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, Wednesday, March 7, 2007, at 11 a.m.
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