Eighty-second Legislature

First Regular Session

Held at Charleston

Published by the Clerk of the House

West Virginia Legislature

JOURNAL

of the

House of Delegates

The House of Delegates met at 9:00 a.m., and was called to order by the Honorable Tim Armstead, Speaker.

Prayer was offered and the House was led in recitation of the Pledge of Allegiance.

The Clerk proceeded to read the Journal of Thursday, March 12, 2015, being the first order of business, when the further reading thereof was dispensed with and the same approved.

The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on the Judiciary:

S. C. R. 13 - “Urging the Congress of the United States to propose a balanced budget amendment to the United States Constitution and applying to the Congress, pursuant to Article V of the United States Constitution, to call a convention for proposing a balanced budget amendment.”

Whereas, The Legislature of West Virginia urges the Congress of the United States to propose a balanced budget amendment to the United States Constitution for the calling of a convention of the states limited to proposing an amendment to the United States Constitution requiring that, in the absence of a national emergency, the total of all federal appropriations made by the Congress for any fiscal year may not exceed the total of all estimated federal revenues for that fiscal year, together with any related and appropriate fiscal restraints; and

Whereas, It is the intention of the Legislature that matters shall not be considered at the convention that do not pertain to an amendment requiring that, in the absence of a national emergency, the total of all federal appropriations made by the Congress for any fiscal year may not exceed the total of all estimated federal revenues for that fiscal year, together with any related and appropriate fiscal restraints; and

Whereas, This application is to be considered as covering the balanced budget amendment language of the presently outstanding balanced budget applications from other states, including previously adopted applications from Alabama, Alaska, Arkansas, Colorado, Delaware, Florida, Indiana, Iowa, Kansas, Maryland, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, Pennsylvania and Texas. This application shall be aggregated with those other applications for the purpose of attaining the two thirds of states necessary to require the calling of a convention for proposing a balanced budget amendment, but shall not be aggregated with any applications on any other subject; and

Whereas, This application constitutes a continuing application in accordance with Article V of the United States Constitution until the legislatures of at least two thirds of the several states have made applications on the same subject or the Congress has proposed an amendment to the United States Constitution equivalent to the amendment proposed in this resolution. This application supersedes all previous applications by the Legislature of the State of West Virginia on the same subject; therefore, be it

That the Legislature hereby urges the Congress of the United States to propose a balanced budget amendment to the United States Constitution and applying to the Congress, pursuant to Article V of the United States Constitution, to call a convention for proposing a balanced budget amendment; and, be it

Further Resolved, If the convention called by the Congress is not limited to considering a balanced budget amendment, then any delegates, representatives or participants from the State of West Virginia asked to participate in the convention are authorized to debate and vote only on a proposed amendment or amendments to the United States Constitution requiring that, in the absence of a national emergency, the total of all federal appropriations made by the Congress for any fiscal year may not exceed the total of all estimated federal revenues for that fiscal year, together with any related and appropriate fiscal restraints; and, be it

Further Resolved, This application constitutes a continuing application in accordance with Article V of the United States Constitution until the legislatures of at least two thirds of the several states have made applications on the same subject or the Congress has proposed an amendment to the United States Constitution equivalent to the amendment proposed in this resolution. This application supersedes all previous applications by the Legislature of the State of West Virginia on the same subject; and, be it

Further Resolved, That the Clerk is hereby directed to forward copies of this resolution to the President and Secretary of the U. S. Senate, the Speaker and Clerk of the House of Representatives of Congress, the members of the Senate and House of Representatives from the State of West Virginia and to the presiding officers of each of the legislative houses of the several states, requesting their cooperation.

The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolutions, which were read by their titles and referred to the Committee on Rules:

S. C. R. 33 - “Requesting the Joint Committee on Government and Finance study a West Virginia state income tax credit program to protect our land and water resources by encouraging voluntary preservation and conservation of undeveloped land.”

Whereas, West Virginia’s waters are an invaluable public resource and protection of our waters for current and future West Virginians is a fundamental duty of the state; and

Whereas, Conservation of West Virginia's natural areas, forests, farms and other working lands, as defined in and consistent with W.Va. Code §20-12-3(a), is the most effective and affordable means by which to protect our land and waters; and

Whereas, In deference to the property rights of private landowners, voluntary conveyance of an interest in lands will afford protection to the lands and waters of the state in the form of an enforceable conservation easement or fee simple title; and

Whereas, A private landowner donating some portion or all of an enforceable conservation easement or land in fee is entitled to compensation for a conveyance that protects in perpetuity land and water in our state; and

Whereas, The December 15, 2014, report of the Public Water System Supply Study Commission, made pursuant to W.Va. Code §22-31-12, includes a recommendation that, “the Legislature draft legislation for income tax credits for landowners for source water protection”; and

Whereas, Several other states have successfully enacted laws and fielded programs that award state income tax credits in exchange for the voluntary preservation of undeveloped land that will protect land and water resources; and

Whereas, In order to thoroughly consider and deliberate upon an income tax credit land conservation program, the Legislature requires that sufficient fact-based data, including impact of such a program upon tax revenues, be available; therefore, be it

That the Joint Committee on Government and Finance is hereby requested to study a West Virginia state income tax credit program to protect our land and water resources by encouraging voluntary preservation and conservation of undeveloped land; and, be it

Further Resolved, That the Joint Committee on Government and Finance study the desirability, feasibility and cost of a conservation income tax credit program that would award West Virginia state tax credits to landowners who voluntarily donate all or a portion of land in fee or perpetual conservation easements that will protect the lands and waters of the state to the lasting benefit of our citizens; and, be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2016, 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.

S. C. R. 48 - “Requesting the Joint Committee on Government and Finance study the need and feasibility of county commissions cooperating with municipalities and entering into joint agreements to effect the removal or demolition of dwellings or buildings determined unfit for human habitation.”

Whereas, Counties and municipalities of West Virginia are each frequently confronted with the removal or demolition of dwellings or buildings determined unfit for human habitation. Both governmental entities have statutory authority to make this determination and take that action, but there is no specific authority for counties and municipalities to cooperate and enter into agreements to effect the removal or demolition of dwellings or buildings determined unfit for human habitation and are unsafe, unsanitary, dangerous or detrimental to the public safety or welfare; therefore, be it

That the Joint Committee on Government and Finance is hereby requested to study the need and feasibility of county commissions cooperating with municipalities and entering into joint agreements to effect the removal or demolition of dwellings or buildings determined unfit for human habitation; and, be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2016, on its findings, conclusions and recommendations, together with drafts of any legislation to effectuate its recommendations; and, be it

S. C. R. 59 - “Requesting the Joint Committee on Government and Finance study how the accomplishments of the Luke Lee Listening, Language and Learning Lab at Marshall University could be expanded throughout the state in order to provide additional programs in West Virginia that help provide listening and spoken language outcomes to children with hearing loss.”

Whereas, The Luke Lee Listening, Language and Learning Lab at Marshall University was founded in 2006 as the first preschool program in West Virginia providing listening and spoken language outcomes to children with hearing loss; and

Whereas, The Luke Lee Listening, Language and Learning Lab provides services to infants, toddlers, preschoolers and school-age children with hearing loss to allow them to mainstream into their home schools with age-level listening and spoken language skills to communicate with their hearing-aged peers; and

Whereas, The Luke Lee Listening, Language and Learning Lab uses hearing technology, including hearing aids and cochlear implants, to help teach deaf children to listen and speak; and

Whereas, The Luke Lee Listening, Language and Learning Lab has had great successes in reaching their goals and has shown itself as a program that should be expanded across the state to help deaf children in other areas of West Virginia; therefore, be it

That the Legislature hereby requests the Joint Committee on Government and Finance study how the accomplishments of the Luke Lee Listening, Language and Learning Lab at Marshall University could be expanded throughout the state in order to provide additional programs in West Virginia that help provide listening and spoken language outcomes to children with hearing loss; 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.

S. C. R. 63 - “Urging the Board of Coal Mine Health and Safety to review and assess the provisions of 36 CSR 4 and to develop a series of comprehensive safety regulations governing the movement of mining equipment underground.”

Whereas, The Legislature has enacted the Enrolled Committee Substitute for Senate Bill No. 357, titled the Coal Jobs and Safety Act of 2015, during the 2015 Regular Session of the Legislature; and

Whereas, The Legislature has created the Board of Coal Mine Health and Safety; and

Whereas, The Legislature has authorized the Board of Coal Mine Health and Safety to promulgate rules and regulations governing coal mining activities, including rules and regulations governing safety for all mining operations in the State of West Virginia; and

Whereas, The State of West Virginia has the nation’s strongest mine safety laws; and

Whereas, These mine safety laws, forged through collaboration among all interested parties, are the model nationwide; and

Whereas, Enrolled Committee Substitute for Senate Bill No. 357 may abrogate certain provisions of 36 CSR 4 governing the movement of mining equipment underground; therefore, be it

That the Legislature of West Virginia hereby urges the Board of Coal Mine Health and Safety to review and assess the provisions of 36 CSR 4 and to develop a series of comprehensive safety regulations governing the movement of mining equipment underground; and, be it

Further Resolved, That the Board of Coal Mine Health and Safety, in consultation with the Director of the Office of Miners’ Health, Safety and Training, shall develop and enact these new safety rules and regulations on or before June 2, 2015; and, be it

Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to each member of the Board of Coal Mine Health and Safety and the Director of the Office of Miners’ Health, Safety and Training.

The Clerk of the Senate, announced that the Senate had passed, without amendment, to take effect from passage, a bill of the House of Delegates as follows:

Com. Sub. for H. B. 2139, Relating to employment of retired teachers as substitutes in areas of critical need and shortage for substitutes.

The Clerk of the Senate, announced that the Senate had passed, without amendment, bills of the House of Delegates as follows:

Com. Sub. for H. B. 2148, Conforming the motor vehicle law of this state to the requirements of section 1405(a) of the federal Transportation Equity Act for the Twenty-first Century,

Com. Sub. for H. B. 2187, Encouraging public officials to display the national motto on all public property and public buildings,

H. B. 2370, Increasing the powers of regional councils for governance of regional education service agencies,

Com. Sub. for H. B. 2377, Authorizing State Board of Education to approve certain alternatives with respect to instructional time,

Com. Sub. for H. B. 2493, Relating to requirements for insurance policies and contracts providing accident and sickness insurance or direct health care services that cover anti-cancer medications,

H. B. 2595, Relating to certificates of need for the development of health facilities in this state,

H. B. 2608, Cleaning up redundant language in the statute relating to misdemeanor offenses for violation of protective orders,

H. B. 2733, Removing certain combinations of drugs containing hydrocodone from Schedule III of the controlled substances law,

H. B. 2780, Enhancing the ability of campus police officers at public colleges to perform their duties,

H. B. 2797, Changing the term “mentally retarded” to “intellectually disabled”; and changing the term “handicapped” to “disabled”,

H. B. 2884, Modifying training and development requirement for certain members of certain higher education boards.

The Clerk of the Senate, announced that the Senate had passed, without amendment, to take effect from passage, a bill of the House of Delegates as follows:

The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:

The Clerk of the Senate, announced that the Senate had passed, without amendment, to take effect from passage, a bill of the House of Delegates as follows:

H. B. 2976, Expanding the eligible master’s and doctoral level programs for which a Nursing Scholarship may be awarded.

The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:

H. C. R. 31, Declaring the Northern Red Salamander to be the official state amphibian.

The Clerk of the Senate, announced concurrence by the Senate in the amendment of the House of Delegates to the amendment of the Senate, and the passage, as amended, of

H. B. 2550, Increasing the number of unexcused absences of a student before action may be taken against the parent.

The Clerk of the Senate, announced concurrence by the Senate in the amendment of the House of Delegates to the amendment of the Senate, and the passage, as amended, of

S. B. 502, Relating to eligibility for certain reclamation or remediation tax credit.

The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

Com. Sub. for H. B. 2939, Relating to requirements for mandatory reporting of sexual offenses on school premises involving students.

On motions of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegate refused to concur in the following Senate amendment and requested that the Senate recede therefrom.

On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:

When used in this chapter, terms defined in this section have the meanings ascribed to them that relate to, but are not limited to, child abuse and neglect, except in those instances where a different meaning is provided or the context in which the word is used clearly indicates that a different meaning is intended.

‘Abandonment’ means any conduct that demonstrates the settled purpose to forego the duties and parental responsibilities to the child;

‘Abused child’ means a child whose health or welfare is being harmed or threatened by:

(A) A parent, guardian or custodian who knowingly or intentionally inflicts, attempts to inflict or knowingly allows another person to inflict, physical injury or mental or emotional injury, upon the child or another child in the home. Physical injury may include an injury to the child as a result of excessive corporal punishment;

(C) The sale or attempted sale of a child by a parent, guardian or custodian in violation of section fourteen-h, article two, chapter sixty-one of this code; or

(D) Domestic violence as defined in section two hundred two, article twenty-seven, chapter forty-eight of this code.

‘Abusing parent’ means a parent, guardian or other custodian, regardless of his or her age, whose conduct has been adjudicated by the court to constitute child abuse or neglect as alleged in the petition charging child abuse or neglect.

‘Battered parent,’ for the purposes of part six, article four of this chapter, means a respondent parent, guardian, or other custodian who has been adjudicated by the court to have not condoned the abuse or neglect and has not been able to stop the abuse or neglect of the child or children due to being the victim of domestic violence as defined by section two hundred two, article twenty-seven, chapter forty-eight of this code which was perpetrated by the same person or persons determined to have abused or neglected the child or children.

‘Child abuse and neglect services’ means social services which are directed toward:

(A) Protecting and promoting the welfare of children who are abused or neglected;

(B) Identifying, preventing and remedying conditions which cause child abuse and neglect;

(C) Preventing the unnecessary removal of children from their families by identifying family problems and assisting families in resolving problems which could lead to a removal of children and a breakup of the family;

(D) In cases where children have been removed from their families, providing time-limited reunification services to the children and the families so as to reunify those children with their families or some portion thereof;

(E) Placing children in suitable adoptive homes when reunifying the children with their families, or some portion thereof, is not possible or appropriate; and

(F) Assuring the adequate care of children or juveniles who have been placed in the custody of the department or third parties.

‘Condition requiring emergency medical treatment’ means a condition which, if left untreated for a period of a few hours, may result in permanent physical damage; that condition includes, but is not limited to, profuse or arterial bleeding, dislocation or fracture, unconsciousness and evidence of ingestion of significant amounts of a poisonous substance.

‘Imminent danger to the physical well-being of the child’ means an emergency situation in which the welfare or the life of the child is threatened. These conditions may include an emergency situation when there is reasonable cause to believe that any child in the home is or has been sexually abused or sexually exploited, or reasonable cause to believe that the following conditions threaten the health, life, or safety of any child in the home:

(A) Nonaccidental trauma inflicted by a parent, guardian, custodian, sibling or a babysitter or other caretaker;

(B) A combination of physical and other signs indicating a pattern of abuse which may be medically diagnosed as battered child syndrome;

(H) The parent, guardian or custodian’s abuse of alcohol or drugs or other controlled substance as defined in section one hundred one, article one, chapter sixty-a of this code, has impaired his or her parenting skills to a degree as to pose an imminent risk to a child’s health or safety; or

(I) Any other condition that threatens the health, life, or safety of any child in the home.

(A) Whose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child’s parent, guardian or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care or education, when that refusal, failure or inability is not due primarily to a lack of financial means on the part of the parent, guardian or custodian; or

(B) Who is presently without necessary food, clothing, shelter, medical care, education or supervision because of the disappearance or absence of the child’s parent or custodian;

(C) ‘Neglected child’ does not mean a child whose education is conducted within the provisions of section one, article eight, chapter eighteen of this code.

‘Petitioner or co-petitioner’ means the Department or any reputable person who files a child abuse or neglect petition pursuant to section six hundred one, article four, of this chapter.

‘Permanency plan’ means the part of the case plan which is designed to achieve a permanent home for the child in the least restrictive setting available.

‘Respondent’ means all parents, guardians, and custodians identified in the child abuse and neglect petition who are not petitioners or co-petitioners.

(A) Sexual intercourse, sexual intrusion, sexual contact, or conduct proscribed by section three, article eight-c, chapter sixty-one, which a parent, guardian or custodian engages in, attempts to engage in, or knowingly procures another person to engage in with a child notwithstanding the fact that for a child who is less than sixteen years of age the child may have willingly participated in that conduct or the child may have suffered no apparent physical injury or mental or emotional injury as a result of that conduct or, for a child sixteen years of age or older the child may have consented to that conduct or the child may have suffered no apparent physical injury or mental or emotional injury as a result of that conduct; or

(B) Any conduct where a parent, guardian or custodian displays his or her sex organs to a child, or procures another person to display his or her sex organs to a child, for the purpose of gratifying the sexual desire of the parent, guardian or custodian, of the person making that display, or of the child, or for the purpose of affronting or alarming the child. ; or

‘Sexual assault’ means any of the offenses proscribed in sections three, four or five of article eight-b, chapter sixty-one of this code.

‘Sexual contact’ means sexual contact as that term is defined in section one, article eight-b, chapter sixty-one of this code.

(A) A parent, custodian or guardian, whether for financial gain or not, persuades, induces, entices or coerces a child to engage in sexually explicit conduct as that term is defined in section one, article eight-c, chapter sixty-one of this code; or

(B) A parent, guardian or custodian persuades, induces, entices or coerces a child to display his or her sex organs for the sexual gratification of the parent, guardian, custodian or a third person, or to display his or her sex organs under circumstances in which the parent, guardian or custodian knows that the display is likely to be observed by others who would be affronted or alarmed.

‘Sexual intercourse’ means sexual intercourse as that term is defined in section one, article eight-b, chapter sixty-one of this code.

‘Sexual intrusion’ means sexual intrusion as that term is defined in section one, article eight-b, chapter sixty-one of this code.

‘Serious physical abuse’ means bodily injury which creates a substantial risk of death, which causes serious or prolonged disfigurement, prolonged impairment of health or prolonged loss or impairment of the function of any bodily organ.

§49-2-803. Persons mandated to report suspected abuse and neglect; requirements.

(a) Any medical, dental or mental health professional, Christian Science practitioner, religious healer, school teacher or other school personnel, social service worker, child care or foster care worker, emergency medical services personnel, peace officer or law-enforcement official, humane officer, member of the clergy, circuit court judge, family court judge, employee of the Division of Juvenile Services, magistrate, youth camp administrator or counselor, employee, coach or volunteer of an entity that provides organized activities for children, or commercial film or photographic print processor who has reasonable cause to suspect that a child is neglected or abused or observes the child being subjected to conditions that are likely to result in abuse or neglect shall immediately, and not more than forty-eight hours after suspecting this abuse or neglect, report the circumstances or cause a report to be made to the Department of Health and Human Resources. In any case where the reporter believes that the child suffered serious physical abuse or sexual abuse or sexual assault, the reporter shall also immediately report, or cause a report to be made, to the State Police and any law-enforcement agency having jurisdiction to investigate the complaint. Any person required to report under this article who is a member of the staff or volunteer of a public or private institution, school, entity that provides organized activities for children, facility or agency shall also immediately notify the person in charge of the institution, school, entity that provides organized activities for children, facility or agency, or a designated agent thereof, who may supplement the report or cause an additional report to be made.

(b) Any person over the age of eighteen who receives a disclosure from a credible witness or observes any sexual abuse or sexual assault of a child, shall immediately, and not more than forty-eight hours after receiving that disclosure or observing the sexual abuse or sexual assault, report the circumstances or cause a report to be made to the Department of Health and Human Resources or the State Police or other law-enforcement agency having jurisdiction to investigate the report. In the event that the individual receiving the disclosure or observing the sexual abuse or sexual assault has a good faith belief that the reporting of the event to the police would expose either the reporter, the subject child, the reporter’s children or other children in the subject child’s household to an increased threat of serious bodily injury, the individual may delay making the report while he or she undertakes measures to remove themselves or the affected children from the perceived threat of additional harm and the individual makes the report as soon as practicable after the threat of harm has been reduced. The law-enforcement agency that receives a report under this subsection shall report the allegations to the Department of Health and Human Resources and coordinate with any other law-enforcement agency, as necessary to investigate the report.

(c) Notwithstanding any provision of this section to the contrary any school employee who has reported or disclosed to them that a child has been sexually abused or sexually assaulted shall forthwith report same to the State Police or other law enforcement agency having jurisdiction to investigate the alleged offence. County boards of education and private school administrators shall provide all employees with a written statement setting forth the requirement contained in this subsection and shall obtain and preserve a signed acknowledgment from school employees that they have received and understand the reporting requirement. As used in this subsection ‘forthwith’ means without delay.

(d) The reporting requirements contained in subsection (c) of this section specifically include reported or disclosed observed conduct involving or between students enrolled in a public or private institution of education, or involving a student and school teacher or personnel.

(c) (e) Nothing in this article is intended to prevent individuals from reporting suspected abuse or neglect on their own behalf. In addition to those persons and officials specifically required to report situations involving suspected abuse or neglect of children, any other person may make a report if that person has reasonable cause to suspect that a child has been abused or neglected in a home or institution or observes the child being subjected to conditions or circumstances that would reasonably result in abuse or neglect.

Any person, official or institution required by section eight hundred-three of this article to report a case involving a child known or suspected to be abused or neglected, or required by section eight hundred nine of this article to forward a copy of a report of serious injury, who knowingly fails to do so or knowingly prevents another person acting reasonably from doing so, is guilty of a misdemeanor and, upon conviction, shall be confined in jail not more than thirty days or fined not more than $1,000 $5,000, or both fined and confined.”

Com. Sub. for H. B. 2939 - “A Bill to amend and reenact §49-1-201 of the Code of West Virginia, 1931, as amended; and to amend and reenact §49-2-803 and §49-2-812 of said code, all relating to requirements for mandatory forthwith reporting by school personnel of certain sexual

offenses against children; defining terms such as forthwith; adding conduct that must be reported to law enforcement; defining nature of conduct to be reported; modifying criminal penalties for failure to report; and requiring school administrators to provide written notice of reporting requirement to employees and to obtain and preserve signed acknowledgments thereof.”

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

At 9:56 a.m., on motion of Delegate Cowles, the House of Delegates recessed until 11:00 a.m.

Delegate Cowles announced that the Committee on Rules had moved Com. Sub.for S. B. 14, on Third Reading, Special Calendar, to the foot of the bills, and S. B. 541 on Second Reading, Special Calendar to the House Calendar.

Mr. Speaker, Mr. Armstead, and All Members of the House of Delegates offered the following resolution, which was read by the Clerk as follows:

H. R. 19, “Extolling the life and lamenting the death of Mrs. Shelley Riley Moore, former First Lady of West Virginia and beloved wife, best friend and life partner of Governor Arch A. Moore, Jr.”

Whereas, Shelley Riley was born on July 15, 1926, in Miami, Florida, the youngest of three children born to Jacob Lewis and Sadie Riley. Shelley spent her formative years in Uniontown, Pennsylvania, where she graduated high school. In 1944, Shelley followed her siblings to West Virginia University, where she joined Alpha Xi Delta sorority and became President of the Women’s Recreation Association.

Whereas, While on a double date in 1946, Shelley met Arch A. Moore, Jr., a young man from Moundsville back from World War II. Following her graduation from West Virginia University with a B.A. in Education, Shelley Riley married Arch Moore on August 11, 1949. They spent several years in Morgantown where Shelley taught math in the public schools. Her husband soon entered public life securing a seat in the West Virginia House of Delegates in 1952. For the next sixty years, Shelley stood as a teammate and source of constancy for all 26 of her husband’s political campaigns and all of her daughter’s races; and

Whereas, As the longest serving First Lady in West Virginia’s history, Shelley took on several important causes during her tenure. Most notably, she established the West Virginia Mansion Preservation Foundation to maintain the mansion and its heritage for the people of West Virginia. She conducted countless tours and insisted on open access to the Governor’s residence. She also embraced educational initiatives and programs for children. Shelley was intimately involved with various Girl Scout programs in West Virginia, serving as a member of the Black Diamond Girl Scout Council Board of Directors. She was dedicated to improving educational opportunities for disabled children and was a driving force with Arch for the numerous initiatives to establish and improve mental health programs around the Mountain State. She served as Chairwoman of the Mental Health Association, National Library Week, honorary chairwoman of the Heart Association, and in many other positions; and

Whereas, Shelley Moore was the proud mother of one son, Kim, and two daughters, Shelley and Lucy, all of whom survive her. She is also survived by seven grandchildren; and

Whereas, The compassion and grace with which Shelley Moore served as First Lady will be her public legacy, but to her family and friends her legacy will be her warmth, her sense of humor and her unwavering loyalty. Shelley had an ability to listen and connect, traits that made everyone around her know that they mattered. Shelley Moore was an amazing woman who represented the people of West Virginia with grace and dignity as First Lady; and

Whereas, West Virginia was saddened to learn of the death of West Virginia’s former First Lady, Shelley Riley Moore, on September 13, 2014; therefore, be it

That the members of the House of Delegates hereby publicly extol the life of Mrs. Shelley Riley Moore, and collectively mourn her death, while remembering that she leaves behind a legacy of success, love and accomplishment; that this House of Delegates proclaims that although Mrs. Shelley Moore has passed from this earthly life, she will continue to live in the hearts and minds of those who knew her; and, be it

Further Resolved, That the Clerk of the House of Delegates prepare a certified copy of this resolution for her children; and, be it

Further Resolved, That the Clerk of the House of Delegates also cause a certified copy of this resolution to be placed in the Division of Archives and History.

At the request of Delegate Cowles, and by unanimous consent, reference of the resolution (H. R. 19) to a committee was dispensed with, and it was taken up for immediate consideration.

The question now being on the adoption of the resolution, Delegate Cowles demanded the yeas and nays, which demand was sustained.

The yeas and nays having been ordered, they were taken (Roll No. 502), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the resolution (H. R. 19) adopted.

By Mr. Speaker, Mr. Armstead, and All Members of the House of Delegates offered the following resolution, which was read by the Clerk as follows:

H. R. 20 - “Memorializing the life and lamenting the death of the Honorable Arch Alfred Moore, Jr., husband, father, grandfather, veteran and West Virginia’s longest serving Governor.”

Whereas, Arch Alfred Moore, Jr., was born on April 16, 1923, in Glen Dale, West Virginia, into a family with GOP ties. A grandfather had been Mayor of Moundsville, while an uncle had been Minority Leader in the West Virginia House of Delegates. He attended Marshall County schools before entering the U S Army during World War II. Rising to the rank of Sergeant, Arch Moore served in the European Campaign and was seriously wounded by German machine gun fire in Germany in November 1944. He was decorated with the Purple Heart, Bronze Star, Combat Infantryman’s Badge and European Theater of Operations Ribbon with three battle stars; and

Whereas, Following his military service, Arch Moore attended and graduated from West Virginia University and West Virginia University College of Law; and

Whereas, Arch Moore married Shelley Riley on August 11, 1949, in Uniontown, Pennsylvania. Arch and Shelley spent several years in Morgantown before he ran for and was elected to a seat in the West Virginia House of Delegates in 1952; and

Whereas, Arch Moore possessed personal charisma, strong oratory gifts, and an uncanny ability to recall names, all of which contributed to his success in the political arena; and

Whereas, Arch Moore was elected to the United States Congress from the 1^st Congressional District of West Virginia in 1956, 1958, 1960, 1962, 1964 and 1966; and

Whereas, Arch Moore ran for and was elected Governor of West Virginia in 1968 and was reelected in 1972. In 1984, Arch again ran for Governor and was elected to become the first Governor ever to serve three four-year terms; and

Whereas, During Arch Moore’s first term as Governor, two developments greatly changed the role of the Office of Governor in West Virginia - the Modern Budget Amendment, which authorized the Governor to estimate revenues and propose spending, and a constitutional change allowing an incumbent Governor to seek a consecutive term. During his tenure as Governor, Arch Moore also encountered a national coal strike, a massive road building effort, multiple teacher pay raises, a prison riot, a textbook controversy, the Buffalo Creek disaster, repeated clashes with the Democratic controlled Legislature, and one of the worst floods in West Virginia history; and

Whereas, Arch and Shelley were the proud parents of one son, Kim, and two daughters, Shelley and Lucy, all of whom survive him. He is also survived by seven grandchildren; and

Whereas, Sadly, the Honorable Arch A. Moore, Jr., passed away on January 7, 2015; therefore, be it

That the members of the House of Delegates hereby publicly memorialize the life of the Honorable Arch A. Moore, Jr., and collectively mourn his death, while remembering that he leaves behind a legacy of success and accomplishment; that this House of Delegates proclaims that although the Honorable Arch A. Moore, Jr. has passed from this earthly life, he will continue to live in the hearts and minds of those who knew him; and, be it

Further Resolved, That the Clerk of the House of Delegates prepare a certified copy of this resolution for his children; and, be it

Further Resolved, That the Clerk of the House of Delegates also cause a certified copy of this resolution to be placed in the Division of Archives and History.

At the request of Delegate Cowles, and by unanimous consent, reference of the resolution (H. R. 20) to a committee was dispensed with, and it was taken up for immediate consideration.

The question now being on the adoption of the resolution, Delegate Cowles demanded the yeas and nays, which demand was sustained.

The yeas and nays having been ordered, they were taken (Roll No. 503), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the resolution (H. R. 20) adopted.

Delegates Westfall, Ashley, Campbell, Bates, Rodighiero, P. Smith, Espinosa, Butler, L. Phillips, Ferro and Ellington offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. C. R. 151 - “Requesting the Joint Committee on Health authorize a study on the licensure of athletic trainers.”

Whereas, Athletic trainers are required to register with the Board of Physical Therapy in order to practice in this state; and

Whereas, With advances in sports medicine and the increasing encouragement of citizens to participate in sports and other physical activity to promote health and well being, it is important that athletic trainers have proper training and education; and

Whereas, The Legislature is committed to protecting the public through the appropriate regulation of professions and occupations; and

Whereas, After five years of requiring the registration of athletic trainers, it is appropriate for the Legislature to evaluate the effectiveness of such regulation and consider any revision which should be made to the law governing athletic trainers; therefore, be it

That the Joint Committee on Health is hereby requested to study the licensure of athletic trainers; and, be it

Further Resolved, That the Joint Committee on Health report to the regular session of the Legislature, 2016, 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 and to prepare and draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

Delegate Rowe offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. C. R. 152 - “Requesting the Joint Committee on Government and Finance to study the long-term needs for maintenance and construction of local public libraries and methods for providing adequate funding to meet those needs.”

Whereas, Local public libraries have played an important role in the achievements of our democracy since its inception and their role in sustained development of this country has been recognized by the Founders of this country, by the great statesmen and orators of the Nineteenth Century, by civil rights leaders, industrialists, journalists and technology innovators; and

Whereas, Local public libraries serve not as a mere adjunct to our educational system, but as an integral and critical component of it, which is as significant as the construction and maintenance of public schools; and

Whereas, Local public libraries are critical to the economic development of the communities in which they are located and have a proven correlation with higher property values, better schools, increased wages and higher levels of employment than in communities without local public libraries; and

Whereas, More than seventy-seven percent of the public libraries in this country are located in small communities and rural areas; and

Whereas, Local public libraries are often the only public depository of local history books and resources available to local historians, public officials, teachers, students and families; and

Whereas, Despite technological advancement and the widespread availability of books, research and other information through digital media, libraries find sustained demand for their services, and, in the year 2013, the Pew Research Center found that Americans under the age of thirty visit libraries at the same rate as older Americans and are more likely to use the technical resources of libraries than their older counterparts; and

Whereas, West Virginia can ill afford to neglect or ignore the sustained need for up-to-date, efficient, safe, comfortable and well-funded local public libraries throughout the state; therefore, be it

That the Joint Committee on Government and Finance is hereby requested to study the long-term needs, in consideration of the impact of local public libraries on their communities and their role in economic development, education and welfare of their communities, in regards to maintenance and construction of local public libraries and the methods for providing adequate funding to meet those needs; and, be it

Further Resolved, That the Joint Committee on Government and Finance establish a select committee on local public library improvement to conduct the study on this and such other relevant topics as the Joint Committee may deem appropriate; and, be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2016, on the findings, conclusions and recommendations of the select committee, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

Delegate Sobonya presented a petition signed by residents of the State in support of putting prayer back in the public schools of West Virginia; which was referred to the Committee on Education.

Delegate Skinner moved to place S. B. 585, Relating to regulation of transportation network and taxicab companies on the Special Calendar.

On this question, the yeas and nays were taken (Roll No. 504), and there were--yeas 54, nays 45, absent and not voting 1, with the nays and absent and not voting being as follows:

Nays: Bates, Blair, Boggs, Byrd, Cadle, Campbell, Caputo, Eldridge, Ferro, Fleischauer, Fluharty, Folk, Guthrie, Hartman, Hicks, Hill, Hornbuckle, Ihle, Longstreth, Manchin, Marcum, McCuskey, McGeehan, Miley, Moore, Morgan, J. Nelson, Overington, Pasdon, Perdue, Perry, Pethtel, L. Phillips, R. Phillips, Pushkin, Reynolds, Rodighiero, Rowe, Skinner, Sponaugle, Stansbury, Weld, B. White, H. White and Williams.

So, majority of the members present and voting having voted in the affirmative, the motion for the previous question prevailed.

The question now being to postpone indefinitely the motion to place S. B. 585 on the Special Calendar, it was so put.

On this question, the yeas and nays were taken (Roll No. 505), and there were--yeas 54, nays 45, absent and not voting 1, with the nays and absent and not voting being as follows:

Nays: Bates, Blair, Boggs, Byrd, Cadle, Campbell, Caputo, Eldridge, Faircloth, Ferro, Fleischauer, Fluharty, Folk, Guthrie, Hartman, Hicks, Hornbuckle, Ihle, Longstreth, Manchin, Marcum, McCuskey, McGeehan, Miley, Moore, Morgan, J. Nelson, Pasdon, Perdue, Perry, Pethtel, L. Phillips, R. Phillips, Pushkin, Reynolds, Rodighiero, Rowe, Skinner, Sponaugle, Stansbury, Trecost, Weld, B. White, H. White and Williams.

So, a majority of the members present and voting having voted in the affirmative, the motion was postponed indefinitely.

The following resolutions, coming up in regular order, as unfinished business, were reported by the Clerk and adopted:

H. C. R. 143, Requesting the Joint Committee on Government and Finance, to study the public-private partnership model for the operation and maintenance of all or some of the State's hospital and nursing facilities,

H. C. R. 146, Requesting the Joint Committee on Government and Finance to study the special funds of the State,

H. C. R. 147, Requesting the Joint Committee on Government and Finance to study the leasing of oil and gas mineral rights on State lands,

H. C. R. 148, Requesting study on the collection, distribution and use of telecommunications fee revenues,

H. C. R. 149, Requesting the Joint Committee on Government and Finance to study potential improvements to pensions for retired teachers and public employees who have been retired for ten or more years,

H. C. R. 150, Requesting that the Joint Committee on Government and Finance study the distribution of unemployment rates across the state's fifty-five counties.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

Third ReadingCom. Sub. for S. B. 12, Relating to payment of separated employee’s outstanding wages;

on third reading, coming up in regular order, with amendments pending, and the restricted right to amend jointly by Delegates E. Nelson and Sponaugle, was reported by the Clerk.

An amendment, recommended by the Committee on Finance, was reported by the Clerk on page two following the enacting clause, by striking out the remainder of the bill in its entirety and inserting in lieu thereof the following:

“That §21-5-1 and §21-5-4 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

(a) The term ‘firm’ includes any partnership, association, joint-stock company, trust, division of a corporation, the administrator or executor of the estate of a deceased individual, or the receiver, trustee, or successor of any of the same, or officer thereof, employing any person.

(b) The term ‘employee’ or ‘employees’ includes any person suffered or permitted to work by a person, firm or corporation.

(c) The term ‘wages’ means compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation. As used in sections four, five, eight-a, ten and twelve of this article, the term ‘wages’ shall also include then accrued fringe benefits capable of calculation and payable directly to an employee: Provided, That nothing herein contained shall require fringe benefits to be calculated contrary to any agreement between an employer and his or her employees which does not contradict the provisions of this article.

(d) The term ‘commissioner’ means commissioner of labor or his or her designated representative.

(e) The term ‘railroad company’ includes any firm or corporation engaged primarily in the business of transportation by rail.

(f) The term ‘special agreement’ means an arrangement filed with and approved by the commissioner whereby a person, firm or corporation is permitted upon a compelling showing of good cause to establish regular paydays less frequently than once in every two weeks: Provided, That in no event shall the employee be paid in full less frequently than once each calendar month on a regularly established schedule.

(g) The term ‘deductions’ includes amounts required by law to be withheld, and amounts authorized for union or club dues, pension plans, payroll savings plans, credit unions, charities and hospitalization and medical insurance.

(h) The term ‘officer’ shall include officers or agents in the management of a corporation or firm, who knowingly permit the corporation or firm to violate the provisions of this article.

(i) The term ‘wages due’ shall include at least all wages earned up to and including the fifth twelfth day immediately preceding the regular payday.

(j) The term ‘construction’ means the furnishing of work in the fulfillment of a contract for the construction, alteration, decoration, painting or improvement of a new or existing building, structure, roadway or pipeline, or any part thereof, or for the alteration, improvement or development of real property: Provided, That construction performed for the owner or lessee of a single family dwelling or a family farming enterprise is excluded.

(k) The term ‘minerals’ means clay, coal, flagstone, gravel, limestone, manganese, sand, sandstone, shale, iron ore and any other metallurgical ore.

(l) The term ‘fringe benefits’ means any benefit provided an employee or group of employees by an employer, or which is required by law, and includes regular vacation, graduated vacation, floating vacation, holidays, sick leave, personal leave, production incentive bonuses, sickness and accident benefits and benefits relating to medical and pension coverage.

(m) The term ‘employer’ means any person, firm or corporation employing any employee.

(n) The term ‘doing business in this state’ means having employees actively engaged in the intended principal activity of the person, firm or corporation in West Virginia.

(a) In lieu of lawful money of the United States, any person, firm or corporation may compensate employees for services by cash order which may include checks, direct deposits or money orders on banks convenient to the place of employment where suitable arrangements have been made for the cashing of the checks by employees or deposit of funds for employees for the full amount of wages.

(b) Whenever a person, firm or corporation discharges an employee, or whenever an employee quits or resigns from employment, the person, firm or corporation shall pay the employee's wages in full no later than the next regular payday or four business days, whichever comes first. Payment shall be made through the regular pay channels or, if requested by the employee, by mail. due for work that the employee performed prior to the separation of employment on or before the next regular payday on which the wages would otherwise be due and payable: Provided, That fringe benefits, as defined in section one of this article, that are provided an employee pursuant to an agreement between the employee and employer and that are due, but pursuant to the terms of the agreement, are to be paid at a future date or upon additional conditions which are ascertainable are not subject to this subsection and are not payable on or before the next regular payday, but shall be paid according to the terms of the agreement. For purposes of this section, ‘business day’ means any day other than Saturday, Sunday or any legal holiday as set forth in section one, article two, chapter two of this code.

(c) Whenever an employee quits or resigns, the person, firm or corporation shall pay the employee's wages in full no later than the next regular payday. Payment shall be made through the regular pay channels or, if requested by the employee, by mail. However, if the employee gives at least one pay period's written notice of intention to quit, the person, firm or corporation shall pay all wages earned by the employee at the time of quitting. Payment under this section may be made in person in any manner permissible under section three of this article, through the regular pay channels or, if requested by the employee, by mail. If the employee requests that payment under this section be made by mail, that payment shall be considered to have been made on the date the mailed payment is postmarked.

(d) When work of any employee is suspended as a result of a labor dispute, or when an employee for any reason whatsoever is laid off, the person, firm or corporation shall pay in full to the employee not later than the next regular payday, either through the regular pay channels or by mail if requested by the employee, wages earned at the time of suspension or layoff.

(e) If a person, firm or corporation fails to pay an employee wages as required under this section, the person, firm or corporation, in addition to the amount which was unpaid when due, is liable to the employee for three two times that unpaid amount as liquidated damages. This section regulates the timing of wage payments upon separation from employment and not whether overtime pay is due. Liquidated damages that can be awarded under this section are not available to employees claiming they were misclassified as exempt from overtime under state and federal wage and hour laws. Every employee shall have a lien and all other rights and remedies for the protection and enforcement of his or her salary or wages, as he or she would have been entitled to had he or she rendered service therefor in the manner as last employed; except that, for the purpose of liquidated damages, the failure shall not be deemed to continue after the date of the filing of a petition in bankruptcy with respect to the employer if he or she is adjudicated bankrupt upon the petition.

(f) As a prerequisite to filing a lawsuit to recover amounts to be paid pursuant to the provisions of this section, an employee shall provide written notice to the employer that the employee believes there are amounts due and owing to the employee for wages or fringe benefits within thirty days of the day the employee should have received the amounts in dispute.”

An amendment to the bill, offered by Delegate Sponaugle, was reported by the Clerk.

Delegate Sponaugle asked and obtained unanimous consent that the amendment be withdrawn.

On motion of Delegates E. Nelson and Sponaugle, the Finance Committee amendment was amended on page three, section four, following subsection (e), by striking out subsection (f) in its entirety.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 506), and there were--yeas 68, nays 31, absent and not voting 1, with the nays and absent and not voting being as follows:

Nays: Byrd, Caputo, Eldridge, Ferro, Fleischauer, Fluharty, Guthrie, Hicks, Hornbuckle, Longstreth, Lynch, Manchin, Miley, Moore, Morgan, Moye, Perdue, Perry, Pethtel, L. Phillips, Pushkin, Reynolds, Rodighiero, Rowe, Skinner, P. Smith, Sponaugle, Trecost, Upson, Wagner and H. White.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 12) passed.

An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:

S. B. 12 - “A Bill to amend and reenact §21-5-1 and §21-5-4 of the Code of West Virginia, 1931, as amended, relating to payment of wages by employers; defining terms; providing for how payments may be made; requiring certain payments by the next regular payday; providing for payments pursuant to certain agreements; reducing amount of liquidated damages available for violation of this section; providing instance when liquidated damages are not available; clarifying that section does not address whether overtime pay is due; authorizing payment by mail if requested by employee; and establishing date paid if payment mailed pursuant to employee request.”

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

Com. Sub. for S. B. 170, Authorizing Bureau of Commerce promulgate legislative rules; on third reading, coming up in regular order, was reported by the Clerk.

Delegate Shott asked and obtained unanimous consent to amend the bill on third reading, and the rule was suspended to permit the offering and consideration of an amendment on third reading.

Delegate Lane asked and obtained unanimous consent that all sponsors of the amendment offered by Delegate Marcum be added as cosponsors to his amendment.

The amendment offered by Delegates Lane, Frich, Moye, Rodighiero, Hicks, Moore, Storch, Miley, Campbell, Perry, Boggs, Bates, Lynch, McGeehan, Butler, Moffatt, Summers, Azinger and Perdue, was reported by the Clerk, on page six, section two, line eight immediately preceding the word “authorized”, by inserting the word “not”

On page seven, section two, line five, immediately preceding the word “authorized”, by inserting the word “not”.

Delegate Marcum asked and obtained unanimous consent that the amendment he had offered be withdrawn.

Delegate Householder requested to be excused from voting on the passage of Com. Sub. for S. B. 170 under the provisions of House Rule 49.

The Speaker replied that any impact on Delegate Householder would be as a member of a class of persons possibly to be affected by the passage of the bill, and refused to excuse the Gentleman from voting.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 507), and there were--yeas 96, nays 3, absent and not voting 1, with the nays and absent and not voting being as follows:

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 170) passed.

On this question, the yeas and nays were taken, (Roll No. 508), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 170) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

Com. Sub. for S. B. 323, Relating to municipal home rule; on third reading, coming up in regular order, was read a third time.

Delegate Howell requested to be excused from voting on questions regarding the passage of Com. Sub. for S. B. 323 under the provisions of House Rule 49.

The Speaker replied that the Delegate, as a member of the Home Rule Board, would be directly affected and not as a member of a class of persons possibly to be affected by the passage of the bill, and excused the Gentleman from voting.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 509), and there were--yeas 93, nays 5, absent and not voting 1, excused 1, with the nays and absent and not voting and excused being as follows:

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 323) passed.

Com. Sub. for S. B. 352, Expanding scope of cooperative associations to goods and services including recycling; on third reading, coming up in regular order, was read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 510), and there were--yeas 85, nays 14, absent and not voting 1, with the nays and absent and not voting being as follows:

Nays: Ashley, Azinger, Hamrick, Ihle, Kelly, Lane, McGeehan, Pethtel, Rodighiero, Storch, Waxman, Weld, Westfall and Zatezalo.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 352 ) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

Delegate Cowles asked and obtained unanimous consent that Com. Sub. for S. B. 323, Relating to municipal home rule, be taken up for further consideration.

An amendment to the title of the bill, recommended by the Committee on Finnace, was reported by the Clerk and adopted, amending the title to read as follows:

Com. Sub. for S. B. 323 - “A Bill to amend and reenact §8-1-5a of the Code of West Virginia, 1931, as amended, relating to the municipal home rule pilot program generally; continuing ordinances in effect; removing requirements that municipal home rule board must approve a municipality’s amendment to its home rule plan and that a municipal ordinance is nullified if the municipality's amendment to its home rule plan is not approved by the municipal home rule board; enlarging the pool of eligible municipalities that may participate in the pilot program to thirty; removing requirement that the board approve each municipal ordinance prior to enactment; removing process for enacting ordinance; authorizing amendments to municipal ordinances, acts, resolutions, rules, or regulations enacted pursuant the municipality’s approved written plan; removing provisions prohibiting municipality from enacting ordinance, act, resolution, rule or regulation after the pilot program terminates in 2019; prohibiting municipalities from seeking refunds of moneys collected from taxpayers or monies distributed to municipalities by the tax division under the pilot program: removing obsolete provisions; and reorganizing existing provisions.”

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

S. B. 370, Reorganizing Governor’s Committee on Crime, Delinquency and Correction and its subcommittees; on second reading, coming up in regular order, was read a second time and ordered to third reading.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 511), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 370) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

Com. Sub. for S. B. 393, Reforming juvenile justice system; on third reading, coming up in regular order, was read a third time.

Delegate Hartman requested to be excused from voting on the passage of Com. Sub. for S. B. 393 under the provisions of House Rule 49.

The Speaker replied that any impact on Delegate Hartman would be as a member of a class of persons possibly to be affected by the passage of the bill, and refused to excuse the Gentleman from voting.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 512), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 393) passed.

On this question, the yeas and nays were taken (Roll No. 513), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 393) takes effect May 17, 2015.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

Com. Sub. for S. B. 407, Implementing state safety oversight program; on third reading, coming up in regular order, was read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 514), and there were--yeas 91, nays 7, absent and not voting 2, with the nays and absent and not voting being as follows:

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 407) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

S. B. 415, Relating to circuit judges; on third reading, coming up in regular order, was read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 515), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 415) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

Com. Sub. for S. B. 423, Amending Aboveground Storage Tank Act; on third reading, coming up in regular order, with amendments pending, and restricted right to amend jointly by Delegates Shott and Manchin, was reported by the Clerk.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page sixty-nine, line two, by striking out the word “Three” and substituting therefor the word “Four”.

On motion of Delegates Shott and Lane, the bill was amended on page forty-four, section ten, line fourteen, after the word “provide”, by striking out the words “as required by the secretary”.

At page forty-five, section ten, line two, after the stricken language, by striking out the words “and subject to the protections afforded in section fourteen of this article, notice to the applicable public water system” and substituting in lieu thereof “ notice directly to the public water system”.

At page forty-five, section ten, line eight, after the word “storage” and the period, by adding “Subject to the protections afforded in section fourteen of this article, the information required in this subsection shall be delivered to the specific public water system and to state, county and municipal emergency response organizations that are designated by the Secretary to receive required notice.”

At page fifty-two, section fourteen, line sixteen, after the word “than”, by striking out the words “ $5,000 or confined in a correctional facility for not more than one year, or both” and substituting in lieu thereof “ $1,000 or confined in a regional jail facility for not more than twenty days, or both.”

At page fifty-six, section fifteen, line eight, after the word “every”, by striking out the word “five” and substituting in lieu thereof the word “ three”.

Delegates Shott and Manchin moved to amend the bill, on page twenty-eight, section five (c), line seventeen, after the word “conditions”, by striking out the words “in the opinion of the secretary”.

On page twenty-nine, section five (c), line one, after the word “place”, by inserting “and are consistent with the requirements of this article”.

The yeas and nays having been ordered, they were taken (Roll No. 516), and there were--yeas 32, nays 67, absent and not voting 1, with the yeas and absent and not voting being as follows:

Yeas: Speaker Armstead, Ambler, Bates, Byrd, Canterbury, Caputo, Cooper, Cowles, Duke, Eldridge, D. Evans, Fast, Fleischauer, Fluharty, Guthrie, Hicks, Hornbuckle, Lane, Longstreth, Lynch, Manchin, McCuskey, Moore, O’Neal, Pasdon, Perdue, Pushkin, Reynolds, Rowe, Shott, Skinner and Stansbury.

So, a majority of the members present and voting not having voted in the affirmative, the amendment was rejected.

Delegate Manchin moved to amend the bill on pages twenty-eight and twenty-nine, section five, lines seventeen and eighteen on page twenty-eight and line one on page twenty-nine, by striking out the words “ in the opinion of the secretary are sufficient in combination with practices and protections already in place” and inserting in lieu thereof, the following: “not less protective than the requirements of this article”.

Delegate Manchin asked and obtained unanimous consent that the amendment be withdrawn.

Delegate Manchin moved to amend the bill on page twenty-nine, section five, line ten, following the words “Part 112.”, by inserting the following:

“Initial public notice of tank designations shall be published by the secretary on the Department’s website. Public notice and comment of renewals of permits or major modifications of permits shall be required, pursuant to legislative rules of the Department.”

On the adoption of the amendment, the yeas and nays were demanded, which the demand was sustained.

The yeas and nays having been ordered, they were taken (Roll No. 517), and there were--yeas 18, nays 81, absent and not voting 1, with the yeas and absent and not voting being as follows:

Yeas: Bates, Byrd, Caputo, Cowles, Duke, Fleischauer, Fluharty, Guthrie, Lane, Lynch, Manchin, Miley, Moore, Perdue, Pushkin, Shott, Skinner and Weld.

So, a majority of the members present and voting not having voted in the affirmative, the amendment was rejected.

Delegate Manchin moved to amend the bill on page thirty-two, section six, lines six through twelve, by returning subsection (c) to current law, to read as follows:

“(c) The certification form shall be submitted to the secretary on or before January 1, 2015, and each year thereafter.”

An amendment, offered by Delegate Manchin was reported by the Clerk, on page forty-five, section ten, lines eight through thirteen, by removing the strike through and returning current law into the bill:

“The owner or operator shall also provide as required by the secretary a copy of the spill prevention response plan and any updates thereto, which have been approved by the secretary pursuant to this act, to the applicable public water systems and county and municipal emergency management agencies.”

Delegate Manchin asked and obtained unanimous consent that the amendment be withdrawn.

An amendment offered by Delegate Manchin, was reported by the Clerk, on page fifty-four, line twelve, following section fourteen of the bill, by inserting a new section 14a, to read as follows:

The owner or operator of the above ground storage tank shall provide, within the zone of critical concern and zone of peripheral concern, the location, characteristics and approximate quantities of potential sources of significant contaminants contained in tanks, to one or more designees of the public water utility, and that information shall be maintained in a confidential manner by the public water utility subject to penalties of disclosure pursuant to subsection (a), section fourteen of this article.”

Delegate Manchin asked and obtained unanimous consent that the amendment be withdrawn.

An amendment offered by Delegate Manchin, was reported by the Clerk, Delegate Manchin moves to amend the bill on page fifty-six, section fifteen, line seven, following the words “secretary shall”, by inserting the word “visually”; and on page fifty-six, section fifteen, line eight, following the words “once every”, by striking the word “five” and inserting in lieu thereof, the word “three”.

An amendment to the bill, offered by Delegate Manchin, was reported by the Clerk on pages twenty-eight and twenty-nine, section five, lines seventeen and eighteen, on page twenty-eight, and line one on page twenty-nine, by striking out the words “ in the opinion of the secretary are sufficient in combination with practices and protections already in place” and inserting in lieu thereof, the following: “are as protective as the requirements of this article”.

On pages forty-three and forty-four, section nine, on lines fourteen through eighteen on page forty-five, and lines one and two on page forty-six, by striking out subsection (d), and inserting in lieu thereof, the following:

“(d) The owner or operator of a regulated aboveground storage tank may certify to the secretary that it is subject to: (1) A groundwater protection plan approved by the secretary; or (2) a spill prevention control and countermeasures plan that complies the requirements of 40 C. F. R. Part 112. Such plans shall be made available for review or submitted to the secretary upon request. After a determination by the secretary that the requirments of these provisions are as protective as the provisions of this article, the secretary may approve the same in lieu of a plan developed in accordance with the requirement of this section.”

Delegate Manchin asked and obtained unanimous consent that the amendment be withdrawn.

Delegate Manchin moved to amend the bill, on page twenty-nine, section five, line ten, following the words “Part 112”and the period, by inserting the following:

Delegate Manchin moved to amend the bill on page thirty-two, section six, lines six through twelve, by returning subsection (c) to current law, to read as follows:

“(c) The certification form shall be submitted to the secretary on or before January 1, 2015, and each year thereafter.”

The Speaker put the question on the adoption of the foregoing amendment, and the same did not prevail.

An amendment to the bill, offered by Delegate Manchin, was reported by the Clerk, as follows:

On page fifty-four, line twelve, following section fourteen of the bill, by inserting a new section 14a, to read as follows:

Delegate Manchin asked and obtained unanimous consent that the amendment be withdrawn.

An amendment to the bill, offered by Delegate Manchin, was reported by the Clerk, as follows:

On page fifty-six, section fifteen, line seven, following the words “secretary shall”, by inserting the word “visually”; and on page fifty-six, section fifteen, line eight, following the words “once every”, by striking out the word “five” and inserting in lieu thereof, the word “three”.

Delegate Manchin asked and obtained unanimous consent that the amendment be withdrawn.

Delegate Williams requested to be excused from voting on the passage of Com. Sub. for S. B. 423 under the provisions of House Rule 49.

The Speaker replied that any impact on Delegate Williams would be as a member of a class of persons possibly to be affected by the passage of the bill, and refused to excuse the Gentleman from voting.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 518), and there were--yeas 78, nays 21, absent and not voting 1, with the nays and absent and not voting being as follows:

Nays: Speaker Armstead, Byrd, Caputo, Eldridge, Fleischauer, Fluharty, Guthrie, Hicks, Hornbuckle, Lane, Longstreth, Lynch, Manchin, McCuskey, Moore, Perdue, Pushkin, Rowe, Skinner, Stansbury and B. White.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 423) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

S. B. 434, Relating to horse racing; on third reading, coming up in regular order, was, at the request of Delegate Cowles, and by unanimous consent, laid over one day, retaining its place on the calendar.

S. B. 479, Adding additional family court judges; on third reading, coming up in regular order, was read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 519), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 479) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

Com. Sub. for S. B. 486, Authorizing special license plates for Civil Air Patrol vehicles; on third reading, coming up in regular order, was read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 520), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 486) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

At 2:48 p.m., on motion of Delegate Cowles, the House of Delegates recessed until 4:00 p.m.

Second ReadingCom. Sub. for S. B. 60, Requiring food handler examinations and cards; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on Government Organization, was reported by the Clerk, on page two, after the enacting clause by striking out the enacting section and by striking out the remainder of the bill 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 §16-2-16, to read as follows:

Any food handler permit or card that has been issued pursuant to the procedures put in place by a local board of health shall be valid for three years. Any such permit or card shall be valid in all counties of this state, provided the applicant pays an additional, one-time fee not to exceed $10.00 in the county where the applicant works if different from the county where the permit or card was issued. A food handler permit or card, if required, shall be obtained within thirty days of being hired in a restaurant or other applicable food establishment.”

On motion of Delegates Sponaugle and Householder the amendment recommended by the Committee on Government Organization was amended on page one, line four, by striking out the entirety of section sixteen and inserting in lieu thereof the following a new section sixteen to read as follows:

A food handler permit or card issued pursuant to the procedures put in place by a local county health department shall be valid for at least one year but not longer than three years. The permit or card shall be valid in all counties of this state, if the applicant pays an additional fee not to exceed $10.00. If required, a permit or card shall be obtained within thirty days of a person being hired in a restaurant or other applicable food establishment. The Bureau for Public Health shall develop minimum guidelines for training programs for individuals seeking a food handler permit or card that may be adopted by local county health departments. In lieu of state guidelines a local health department may use training courses developed by the American National Standards Institute or other nationally recognized entities for food safety training.”

The amendment recommended by the Committee on Government Organization, as amended, was then adopted.

Com. Sub. for S. B. 88, Creating WV Clearance for Access: Registry and Employment Screening Act; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page three, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:

“That §15-2-24 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new article, designated §16-46-1, §16-46-2, §16-46-3, §16-46-4, §16-46-5, §16-46-6, §16-46-7, §16-46-8 and §16-46-9, all to read as follows:

§15-2-24. Criminal identification bureau; establishment; supervision; purpose; fingerprints, photographs, records and other information; reports by courts and prosecuting attorneys; offenses and penalties.

(a) The superintendent of the department shall establish, equip and maintain at the departmental headquarters a criminal identification bureau, for the purpose of receiving and filing fingerprints, photographs, records and other information pertaining to the investigation of crime and the apprehension of criminals, as hereinafter provided. The superintendent shall appoint or designate a supervisor to be in charge of the criminal identification bureau and such supervisor shall be responsible to the superintendent for the affairs of the bureau. Members of the department assigned to the criminal identification bureau shall carry out their duties and assignments in accordance with internal management rules and regulations pertaining thereto promulgated by the superintendent.

(b) The criminal identification bureau shall cooperate with identification bureaus of other states and of the United States to develop and carry on a complete interstate, national and international system of criminal identification.

(c) The criminal identification bureau may furnish fingerprints, photographs, records or other information to authorized law-enforcement and governmental agencies of the United States and its territories, of foreign countries duly authorized to receive the same, of other states within the United States and of the State of West Virginia upon proper request stating that the fingerprints, photographs, records or other information requested are necessary in the interest of and will be used solely in the administration of official duties and the criminal laws.

(d) The criminal identification bureau may furnish, with the approval of the superintendent, fingerprints, photographs, records or other information to any private or public agency, person, firm, association, corporation or other organization, other than a law-enforcement or governmental agency as to which the provisions of subsection (c) of this section shall govern and control, but all requests under the provisions of this subsection (d) for such fingerprints, photographs, records or other information must be accompanied by a written authorization signed and acknowledged by the person whose fingerprints, photographs, records or other information is to be released.

(e) The criminal identification bureau may furnish fingerprints, photographs, records and other information of persons arrested or sought to be arrested in this state to the identification bureau of the United States government and to other states for the purpose of aiding law enforcement.

(f) Persons in charge of any penal or correctional institution, including any city or county jail in this state, shall take, or cause to be taken, the fingerprints and description of all persons lawfully committed thereto or confined therein and furnish the same in duplicate to the criminal identification bureau, department of public safety. Such fingerprints shall be taken on forms approved by the superintendent of the department of public safety. All such officials as herein named may, when possible to do so, furnish photographs to the criminal identification bureau of such persons so fingerprinted.

(g) Members of the department of public safety, and all other state law-enforcement officials, sheriffs, deputy sheriffs, and each and every peace officer in this state, shall take or cause to be taken the fingerprints and description of all persons arrested or detained by them, charged with any crime or offense in this state, in which the penalty provided therefor is confinement in any penal or correctional institution, or of any person who they have reason to believe is a fugitive from justice or an habitual criminal, and furnish the same in duplicate to the criminal identification bureau of the department of public safety on forms approved by the superintendent of said department. All such officials as herein named may, when possible to do so, furnish to the criminal identification bureau, photographs of such persons so fingerprinted. For the purpose of obtaining data for the preparation and submission to the Governor and the Legislature by the department of public safety of an annual statistical report on crime conditions in the state, the clerk of any court of record, the magistrate of any magistrate court and the mayor or clerk of any municipal court before which a person appears on any criminal charge shall report to the criminal identification bureau the sentence of the court or other disposition of the charge and the prosecuting attorney of every county shall report to the criminal identification bureau such additional information as the bureau may require for such purpose, and all such reports shall be on forms prepared and distributed by the department of public safety, shall be submitted monthly and shall cover the period of the preceding month.

(h) All persons arrested or detained pursuant to the requirements of this article shall give fingerprints and information required by subsections (f) and (g) of this section. Any person who has been fingerprinted or photographed in accordance with the provisions of this section, who is acquitted of the charges upon which he or she was arrested, and who has no previous criminal record, may, upon the presentation of satisfactory proof to the department, have such fingerprints or photographs, or both, returned to them.

(i) All state, county and municipal law-enforcement agencies shall submit to the bureau uniform crime reports setting forth their activities in connection with law enforcement. It shall be the duty of the bureau to adopt and promulgate rules and regulations prescribing the form, general content, time and manner of submission of such uniform crime reports. Willful or repeated failure by any state, county or municipal law- enforcement official to submit the uniform crime reports required by this article shall constitute neglect of duty in public office. The bureau shall correlate the reports submitted to it and shall compile and submit to the Governor and the Legislature semiannual reports based on such reports. A copy of such reports shall be furnished to all prosecuting attorneys and law- enforcement agencies.

(j) Neglect or refusal of any person mentioned in this section to make the report required herein, or to do or perform any act on his or her part to be done or performed in connection with the operation of this section, shall constitute a misdemeanor and, such person shall, upon conviction thereof, be punished by a fine of not less than $25 nor more than $200, or by imprisonment in the county jail for a period of not more than sixty days, or both. Such neglect shall constitute misfeasance in office and subject such persons to removal from office. Any person who willfully removes, destroys or mutilates any of the fingerprints, photographs, records or other information of the department of public safety, shall be guilty of a misdemeanor and, such person shall, upon conviction thereof, be punished by a fine of not more than $100, or by imprisonment in the county jail for a period of not more than six months, or both.

(k) The Criminal Identification Bureau (CIB) and the Federal Bureau of Investigation (FBI) shall retain applicant fingerprints for the purpose of participating in the Rapback Program to determine suitability or fitness for a permit, license or employment. Agencies participating in the program shall notify applicants and employees subject to a criminal history check that their fingerprint shall be retained by the CIB and the FBI. Notification shall also be given to the applicant and employee subject to the Rapback Program.

(l) The State Police may assess a fee to applicants, covered providers or covered contractors for conducting the criminal background check and for collecting and retaining fingerprints for rapback as authorized under article forty-six, chapter sixteen of this code. The assessment shall be deposited into a non-appropriated special revenue account within the State Treasurer’s Office to be known as the WVSP Criminal History Account. Expenditures from this account shall be made by the superintendent for purposes set forth in this article and are authorized from collections. The account shall be administered by the superintendent and may not be deemed a part of the general revenue of the state.

ARTICLE 46. WEST VIRGINIA CLEARANCE FOR ACCESS: REGISTRY AND EMPLOYMENT SCREENING ACT.

(1) ‘Applicant’ means an individual who is being considered for employment or engagement with a covered provider or covered contractor.

(2) ‘Background check’ means a prescreening of registries specified by the secretary by rule and a fingerprint-based search of state and federal criminal history record information.

(3) ‘Covered contractor’ means an individual or entity, including their employees and subcontractors, that contracts with a covered provider to perform services that include any direct access services.

(viii) A residential care provider that arranges for, or directly provides, long-term care services, including an assisted living facility;

(ix) An intermediate care facility for individuals with intellectual disabilities; and

(x) Any other facility or provider required to participate in the West Virginia Clearance for Access: Registry and Employment Screening program as determined by the secretary by legislative rule.

(6) ‘Direct access’ means physical contact with a resident, member, beneficiary or client of a covered provider, or access to their property, personally identifiable information, protected health information or financial information.

(7) ‘Direct access personnel’ means an individual who has direct access by virtue of ownership, employment, engagement or agreement with a covered provider or covered contractor. Direct access personnel does not include volunteers or students performing irregular or supervised functions, or contractors performing repairs, deliveries, installations or similar services for the covered provider. The secretary shall determine by legislative rule whether the position in question involves direct access.

(B) A conviction of any other crime specified by the secretary in rule, which shall include crimes against care-dependent or vulnerable individuals, crimes of violence, sexual offenses and financial crimes.

(9) ‘Negative finding’ means a finding in the prescreening that excludes an applicant from direct access personnel positions.

(10) ‘Notice of ineligibility’ means a notice pursuant to section three of this article that the secretary’s review of the applicant’s criminal history record information reveals a disqualifying offense.

(11) ‘Prescreening’ means a mandatory search of databases and registries specified by the secretary in legislative rule for exclusions and licensure status prior to the submission of fingerprints for a criminal history record information check.

(12) ‘Rap back’ means the notification to the department when an individual who has undergone a fingerprint-based, state or federal criminal history record information check has a subsequent state or federal criminal history event.

(13) ‘Secretary’ means the Secretary of the West Virginia Department of Health and Human Resources, or his or her designee.

(14) ‘State Police’ means the West Virginia State Police Criminal Identification Bureau.

§16-46-2. Background check program for covered providers and covered contractors.

(a) The secretary shall create and implement a background check program to facilitate the processing and analysis of the criminal history and background of applicants to covered providers and covered contractors with direct access. This program shall be called the West Virginia Clearance for Access: Registry and Employment Screening.

(b) The purpose of the program is to protect West Virginia’s vulnerable populations by requiring registry and criminal background checks for all direct access personnel of covered providers and covered contractors.

(1) A centralized Internet-based system of registries to allow covered providers and covered contractors to perform a mandatory prescreening of applicants;

(2) Fingerprint-based state and federal criminal background checks on all direct access personnel; and

(3) An integrated rap back program with the State Police to allow retention of fingerprints and updates of state and federal criminal information on all direct access personnel until such time as the individual is no longer employed or engaged by the covered provider or covered contractor.

(d) The department shall notify applicants subject to a criminal history record check that their fingerprints shall be retained by the State Police Criminal Identification Bureau and the Federal Bureau of Investigation.

(a) Except as otherwise permitted in this article, the covered provider or covered contractor may not employ or engage an applicant prior to completing the background check process.

(b) If the applicant has a negative finding on any required prescreening registry or database, the employer shall notify the individual of such finding.

(c) If the applicant has a negative finding on any required prescreening registry or database, that individual may not immediately be engaged by a covered provider or covered contractor. However, that individual or the employer may apply for a variance pursuant to section five of this article.

(d) If the applicant does not have a negative finding in the prescreening process, the applicant shall submit to fingerprinting for a state and federal criminal history record information check.

(e) The State Police shall notify the secretary of the results of the criminal history record information check.

(f) If the secretary’s review of the criminal history record information reveals that the applicant does not have a disqualifying offense, the secretary shall provide written notice to the covered provider or covered contractor that the individual may be engaged.

§16-46-4. Notice of ineligibility; prohibited participation as direct access personnel.

(a) If the secretary’s review of the applicant’s criminal history record information reveals a disqualifying offense, the secretary shall provide written notice to the covered provider or covered contractor advising that the applicant is ineligible for work. The secretary may not disseminate the criminal history record information.

(b) The covered provider or covered contractor may not engage an applicant with a disqualifying offense as direct access personnel. If the applicant has been provisionally employed pursuant to section six of this article, the employer shall terminate the provisional employment upon receipt of the notice.

(a) If the prescreening process reveals a negative finding, or if the secretary issues a notice of ineligibility, the applicant, or the employer on the applicant’s behalf, may file a written request for a variance with the secretary not later than thirty days after the date of the notice required by sections three or four of this article.

(1) Mitigating circumstances surrounding the negative finding or disqualifying offense is provided; and

(2) The secretary finds that the individual will not pose a danger or threat to residents, members and their property.

(d) The secretary shall mail to the applicant and the covered provider or covered contractor a written decision within ninety days of receipt of the request indicating whether a variance has been granted or denied.

(e) If an applicant believes that their criminal history record information within this state is incorrect or incomplete, they may challenge the accuracy of such information by writing to the State Police for a personal review. However, if the discrepancies are at the charge or final disposition level, the applicant must address this with the court or arresting agency that submitted the record to the State Police.

(f) If an applicant believes that their criminal history record information outside this state is incorrect or incomplete, they may appeal the accuracy of such information by contacting the Federal Bureau of Investigation for instructions.

(g) If any changes, corrections, or updates are made in the criminal history record information, the State Police shall notify the secretary that the applicant has appealed the accuracy of the criminal history records and provide the secretary with the updated results of the criminal history record information check, which the secretary shall review de novo in accordance with the provisions of this article.

(a) A covered provider or covered contractor may permit an applicant to work on a provisional basis for not more than sixty days pending notification from the secretary regarding the results of the criminal background check if:

(1) The applicant is subject to direct on-site supervision, as specified in rule by the secretary, during the course of the provisional period; and

(B) Acknowledges that a disqualifying offense reported in the required criminal history record information check shall constitute good cause for termination; and

(C) Acknowledges that the covered provider or covered contractor may terminate the individual if a disqualifying offense is reported in the background check.

(b) Provisional employees who have requested a variance shall not be required to sign such a statement. A covered provider or covered contractor may continue to employ an applicant if an applicant applies for a variance of his or her fitness determination until the variance is resolved.

(a) An applicant is not required to submit to fingerprinting and a criminal background check if:

(1) The individual previously submitted to fingerprinting and a full criminal background check as required by this article;

(2) The prior criminal background check confirmed that the individual did not have a disqualifying offense or the individual received prior approval from the secretary to work for or with the same type of covered provider or covered contractor; and

(3) The rap back program has not identified any criminal activity that constitutes a disqualifying offense.

(b) The secretary shall provide notice of prior clearance for direct access status upon request by a subsequent covered provider or covered contractor.

In order to enforce the requirements and intent of this article, the following fees may be charged:

(1) The State Police may assess a fee to applicants, covered providers or covered contractors for conducting the criminal background check and for collecting and retaining fingerprints for rap back as authorized under this article.

(2) The secretary may assess a fee to applicants, covered providers or covered contractors for the maintenance of the Internet-based system required by this article. The assessment shall be deposited into a special revenue account within the State Treasurer’s Office to be known as the DHHR Criminal Background Administration Account. Expenditures from the account shall be made by the secretary for purposes set forth in this article and are authorized from collections. The account shall be administered by the secretary and may not be deemed a part of the general revenue of the state.

(a) The secretary shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code to implement the provisions of this article. The secretary may promulgate emergency rules, if justified, pursuant to section fifteen, article three, chapter twenty-nine-a of this chapter as may be required.

(b) Failure of a covered provider or covered contractor to ensure proper completion of the background check process for each individual employed as direct access personnel may result in the imposition of monetary civil penalties. In addition, engaging individuals knowing that they are ineligible to work may subject the employer to monetary civil penalties.

(c) The secretary shall treat and maintain any criminal background search information obtained under this article as confidential. The secretary shall limit the use of records solely to the purposes authorized in this article. The criminal history record information in the custody of the secretary is not subject to subpoena, other than one issued in a criminal action or investigation; is confidential by law and privileged; and is not subject to discovery or admissible in evidence in any private civil action.

(d) The secretary, the department and its employees are immune from liability, civil or criminal, that might otherwise be incurred or imposed for good faith conduct in determining eligibility or granting variances permitted by this article.”

Com. Sub. for S. B. 142, Authorizing Department of Administration promulgate legislative rules; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page three, after the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:

“ARTICLE 2. AUTHORIZATION FOR DEPARTMENT OF ADMINISTRATION TO PROMULGATE LEGISLATIVE RULES.

( a) The legislative rule filed in the State Register on July 30, 2014, authorized under the authority of section four, article three, chapter five-a of this code, modified by the Department of Administration to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on September 16, 2014, relating to the Department of Administration (Purchasing Division, 148 CSR 1), is authorized with the following amendments:

On page two, subsection 3.2, by striking out the word “will”in the three places it appears in that subsection beside the strikethrough of the word “shall” and by removing the strikethroughs of the word “shall” in the three places they appear in that subsection so that the word “shall” is reinstated in the text;

On pages two and three, throughout section 4, by striking out the word “will” in the seven places it appears in that section beside the strikethrough of the word “shall” and by removing the strikethroughs of the word “shall” in the seven places they appear in that section so that the word “shall” is reinstated in the text;

On pages four, five and seven, throughout section 5, by striking out the word “will” in the ten places it appears in that section beside the strikethrough of the word “shall” and by removing the strikethroughs of the word “shall” in the ten places they appear in that section so that the word “shall” is reinstated in the text;

On page eight, subdivision 6.1.b., by striking out the word “will” and removing the strikethrough of the word “shall”so that the word “shall” is reinstated in the text;

On page eight, subdivision 6.1.d., by striking out the word “will” and removing the strikethrough of the word “shall”so that the word “shall” is reinstated in the text;

One page nine, subsection 6.2, by striking out the word “will” and inserting in lieu thereof the word “does”;

On page ten, subdivision 6.3.h., by striking out the word “will” and removing the strikethrough of the word “shall”so that the word “shall” is reinstated in the text;

On page ten, subdivision 6.4.a., after stricken words “The Director shall make an” by striking out the word “will” and inserting in lieu thereof the word “shall”;

On page ten, subdivisions 6.4.b., 6.4.c. ,6.4.d., and 6.4.e., by striking out the word “will” and removing the strikethrough of the word “shall”so that the word “shall” is reinstated in the text;

On page eleven, subdivision 6.5.a.3., by striking out the word “will” where it appears in that section beside the strikethrough of the word “shall” and by removing the strikethrough of the word “shall” so that the word “shall” is reinstated in the text;

On page eleven, subdivision 6.5.b, after the strikethrough of the word “shall” by striking out the word “will” and inserting in lieu thereof the word “must”;

On page twelve, subdivision 6.6.b., by striking out the word “will”where it appears beside the strikethrough of the word “shall” and by removing the strikethrough of the word “shall” so that the word “shall” is reinstated in the text;

On page twelve, subdivision 6.8.d., by striking out the word “will”where it appears beside the strikethrough of the word “shall” and by removing the strikethrough of the word “shall” so that the word “shall” is reinstated in the text;

On page twelve, subdivision 6.8.f., by striking out the word “must”where it appears beside the strikethrough of the word “shall” and by removing the strikethrough of the word “shall” so that the word “shall” is reinstated in the text;

On page thirteen, subdivision 7.2.a., by striking out the word “must”where it appears beside the strikethrough of the word “shall” and by removing the strikethrough of the word “shall” so that the word “shall” is reinstated in the text;

On page thirteen, subdivision 7.2.b.3, after the word “appropriate” and the comma by inserting the word “or”;

On page thirteen, subsection 7.3, by striking out the word “will”where it appears beside the strikethrough of the word “shall” and by removing the strikethrough of the word “shall” so that the word “shall” is reinstated in the text;

On page fourteen, subdivision 7.5.c., by striking out the word “will”where it appears beside the strikethrough of the word “shall” and by removing the strikethrough of the word “shall” so that the word “shall” is reinstated in the text;

On page fourteen, subdivision 7.6.a., by striking out the word “will”where it appears beside the strikethrough of the word “shall” and by removing the strikethrough of the word “shall” so that the word “shall” is reinstated in the text;

On page fourteen, subdivision 7.6.a., after the word “procure” by striking out the words “goods or services” and inserting in lieu thereof the words “specific commodities for immediate delivery”;

On page fourteen, subdivision 7.6.b., after the word “basis” by striking out the words “will permit” and inserting in lieu thereof the word “permits”;

On page fourteen, subdivision 7.6.b., after the word “procure” by striking out the words “goods or services” and inserting in lieu thereof the words “specific commodities for immediate delivery”;

On page fourteen, subdivision 7.6.b., after the word “unit” in the second sentence aby deleting the word “must”;

On page fourteen, subdivision 7.5.b., after the words “if possible” by striking the comma and the words “and any” and inserting in lieu thereof a period and the word “Any”;

On page fourteen, subdivision 7.6.c., by striking out the word “will”in the two places it appears in that subdivision beside the strikethrough of the word “shall” and by removing the strikethroughs of the word “shall” in the two places they appear in that subsection so that the word “shall” is reinstated in the text;

On page fourteen, subdivision 7.6.c., after the words “procurement of” by striking out the words “goods or services” and inserting in lieu thereof the words “specific commodities for immediate delivery”;

On page fifteen, subdivision 7.7.b, by striking out the word “will”where it appears beside the strikethrough of the word “shall” and by removing the strikethrough of the word “shall” so that the word “shall” is reinstated in the text;

On page fifteen and sixteen, throughout subsection 7.8, by striking out the word “will” in the four places where it appears beside the strikethrough of the word “shall” and by removing the strikethrough of the word “shall” in the four places that it appears in that subsection so that the word “shall” is reinstated in the text;

On page fifteen, subdivision 7.8.a.1.; after the word “Director” by striking the period;

On page sixteen, subdivision 7.9.b., by striking out the word “will”in the two places it appears in that subdivision beside the strikethrough of the word “shall” and by removing the strikethroughs of the word “shall” in the two places they appear in that subdivision so that the word “shall” is reinstated in the text;

On page seventeen, subdivision 7.10.d., by striking out the word “will”where it appears beside the strikethrough of the word “shall” and by removing the strikethrough of the word “shall” so that the word “shall” is reinstated in the text;

On page seventeen, subdivision 7.10.e., by striking out the word “will”where it appears beside the strikethrough of the word “shall” and by removing the strikethrough of the word “shall” so that the word “shall” is reinstated in the text;

On page seventeen, throughout subsection 7.11, by striking out the word “will” in the two places it appears in that section beside the strikethrough of the word “shall” and by removing the strikethroughs of the word “shall” in the two places they appear in that section so that the word “shall” is reinstated in the text;

On page seventeen, subdivision 7.12.a.2., after the word “between” and inserting the word “the”;

On page eighteen, subdivision 7.12.b.2., by striking out the word “must”where it appears beside the strikethrough of the word “shall” and by removing the strikethrough of the word “shall” so that the word “shall” is reinstated in the text;

On page eighteen, subdivision 7.12.c., by striking out the word “must”where it appears beside the strikethrough of the word “shall” and by removing the strikethrough of the word “shall” so that the word “shall” is reinstated in the text;

On page nineteen, subdivision 8.1.b., by striking out the word “must”where it appears beside the strikethrough of the word “shall” and by removing the strikethrough of the word “shall” so that the word “shall” is reinstated in the text;

On page nineteen, subdivision 8.1.c., by striking out the word “will”where it appears beside the strikethrough of the word “shall” and by removing the strikethrough of the word “shall” so that the word “shall” is reinstated in the text;

On page nineteen, subdivision 8.2.a., by striking out the word “will”where it appears beside the strikethrough of the word “shall” and by removing the strikethrough of the word “shall” so that the word “shall” is reinstated in the text;

On page twenty, subdivision 8.5., after the stricken word “shall” by striking out the words “will remain” and inserting in lieu thereof the word “remains”;

On page twenty, subsection 8.5., by striking out the word “will”where it appears beside the strikethrough of the word “shall” and by removing the strikethrough of the word “shall” so that the word “shall” is reinstated in the text;

On page twenty, subsection 9.2., by striking out the word “will”where it appears beside the strikethrough of the word “shall” and by removing the strikethrough of the word “shall” so that the word “shall” is reinstated in the text;

On page twenty-one, section 11, by striking out the word “must”where it appears beside the strikethrough of the word “shall” throughout the section and by removing the strikethrough of the word “shall” where it appears throughout the section so that the word “shall” is reinstated in the text;

On page twenty-two, subsection 11.5., after the word “auction” by striking out the word “will” and inserting the word “shall”;

On page twenty-three, subsection 12.2., by removing the strikethrough of the word “shall” where it appears in that subsection so that the word “shall” is reinstated in the text;

On page twenty-three, subsection 12.2., after the word “them” by inserting the word “as”;

On page twenty-three, subsection 12.3., after the words “defined in” by striking out the word “W. Va.” and inserting in lieu thereof the words “West Virginia”;

On page twenty-four, subdivision 12.3.d., after the words “Purchasing Division” by striking the word “will” and inserting in lieu thereof the word “shall”;

On page twenty-four, subdivision 12.4.a., “Nothing contained herein” by striking out the words “will prohibit” and inserting in lieu thereof the word “prohibits”;

On page twenty-four, subdivision 12.4.c., after the words “spending unit” and the comma, by striking out the word “will” and inserting in lieu thereof the word “shall”;

On page twenty-four, subdivision 12.4.d., by striking out the word “will”in the two places it appears in that subdivision beside the strikethrough of the word “shall” and by removing the strikethroughs of the word “shall” in the two places they appear in that subdivision so that the word “shall” is reinstated in the text;

On page twenty-four, subdivision 12.4.d., by striking out the word “must”where it appears beside the strikethrough of the word “shall” and by removing the strikethrough of the word “shall” so that the word “shall” is reinstated in the text;

On page twenty-five, subdivision 12.4.d.3., after the words “the vendor” striking through the word “must” and inserting in lieu thereof the word “shall”;

On page twenty-five, subsection 12.5, by striking out the word “must”where it appears beside the strikethrough of the word “shall” and by removing the strikethrough of the word “shall” so that the word “shall” is reinstated in the text;

On page twenty-five, subsection 13.2., by removing the strikethrough of the word “shall” so that the word “shall” is reinstated in the text;

On page twenty-five, subsection 13.5., by striking out the word “must”where it appears beside the strikethrough of the word “shall” and by removing the strikethrough of the word “shall” so that the word “shall” is reinstated in the text.”

(b) The legislative rule filed in the State Register on July 29, 2014, authorized under the authority of section forty-eight, article three, chapter five-a of this code, modified by the Department of Administration to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on September 16, 2014, relating to the Department of Administration (state owned vehicles, 148 CSR 3), is authorized.

(c) The legislative rule filed in the State Register on July 30, 2014, authorized under the authority of section forty-four, article three, chapter five-a of this code, modified by the Department of Administration to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on September 16, 2014, relating to the Department of Administration (state plan for the operation of the West Virginia State Agency for Surplus Property, 148 CSR 4, is authorized.

(a) The legislative rule filed in the State Register on July 31, 2014, authorized under the authority of section one, article ten-d, chapter five of this code, relating to the Consolidated Public Retirement Board (refund, reinstatement, retroactive service, loan and employer error interest factors, 162 CSR 7), is authorized.

(b) The legislative rule filed in the State Register on July 31, 2014, authorized under the authority of section one, article ten-d, chapter five of this code, relating to the Consolidated Public Retirement Board (Deputy Sheriff Retirement System, 162 CSR 10), is authorized.

(c) The legislative rule filed in the State Register on the July 31, 2014, authorized under the authority of section one, article ten-d, chapter five of this code, relating to the Consolidated Public Retirement Board (service credit for accrued and unused sick and annual leave, 162 CSR 8), is authorized.

The legislative rule filed in the State Register on July 30, 2014, authorized under the authority of section four, article six, chapter five-a of this code, modified by the Office of Technology to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on October 3, 2014, relating to the Office of Technology (procedures for sanitization, retirement and disposition of information technology equipment, 163 CSR 1, is authorized.

Delegate Cowles moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.

On this question, the yeas and nays were taken (Roll No. 521), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 522), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 142) passed.

On this question, the yeas and nays were taken (Roll No. 523), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 142) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

S. B. 195, Authorizing Conservation Committee promulgate legislative rule relating to financial assistance programs; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk on page two, section one, line six following the word “is” by inserting the word “not”.

Delegate Shott asked and obtained unanimous consent that the amendment be withdrawn.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, on page three, after the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:

“That § 64-9-12 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 9. AUTHORIZATION FOR MISCELLANEOUS AGENCIES AND BOARDS TO PROMULGATE LEGISLATIVE RULES.

The legislative rule filed in the State Register on July 28, 2014, authorized under the authority of section four-a, article twenty-one-a, chapter nineteen of this code, modified by the Conservation Committee to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on November 21, 2014, relating to the Conservation Committee (financial assistance programs,(63 CSR 2), is not authorized.”

Com. Sub. for S. B. 234, Exempting certain water and sewer utilities owned by political subdivisions from PSC jurisdiction; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page two after the enacting section by striking out the remainder of the bill and inserting in lieu thereof the following:

“That §8-12-17 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §8-16-19 of said code be amended and reenacted; that §8-19-4 of said code be amended and reenacted; that §16-13A-1a, §16-13A-9 and §16-13A-25 of said code be amended and reenacted; that §24-1-1, §24-1-1b and 24-1-2 of said code be amended and reenacted; that §24-2-1, §24-2-2, §24-2-3, §24-2- 4a, §24-2-4b, §24-2-7 and §24-2-11 of said code be amended and reenacted; and that §24-3-5 of said code be amended and reenacted, all to read as follows:

ARTICLE 12. GENERAL AND SPECIFIC POWERS, DUTIES AND ALLIED RELATIONS OF MUNICIPALITIES, GOVERNING BODIES AND MUNICIPAL OFFICERS AND EMPLOYEES; SUITS AGAINST MUNICIPALITIES.

In any case where a municipality shall owns a gas system, an electric system, a waterworks system, a sewer system or other public utility, and a majority of not less than sixty percent of the members of the governing body thereof shall deem it for the best interest of such municipality that such utility be sold or leased, the governing body shall, by ordinance legally adopted, submit to the qualified voters of such municipality, at any regular municipal election or at any special municipal election called for that purpose, the question of making or effecting such sale or lease. In such case the governing body shall, in the ordinance submitting such question to a vote, set forth in full the terms of such proposed sale or lease, the name of the proposed purchaser or lessee and the date of such election, and a notice containing this information shall be published as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be such municipality. Such election shall be held in all respects in compliance with the provisions of chapter three of this code, so far as the same are applicable and not inconsistent herewith, and the provisions of article five of this chapter. If a majority of the legal votes cast at such election upon such question be in favor of the proposed sale or lease of such utility, may so sell or lease such gas system, electric system, waterworks system, sewer system or other public utility upon such terms and conditions as said governing body in its discretion, considers in the best interest of the municipality: Provided, That such sale or lease may be made only upon (1) the publication of notice of a hearing before the governing body of the municipality, as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, in a newspaper published and of general circulation in the municipality, such publication to be made not earlier than twenty days and not later than seven days prior to the hearing, and (2) the approval by the Public Service Commission of West Virginia. the governing body, upon the ascertainment of the result of such election, The governing body, upon the approval of the sale or lease by a majority of its members of not less than sixty percent of the members of the governing body, shall have full power and authority to proceed to execute or effect such sale or lease in accordance with the terms and conditions prescribed in the ordinance approved as aforesaid, and shall have power to do any and all things necessary or incident thereto: Provided, That if at any time after such election approval and before the execution of the authority under the ordinance, any person should present to the governing body an offer to buy such public utility at a price which exceeds by at least five percent the sale price which shall have been so voted upon approved and authorized or to lease the same upon terms which the governing body, in its discretion, shall consider more advantageous to the municipality than the terms of the lease which shall have been authorized by vote previously approved as aforesaid, the governing body shall have the power to accept such subsequent offer, and to make such sale or such lease to the person making the offer, without resubmitting the question to a vote upon approval of the offer by a majority of not less than sixty percent of the members of the governing body; but, if a sale shall have been authorized by vote approved by the governing body as aforesaid, and such the subsequent proposition be for a lease, or, if a lease shall have been so authorized approved by the governing body, and the subsequent proposition shall be for a sale, the governing body shall have no power the authority to accept the same without submitting the question thereof to a vote of the people as first above provided upon approval of the offer by a majority of not less than sixty percent of the members of the governing body. Before any such second or subsequent proposition shall be submitted to a vote, after a sale or lease shall have been authorized at an election held hereunder, the The person making such proposition shall furnish bond, with security to be approved by the governing body, in a penalty of not less than twenty-five percent of such proposed bid, conditioned to carry such proposition into execution, if the same shall be approved at the election to be called thereon by the governing body. In any case where any such public utility shall be sold or leased by the governing body as hereinabove provided, no part of the moneys derived from such sale or lease shall be applied to the payment of current expenses of the municipality, but the proceeds of such sale or lease shall be applied in payment and discharge of any bonded indebtedness created in respect to such public utility, and in case there be no bonded indebtedness, the governing body, in its discretion, shall have the power and authority to expend all such moneys when received for the purchase or construction of firefighting equipment and buildings for housing such equipment, a municipal building or city hall, and the necessary land upon which to locate the same, or for the construction of paved streets, avenues, roads, alleys, ways, sidewalks, sewers and other like permanent improvements, and for no other purposes. In case there be a surplus after the payment of such bonded indebtedness, the surplus shall be used as aforesaid.

The requirements of this section shall not apply to the sale or lease of any part of the properties of any such public utility determined by the governing body to be unnecessary for the efficient rendering of the service of such utility.

If any party in interest is dissatisfied with the rates fixed under the provisions of the immediately preceding section of this article section eighteen, article sixteen, chapter eight of this code, such party shall have the right to appeal to the Public Service Commission at any time within thirty days after the fixing of such rates by the governing body, but the rates so fixed by the governing body shall remain in full force and effect, until set aside, altered or amended by the Public Service Commission.

§8-19-4. Estimate of cost; ordinance or order for issuance of revenue bonds; interest on bonds; rates for services; exemption from taxation.

Whenever a municipality or county commission shall, under the provisions of this article,

determine to acquire, by purchase or otherwise, construct, establish, extend or equip a waterworks system or an electric power system, or to construct any additions, betterments or improvements to any waterworks or electric power system, it shall cause an estimate to be made of the cost thereof, and may, by ordinance or order, provide for the issuance of revenue bonds under the provisions of this article, which ordinance or order shall set forth a brief description of the contemplated undertaking, the estimated cost thereof, the amount, rate or rates of interest, the time and place of payment and other details in connection with the issuance of the bonds. Such The bonds shall be in such form and shall be negotiated and sold in such manner and upon such terms as the governing body of such municipality or county commission may, by ordinance or order, specify. All such the bonds and the interest thereon shall be exempt from all taxation by this state, or any county, municipality or county commission, political subdivision or agency thereof. Notwithstanding any other provision of this code to the contrary, the real and personal property which a municipality or county has acquired and constructed according to the provisions of this article, and any leasehold interest therein held by other persons, shall be deemed public property and shall be exempt from taxation by the state, or any county, municipality or other levying body, so long as the same is owned by such the municipality or county: Provided, That with respect to electric power systems, this exemption for real and personal property shall be applicable only for such the real and personal property: (1) Physically situate within the municipal or county boundaries of the municipality or county which acquired or constructed such the electric power system and there was in place prior to the effective date of the amendments to this section made in the year 1992 an agreement between the municipality and the county commission for payments in lieu of tax; or (2) acquired or constructed with the written agreement of the county school board, county commission and any municipal authority within whose jurisdiction the electric power system is or is to be physically situate. Notwithstanding anything contained in this statute to the contrary, this exemption shall be applicable to any leasehold or similar interest held by persons other than a municipality or county only if acquired or constructed with the written agreement of the county school board, county commission and any municipal authority within whose jurisdiction the electric power system is or is to be physically situate: Provided, however, That payments made to any county commission, county school board or municipality in lieu of tax pursuant to such an agreement shall be distributed as if the payments resulted from ad valorem property taxation. Such The bonds shall bear interest at a rate per annum set by the municipality or county commission, payable at such times, and shall be payable as to principal at such times, not exceeding fifty years from their date, and at such place or places, within or without the state, as shall be prescribed in the ordinance or order providing for their issuance. Unless the governing body of the municipality or county commission shall otherwise determine, such the ordinance or order shall also declare that a statutory mortgage lien shall exist upon the property so to be acquired, constructed, established, extended or equipped, fix minimum rates or charges for water or electricity to be collected prior to the payment of all of said bonds and shall pledge the revenues derived from the waterworks or electric power system for the purpose of paying such the bonds and interest thereon, which pledge shall definitely fix and determine the amount of revenues which shall be necessary to be set apart and applied to the payment of the principal of and interest upon the bonds and the proportion of the balance of such the revenues, which are to be set aside as a proper and adequate depreciation account, and the remainder shall be set aside for the reasonable and proper maintenance and operation thereof. The rates or charges to be charged for the services from such the waterworks or electric power system shall be sufficient at all times to provide for the payment of interest upon all bonds and to create a sinking fund to pay the principal thereof as and when the same become due, and reasonable reserves therefor, and to provide for the repair, maintenance and operation of the waterworks or electric power system, and to provide an adequate depreciation fund, and to make any other payments which shall be required or provided for in the ordinance or order authorizing the issuance of said bonds.

The jurisdiction of the Public Service Commission relating to public service districts shall be expanded to include the following powers and such the powers shall be in addition to all other powers of the Public Service Commission set forth in this code:

(a) To study, modify, approve, deny or amend the plans created under section one-b of this article for consolidation or merger of public service districts and their facilities, personnel or administration;

(b) To petition the appropriate circuit court for the removal of a public service district board member or members; and

(c) To create by general order a separate division within the Public Service Commission to provide assistance to public service districts in technological, operational, financial and regulatory matters, including, upon written request of the public service board, assistance to the board in deliberations regarding a proposed rate change or project.

§16-13A-9. Rules; service rates and charges; discontinuance of service; required water and sewer connections; lien for delinquent fees.

(a) (1) The board may make, enact and enforce all needful rules in connection with the acquisition, construction, improvement, extension, management, maintenance, operation, care, protection and the use of any public service properties owned or controlled by the district. The board shall establish, in accordance with this article, rates, fees and charges for the services and facilities it furnishes, which shall be sufficient at all times, notwithstanding the provisions of any other law or laws, to pay the cost of maintenance, operation and depreciation of the public service properties and principal of and interest on all bonds issued, other obligations incurred under the provisions of this article and all reserve or other payments provided for in the proceedings which authorized the issuance of any bonds under this article. The schedule of the rates, fees and charges may be based upon:

(A) The consumption of water or gas on premises connected with the facilities, taking into consideration domestic, commercial, industrial and public use of water and gas;

(B) The number and kind of fixtures connected with the facilities located on the various premises;

(E) May be determined on any other basis or classification which the board may determine to be fair and reasonable, taking into consideration the location of the premises served and the nature and extent of the services and facilities furnished. However, no rates, fees or charges for stormwater services may be assessed against highways, road and drainage easements or stormwater facilities constructed, owned or operated by the West Virginia Division of Highways.

(2) The board of a public service district with at least four thousand five hundred customers and annual combined gross revenue of $3 million or more from its separate or combined services may make, enact and enforce all needful rules in connection with the enactment or amendment of rates, fees and charges of the district. At a minimum, these rules shall provide for:

(A) Adequate prior public notice of the contemplated rates, fees and charges by causing a notice of intent to effect such a change to be specified on the monthly billing statement of the customers of the district for the month next preceding the month in which the contemplated change is to be before the board on first reading.

(B) Adequate prior public notice of the contemplated rates, fees and charges by causing to be published as a Class I legal advertisement of the proposed action, in compliance with the provisions of article three, chapter fifty-nine of the code. The publication area for publication shall be all territory served by the district. If the district provides service in more than one county, publication shall be made in a newspaper of general circulation in each county that the district provides service.

(C) The public notice of the proposed action shall state the current rates, fees and charges and the proposed changes to said rates, fees and charges; the date, time and place of both a public hearing on the proposal and the proposed final vote on adoption; and the place or places within the district where the proposed rates, fees and charges may be inspected by the public. A reasonable number of copies of the proposal shall be kept at the place or places and be made available for public inspection. The notice shall also advise that interested parties may appear at the public hearing before the board and be heard with respect to the proposed rates, fees and charges.

(D) The proposed rates, fees and charges shall be read at two meetings of the board with at least two weeks intervening between each meeting. The public hearing may be conducted with or following the second reading.

(E) Rates, fees and charges approved by an affirmative vote of the board shall be forwarded in writing to the county commission appointing the approving board. The county commission shall publish notice of the proposed rates, fees and charges by a Class 1 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of the code. Within forty-five days of receipt of the proposed rates, fees and charges, the county commission shall take action to approve or reject the proposed rates, fees and charges. After forty-five days, and absent action by the county commission, the proposed rates, fees and charges shall be effective with no further action by the board or county commission. In any event, this forty-five-day period may be shall be mandatory unless extended by the official action of both the board proposing the rates, fees and charges, and the appointing county commission.

(F) Enactment of the proposed rates, fees and charges shall follow an affirmative vote or inaction by the county commission and shall be effective no sooner than forty-five days following action or inaction by the county commission. The forty-five-day waiting period may be waived by public vote of the county commission only if the commission finds and declares the district to be in financial distress such that the forty-five day waiting period would be detrimental to the ability of the district to deliver continued and compliant public services.

(2) (3) Where water, sewer, stormwater or gas services, or any combination thereof, are all furnished to any premises, the schedule of charges may be billed as a single amount for the aggregate of the charges. The board shall require all users of services and facilities furnished by the district to designate on every application for service whether the applicant is a tenant or an owner of the premises to be served. If the applicant is a tenant, he or she shall state the name and address of the owner or owners of the premises to be served by the district. Notwithstanding the provisions of section eight, article three, chapter twenty-four of this code to the contrary, all new applicants for service shall deposit the greater of a sum equal to two twelfths of the average annual usage of the applicant's specific customer class or $50, with the district to secure the payment of service rates, fees and charges in the event they become delinquent as provided in this section. If a district provides both water and sewer service, all new applicants for service shall deposit the greater of a sum equal to two twelfths of the average annual usage for water service or $50 and the greater of a sum equal to two twelfths of the average annual usage for wastewater service of the applicant's specific customer class or $50. In any case where a deposit is forfeited to pay service rates, fees and charges which were delinquent at the time of disconnection or termination of service, no reconnection or reinstatement of service may be made by the district until another deposit equal to the greater of a sum equal to two twelfths of the average usage for the applicant's specific customer class or $50 has been remitted to the district. After twelve months of prompt payment history, the district shall return the deposit to the customer or credit the customer's account at a rate as the Public Service Commission may prescribe: Provided, That where the customer is a tenant, the district is not required to return the deposit until the time the tenant discontinues service with the district. Whenever any rates, fees, rentals or charges for services or facilities furnished remain unpaid for a period of twenty days after the same become due and payable, the user of the services and facilities provided is delinquent and the user is liable at law until all rates, fees and charges are fully paid. The board may, under reasonable rules promulgated by the Public Service Commission, shut off and discontinue water or gas services to all delinquent users of either water or gas facilities, or both, ten days after the water or gas services become delinquent: Provided, however, That nothing contained within the rules of the Public Service Commission shall be deemed to require any agents or employees of the board to accept payment at the customer's premises in lieu of discontinuing service for a delinquent bill.

(b) In the event that any publicly or privately owned utility, city, incorporated town, other municipal corporation or other public service district included within the district owns and operates separately water facilities, sewer facilities or stormwater facilities and the district owns and operates another kind of facility, either water or sewer, or both, as the case may be, then the district and the publicly or privately owned utility, city, incorporated town or other municipal corporation or other public service district shall covenant and contract with each other to shut off and discontinue the supplying of water service for the nonpayment of sewer or stormwater service fees and charges: Provided, That any contracts entered into by a public service district pursuant to this section shall be submitted to the Public Service Commission for approval. Any public service district which provides water and sewer service, water and stormwater service or water, sewer and stormwater service has the right to terminate water service for delinquency in payment of water, sewer or stormwater bills. Where one public service district is providing sewer service and another public service district or a municipality included within the boundaries of the sewer or stormwater district is providing water service and the district providing sewer or stormwater service experiences a delinquency in payment, the district or the municipality included within the boundaries of the sewer or stormwater district that is providing water service, upon the request of the district providing sewer or stormwater service to the delinquent account, shall terminate its water service to the customer having the delinquent sewer or stormwater account: Provided, however, That any termination of water service must comply with all rules and orders of the Public Service Commission: Provided further, That nothing contained within the rules of the Public Service Commission shall be deemed to require any agents or employees of the public service districts to accept payment at the customer's premises in lieu of discontinuing service for a delinquent bill.

(c) Any district furnishing sewer facilities within the district may require or may, by petition to the circuit court of the county in which the property is located, compel or may require the Division of Health to compel all owners, tenants or occupants of any houses, dwellings and buildings located near any sewer facilities where sewage will flow by gravity or be transported by other methods approved by the Division of Health, including, but not limited to, vacuum and pressure systems, approved under the provisions of section nine, article one, chapter sixteen of this code, from the houses, dwellings or buildings into the sewer facilities, to connect with and use the sewer facilities and to cease the use of all other means for the collection, treatment and disposal of sewage and waste matters from the houses, dwellings and buildings where there is gravity flow or transportation by any other methods approved by the Division of Health, including, but not limited to, vacuum and pressure systems, approved under the provisions of section nine, article one, chapter sixteen of this code and the houses, dwellings and buildings can be adequately served by the sewer facilities of the district and it is declared that the mandatory use of the sewer facilities provided for in this subsection is necessary and essential for the health and welfare of the inhabitants and residents of the districts and of the state. If the public service district requires the property owner to connect with the sewer facilities even when sewage from dwellings may not flow to the main line by gravity and the property owner incurs costs for any changes in the existing dwellings' exterior plumbing in order to connect to the main sewer line, the public service district board shall authorize the district to pay all reasonable costs for the changes in the exterior plumbing, including, but not limited to, installation, operation, maintenance and purchase of a pump or any other method approved by the Division of Health. Maintenance and operation costs for the extra installation should be reflected in the users charge for approval of the Public Service Commission. The circuit court shall adjudicate the merits of the petition by summary hearing to be held not later than thirty days after service of petition to the appropriate owners, tenants or occupants.

(d) Whenever any district has made available sewer facilities to any owner, tenant or occupant of any house, dwelling or building located near the sewer facility and the engineer for the district has certified that the sewer facilities are available to and are adequate to serve the owner, tenant or occupant and sewage will flow by gravity or be transported by other methods approved by the Division of Health from the house, dwelling or building into the sewer facilities, the district may charge, and the owner, tenant or occupant shall pay, the rates and charges for services established under this article only after thirty-day notice of the availability of the facilities has been received by the owner, tenant or occupant. Rates and charges for sewage services shall be based upon actual water consumption or the average monthly water consumption based upon the owner's, tenant's or occupant's specific customer class.

(e) The owner, tenant or occupant of any real property may be determined and declared to be served by a stormwater system only after each of the following conditions is met: (1) The district has been designated by the Environmental Protection Agency as an entity to serve a West Virginia Separate Storm Sewer System community, as defined in 40 C. F. R. §122.26; (2) the district's authority has been properly expanded to operate and maintain a stormwater system; (3) the district has made available a stormwater system where stormwater from the real property affects or drains into the stormwater system; and (4) the real property is located in the Municipal Separate Storm Sewer System's designated service area. It is further hereby found, determined and declared that the mandatory use of the stormwater system is necessary and essential for the health and welfare of the inhabitants and residents of the district and of the state. The district may charge and the owner, tenant or occupant shall pay the rates, fees and charges for stormwater services established under this article only after thirty days’ notice of the availability of the stormwater system has been received by the owner. An entity providing stormwater service shall provide a tenant a report of the stormwater fee charged for the entire property and, if appropriate, that portion of the fee to be assessed to the tenant.

(f) All delinquent fees, rates and charges of the district for either water facilities, sewer facilities, gas facilities or stormwater systems or stormwater management programs are liens on the premises served of equal dignity, rank and priority with the lien on the premises of state, county, school and municipal taxes. Nothing contained within the rules of the Public Service Commission shall be deemed to require any agents or employees of the public service districts to accept payment at the customer's premises in lieu of discontinuing service for a delinquent bill. In addition to the other remedies provided in this section, public service districts are granted a deferral of filing fees or other fees and costs incidental to the bringing and maintenance of an action in magistrate court for the collection of delinquent water, sewer, stormwater or gas bills. If the district collects the delinquent account, plus reasonable costs, from its customer or other responsible party, the district shall pay to the magistrate the normal filing fee and reasonable costs which were previously deferred. In addition, each public service district may exchange with other public service districts a list of delinquent accounts: Provided, That an owner of real property may not be held liable for the delinquent rates or charges for services or facilities of a tenant, nor may any lien attach to real property for the reason of delinquent rates or charges for services or facilities of a tenant of the real property, unless the owner has contracted directly with the public service district to purchase the services or facilities.

(g) Anything in this section to the contrary notwithstanding, any establishment, as defined in section three, article eleven, chapter twenty-two of this code, now or hereafter operating its own sewage disposal system pursuant to a permit issued by the Department of Environmental Protection, as prescribed by section eleven of said article, is exempt from the provisions of this section.

(h) A public service district which has been designated by the Environmental Protection Agency as an entity to serve a West Virginia Separate Storm Sewer System community shall prepare an annual report detailing the collection and expenditure of rates, fees or charges and make it available for public review at the place of business of the governing body and the stormwater utility main office.

(a) Notwithstanding any other provisions of this article to the contrary, a A public service district may not has plenary power to borrow money, enter into contracts for the provision of engineering, design or feasibility studies, issue or contract to issue revenue bonds or exercise any of the powers conferred by the provisions of section thirteen, twenty or twenty-four of this article. without the prior consent and approval of the Public Service Commission: Provided, That approval of funding set forth in section eleven, article two, chapter twenty-four of this code or this section is not required if the funding is for a project which has received a certificate of public convenience and necessity after July 8, 2005, from the commission and where the cost of the project changes but the change does not affect the rates established for the project. Upon written request of the public service board contemplating such transaction or project, the Public Service Commission shall provide technical support to the public service board, including, but not limited to, engineering, design and financial analysis of the proposed transaction or project.

(b) The Public Service Commission may waive the provision of prior consent and approval for entering into contracts for engineering, design or feasibility studies pursuant to this section for good cause shown which is evidenced by the public service district filing a request for waiver of this section stated in a letter directed to the commission with a brief description of the project, a verified statement by the board members that the public service district has complied with chapter five-g of this code, and further explanation of ability to evaluate their own engineering contract, including, but not limited to:

(2) Completion of a construction project requiring engineering services. The district shall also forward an executed copy of the engineering contract to the commission after receiving approval of the waiver.

(c) An engineering contract that meets one or more of the following criteria is exempt from the waiver or approval requirements:

(1) A contract with a public service district that is a Class A utility on April 1, 2003, or subsequently becomes a Class A utility as defined by commission rule;

(2) A contract with a public service district that does not require borrowing and that can be paid out of existing rates;

(3) A contract where the payment of engineering fees are contingent upon the receipt of funding, and commission approval of the funding, to construct the project which is the subject of the contract; or

(d) Requests for approval or waivers of engineering contracts shall be deemed granted thirty days after the filing date unless the staff of the Public Service Commission or a party files an objection to the request. If an objection is filed, the Public Service Commission shall issue its decision within one hundred twenty days of the filing date. In the event objection is received to a request for a waiver, the application shall be considered a request for waiver as well as a request for approval in the event a waiver is not appropriate.

(e) Unless the properties to be constructed or acquired represent ordinary extensions or repairs of existing systems in the usual course of business, a public service district must first obtain a certificate of public convenience and necessity from the Public Service Commission in accordance with the provision of chapter twenty-four of this code when a public service district is seeking to acquire or construct public service property.

§24-1-1. Legislative purpose and policy; plan for internal reorganization; promulgation of plan as rule; cooperation with Joint Committee on Government and Finance.

(a) It is the purpose and policy of the Legislature in enacting this chapter to confer upon the Public Service Commission of this state the authority and duty to enforce and regulate the practices, services and rates of public utilities in order to:

(1) Ensure fair and prompt regulation of public utilities in the interest of the using and consuming public;

(2) Provide the availability of adequate, economical and reliable utility services throughout the state;

(3) Encourage the well-planned development of utility resources in a manner consistent with state needs and in ways consistent with the productive use of the state’s energy resources, such as coal;

(4) Ensure that rates and charges for utility services are just, reasonable, applied without unjust discrimination or preference, applied in a manner consistent with the purposes and policies set forth in article two-a of this chapter, and based primarily on the costs of providing these services;

(5) Encourage energy conservation and the effective and efficient management of regulated utility enterprises; and

(6) Encourage removal of artificial barriers to rail carrier service, stimulate competition, stimulate the free flow of goods and passengers throughout the state and promote the expansion of the tourism industry, thereby improving the economic condition of the state.

(b) The Legislature creates the Public Service Commission to exercise the legislative powers delegated to it. The Public Service Commission is charged with the responsibility for appraising and balancing the interests of current and future utility service customers, the general interests of the state’s economy and the interests of the utilities subject to its jurisdiction in its deliberations and decisions.

(c) The Legislature directs the Public Service Commission to identify, explore and consider the potential benefits or risks associated with emerging and state-of-the-art concepts in utility management, rate design and conservation. The commission may conduct inquiries and hold hearings regarding such concepts in order to provide utilities subject to its jurisdiction and other interested persons the opportunity to comment, and shall report to the Governor and the Legislature regarding its findings and policies to each of these areas not later than the first day of the regular session of the Legislature in the year 1985, and every two years thereafter.

(d) It is legislative policy to ensure that the Legislature and the general public become better informed regarding the regulation of public utilities in this state and the conduct of the business of the Public Service Commission. To aid in the achievement of this policy, the Public Service Commission annually shall present to the Joint Committee on Government and Finance, created by article three, chapter four of this code, or a subcommittee designated by the joint committee, a management summary report which describes in a concise manner:

(1) The major activities of the commission for the year especially as such activities relate to the implementation of the provisions of this chapter;

(2) Important policy decisions reached and initiatives undertaken during the year;

(3) The current balance of supply and demand for natural gas and electric utility services in the state and forecast of the probable balance for the next ten years; and

(4) Other information considered by the commission to be important including recommendations for statutory reform and the reasons for such recommendations.

(e) In addition to any other studies and reports required to be conducted and made by the Public Service Commission pursuant to any other provision of this section, the commission shall study and initially report to the Legislature no later than the first day of the regular session of the Legislature in the year 1980 upon:

(1) The extent to which natural gas wells or wells heretofore supplying gas utilities in this state have been capped off or shut in; the number of such wells; their probable extent of future production and the reasons given and any justification for capping off or shutting in such wells; the reasons, if any, why persons engaged or heretofore engaged in the development of gas wells in this state or the Appalachian areas have been discouraged from drilling, developing or selling the production of such wells; and whether there are fixed policies by any utility or group of utilities to avoid the purchase of natural gas produced in the Appalachian region of the United States generally and in West Virginia specifically.

(2) The extent of the export and import of natural gas utility supplies in West Virginia.

(3) The cumulative effect of the practices mentioned in subdivisions (1) and (2) of this subsection upon rates theretofore and hereafter charged gas utility customers in West Virginia.

In carrying out the provisions of this section the commission shall have jurisdiction over such persons, whether public utilities or not, as may be in the opinion of the commission necessary to the exercise of its mandate and may compel attendance before it, take testimony under oath and compel the production of papers or other documents. Upon reasonable request by the commission, all other state agencies shall cooperate with the commission in carrying out the provisions and requirements of this subsection.

(f) No later than the first day of the regular session of the Legislature in the year 1980, the Public Service Commission shall submit to the Legislature a plan for internal reorganization which plan shall specifically address the following:

(1) A division within the Public Service Commission which shall include the office of the commissioners, the hearing examiners and such support staff as may be necessary to carry out the functions of decision making and general supervision of the commission, which functions shall not include advocacy in cases before the commission;

(2) The creation of a division which shall act as an advocate for the position of and in the interest of all customers;

(3) The means and procedures by which the division to be created pursuant to the provisions of subdivision (2) of this subsection shall protect the interests of each class of customers and the means by which the commission will assure that such division will be financially and departmentally independent of the division created by subdivision (1) of this subsection;

(4) The creation of a division within the Public Service Commission which shall assume the duties and responsibilities now charged to the commissioners with regard to motor carriers which division shall exist separately from those divisions set out in subdivisions (1) and (2) of this subsection and which shall relieve the commissioners of all except minimal administrative responsibilities as to motor carriers and which plan shall provide for a hearing procedure to relieve the commissioners from hearing motor carrier cases;

(5) Which members of the staff of the Public Service Commission shall be exempted from the salary schedules or pay plan adopted by the civil service commission and identify such staff members by job classification or designation, together with the salary or salary ranges for each such job classification or designation;

(6) The manner in which the commission will strengthen its knowledge and independent capacity to analyze key conditions and trends in the industries it regulates extending from general industry analysis and supply-demand forecasting to continuing and more thorough scrutiny of the capacity planning, construction management, operating performance and financial condition of the major companies within these industries.

Such plan shall be based on the concept that each of the divisions mentioned in subdivisions (1), (2) and (4) of this subsection shall exist independently of the others and the plan shall discourage ex parte communications between them by such means as the commission shall direct, including, but not limited to, separate clerical and professional staffing for each division. Further, the Public Service Commission is directed to incorporate within the said plan to the fullest extent possible the recommendations presented to the subcommittee on the Public Service Commission of the Joint Committee on Government and Finance in a final report dated February, 1979, and entitled ‘A Plan for Regulatory Reform and Management Improvement’.

The commission shall, before January 5, 1980, adopt said plan by order, which order shall promulgate the same as a rule of the commission to be effective upon the date specified in said order, which date shall be no later than December 31, 1980. Certified copies of such order and rule shall be filed on the first day of the 1980 regular session of the Legislature, by the chairman of the commission with the clerk of each house of the Legislature, the Governor and the Secretary of State. The chairman of the commission shall also file with the Office of the Secretary of State the receipt of the clerk of each house and of the Governor, which receipt shall evidence compliance with this section.

Upon the filing of a certified copy of such order and rule, the clerk of each house of the Legislature shall report the same to their respective houses and the presiding officer thereof shall refer the same to appropriate standing committee or committees.

Within the limits of funds appropriated therefor, the rule of the Public Service Commission shall be effective upon the date specified in the order of the commission promulgating it unless an alternative plan be adopted by general law or unless the rule is disapproved by a concurrent resolution of the Legislature adopted prior to adjournment sine die of the regular session of the Legislature to be held in the year 1980: Provided, That if such rule is approved in part and disapproved in part by a concurrent resolution of the Legislature adopted prior to such adjournment, such rule shall be effective to the extent and only to the extent that the same is approved by such concurrent resolution.

The rules promulgated and made effective pursuant to this section shall be effective notwithstanding any other provisions of this code for the promulgation of rules or regulations.

(g) The Public Service Commission is hereby directed to cooperate with the Joint Committee on Government and Finance of the Legislature in its review, examination and study of the administrative operations and enforcement record of the Railroad Safety Division of the Public Service Commission and any similar studies.

(h) (1) The Legislature hereby finds that rates for natural gas charged to customers of all classes have risen dramatically in recent years to the extent that such increases have adversely affected all customer classes. The Legislature further finds that it must take action necessary to mitigate the adverse consequences of these dramatic rate increases.

(2) The Legislature further finds that the practices of natural gas utilities in purchasing high-priced gas supplies, in purchasing gas supplies from out-of-state sources when West Virginia possesses abundant natural gas, and in securing supplies, directly or indirectly by contractual agreements including take-or- pay provisions, indefinite price escalators or most-favored nation clauses have contributed to the dramatic increase in natural gas prices. It is therefore the policy of the Legislature to discourage such purchasing practices in order to protect all customer classes.

(3) The Legislature further finds that it is in the best interests of the citizens of West Virginia to encourage the transportation of natural gas in intrastate commerce by interstate or intrastate pipelines or by local distribution companies in order to provide competition in the natural gas industry and in order to provide natural gas to consumers at the lowest possible price.

(i) The Legislature further finds that transactions between utilities and affiliates are a contributing factor to the increase in natural gas and electricity prices and tend to confuse consideration of a proper rate of return calculation. The Legislature therefore finds that it is imperative that the Public Service Commission have the opportunity to properly study the issue of proper rate of return for lengthy periods of time and to limit the return of a utility to a proper level when compared to return or profit that affiliates earn on transactions with sister utilities.

(j) The Legislature further finds that water and sewer utilities that are political subdivisions of the state providing separate or combined services and having at least four thousand five hundred customers and annual gross revenues of $3 million or more are most fairly and effectively regulated by the local governing body with respect to rates, borrowing and capital projects. Therefore, notwithstanding any contrary provisions of this section, the jurisdiction of the Public Service Commission over water and sewer utilities that are political subdivisions of the state is limited to that granted specifically in this code.

(k) The Legislature further finds that an adequate cash working capital fund is essential to allow water and sewer utilities that are political subdivision of the state to deliver continuous and compliant service. Therefore, these utilities shall maintain a working capital reserve in an amount of no less than one eighth of actual annual operation and maintenance expense. This reserve shall be separate and distinct from and in addition to any repair and replacement fund that may be required by bond covenants.

The Public Service Commission shall, by general order, create a division within its staff which shall, upon written request of the governing body of a political subdivision that operates a water, sewer and/or stormwater utility, provide legal, operational, engineering, financial, rate making and accounting advice and assistance to public service districts and Class III and Class IV towns or villages water, sewer and/or stormwater utilities that are political subdivisions of the state, in operational, financial, and regulatory matters, and may perform or participate in the studies required under section one-b, article thirteen-a, chapter sixteen of this code: Provided, That advice and assistance to a Class III city or Class IV town or village shall only be given if such advice or assistance is specifically requested by the Class III city or the Class IV town or village. The request may be withdrawn by the city of town at any time, after which the commission shall not provide further assistance or advice.

Except where a different meaning clearly appears from the context, the words ‘public utility’ when used in this chapter shall mean and include any person or persons, or association of persons, however associated, whether incorporated or not, including municipalities, engaged in any business, whether herein enumerated or not, which is, or shall hereafter be held to be, a public service. Whenever in this chapter the words ‘commission’ or ‘Public Service Commission’ occur, such word or words shall, unless a different intent clearly appears from the context, be taken to mean the Public Service Commission of West Virginia. Whenever used in this chapter, ‘customer’ shall mean and include any person, firm, corporation, municipality, public service district or any other entity who purchases a product or services of any utility and shall include any such person, firm, corporation, municipality, public service district or any other entity who purchases such services or product for resale. Whenever in this chapter the words ‘governing body’ occur, such word or words shall, unless a different intent clearly appears from the context, be taken to mean the municipal body charged with the authority and responsibility of enacting ordinances of the municipality, as defined in section two, article one, chapter eight of this code, or a public service board of a public service district, as defined in section three, article thirteen-a, chapter sixteen of this code.

(a) The jurisdiction of the commission shall extend to all public utilities in this state and shall include any utility engaged in any of the following public services:

Common carriage of passengers or goods, whether by air, railroad, street railroad, motor or otherwise, by express or otherwise, by land, water or air, whether wholly or partly by land, water or air; transportation of oil, gas or water by pipeline; transportation of coal and its derivatives and all mixtures and combinations thereof with other substances by pipeline; sleeping car or parlor car services; transmission of messages by telephone, telegraph or radio; generation and transmission of electrical energy by hydroelectric or other utilities for service to the public, whether directly or through a distributing utility; supplying water, gas or electricity by municipalities or others; sewer systems servicing twenty-five or more persons or firms other than the owner of the sewer systems: Provided, That if a public utility other than a political subdivision intends to provide sewer service by an innovative, alternative method, as defined by the federal Environmental Protection Agency, the innovative, alternative method is a public utility function and subject to the jurisdiction of the Public Service Commission regardless of the number of customers served by the innovative, alternative method; any public service district created under the provisions of article thirteen-a, chapter sixteen of this code; toll bridges, wharves, ferries; solid waste facilities; and any other public service: Provided, however, That natural gas producers who provide natural gas service to not more than twenty-five residential customers are exempt from the jurisdiction of the commission with regard to the provisions of such residential service: Provided further, That upon request of any of the customers of such natural gas producers, the commission may, upon good cause being shown, exercise such authority as the commission may deem appropriate over the operation, rates and charges of such producer and for such length of time as the commission may consider to be proper: And provided further, That the jurisdiction the commission may exercise over the rates and charges of municipally operated public utilities is limited to that authority granted the commission in section four-b of this article: And provided further, That the decision-making authority granted to the commission in sections four and four-a of this article shall, in respect to an application filed by a public service district, be delegated to a single hearing examiner appointed from the commission staff, which hearing examiner shall be authorized to carry out all decision-making duties assigned to the commission by said sections, and to issue orders having the full force and effect of orders of the commission.

(b) The jurisdiction of the commission over political subdivisions of this state providing separate or combined services and having at least four thousand five hundred customers and annual combined gross revenues of $3 million or more that are political subdivisions of the state is limited to:

(1) General supervision of public utilities, as granted and described in section five of this article ;

(2) Regulation of measurements, practices, acts or services, as granted and described in section seven of this article;

(3) Regulation of a system of accounts to be kept by a public utility that is a political subdivision of the state, as granted and described in section eight of this article;

(4) Submission of information to the commission regarding rates, tolls, charges or practices, as granted and described in section nine of this article;

(5) Authority to subpoena witnesses, take testimony and administer oaths to any witness in any proceeding before or conducted by the commission, as granted and described in section ten of this article; and

(6) Investigation and resolution of disputes involving political subdivisions of the state regarding inter-utility agreements, rates, fees and charges, service areas and contested utility combinations.

(7) Customers of water and sewer utilities operated by a political subdivision of the state and customers of stormwater utilities operated by a public service district may bring formal or informal complaints regarding the commission’s exercise of the powers enumerated in this section and the commission shall resolve these complaints.

(8) In the event that a political subdivision has a deficiency in either its bond revenue or bond reserve accounts, or is otherwise in breach of a bond covenant, the bond holder may petition the Public Service Commission for such redress as will bring the accounts to current status or otherwise resolve the breached covenant, and the Commission shall have jurisdiction to fully resolve the alleged deficiency or breach.

(b) (c) The commission may, upon application, waive its jurisdiction and allow a utility operating in an adjoining state to provide service in West Virginia when:

(1) An area of West Virginia cannot be practicably and economically served by a utility licensed to operate within the State of West Virginia;

(2) Said area can be provided with utility service by a utility which operates in a state adjoining West Virginia;

(3) The utility operating in the adjoining state is regulated by a regulatory agency or commission of the adjoining state; and

(4) The number of customers to be served is not substantial. The rates the out-of-state utility charges West Virginia customers shall be the same as the rate the utility is duly authorized to charge in the adjoining jurisdiction. The commission, in the case of any such utility, may revoke its waiver of jurisdiction for good cause.

(1) An owner or operator of an electric generating facility located or to be located in this state that has been designated as an exempt wholesale generator under applicable federal law, or will be so designated prior to commercial operation of the facility, and for which such facility the owner or operator holds a certificate of public convenience and necessity issued by the commission on or before July 1, 2003, shall be subject to subsections (e), (f), (g), (h), (i) and (j), section eleven-c of this article as if the certificate of public convenience and necessity for such facility were a siting certificate issued under said section and shall not otherwise be subject to the jurisdiction of the commission or to the provisions of this chapter with respect to such facility except for the making or constructing of a material modification thereof as provided in subdivision (5) of this subsection.

(2) Any person, corporation or other entity that intends to construct or construct and operate an electric generating facility to be located in this state that has been designated as an exempt wholesale generator under applicable federal law, or will be so designated prior to commercial operation of the facility, and for which facility the owner or operator does not hold a certificate of public convenience and necessity issued by the commission on or before July 1, 2003, shall, prior to commencement of construction of the facility, obtain a siting certificate from the commission pursuant to the provisions of section eleven-c of this article in lieu of a certificate of public convenience and necessity pursuant to the provisions of section eleven of this article. An owner or operator of an electric generating facility as is described in this subdivision for which a siting certificate has been issued by the commission shall be subject to subsections (e), (f), (g), (h), (i) and (j), section eleven-c of this article and shall not otherwise be subject to the jurisdiction of the commission or to the provisions of this chapter with respect to such facility except for the making or constructing of a material modification thereof as provided in subdivision (5) of this subsection.

(3) An owner or operator of an electric generating facility located in this state that had not been designated as an exempt wholesale generator under applicable federal law prior to commercial operation of the facility, that generates electric energy solely for sale at retail outside this state or solely for sale at wholesale in accordance with any applicable federal law that preempts state law or solely for both such sales at retail and such sales at wholesale and that had been constructed and had engaged in commercial operation on or before July 1, 2003, shall not be subject to the jurisdiction of the commission or to the provisions of this chapter with respect to such facility, regardless of whether such facility subsequent to its construction has been or will be designated as an exempt wholesale generator under applicable federal law: Provided, That such owner or operator shall be subject to subdivision (5) of this subsection if a material modification of such facility is made or constructed.

(4) Any person, corporation or other entity that intends to construct or construct and operate an electric generating facility to be located in this state that has not been or will not be designated as an exempt wholesale generator under applicable federal law prior to commercial operation of the facility, that will generate electric energy solely for sale at retail outside this state or solely for sale at wholesale in accordance with any applicable federal law that preempts state law or solely for both such sales at retail and such sales at wholesale and that had not been constructed and had not been engaged in commercial operation on or before July 1, 2003, shall, prior to commencement of construction of the facility, obtain a siting certificate from the commission pursuant to the provisions of section eleven-c of this article in lieu of a certificate of public convenience and necessity pursuant to the provisions of section eleven of this article. An owner or operator of an electric generating facility as is described in this subdivision for which a siting certificate has been issued by the commission shall be subject to subsections (e), (f), (g), (h), (i) and (j), section eleven-c of this article and shall not otherwise be subject to the jurisdiction of the commission or to the provisions of this chapter with respect to such facility except for the making or constructing of a material modification thereof as provided in subdivision (5) of this subsection.

(5) An owner or operator of an electric generating facility described in this subsection shall, before making or constructing a material modification of the facility that is not within the terms of any certificate of public convenience and necessity or siting certificate previously issued for the facility or an earlier material modification thereof, obtain a siting certificate for the modification from the commission pursuant to the provisions of section eleven-c of this article in lieu of a certificate of public convenience and necessity for the modification pursuant to the provisions of section eleven of this article and, except for the provisions of section eleven-c of this article, shall not otherwise be subject to the jurisdiction of the commission or to the provisions of this chapter with respect to such modification.

(6) The commission shall consider an application for a certificate of public convenience and necessity filed pursuant to section eleven of this article to construct an electric generating facility described in this subsection or to make or construct a material modification of such electric generating facility as an application for a siting certificate pursuant to section eleven-c of this article if the application for the certificate of public convenience and necessity was filed with the commission prior to July 1, 2003, and if the commission has not issued a final order thereon as of that date.

(7) The limitations on the jurisdiction of the commission over, and on the applicability of the provisions of this chapter to, the owner or operator of an electric generating facility as imposed by, and described in this subsection, shall not be deemed to affect or limit the commission’s jurisdiction over contracts or arrangements between the owner or operator of such facility and any affiliated public utility subject to the provisions of this chapter.

(a) The commission is hereby given power to investigate all rates, methods and practices of public utilities subject to the provisions of this chapter; to require them to conform to the laws of this state and to all rules, regulations and orders of the commission not contrary to law; and to require copies of all reports, rates, classifications, schedules and timetables in effect and used by the public utility or other person to be filed with the commission, and all other information desired by the commission relating to the investigation and requirements, including inventories of all property in such form and detail as the commission may prescribe. The commission may compel obedience to its lawful orders by mandamus or injunction or other proper proceedings in the name of the state in any circuit court having jurisdiction of the parties or of the subject matter, or the Supreme Court of Appeals directly, and the proceedings shall have priority over all pending cases. The commission may change any intrastate rate, charge or toll which is unjust or unreasonable or any interstate charge with respect to matters of a purely local nature which have not been regulated by or pursuant to an act of Congress and may prescribe a rate, charge or toll that is just and reasonable, and change or prohibit any practice, device or method of service in order to prevent undue discrimination or favoritism between persons and between localities and between commodities for a like and contemporaneous service. But in no case shall the rate, toll or charge be more than the service is reasonably worth, considering the cost of the service. Every order entered by the commission shall continue in force until the expiration of the time, if any, named by the commission in the order, or until revoked or modified by the commission, unless the order is suspended, modified or revoked by order or decree of a court of competent jurisdiction: Provided, That in the case of utilities used by emergency shelter providers, the commission shall prescribe such rates, charges or tolls that are the lowest available. ‘Emergency shelter provider’ means any nonprofit entity which provides temporary emergency housing and services to the homeless or to victims of domestic violence or other abuse.

(b) Notwithstanding any other provision of this code to the contrary, rates are not discriminatory if, when considering the debt costs associated with a future water or sewer project which would not benefit existing customers, the commission establishes rates which ensure that the future customers to be served by the new project are solely responsible for the debt costs associated with the project.

(c) Notwithstanding any other provision of this code to the contrary, the jurisdiction of the commission over water and/or sewer utilities that are political subdivisions of the state providing a separate or combined services and having at least four thousand five hundred customers and annual combined gross revenues of $3 million or more shall be limited to those powers enumerated in subsection (b), section one of this article.

(a) The commission shall have power to enforce, originate, establish, change and promulgate tariffs, rates, joint rates, tolls and schedules for all public utilities except for water and/or sewer utilities that are political subdivisions of this state providing a separate or combined services and having at least four thousand five hundred customers and annual combined gross revenues of $3 million or more: Provided, That the commission may exercise such rate authority over municipal municipally owned electric or natural gas utilities or a municipally owned water and/or sewer utility having less than four thousand five hundred customers and $3 million dollars annual combined gross revenues, only under the circumstances and limitations set forth in section four-b of this article. And whenever the commission shall, after hearing, find any existing rates, tolls, tariffs, joint rates or schedules enacted or maintained by a utility regulated under the provisions of this section to be unjust, unreasonable, insufficient or unjustly discriminatory or otherwise in violation of any of the provisions of this chapter, the commission shall by an order fix reasonable rates, joint rates, tariffs, tolls or schedules to be followed in the future in lieu of those found to be unjust, unreasonable, insufficient or unjustly discriminatory or otherwise in violation of any provisions of law, and the said commission, in fixing the rate of any railroad company, may fix a fair, reasonable and just rate to be charged on any branch line thereof, independent of the rate charged on the main line of such railroad.

(b) In determining just and reasonable rates, the commission may audit and investigate management practices and policies, or have performed an audit and investigation of such practices and policies, in order to determine whether the utility is operating with efficiency and is utilizing sound management practices. The commission shall adopt rules and regulations setting forth the scope, frequency and application of such audits and investigations to the various utilities subject to its jurisdiction. The commission may include the cost of conducting the management audit in the cost of service of the utility.

(c) In determining just and reasonable rates, the commission shall investigate and review transactions between utilities and affiliates. The commission shall limit the total return of the utility to a level which, when considered with the level of profit or return the affiliate earns on transactions with the utility, is just and reasonable.

(a) After June 30, 1981, no public utility subject to this chapter, except for water and/or sewer utilities that are political subdivisions of the state providing separate or combined services and having at least four thousand five hundred customers and annual gross revenue of $3 million or more from its separate or combined services, shall change, suspend or annul any rate, joint rate, charge, rental or classification except after thirty days' notice to the commission and the public, which notice shall plainly state the changes proposed to be made in the schedule then in force and the time when the changed rates or charges shall go into effect; but the commission may enter an order suspending the proposed rate as hereinafter provided. The proposed changes shall be shown by printing new schedules, or shall be plainly indicated upon the schedules in force at the time, and kept open to public inspection: Provided, That the commission may, in its discretion, and for good cause shown, allow changes upon less time than the notice herein specified, or may modify the requirements of this section in respect to publishing, posting and filing of tariffs, either by particular instructions or by general order.

(b) Whenever there shall be filed with the commission any schedule stating a change in the rates or charges, or joint rates or charges, or stating a new individual or joint rate or charge or joint classification or any new individual or joint regulation or practice affecting any rate or charge, the commission may, either upon complaint or upon its own initiative without complaint, enter upon a hearing concerning the propriety of such rate, charge, classification, regulation or practice; and, if the commission so orders, it may proceed without answer or other form of pleading by the interested parties, but upon reasonable notice, and, pending such hearing and the decisions thereon, the commission, upon filing with such schedule and delivering to the public utility affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, charge, classification, regulation or practice, but not for a longer period than two hundred seventy days beyond the time when such rate, charge, classification, regulation or practice would otherwise go into effect; and after full hearing, whether completed before or after the rate, charge, classification, regulation or practice goes into effect, the commission may make such order in reference to such rate, charge, classification, regulation or practice as would be proper in a proceeding initiated after the rate, charge, classification, regulation or practice had become effective: Provided, That in the case of a public utility having two thousand five hundred customers or less and which is not a political subdivision and which is not principally owned by any other public utility corporation or public utility holding corporation, the commission may suspend the operation of such schedule and defer the use of such rate, charge, classification, regulation or practice, but not for a longer period than one hundred twenty days beyond the time when such rate, charge, classification, regulation or practice would otherwise go into effect; and in the case of a public utility having more than two thousand five hundred customers, but not more than five thousand customers, and which is not a political subdivision and which is not principally owned by any other public utility corporation or public utility holding corporation, the commission may suspend the operation of such schedule and defer the use of such rate, charge, classification, regulation or practice, but not for a longer period than one hundred fifty days beyond the time when such rate, charge, classification, regulation or practice would otherwise go into effect; and in the case of a public utility having more than five thousand customers, but not more than seven thousand five hundred customers, and which is not a political subdivision and which is not principally owned by any other public utility corporation or public utility holding corporation, the commission may suspend the operation of such schedule and defer the use of such rate, charge, classification, regulation or practice, but not for a longer period than one hundred eighty days beyond the time when such rate, charge, classification, regulation or practice would otherwise go into effect; and after full hearing, whether completed before or after the rate, charge, classification, regulation or practice goes into effect, the commission may make such order in reference to such rate, charge, classification, regulation or practice as would be proper in a proceeding initiated after the rate, charge, classification, regulation or practice had become effective: Provided, however, That, in the case of rates established or proposed that increase by less than twenty-five percent of the gross revenue of the regulated public service district, there shall be no suspension period in the case of rates established by a public service district pursuant to section nine, article thirteen-a, chapter sixteen of this code, and the proposed rates of public service districts shall go into effect upon the date of filing with the commission, subject to refund modification at the conclusion of the commission proceeding. In the case of rates established or proposed that increase by more than twenty-five percent of the gross revenue of the public service district, the district may apply for, and the commission may grant, a waiver of the suspension period and allow rates to be effective upon the date of filing with the commission. The public service district shall provide notice by Class 1 legal advertisement in a newspaper of general circulation in its service territory of the percentage increase in rates at least fourteen days prior to the effective date of the increased rates. Any refund determined to be determined to be due and owing as a result of any difference between any final rates approved by the commission and the rates placed into effect subject to refund shall be refunded by the public service district as a credit against each customer’s account for a period of up to six months after entry of the commission’s final order. Any remaining balance which is not fully credited by credit within six months after entry of the commission’s final order shall be directly refunded to the customer by check: Provided, further, That if any such hearing and decision thereon is not concluded within the periods of suspension, as above stated, such rate, charge, classification, regulation or practice shall go into effect at the end of such period not subject to refund: And provided further, That if any such rate, charge, classification, regulation or practice goes into effect because of the failure of the commission to reach a decision, the same shall not preclude the commission from rendering a decision with respect thereto which would disapprove, reduce or modify any such proposed rate, charge, classification, regulation or practice, in whole or in part, but any such disapproval, reduction or modification shall not be deemed to require a refund to the customers of such utility as to any rate, charge, classification, regulation or practice so disapproved, reduced or modified. The fact of any rate, charge, classification, regulation or practice going into effect by reason of the commission's failure to act thereon shall not affect the commission's power and authority to subsequently act with respect to any such application or change in any rate, charge, classification, regulation or practice. Any rate, charge, classification, regulation or practice which shall be approved, disapproved, modified or changed, in whole or in part, by decision of the commission shall remain in effect as so approved, disapproved, modified or changed during the period or pendency of any subsequent hearing thereon or appeal therefrom. Orders of the commission affecting rates, charges, classifications, regulations or practices which have gone into effect automatically at the end of the of the suspension period are prospective in effect.

(c) At any hearing involving a rate sought to be increased or involving the change of any rate, charge, classification, regulation or practice, the burden of proof to show the justness and reasonableness of the increased rate or proposed increased rate, or the proposed change of rate, charge, classification, regulation or practice shall be upon the public utility making application for such change. The commission shall, whenever practicable and within budgetary constraints, conduct one or more public hearings within the area served by the public utility making application for such increase or change, for the purpose of obtaining comments and evidence on the matter from local ratepayers.

(d) Each public utility subject to the provisions of this section shall be required to establish, in a written report which shall be incorporated into each general rate case application, that it has thoroughly investigated and considered the emerging and state-of-the-art concepts in the utility management, rate design and conservation as reported by the commission under subsection (c), section one, article one of this chapter, as alternatives to, or in mitigation of, any rate increase. The utility report shall contain as to each concept considered the reasons for adoption or rejection of each. When in any case pending before the commission all evidence shall have been taken and the hearing completed, the commission shall render a decision in such case. The failure of the commission to render a decision with respect to any such proposed change in any such rate, charge, classification, regulation or practice within the various time periods specified in this section after the application therefor shall constitute neglect of duty on the part of the commission and each member thereof.

(e) Where more than twenty members of the public are affected by a proposed change in rates, it shall be a sufficient notice to the public within the meaning of this section if such notice is published as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the community where the majority of the resident members of the public affected by such change reside or, in case of nonresidents, have their principal place of business within this state.

(f) The commission may order rates into effect subject to refund, plus interest in the discretion of the commission, in cases in which the commission determines that a temporary or interim rate increase is necessary for the utility to avoid financial distress, or in which the costs upon which these rates are based are subject to modification by the commission or another regulatory commission and to refund to the public utility. In such case the commission may require such public utility to enter into a bond in an amount deemed by the commission to be reasonable and conditioned upon the refund to the persons or parties entitled thereto of the amount of the excess if such rates so put into effect are subsequently determined to be higher than those finally fixed for such utility.

(g) No utility regulated under the provisions of this section may make application for a general rate increase while another general rate application is pending before the commission and not finally acted upon, except pursuant to the provisions of subsection (f) of this section. The provisions of this subsection shall not be construed so as to prohibit any such rate application from being made while a previous application which has been finally acted upon by the commission is pending before or upon appeal to the West Virginia Supreme Court of Appeals.

§24-2-4b. Procedures for changing rates of electric and natural gas cooperatives, local exchange services of telephone cooperatives and municipally operated public utilities.

(a) The rates and charges of electric cooperatives, natural gas cooperatives and municipally operated public utilities, except for municipal water and/or sewer utilities that are political subdivisions of the state with at least four thousand five hundred customers and annual combined gross revenue of less than $3 million dollars, except for municipally operated commercial solid waste facilities as defined in section two, article fifteen, chapter twenty-two of this code, and the rates and charges for local exchange services provided by telephone cooperatives are not subject to the rate approval provisions of section four or four-a of this article, but are subject to the limited rate provisions of this section.

(b) All rates and charges set by electric cooperatives, natural gas cooperatives and municipally operated public utilities that are political subdivisions of the state providing water, sewer, electric and natural gas services and all rates and charges for local exchange services set by telephone cooperatives shall be just, reasonable, applied without unjust discrimination or preference between or preference for any customer or class of customer and based primarily on the costs of providing these services. All rates and charges shall be based upon the measured or reasonably estimated cost of service, and the equitable sharing of those costs between customers based upon the cost of providing the service received by the customer, including a reasonable plant-in-service depreciation expense. The rates and charges shall be adopted by the electric, natural gas, or telephone cooperative or political subdivision’s governing board or body and, in the case of the municipally operated public utility, by municipal ordinance to be effective not sooner than forty-five days after adoption. The forty-five-day waiting period may be waived by public vote of the governing body if that body finds and declares the public utility that is a political subdivision of the state to be in financial distress such that the forty-five-day waiting period would be detrimental to the ability of the utility to deliver continued and compliant public services: Provided, That notice of intent to effect a rate change shall be specified on the monthly billing statement of the customers of the utility for the month next preceding the month in which the rate change is to become effective or and the utility governing body shall give its customers and, in the case of a cooperative, its customers, members and stockholders, other reasonable notices as will allow filing of timely objections to the proposed rate change or and full participation in municipal rate legislation through the provision of a public forum in which customers may comment upon the proposed rate change prior to an enactment vote. The rates and charges or ordinance shall be filed with the commission, together with any information showing the basis of the rates and charges and other information as the commission considers necessary. Any change in the rates and charges with updated information shall be filed with the commission. If a petition, as set out in subdivision (1), (2) or (3), subsection (c) of this section, is received and the electric cooperative, natural gas cooperative or telephone cooperative or municipality has failed to file with the commission the rates and charges with information showing the basis of rates and charges and other information as the commission considers necessary, the suspension period limitation of one hundred twenty days and the one hundred-day period limitation for issuance of an order by a hearing examiner, as contained in subsections (d) and (e) of this section, is tolled until the necessary information is filed. The electric cooperative, natural gas cooperative, telephone cooperative or municipality shall set the date when any new rate or charge is to go into effect.

(c) The commission shall review and approve or modify the rates and charges of electric cooperatives, natural gas cooperatives, telephone cooperatives, or municipal electric or natural gas utilities and municipally owned water and/or sewer utilities that are political subdivisions of the state and having less than four thousand five hundred customers and $3 million dollars of annual combined gross revenues upon the filing of a petition within thirty days of the adoption of the ordinance or resolution changing the rates or charges by:

(1) Any customer aggrieved by the changed rates or charges who presents to the commission a petition signed by not less than twenty-five percent of the customers served by the municipally operated electric or natural gas public utility or municipally owned water and/or sewer utility having less than four thousand five hundred customers and $3 million dollars annual combined gross revenues or twenty-five percent of the membership of the electric, natural gas or telephone cooperative residing within the state;

(2) Any customer who is served by a municipally operated owner or natural gas public utility and who resides outside the corporate limits and who is affected by the change in the rates or charges and who presents to the commission a petition alleging discrimination between customers within and without the municipal boundaries. The petition shall be accompanied by evidence of discrimination; or

(3) Any customer or group of customers of the municipally owned electric or natural gas public utility who is affected by the change in rates who reside within the municipal boundaries and who present a petition to the commission alleging discrimination between a customer or group of customers and other customers of the municipal utility. The petition shall be accompanied by evidence of discrimination.

(d) (1) The filing of a petition with the commission signed by not less than twenty-five percent of the customers served by the municipally operated owned electric or natural gas public utility or a municipally owned water and/or sewer utility having less than four thousand five hundred customers or $3 million dollars annual combined gross revenues, or twenty-five percent of the membership of the electric, natural gas or telephone cooperative residing within the state under subdivision (1) subsection (c) of this section shall suspend the adoption of the rate change contained in the ordinance or resolution for a period of one hundred twenty days from the date the rates or charges would otherwise go into effect or until an order is issued as provided herein.

(2) Upon sufficient showing of discrimination by customers outside the municipal boundaries or a customer or a group of customers within the municipal boundaries under a petition filed under subdivision (2) or (3), subsection (c) of this section, the commission shall suspend the adoption of the rate change contained in the ordinance for a period of one hundred twenty days from the date the rates or charges would otherwise go into effect or until an order is issued as provided herein. A municipal rate ordinance enacted pursuant to the provisions of this section and municipal charter or state code that establishes or proposes a rate increase that results in an increase of less than twenty-five percent of the gross revenue of the utility shall be presumed valid and rates shall be allowed to go into effect, subject to refund, upon the date stated in that ordinance. In the case of rates established or proposed that increase by more than twenty-five percent of the gross revenue of the municipally operated public utility, the utility may apply for, and the commission may grant, a waiver of the suspension period and allow rates to be effective upon enactment.

(e) The commission shall forthwith appoint a hearing examiner from its staff to review the grievances raised by the petitioners. The hearing examiner shall conduct a public hearing and shall, within one hundred days from the date the rates or charges would otherwise go into effect, unless otherwise tolled as provided in subsection (b) of this section, issue an order approving, disapproving or modifying, in whole or in part, the rates or charges imposed by the electric, natural gas or telephone cooperative or by the municipally operated public utility pursuant to this section.

(f) Upon receipt of a petition for review of the rates under the provisions of subsection (c) of this section, the commission may exercise the power granted to it under the provisions of section three of this article, consistent with the applicable rate provisions of section twenty, article ten, chapter eight of this code, section four, article nineteen of said chapter and section sixteen, article thirteen, chapter sixteen of this code. The commission may determine the method by which the rates are reviewed and may grant and conduct a de novo hearing on the matter if the customer, electric, natural gas or telephone cooperative or municipality requests a hearing.

(g) A municipal utility shall be required to refund revenues collected from rates enacted that are disapproved or modified upon subsequent order of the commission entered in a proceeding under this section. Any refund determined to be due and owing as a result of any difference between the municipal rates placed into effect subject to refund and any final rates approved the commission shall be refunded by the municipal utility as a credit against each customer’s account for a period of up to six months after entry of the commission’s final order. Any remaining balance which is not fully refunded by credit within six months after entry of the commission’s final order shall be directly refunded to the individual customer by check.

(h) (g) The commission may, upon petition by a municipality or an electric, natural gas or telephone cooperative, or municipal electric or natural gas public utility or a municipally owned water and/or sewer utility having less than four thousand five hundred customers and $3 million dollars annual combined gross revenues, allow an interim or emergency rate to take effect, subject to refund or future modification, if it is determined that the interim or emergency rate is necessary to protect the municipality from financial hardship attributable to the purchase of the utility commodity sold, or the commission determines that a temporary or interim rate increase is necessary for the utility to avoid financial distress. In such cases, the commission shall waive the forty-five-day waiting period provided for in subsection (b) of this section and the one hundred twenty-day suspension period provided for in subsection (d) of this section.

(h) The commission shall, upon written request of the governing body of a political subdivision, provide technical assistance to the governing body in its deliberations regarding a proposed rate increase.

(i) Notwithstanding any other provision, the commission has no authority or responsibility with regard to the regulation of rates, income, services or contracts by municipally operated public utilities for services which are transmitted and sold outside of the State of West Virginia.

(j) Notwithstanding any other provision of this code to the contrary, the jurisdiction of the commission over water and/or sewer utilities that are political subdivisions of the state and having at least four thousand five hundred customers and annual gross combined revenues of $3 million or more shall be limited to those powers enumerated in subsection (b), section one of this article.

§24-2-7. Unreasonable, etc., regulations, practices and services; receivership; procedures respecting receivership; appointment and compensation of receiver; liquidation.

(a) Whenever, under the provisions of this chapter, the commission shall find any regulations, measurements, practices, acts or service to be unjust, unreasonable, insufficient or unjustly discriminatory, or otherwise in violation of any provisions of this chapter, or shall find that any service is inadequate, or that any service which is demanded cannot be reasonably obtained, the commission shall determine and declare, and by order fix reasonable measurement, regulations, acts, practices or services, to be furnished, imposed, observed and followed in the state in lieu of those found to be unjust, unreasonable, insufficient, or unjustly discriminatory, inadequate or otherwise in violation of this chapter, and shall make such other order respecting the same as shall be just and reasonable.

(b) If the Public Service Commission shall determine that any utility is unable or unwilling to adequately serve its customers or has been actually or effectively abandoned by its owners, or that its management is grossly and willfully inefficient, irresponsible or unresponsive to the needs of its customers, the commission may petition to the circuit court of any county wherein the utility does business for an order attaching the assets of the utility and placing such utility under the sole control and responsibility of a receiver. If the court determines that the petition is proper in all respects and finds, after a hearing thereon, that the allegations contained in the petition are true, it shall grant the same and shall order that the utility be placed in receivership. The court, in its discretion and in consideration of the recommendation of the commission, shall appoint a receiver who shall be a responsible individual, partnership or corporation knowledgeable in public utility affairs and who shall maintain control and responsibility for the running and management of the affairs of such the utility. In so doing, the receiver shall operate the utility so as to preserve the assets of the utility and to serve the best interests of its customers. The receiver shall be compensated from the assets of said utility in an amount to be determined by the court.

(c) Control of and responsibility for said utility shall remain in the receiver until the same can, in the best interest of the customers, be returned to the owners, transferred to other owners or assumed by another utility or public service corporation: Provided, That if the court after hearing, determines that control of and responsibility for the affairs of the utility should not, in the best interests of its customers, be returned to the legal owners thereof, the receiver shall proceed to liquidate the assets of such the utility in the manner provided by law.

(d) The laws generally applicable to receivership shall govern receiverships created pursuant to this section.

(a) A public utility, person or corporation other than a political subdivision of the state providing water, sewer and/or stormwater services and having at least four thousand five hundred customers and annual gross combined revenues of $3 million dollars or more may not begin the construction of any plant, equipment, property or facility for furnishing to the public any of the services enumerated in section one, article two of this chapter, nor apply for, nor obtain any franchise, license or permit from any municipality or other governmental agency, except ordinary extensions of existing systems in the usual course of business, unless and until it shall obtain from the Public Service Commission a certificate of public convenience and necessity authorizing such construction franchise, license or permit.

(b) Upon the filing of any application for the certificate, and after hearing, the commission may, in its discretion, issue or refuse to issue, or issue in part and refuse in part, the certificate of convenience and necessity: Provided, That the commission, after it gives proper notice and if no substantial protest is received within thirty days after the notice is given, may waive formal hearing on the application. Notice shall be given by publication which shall state that a formal hearing may be waived in the absence of substantial protest, made within thirty days, to the application. The notice shall be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code. The publication area shall be the proposed area of operation.

(c) Any public utility, person or corporation subject to the provisions of this section other than a political subdivision of the state providing water and/or sewer services having at least four thousand five hundred customers and combined annual gross revenue of $3 million dollars or more shall give the commission at least thirty days’ notice of the filing of any application for a certificate of public convenience and necessity under this section: Provided, That the commission may modify or waive the thirty-day notice requirement and shall waive the thirty-day notice requirement for projects approved by the Infrastructure and Jobs Development Council.

(d) The commission shall render its final decision on any application filed under the provisions of this section or section eleven-a of this article within two hundred seventy days of the filing of the application and within ninety days after final submission of any such application for decision following a hearing: Provided, That if the application is for authority to construct a water and sewer project and the projected total cost is less than $10 million, the commission shall render its final decision within two hundred twenty-five days of the filing of the application.

(e) The commission shall render its final decision on any application filed under the provisions of this section that has received the approval of the Infrastructure and Jobs Development Council pursuant to article fifteen-a, chapter thirty-one of this code within one hundred eighty days after filing of the application: Provided, That if a substantial protest is received within thirty days after the notice is provided pursuant to subsection (b) of this section, the commission shall render its final decision within two hundred seventy days or two hundred twenty-five days of the filing of the application, whichever is applicable as determined in subsection (d) of this section.

(f) If the projected total cost of a project which is the subject of an application filed pursuant to this section or section eleven-a of this article is greater than $50 million, the commission shall render its final decision on any such application filed under the provisions of this section or section eleven-a of this article within four hundred days of the filing of the application and within ninety days after final submission of any such application for decision after a hearing.

(g) If a decision is not rendered within the, time frames established in this section, the commission shall issue a certificate of convenience and necessity as applied for in the application.

(h) The commission shall prescribe rules as it may deem proper for the enforcement of the provisions of this section; and, in establishing that public convenience and necessity do exist, the burden of proof shall be upon the applicant.

(i) Pursuant to the requirements of this section, the commission may issue a certificate of public convenience and necessity to any intrastate pipeline, interstate pipeline or local distribution company for the transportation in intrastate commerce of natural gas used by any person for one or more uses, as defined by rule, by the commission in the case of:

(j) A public utility, including a public service district, which has received a certificate of public convenience and necessity after July 8, 2005, from the commission and has been approved by the Infrastructure and Jobs Development Council is not required to, and cannot be compelled to, reopen the proceeding if the cost of the project changes but the change does not affect the rates established for the project.

(k) Any public utility, person or corporation proposing any electric power project that requires a certificate under this section is not required to obtain such certificate before applying for or obtaining any franchise, license or permit from any municipality or other governmental agency.

(l) Water, sewer and/or stormwater utilities that are political subdivisions of the state and having at least four thousand five hundred customers and combined gross revenues of $3 million dollars or more desiring to pursue construction projects that are not in the ordinary course of business shall provide notice to both current customers and those citizens who will be affected by the proposed construction as follows:

(1) Adequate prior public notice of the contemplated construction by causing a notice of intent to pursue a project that is not in the ordinary course of business to be specified on the monthly billing statement of the customers of the utility for the month next preceding the month in which the contemplated construction is to be before the governing body on first reading.

(2) Adequate prior public notice of the contemplated construction by causing to be published as a Class I legal advertisement of the proposed action, in compliance with the provisions of article three, chapter fifty-nine of the code. The publication area for publication shall be all territory served by the district. If the political subdivision provides service in more than one county, publication shall be made in a newspaper of general circulation in each county that the political subdivision provides service.

(3) The public notice of the proposed construction shall state the scope of the proposed construction, the current rates, fees and charges, the proposed changes to said rates, fees and charges; the date, time, and place of both a public hearing on the proposal and the proposed final vote on adoption; and, the place or places within the political subdivision where the proposed construction and the rates, fees and charges may be inspected by the public. A reasonable number of copies of the proposal shall be kept at the place or places and be made available for public inspection. The notice shall also advise that interested parties may appear at the public hearing before the political subdivision and be heard with respect to the proposed construction and the proposed rates, fees and charges.

(4) The proposed construction and the proposed rates, fees and charges shall be read at two meetings of the governing body with at least two weeks intervening between each meeting. The public hearing may be conducted with or following the second reading.

(5) Enactment of the proposed construction and the proposed rates, fees and charges shall follow an affirmative vote of the governing body and shall be effective no sooner than forty-five days following the action of the governing body. If the political subdivision proposes rates that will go into effect prior than the completion of construction of the proposed project, the forty-five-day waiting period may be waived by public vote of the governing body only if the political subdivision finds and declares the political subdivision to be in financial distress such that the forty-five-day waiting period would be detrimental to the ability of the political subdivision to deliver continued and compliant public services: Provided, That in no event shall the rate become effective prior to the date that the county commission has entered an order approving the action of the public service district board.

(6) Rates, fees and charges approved by an affirmative vote of the public services district board shall be forwarded in writing to the county commission appointing the approving board. The county commission shall, within forty-five days of receipt of the proposed rates, fees and charges, take action to approve or reject the proposed rates, fees and charges. After forty-five days, and absent action by the county commission, the proposed rates, fees and charges shall be effective with no further action by the board or county commission. In any event this forty-five day period may be extended by official action of both the board proposing the rates, fees and charges and the appointing county commission.

(7) The county commission shall provide notice to the public by a Class I legal advertisement of the proposed action, in compliance with the provisions of article three, chapter fifty-nine of this code, of the meeting where it shall consider the proposed increases in rates, fees and charges no later than one week prior to the meeting date.

ARTICLE 3. DUTIES AND PRIVILEGES OF PUBLIC UTILITIES SUBJECT TO REGULATIONS OF COMMISSION.

Every public utility subject to the provisions of this chapter shall file with the commission, and keep open to public inspection, schedules showing all the rates, charges and tolls for service to be rendered by it or by other persons, firms or corporations in connection with it: Provided, That the reports and tariffs filed by interstate carriers with the Public Service Commission may be copies of its reports and tariffs filed with the Interstate Commerce Commission; but nothing herein shall preclude the Public Service Commission from requiring interstate carriers to furnish information bearing upon any complaint or question pending before said Public Service Commission and with which it has a right to deal.”

Com. Sub. for S. B. 242, Creating criminal penalties for certain automated telephone calls during state of emergency or preparedness; on second reading, coming up in regular order, was read a second time.

Delegate McGeehan moved to amend the bill on page two, section b, line eleven, by inserting the following:

“Notwithstanding any other provisions of this code, the West Virginia National Guard and any member thereof shall not be released from the state into active duty combat unless the United States Congress has passed an official declaration of war or has taken an official action pursuant to Article I, Section 8, Clause, 15, of the United States Constitution to explicitly call forth the state militia to execute the laws of the union, repel an invasion, or suppress an insurrection. The Governor shall take all actions necessary to comply with the requirements of this section.”

Delegate O’Neal arose to a point of order as to the germaneness of the amendment.

To the point of order the Speaker replied, stating that the fundamental purpose of the bill relates to automated phone calls during a state of emergency and the amendmentNational Guard call-ups was not germane to the fundamental purpose of the bill.

Com. Sub. for S. B. 248, Requiring certain insurance and owner information be provided following car accident; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk on page one, after the enacting section, by striking out remainder of the bill and inserting in lieu thereof the following:

(a) (1) The driver of any vehicle involved in a crash resulting in injury to or death of any person or damage to any vehicle which is driven or attended by any person shall give, if physically able to do so, provide to the person struck or the driver or occupant of or person attending any vehicle collided with, the following:

(A) His or her name, address and the registration number year, make, model and last four digits of the vehicle identification number of the vehicle he or she is driving,; and

(B) Proof of security and financial responsibility required by section three, article two-a, and section two, article four, chapter seventeen-d of this Code, and if provided by insurance, the information provided upon the certificate of insurance, including the name of the insured, the name and contact information of the insurer and insurance policy number. and shall upon request and if available exhibit his or her driver’s license to the person struck or the driver or occupant of or person attending any vehicle collided with and

(2) A driver may meet the requirements of this subsection by providing the information required herein to a law enforcement officer who is investigating or providing assistance at the scene of the collision, who shall, if practical under the circumstances, provide the information to any person entitled thereto pursuant to this subsection.

(b) The driver of any vehicle involved in a crash resulting in injury to or death of any person, if physically able to do so, shall render to any person injured in such crash reasonable assistance, including the carrying, or the making arrangements for the carrying, of such person to a physician, surgeon or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if such carrying is requested by the injured person.”

On motion of Delegates McCuskey and Rowe the bill was amended on page one, line seven, immediately following the words “her name”, by inserting “a valid telephone number where he or she may be contacted”.

Delegate Cowles moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.

On this question, the yeas and nays were taken (Roll No. 524), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 525), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 248) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

S. B. 250, Relating to Conservation Agency financial assistance applications from district supervisors; on second reading, coming up in regular order, was read a second time and ordered to third reading.

Com. Sub. for S. B. 261, Clarifying definition of ‘owner’ of dam; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on Agriculture and Natural Resources, was reported by the Clerk and adopted, amending the bill on page seven, section three, line ninety-nine, by striking out the work “may” and inserting in lieu thereof the work “shall”.

Delegate Cowles moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.

On this question, the yeas and nays were taken (Roll No. 526), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:

So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 527), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 261) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

S. B. 267, Repealing code relating to Governor's Office of Health Enhancement and Lifestyle Planning; on second reading, coming up in regular order, was read a second time and ordered to third reading.

Delegate Cowles moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.

On this question, the yeas and nays were taken (Roll No. 528), and there were--yeas 92, nays 5, absent and not voting 3, with the nays and absent and not voting being as follows:

So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 529), and there were--yeas 93, nays 4, absent and not voting 3, with the nays and absent and not voting being as follows:

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 267) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

Com. Sub. for S. B. 273, Relating to brewer, resident brewer and brewpub licensing and operations; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page three, by striking out everything after the enacting clause and inserting in lieu thereof the following:

“That §11-16-3, §11-16-6, §11-16-9 and §11-16-12 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto two new sections, designated §11-16-6a and §11-16-6b, all to read as follows:

For the purpose of this article, except where the context clearly requires differently:

(1) ‘Brand’ means a nonintoxicating beer product manufactured, brewed, mixed, concocted, blended, bottled or otherwise produced, or imported or transhipped by a brewer or manufacturer, the labels of which have been registered and approved by the commissioner that is being offered for sale or sold in West Virginia by a distributor who has been appointed in a valid franchise agreement or a valid amendment thereto.

(2) ‘Brewer’ or ‘manufacturer’ means any person manufacturing, otherwise producing or importing or transshipping nonintoxicating beer or nonintoxicating craft beer for sale at wholesale to any licensed distributor. Brewer or manufacturer may be used interchangeably throughout this article. A brewer may obtain only one brewer's license for its nonintoxicating beer or nonintoxicating craft beer.

(3) ‘Brewpub’ means a place of manufacture of nonintoxicating beer or nonintoxicating craft beer owned by a resident brewer, subject to federal and state regulations and guidelines, a portion of which premises are designated for retail sales of nonintoxicating beer or nonintoxicating craft beer by the resident brewer owning the brewpub.

(4) ‘Class A retail license’ means a retail license permitting the retail sale of liquor at a freestanding liquor retail outlet licensed pursuant to chapter sixty of this code.

(5) ‘Class B retail license’ means a retail license permitting the retail sale of liquor at a mixed retail liquor outlet licensed pursuant to chapter sixty of this code.

(5) (6) ‘Commissioner’ means the West Virginia Alcohol Beverage Control Commissioner.

(6) (7) ‘Distributor’ means and includes any person jobbing or distributing nonintoxicating beer or nonintoxicating craft beer to retailers at wholesale and whose warehouse and chief place of business shall be within this state. For purposes of a distributor only, the term ‘person’ means and includes an individual, firm, trust, partnership, limited partnership, limited liability company, association or corporation. Any trust licensed as a distributor or any trust that is an owner of a distributor licensee, and the trustee or other persons in active control of the activities of the trust relating to the distributor license, is liable for acts of the trust or its beneficiaries relating to the distributor license that are unlawful acts or violations of article eleven of this chapter notwithstanding the liability of trustees in article ten, chapter forty-four-d of this code.

(7) (8) ‘Franchise agreement’ means the written agreement between a brewer and a distributor that is identical as to terms and conditions between the brewer and all its distributors, which agreement has been approved by the commissioner. The franchise agreement binds the parties so that a distributor, appointed by a brewer, may distribute all of the brewer's nonintoxicating beer products, brands or family of brands imported and offered for sale in West Virginia, including, but not limited to, existing brands, line extensions and new brands all in the brewer's assigned territory for the distributor. All brands and line extensions being imported or offered for sale in West Virginia must be listed by the brewer in the franchise agreement or a written amendment to the franchise agreement. A franchise agreement may be amended by mutual written agreement of the parties as approved by the commissioner with identical terms and conditions for a brewer and all of its distributors. Any approved amendment to the franchise agreement becomes a part of the franchise agreement. A brewer and a distributor may mutually agree in writing to cancel a franchise agreement. A distributor terminated by a brewer as provided in this article and the promulgated rules no longer has a valid franchise agreement. If a brewer has reached an agreement to cancel a distributor or has terminated a distributor, then a brewer may appoint a successor distributor who accedes to all the rights of the cancelled or terminated distributor.

(8) (9) ‘Franchise distributor network’ means the distributors who have entered into a binding written franchise agreement, identical as to terms and conditions, to distribute nonintoxicating beer products, brands and line extensions in an assigned territory for a brewer. A brewer may only have one franchise distributor network: Provided, That a brewer that has acquired the manufacturing, bottling or other production rights for the sale of nonintoxicating beer at wholesale from a selling brewer as specified in subdivision (2), subsection (a), section twenty-one of this article shall continue to maintain and be bound by the selling brewer's separate franchise distributor's network for any of its existing brands, line extensions and new brands.

(9) (10) ‘Freestanding liquor retail outlet’ means a retail outlet that sells only liquor, beer, nonintoxicating beer and other alcohol-related products, as defined pursuant to section four, article three-a, chapter sixty of this code.

(10) (11) ‘Growler’ means a container or jug that is made of glass, ceramic, or metal container or jug or other material approved by the commissioner, that may be only thirty-two or sixty-four fluid ounces in size and must be capable of being securely sealed. The growler is utilized by a brewpub an authorized licensee for purposes of off-premise sales only of nonintoxicating beer or nonintoxicating craft beer for personal consumption not on a licensed premise and not for resale. Notwithstanding any other provision of this code to the contrary, a securely sealed growler is not an open container under federal, state and local law. A growler with a broken seal is an open container under federal, state and local law unless it is located in an area of the motor vehicle physically separated from the passenger compartment. The secure sealing of a growler requires the use of a tamper-resistant seal, security tape or other material, as approved by the commissioner, placed on or over the growler’s opening, which seal, security tape or other material is clearly marked with the date of the secure sealing by the authorized licensee who is selling the growler.

(11) (12) ‘Line extension’ means any nonintoxicating beer product that is an extension of brand or family of brands that is labeled, branded, advertised, marketed, promoted or offered for sale with the intent or purpose of being manufactured, imported, associated, contracted, affiliated or otherwise related to a brewer's existing brand through the use of a brewer, its subsidiaries, parent entities, contracted entities, affiliated entities or other related entities. In determining whether a nonintoxicating beer product is a line extension, the commissioner may consider, but is not limited to, the following factors: name or partial name; trade name or partial trade name; logos; copyrights; trademarks or trade design; product codes; advertising promotion or pricing.

(12) (13) ‘Nonintoxicating beer’ means all natural cereal malt beverages or products of the brewing industry commonly referred to as beer, lager beer, ale and all other mixtures and preparations produced by the brewing industry, including malt coolers and nonintoxicating craft beers with no caffeine infusion or any additives masking or altering the alcohol effect containing at least one half of one percent alcohol by volume, but not more than nine and six-tenths of alcohol by weight, or twelve percent by volume, whichever is greater. The word ‘liquor’ as used in chapter sixty of this code does not include or embrace nonintoxicating beer nor any of the beverages, products, mixtures or preparations included within this definition.

(13) (14) ‘Nonintoxicating beer sampling event’ means an event approved by the commissioner for a Class A retail Licensee to hold a nonintoxicating beer sampling authorized pursuant to section eleven-a of this article.

(14) (15) ‘Nonintoxicating beer sampling day’ means any days and hours of the week where Class A retail licensees may sell nonintoxicating beer pursuant to section eleven-a and subdivision (1), subsection (a), section eighteen of this article, and is approved, in writing, by the commissioner to conduct a nonintoxicating beer sampling event.

(15) (16) ‘Nonintoxicating craft beer’ means any beverage obtained by the natural fermentation of barley, malt, hops or any other similar product or substitute and containing not less than one half of one percent by volume and not more than twelve percent alcohol by volume or nine and six-tenths percent alcohol by weight with no caffeine infusion or any additives masking or altering the alcohol effect.

(16) (17) ‘Original container’ means the container used by the a resident brewer or brewer at the place of manufacturing, bottling or otherwise producing nonintoxicating beer or nonintoxicating craft beer for sale at wholesale.

(17) (18) ‘Person’ means and includes an individual, firm, partnership, limited partnership, limited liability company, association or corporation.

(19) ‘Private club’ means a license issued pursuant to article seven, chapter sixty of this code.

(18) (20) ‘Resident brewer’ means any brewer or manufacturer of nonintoxicating beer or nonintoxicating craft beer whose principal place of business and manufacture is located in the State of West Virginia and which does not brew or manufacture more than twenty-five thousand barrels of nonintoxicating beer or nonintoxicating craft beer annually, and does not self-distribute more than ten thousand barrels thereof in the State of West Virginia annually.

(19) (21) ‘Retailer’ means any person selling, serving, or otherwise dispensing nonintoxicating beer and all products regulated by this article, including, but not limited to, malt coolers at his or her established and licensed place of business.

(20) (22) ‘Tax Commissioner’ means the Tax Commissioner of the State of West Virginia or the commissioner's designee.

§11-16-6. License in one capacity only; no connection between different licensees; when brewer may act as distributor; credit and rebates proscribed; brewer, resident brewer and brewpub requirements.

(a) No person shall be licensed in more than one capacity under the terms of this article, and there shall be no connection whatsoever between any retailer, distributor, resident brewer or brewer, and no person shall be interested directly or indirectly through the ownership of corporate stock, membership in a partnership, or in any other way in the business of a retailer, if such person is at the same time interested in the business of a brewer, resident brewer or distributor. A resident brewer may act as distributor in a limited capacity for his or her own product from such resident brewery, place of manufacture or bottling, but a resident brewer is not permitted to act as a distributor as defined in section three of this article: Provided, That nothing in this article may prevent a resident brewer from using the services of licensed distributors as specified in this article. A resident brewer or distributor may sell to a consumer patron for personal use and not for resale, quantities of draught beer in quantities of one-eighth, one- fourth and in original containers that are no larger in size than one-half barrels in the original containers barrel for off-premises consumption. A resident brewer owning who also has a brewpub license may sell nonintoxicating beer or nonintoxicating craft beer produced by the brewpub resident brewer in a sealed growler cans, or bottles or sealed growlers, pursuant to section six-b of this article, for personal consumption off of a the brewpub’s licensed premise premises and not for resale.

(b) It is unlawful for any brewer, resident brewer, manufacturer or distributor to assist any retailer or for any retailer to accept assistance from any brewer, manufacturer or distributor, accept any gifts, or loans, or forebearance of money or property of any kind, nature or description, or other thing of value, or by the giving of give any rebates or discounts of any kind whatsoever, except as may be permitted by rule, regulation or order promulgated by the commissioner in accordance with this article.

(c) Notwithstanding paragraphs subsections (a) and (b) above of this section, a brewpub may offer for retail sale nonintoxicating beer or nonintoxicating craft beer so long as the sale of the nonintoxicating beer or nonintoxicating craft beer is limited to the brewpub’s licensed premises, except for up to two growlers per customer for personal consumption off of a licensed premises and not for resale as provided in section six-b of this article.

. §11-16-6a. Brewer and resident brewer license to manufacture, sell and provide complimentary samples.

(a) Legislative findings. -- The Legislature hereby finds that it is in the public interest to regulate, control and support the brewing, manufacturing, distribution, sale, consumption, transportation and storage of nonintoxicating beer and nonintoxicating craft beer, and its industry in this state in order to protect the public health, welfare and safety of the citizens of this state, and promote hospitality and tourism. Therefore, this section authorizes a licensed brewer or resident brewer with its principal place of business and manufacture located in this state to have certain abilities in order to promote the sale of nonintoxicating beer and nonintoxicating craft beer manufactured in this state for the benefit of the citizens of this state, the state’s growing brewing industry and the state’s hospitality and tourism industry, all of which are vital components for the state’s economy.

(b) Sales of nonintoxicating beer. -- A licensed brewer or resident brewer with its principal place of business and manufacture located in the State of West Virginia may offer only nonintoxicating beer or nonintoxicating craft beer manufactured by the licensed brewer or resident brewer for retail sale to customers from the brewer’s or resident brewer’s licensed premises for consumption off the licensed premises only in the form of kegs, bottles, cans or growlers for personal consumption and not for resale. A licensed brewer or resident brewer may not sell, give or furnish nonintoxicating beer for consumption on the premises of the principal place of business and manufacture located in the State of West Virginia, except for the limited purpose of complimentary samples as permitted in subsection (c) of this section.

(c) Complimentary samples. -- A licensed brewer or resident brewer with its principal place of business and manufacture located in the State of West Virginia may only offer complimentary samples of nonintoxicating beer or nonintoxicating craft beer brewed at the brewer’s or resident brewer’s principal place of business and manufacture located in the State of West Virginia. The complimentary samples may be no greater than two ounces per sample per patron, and a sampling shall not exceed ten complimentary two ounce samples per patron per day. A licensed brewer or resident brewer providing complimentary samples shall provide complimentary food items to the patron consuming the complimentary samples; and prior to any sampling, verify, using proper identification, that the patron sampling is twenty-one years of age or over and that the patron is not visibly intoxicated.

(d) Retail sales. -- Every licensed brewer or resident brewer under this section, shall comply with all the provisions of this article as applicable to nonintoxicating beer retailers when conducting sales of nonintoxicating beer or nonintoxicating craft beer and shall be subject to all applicable requirements and penalties in this article.

(e) Payment of taxes and fees. -- A licensed brewer or resident brewer under this section, shall pay all taxes and fees required of licensed nonintoxicating beer retailers, in addition to any other taxes and fees required, and meet applicable licensing provisions as required by this chapter and by rule of the commissioner.

(f) Advertising. -- A licensed brewer or resident brewer under this section, may advertise a particular brand or brands of nonintoxicating beer or nonintoxicating craft beer produced by the licensed brewer or resident brewer, and the price of the nonintoxicating beer or nonintoxicating craft beer subject to state and federal requirements or restrictions. The advertisement may not encourage intemperance.

(g) Growler requirements. -- A licensed brewer or resident brewer under this section, must fill a growler and patrons are not permitted to access the secure area or fill a growler. A licensed brewer or resident brewer under this section, must sanitize, fill, securely seal and label any growler prior to its sale. A licensed brewer or resident brewer under this section, may only offer for retail sale up to two sixty-four ounce, or four thirty-two ounce, growlers of nonintoxicating beer or nonintoxicating craft beer manufactured by the licensed brewer or resident brewer per customer per day for personal consumption off of the licensed premises and not for resale. A licensed brewer or resident brewer under this section, may refill a growler subject to the requirements of this section. A licensed brewer or resident brewer shall visually inspect any growler before filling or refilling it. A licensed brewer or resident brewer may not fill or refill any growler that appears to be cracked, broken, unsafe or otherwise unfit to serve as a sealed beverage container.

(h) Growler labeling. -- A licensed brewer or resident brewer under this section selling growlers, shall affix a conspicuous label on all sold and securely sealed growlers listing the name of the licensee selling the growler, the brand of the nonintoxicating beer or nonintoxicating craft beer in the growler, the alcohol content by volume of the nonintoxicating beer or nonintoxicating craft beer in the growler and the date the growler was filled or refilled, and, further, all labeling on the growler shall be consistent with all federal labeling and warning requirements.

(i) Growler sanitation. -- A licensed brewer or resident brewer authorized under this section, shall clean and sanitize all growlers he or she fills or refills in accordance with all state and county health requirements prior to its sealing. In addition, the licensed brewer or resident brewer shall sanitize, in accordance with all state and county health requirements, all taps, tap lines, pipe lines, barrel tubes and any other related equipment used to fill or refill growlers. Failure to comply with this subsection may result in penalties under section twenty-three of this article.

(j) Fee. -- There is no additional fee for a licensed brewer or resident brewer authorized under this section, to sell growlers.

(k) Limitations on licensees. -- To be authorized under this section, a licensed brewer or resident brewer may not produce more than twenty-five thousand barrels per calendar year at the brewer’s or resident brewer’s principal place of business and manufacture located in the State of West Virginia. No more than one brewer or resident brewer license may be issued to a single person or entity and no person may hold both a brewer and a resident brewer license. A licensed brewer or resident brewer under this section, may only conduct tours, give complimentary samples and sell growlers during the hours of operation set forth in subdivision (1), subsection (a), section eighteen of this article. A licensed brewer or resident brewer authorized under this section, shall be subject to the applicable penalties under section twenty-three of this article, for violations of this section. (l) Rules. -- The commissioner, in consultation with the Bureau for Public Health concerning sanitation, is authorized to propose rules for legislative approval, pursuant to article three, chapter twenty-nine-a of this code, to implement this section.

§11-16-6b. Brewpub, Class A retail dealer, Class B retail dealer, private club, Class A retail licensee and Class B retail licensee’s authority to sell growlers.

(a) Legislative findings. -- The Legislature hereby finds that it is in the public interest to regulate, control and support the brewing, manufacturing, distribution, sale, consumption, transportation and storage of nonintoxicating beer and nonintoxicating craft beer, and its industry in this state in order to protect the public health, welfare and safety of the citizens of this state, and promote hospitality and tourism. Therefore, this section authorizes a licensed brewpub, Class A retail dealer, Class B retail dealer, private club, Class A retail licensee or Class B retail licensee to have certain abilities in order to promote the sale of nonintoxicating beer and nonintoxicating craft beer manufactured in this state for the benefit of the citizens of this state, the state’s growing brewing industry and the state’s hospitality and tourism industry, all of which are vital components for the state’s economy.

(b) Sales of nonintoxicating beer. -- A licensed brewpub, Class A retail dealer, Class B retail dealer, private club, Class A retail licensee or Class B retail licensee who pays the fee in subsection (i) of this section and meets the requirements of this section, may offer nonintoxicating beer or nonintoxicating craft beer for retail sale to patrons from their licensed premises in a growler for personal consumption only off of the licensed premises and not for resale. Prior to the sale, the licensee shall verify, using proper identification that any patron purchasing nonintoxicating beer or nonintoxicating craft beer is twenty-one years of age or over and that the patron is not visibly intoxicated. A licensee authorized under this section, may not sell, give or furnish alcoholic liquors, including wine, for consumption off of its licensed premises, unless it is a private club licensed to sell sealed wine for consumption off of the licensed premises and meets the requirements set out in subdivisions (j) and (l), section three, article eight, chapter sixty of this code, for the sale of wine, not liquor.

(c) Retail sales. -- Every licensee authorized under this section, shall comply with all the provisions of this article as applicable to nonintoxicating beer retailers when conducting sales of nonintoxicating beer or nonintoxicating craft beer and shall be subject to all applicable requirements and penalties in this article.

(d) Payment of taxes and fees. -- A licensee authorized under this section, shall pay all taxes and fees required of licensed nonintoxicating beer retailers, in addition to any other taxes and fees required, and meet applicable licensing provisions as required by this chapter and by rule of the commissioner.

(e) Advertising. -- A licensee authorized under this section, may advertise a particular brand or brands of nonintoxicating beer or nonintoxicating craft beer, and the price of the nonintoxicating beer or nonintoxicating craft beer subject to state and federal requirements or restrictions. The advertisement may not encourage intemperance.

(f) Growler requirements. -- A licensee authorized under this section, must fill a growler and patrons are not permitted to access the secure area or fill a growler. A licensee authorized under this section, must sanitize, fill, securely seal and label any growler prior to its sale. A licensee authorized under this section, may only offer for retail sale up to two sixty-four ounce, or four thirty-two ounce, growlers of nonintoxicating beer or nonintoxicating craft beer per customer per day for personal consumption off of the licensed premises and not for resale. A licensee under this section, may refill a growler subject to the requirements of this section. A licensee shall visually inspect any growler before filling or refilling it. A licensee may not fill or refill any growler that appears to be cracked, broken, unsafe or otherwise unfit to serve as a sealed beverage container.

(g) Growler labeling. -- A licensee authorized under this section selling growlers, shall affix a conspicuous label on all sold and securely sealed growlers listing the name of the licensee selling the growler, the brand of the nonintoxicating beer or nonintoxicating craft beer in the growler, the alcohol content by volume of the nonintoxicating beer or nonintoxicating craft beer in the growler and the date the growler was filled or refilled, and, further, all labeling on the growler shall be consistent with all federal labeling and warning requirements.

(h) Growler sanitation. -- A licensed brewer or resident brewer authorized under this section, shall clean and sanitize all growlers he or she fills or refills in accordance with all state and county health requirements prior to its sealing. In addition, the licensed brewer or resident brewer shall sanitize, in accordance with all state and county health requirements, all taps, tap lines, pipe lines, barrel tubes and any other related equipment used to fill or refill growlers. Failure to comply with this subsection may result in penalties under section twenty-three of this article.

(i) Fee. -- Commencing July 1, 2015, and by every July 1 thereafter, there is an annual $100 nonrefundable fee for a licensee, except for a licensed brewpub, to sell growlers as provided by this section. The licensee must be in good standing with the state at the time of paying the fee.

(j) Limitations on licensees. -- A licensee under this section, may only sell growlers during the hours of operation set forth in subdivision (1), subsection (a), section eighteen of this article. Any licensee licensed under this section must maintain a secure area for the sale of nonintoxicating beer or nonintoxicating craft beer in a growler. The secure area must only be accessible by the licensee. Any licensee licensed under this section shall be subject to the applicable penalties under section twenty-three of this article, for violations of this section.

(k) Nonapplicability of certain statutes. -- Notwithstanding any other provision of this code to the contrary, licensees under this section are permitted to break the seal of the original container for the limited purpose of filling a growler as provided in this section. Any unauthorized sale of nonintoxicating beer or nonintoxicating craft beer, or any consumption not permitted on the licensee’s licensed premises is subject to penalties under this article.

(l) Rules. -- The commissioner is authorized to propose rules for legislative approval, pursuant to article three, chapter twenty-nine-a of this code, to implement this section.

§11-16-9. Amount of license tax; Class A and Class B retail dealers; purchase and sale of nonintoxicating beer permitted; distributors; brewers; brewpubs.

There is levied and imposed an annual license tax upon all dealers in and of nonintoxicating beer as defined by this article, which (a) All retail dealers, distributors, brewpubs, brewers and resident brewers of nonintoxicating beer and of nonintoxicating craft beer shall pay an annual fee to maintain an active license as required by this article. The license period begins on July 1, of each year and ends on June 30 of the following year. and, If the license is granted for a less shorter period, it then the license fee shall be computed semiannually in proportion to the remainder of the fiscal year.

(1) Retail dealers shall be divided into two classes, Class A and Class B. In the case of

(A) For a Class A retail dealer, the license fee is $150 for each place of business; the license fee for social, fraternal or private clubs not operating for profit, and having been in continuous operation for two years or more immediately preceding the date of application, is $150: Provided, That railroads operating in this state may dispense nonintoxicating beer upon payment of an annual license tax of $10 for each dining, club or buffet car in which the beer is dispensed.

Class A licenses issued for railroad dining, club or buffet cars authorize the licensee to sell nonintoxicating beer at retail for consumption only on the licensed premises where sold. All other Class A licenses authorize the licensee to sell nonintoxicating beer at retail for consumption on or off the licensed premises.

In the case of (B) For a Class B retailer retail dealer, the license fee, for a Class B license authorizing the sale of both chilled and unchilled beer, is $150 for each place of business. A Class B license authorizes the licensee to sell nonintoxicating beer at retail in bottles, cans or other sealed containers only, and only for consumption off the licensed premises. A Class B retailer may sell to a consumer patron, for personal use and not for resale, quantities of draught beer in quantities of one-eighth, one- fourth and in original containers that are no larger in size than one-half barrels in the original containers barrel for off-premises consumption.

A Class B license may be issued only to the proprietor or owner of a grocery store. For the purpose of this article, the term ‘grocery store’ means and includes any retail establishment commonly known as a grocery store or delicatessen, and caterer or party supply store, where food or food products are sold for consumption off the premises, and means includes a separate and segregated portion of any other retail store which is dedicated solely to the sale of food, food products and supplies for the table for consumption off the premises. The commissioner may propose for legislative approval legislative rules pursuant to chapter twenty-nine-a of this code necessary to carry this provision into effect. Caterers or party supply stores are required to purchase the appropriate licenses from the Alcohol Beverage Control Administration.

(2) In the case of distributors For a distributor, the license fee is $1,000 for each place of business.

(3) In the case of For a brewer or a resident brewer with its principal place of business or manufacture located in this state and who produces:

(A) Twelve thousand five hundred barrels (12,500) or less of nonintoxicating beer or nonintoxicating craft beer, the license fee is $500 for each place of manufacture;

(B) Twelve thousand five hundred one barrels (12,501) and up to twenty-five thousand (25,000) barrels of nonintoxicating beer or nonintoxicating craft beer, the license fee is $1,000 for each place of manufacture;

(C) More than twenty-five thousand one (25,001) barrels of nonintoxicating beer or nonintoxicating craft beer, the license fee is $1,500 for each place of manufacture. (4) In the case of

(4) For a brewer whose principal place of business or manufacture is not located in this state, the license fee is $1,500 for each place of manufacture. The brewer is exempt from the requirements set out in subsections (c), (d) and (e) of this section: Provided, That a brewer whose principal place of business or manufacture is not located in this state that produces less than twenty-five thousand barrels of nonintoxicating beer or nonintoxicating craft beer, may choose to apply in writing to the commissioner to be subject to the variable license fees of subdivision (b)(3) of this section and the requirements set out in subsections (c), (d) and (e) of this section; subject to investigation and approval by the commissioner as to brewer requirements.

(5) For a brewpub, the license fee is $1,000 $500 for each place of manufacture.

(c) As part of the application or renewal application and in order to determine a brewer or resident brewer’s license fee pursuant to this section, a brewer or resident brewer shall provide the commissioner, on a form provided by the commissioner, with an estimate of the number of nonintoxicating beer or nonintoxicating craft beer barrels and gallons it will produce during the year based upon the production capacity of the brewer’s or resident brewer’s manufacturing facilities, and the prior year’s production and sales volume of nonintoxicating beer or nonintoxicating craft beer.

(d) On or before July 15 of each year, every brewer or resident brewer who is granted a license shall file a final report, on a form provided by the commissioner, that is dated as of June 30 of each year, stating the actual volume of nonintoxicating beer or nonintoxicating craft beer in barrels and gallons produced at its principal place of business and manufacture during the prior year.

(e) If the actual total production of nonintoxicating beer or nonintoxicating craft beer by the brewer or resident brewer exceeded the brewer‛s or resident brewer’s estimate that was filed with the application or renewal for a brewer‛s or resident brewer’s license for that period, then the brewer or resident brewer shall include a remittance for the balance of the license fee pursuant to this section, that would be required for the final, higher level of production.

(f) Any brewer or resident brewer failing to file the reports required in subsections (c) and (d) of this section, and who is not exempt from the reporting requirements, shall, at the discretion of the commissioner, be subject to the penalties set forth in section twenty-three of this article.

§11-16-12. Bond of brewer, distributor, and Class A retail dealer; action on bond of retail dealer upon revocation of license; duty of prosecuting attorney.

(a) In addition to furnishing the information required by this article, each brewer or distributor applying for a license under this article shall furnish, as prerequisite to a license, a bond with some solvent surety company as surety, to be approved by the commissioner, payable to the State of West Virginia, conditioned for the payment of any and all additional taxes accruing during the period of such license, and conditioned further for the faithful observance of the provisions of this article, the rules, regulations and orders promulgated pursuant thereto and of any other laws of the State of West Virginia generally relating to the sale, transportation, storage and distribution of nonintoxicating beer, which said bonds shall be forfeited to the state upon the revocation of the license of any such brewer or distributor. The amount of such bond, in the case of a resident brewer or brewpub, shall be not less than $5,000, nor more than $10,000, and in the case of a distributor, not less than $2,000, nor more than $5,000 for each place of business licensed and conducted within the state, the amount of such bond, between the minimum and maximum amounts, to be determined in the discretion of the commissioner. There shall be no bond for a brewpub license, as the license privilege itself secures the payment of taxes and is subject to suspension and revocation for failure to pay said taxes. In the case of brewers shipping nonintoxicating beer into the state, any brewer must also furnish a bond in a penalty of not less than $5,000 nor more than $25,000 conditioned as hereinabove in this subsection provided and any bond furnished pursuant hereto shall be forfeited to the state in the full amount of said bond upon revocation of license of any such brewer or distributor. Such money received by the state shall be credited to the state fund, general revenue.

(b) Each Class A retail dealer, in addition to furnishing the information required by this article, shall furnish as prerequisite to obtaining a license, a bond with some solvent surety company as surety, to be approved by the commissioner, payable to the State of West Virginia, in the amount not less than $500, nor more than $1000, within the discretion of the commissioner. All such bonds shall be conditioned for the faithful observance of the provisions of this article, the rules, regulations and orders promulgated pursuant thereto and of any other laws of the State of West Virginia generally relating to the distribution, sale and dispensing of nonintoxicating beer, and shall be forfeited to the state in the full amount of said bond upon the revocation of the license of any such retail dealer. Such money received by the state shall be credited to the state fund, general revenue.

(c) Upon the revocation of the license of any Class A retail dealer by the commissioner or by any court of competent jurisdiction, the commissioner or the clerk of said court shall notify the prosecuting attorney of the county wherein such retail dealer's place of business is located, or the prosecuting attorney of the county wherein the licensee resides, of such revocation, and, upon receipt of said notice, it shall be the duty of such prosecuting attorney forthwith to institute appropriate proceedings for the collection of the full amount of said bond. Upon request of such prosecuting attorney, the commissioner shall deliver the bond to him. Willful refusal without just cause therefor by the prosecuting attorney to perform said duty hereby imposed shall subject him to removal from office by the circuit court of the county for which said prosecuting attorney was elected upon proper proceedings and proof in the manner provided by law.”

Delegate Cowles moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.

On this question, the yeas and nays were taken (Roll No. 530), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:

So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 531), and there were--yeas 87, nays 11, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Speaker Armstead, Azinger, Border, Fast, Householder, Ireland, Miley, Moye, Overington, Sobonya and Trecost.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 273) passed.

On motion of Delegate Shott, the title of the bill was amended to read as follows:

Com. Sub. for S. B. 273 - “A Bill to amend and reenact the §11-16-3, §11-16-6, §11-16-9 and §11-16-12 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto two new sections, designated §11-16-6a and §11-16-6b, all relating to brewer, resident brewer, brewpub, Class A retail dealer, Class B retail dealer, private club, Class A retail licensee and Class B retail licensee licensing and operations; clarifying, adding and revising definitions; providing legislative findings; authorizing licensed brewers and resident brewers to offer complimentary nonintoxicating beer and nonintoxicating craft beer samples; authorizing licensed brewers, resident brewers, brewpubs, Class A retail dealers, Class B retail dealers, private clubs, Class A retail licensees and Class B retail licensees to sell nonintoxicating beer and nonintoxicating craft beer in growlers subject to limitations; imposing operational, advertising, sanitation, sealing and labeling standards; authorizing and imposing penalties; authorizing promulgation of rules; clarifying and imposing license requirements and fees; removing an authorization to propose rules; changing the license fee schedule for certain brewers and resident brewers; decreasing the license fee for brewpubs; requiring annual production report; providing for fee correction; authorizing penalty for failure to submit production report; removing brewpub bonding requirement; and providing clarifying and technical amendments.”

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

Com. Sub. for S. B. 274, Relating to TANF program sanctions; on second reading, coming up in regular order, was read a second time.

At the request of Delegate Cowles, and by unanimous consent, the bill was advanced to third reading with amendments pending, and the rule was suspended to permit the consideration of the amendments on that reading.

Com. Sub. for S. B. 286, Relating to compulsory immunizations of students; exemptions; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk on page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:

“That §16-3-4 and §16-3-5 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 3. PREVENTION AND CONTROL OF COMMUNICABLE AND OTHER INFECTIOUS DISEASES.

§16-3-4. Compulsory immunization of school children; information disseminated; offenses; penalties.

(a) Whenever a resident birth occurs, the state director of health commissioner shall promptly provide parents of the newborn child with information on immunizations mandated by this state or required for admission to a public private, parochial school in this state or a state-regulated child care center.

(b) All children Except as hereinafter provided, a child entering school or a state-regulated child care center for the first time in this state shall have been must be immunized against chickenpox, hepatitis-b, measles, meningitis, mumps, diphtheria, polio, rubeola, rubella, tetanus and whooping cough. Any person who cannot give satisfactory proof of having been immunized previously or a certificate from a reputable physician showing that an immunization for any or all diphtheria, polio, rubeola, rubella, tetanus and whooping cough is impossible or improper or sufficient reason why any or all immunizations should not be done, shall be immunized for diphtheria, polio, rubeola, rubella, tetanus and whooping cough prior to being admitted in any of the schools in the state.

(c) No child or person shall may be admitted or received in any of the schools of the state or a state-regulated child care center until he or she has been immunized as hereinafter provided or produces a certificate from a reputable physician showing that an immunization for against chickenpox, hepatitis-b, measles, meningitis, mumps, diphtheria, polio, rubeola, rubella, tetanus and whooping cough has been done or is impossible or improper or other sufficient reason why such immunizations have not been done or produces a certificate from the commissionera licensed physician granting the child or person an exemption from the compulsory immunization requirements of this section.

(d) Any teacher school or state-regulated child care center personnel having information concerning any person who attempts to enter be enrolled in a school or state regulated child care center for the first time without having been immunized against chickenpox hepatitis-b, measles, meningitis, mumps, diphtheria, polio, rubeola, rubella, tetanus and whooping cough shall report the names of all such persons to the county health officer commissioner. It shall be the duty of the health officer in counties having a full-time health officer to see that such persons are immunized before entering school: Provided, That

(e) Persons enrolling from schools outside of the state may be provisionally enrolled under minimum criteria established by the director of the department of health commissioner so that the person's immunization may be completed while missing a minimum amount of school. Provided, however, That No person shall be allowed to enter school without at least one dose of each required vaccine.

In counties where there is no full-time health officer or district health officer, the county commission or municipal council shall appoint competent physicians to do the immunizations and fix their compensation.

(f) County health departments shall furnish the biologicals for this immunization free of charge for children of parents or guardians who attest that they cannot afford or otherwise access vaccines elsewhere.

(g) Health officers and physicians who shall do this immunization work provide vaccinations shall give to all persons and children must present the person vaccinated with a certificate free of charge showing that they have been immunized against chickenpox, hepatitis-b, measles, meningitis, mumps, diphtheria, polio, rubeola, rubella, tetanus and whooping cough, or he or she may give the certificate to any person or child whom he or she knows to have been immunized against chickenpox, hepatitis-b, measles, meningitis, mumps, diphtheria, polio, rubeola, rubella, tetanus and whooping cough.

(h) The commissioner is authorized to grant, renew, condition, deny, suspend or revoke exemptions to the compulsory immunization requirements of this section, on a statewide basis, upon sufficient medical evidence that immunization is contraindicated or there exists a specific precaution to a particular vaccine.

(1) A request for an exemption to the compulsory immunization requirements of this section must be accompanied by the certification of a licensed physician stating that the physical condition of the child is such that immunization is contraindicated or there exists a specific precaution to a particular vaccine.

(2) The commissioner is authorized to appoint and employ an Immunization Officer to make determinations on request for an exemption to the compulsory immunization requirements of this section, on a statewide basis, and delegate to the Immunization Officer the authority granted to the commissioner by this subsection.

(3) A person appointed and employed as the Immunization Officer must be a physician licensed under the laws of this state to practice medicine.

(4) The Immunization Officer’s decision on a request for an exemption to the compulsory immunization requirements of this section may be appealed to the State Health Officer.

(5) The final determination of the State Health Officer is subject to a right of appeal pursuant to the provisions of article five, chapter twenty-nine a of this code.

(h) A person shall qualify for a medical exemption to a compulsory vaccination by: (1)Filing a certificate from a licensed physician at least fifteen days prior to entering school stating that the physical condition of the child is such that immunization is contraindicated or there exists a specific precaution to a particular vaccine with the school this child will attend and contemporaneously filing the certificate with the Commissioner for the Bureau of Public Health.

(2) Within 10 business days of the filing, the commissioner may condition, deny, suspend or revoke an exemption only after consulting with the child's licensed physician who certified the exemption. The commissioner shall provide a reason based upon by substantial medical evidence that the immunization is not contraindicated or there does not exists a specific precaution to a particular vaccine.

(3) The final determination of the State Health Officer is subject to a right of appeal pursuant to the provisions of article five, chapter twenty-nine a of this code.

(i) The Secretary of the Department of Health and Human Resources and the Commissioner of the Bureau for Public Health shall not add to the compulsory vaccinations required by this section through the promulgation of a rule.

(j) The changes made to this section during the 2015 Regular Session of the Legislature supercede any interpretive rule and any action taken by the Department of Health and Human Resources in the promulgation of an interpretive rule regarding compulsory immunizations. That rule and any action take pursuant to it will be null and void with upon the effective date of this legislation.

(.Ik) If any A physician shall give who provides any person with a false certificate of immunization against chickenpox, hepatitis-b, measles, meningitis, mumps, diphtheria, polio, rubeola, rubella, tetanus and whooping cough he or she shall be is guilty of a misdemeanor and, upon conviction, shall be fined not less than $25 nor more than $100.

Any parent or guardian who refuses to permit his or her child to be immunized against diphtheria, polio, rubeola, rubella, tetanus and whooping cough, who cannot give satisfactory proof that the child or person has been immunized against diphtheria, polio, rubeola, rubella, tetanus and whooping cough previously, or a certificate from a reputable physician showing that immunization for any or all is impossible or improper, or sufficient reason why any or all immunizations should not be done, shall be guilty of a misdemeanor and, except as herein otherwise provided, shall, upon conviction, be punished by a fine of not less than ten nor more than $50 for each offense.

(a) Declaration of legislative findings and purpose. -- The Legislature finds and declares that early immunization for preventable diseases represents one of the most cost-effective means of disease prevention. The savings which can be realized from immunization, compared to the cost of health care necessary to treat the illness and lost productivity, are substantial. Immunization of children at an early age serves as a preventative preventive measure both in time and money and is essential to maintain our children's health and well-being. The costs of childhood immunizations should not be allowed to preclude the benefits available from a comprehensive, medically supervised child immunization service. Furthermore, the federal government has established goals that require ninety percent of all children to be immunized by age two and provided funding to allow uninsured children to meet this goal.

(b) The State Director Commissioner of the Bureau for Public Health shall acquire vaccine for the prevention of polio, measles, meningitis, mumps, rubella, chickenpox, diphtheria, pertussis, tetanus, hepatitis-b, haemophilus influenzae-b and other vaccine preventives of disease preventable diseases as may be deemed considered necessary or required by law and shall distribute the same, free of charge, in such quantities as he or she may deem considers necessary, to county and municipal health officers public and private providers, to be used by them for the benefit of and without expense to the citizens within their respective jurisdictions, to check contagions and control epidemics.

(c) The county and municipal health officers shall have Commissioner of the Bureau for Public Health, through the immunization program, has the responsibility to properly store and distribute, ensure the distribution, free of charge, of federally supplied vaccines to public and private medical or osteopathic physicians within their jurisdictions providers to be utilized used to check contagions and control epidemics: Provided, That the public and private medical or osteopathic physicians shall providers may not make a charge for the vaccine itself when administering it to a patient. The county and municipal health officers shall provide a receipt to the State Director of Health for Commissioner of the Bureau for Public Health, through the immunization program, shall keep an accurate record of any vaccine delivered as herein provided in this section.

(d) The Director of the Division Health commissioner is charged with establishing a childhood an Immunization Advisory Committee. The advisory committee is to plan for universal access, make recommendations on the distribution of vaccines acquired pursuant to this section, advise the secretary on the changing needs and opportunities for immunization from known diseases for all persons across their life span and tracking of track immunization compliance in accordance with federal and state laws. The childhood Members of the Immunization Advisory Committee shall be designated and appointed by the Secretary of the Department of the Health and Human Resources commissioner no later than the first day of July, one thousand nine hundred ninety-four and July 1, 2015. The Advisory Committee shall be comprised of representatives from the following groups: Public health nursing, public health officers, primary health care providers, pediatricians, family practice physicians, health care administrators, pharmacists, state Medicaid program the Commissioner of the Bureau for Medical Services, or his or her designee, the health insurance industry, the Director of the Public Employees Insurance Agency, or his or her designee, the self-insured industry and a minimum of three consumers. The state epidemiologist shall serve serves as an advisor to the committee. The commissioner, or his or her designee, serves as the chair of the Advisory Committee. Members of the advisory committee shall serve two-year four-year terms.

(e) An advisory committee member may not participate in a matter involving specific parties that will have a direct and predicable effect on their financial interest. An effect will not be direct in instances where the chain of causation is attenuated or is contingent upon the occurrence of events that are speculative.

(e) (f) All health insurance policies and prepaid care policies issued in this state which provide coverage for the children of the insured shall provide coverage for child immunization services to include the cost of the vaccine, if incurred by the health care provider, and all costs of administration from birth through age sixteen eighteen years. These services shall be are exempt from any deductible, per-visit charge and/or copayment provisions which may be in force in these policies or contracts. This section does not exempt other health care services provided at the time of immunization from any deductible and/ or copayment provisions.

(f) (g) Attending physicians, midwives, nurse practitioners, hospitals, birthing centers, clinics and other appropriate health care providers shall provide parents of newborns and preschool age children with information on the following immunizations: Diphtheria, polio, mumps, meningitis, measles, rubella, tetanus, hepatitis-b, hemophilus influenzae-b, chickenpox and whooping cough. This information should include the availability of free immunization services for children.”

Delegates Ellington and Rohrbach moved to amend the amendment on page four, line seventeen, by removing the period inserting a colon and the following: “Provided, That the commissioner shall meet with and strictly review the exemptions from a physician who had approved what appears to be an excessive number of exemptions.” ,

The Speaker put the question on the adoption of the foregoing amendment, and the same did not prevail.

On the adoption of the amendment, Delegate Lane demanded the yeas and nays, which demand was sustained.

The yeas and nays having been ordered, they were taken (Roll No. 532), and there were--yeas 51, nays 46, absent and not voting 3, with the nays and absent and not voting being as follows:

Nays: Ashley, Bates, Boggs, Byrd, Campbell, Caputo, Eldridge, Ferro, Fleischauer, Frich, Guthrie, Hartman, Hicks, Hornbuckle, Longstreth, Lynch, Manchin, Marcum, McCuskey, Miley, Moore, Morgan, Moye, Perdue, Perry, Pethtel, R. Phillips, Pushkin, Reynolds, Rodighiero, Rohrbach, Romine, Rowe, Skinner, P. Smith, Sponaugle, Stansbury, Statler, Trecost, Wagner, Walters, Weld, Westfall, B. White, H. White and Williams.

So, a majority of the members present and voting having voted in the affirmative, the amendment was adopted.

S. B. 295, Establishing appeal process for DHHR Board of Review and Bureau for Medical Services decisions; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page four, section thirteen, line fifty-one, following the word “review”, by replacing the period with a colon and inserting the following proviso:

“Provided, That all records prepared and transmitted that involve a minor shall be filed under seal.”

S. B. 304, Relating to farmers markets; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:

“That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §19-35-1, §19-35-2, §19-35-3 and §19-35-4, all to read as follows:

(a) Farmers markets are critical incubators for small farm and food businesses because they offer an inexpensive, accessible, entry-level market for reaching consumers directly, though research has shown that the average vendor makes only a nominal dollar amount in sales on any given market day;

(b) The number of farmers markets and the variety of products sold at farmers markets has increased significantly in the past ten years, adding millions of dollars to the state’s economy;

(d) Permit fees and requirements for farmers market vendors can vary widely from county to county and from one regulatory official to the other. Current food permit categories are not designed for farmers markets and their vendors, but rather for restaurants, grocery stores or concessioners;

(e) Food permits required for farmers market vendors are currently not recognized across county lines.

(a) ‘Consignment farmers market’ means a farmers market in which two or more vendors deliver their own farm and food products to a common location maintained by a third party that markets the vendors’ products and receives a percentage share of the profits from sales, with the individual vendor retaining ownership of the farm and food product until it is sold.

(b) ‘Farm and food product’ means any agriculture, horticulture, agroforestry, animal husbandry, dairy, livestock, cottage food, beekeeping or other similar product. Farm and food products are to be properly labeled.

(1) A traditional farmers market in which two or more vendors gather to sell farm and food products directly to consumers at a fixed location;

(2) An on-farm market or farm stand run by an individual producer that sells farm and food products;

(3) An online farmers market in which two or more vendors collectively market farm and food products and retain ownership of those products until they are sold; or

(d) ‘Farmers market vendor’ or ‘vendor’ means a person or entity that sells farm and food products at a farmers market.

(a) Vendors at a farmers market selling farm and food products that require a food establishment permit shall apply for a uniform farmers market vendor permit and pay the annual permit fee to the local health department in the jurisdiction in which the farmers market is located. The permit is valid in all counties in this state, and vendors are not required to apply to more than one local health department for a uniform farmers market vendor permit. The uniform farmers market vendor permit shall be required in lieu of the food establishment permit, notwithstanding any other provisions of code or rule that require a food establishment permit or any other permit from a local health department.

(b) The application must include any other farmers market locations under the jurisdiction of another local health department that the vendor will sell farm and food products subject to the permit. The local health department which approves the application for the uniform farmers market vendor permit shall provide notice of the approval to any other local health departments that the vendor will be subject to, as indicated on the application.

(A) For vendors selling farm and food products under the jurisdiction of only one local health department, the annual fee is $15.

(B) For vendors selling farm and food products under the jurisdiction of more than one local health department, the annual fee is $25.

(2) The annual permit fee shall be collected and deposited in accordance with subsection six, section eleven, article two, chapter sixteen of this code.

(d)The following vendors are exempt from the requirements of the uniform farmers market vendor permit:

(2) Vendors selling fresh, uncut produce or other any other farm and food product not subject to a permit by a local health department through rule or regulation.

(e) A consignment farmers market shall obtain a food establishment permit issued by the local health department.

(f) Every uniform farmers market vendor permit shall be displayed in a conspicuous manner.

(g) Notwithstanding the provisions of article two, chapter sixteen of this code, a local health department has the right to inspect and suspend the uniform farmers market vendor permit for violation of rules or the local health department regulations of a vendor at any farmers market in its jurisdiction, or at the vendor’s home or business address, if it is in the inspecting local health department’s jurisdiction, regardless of what local health department issued the uniform farmers market vendor permit.

(h) Nothing in this article eliminates or limits other state and federal rules and regulations that apply to certain farm and food products sold at a farmers market or a consignment farmers market.

(a) The West Virginia Department of Health and Human Resources shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code for the purposes of implementing this article.

(b) The West Virginia Department of Health and Human Resources shall consult with the West Virginia Department of Agriculture, and shall consider the guidelines established in the Farmers Market Vendor Guide and Memorandum F-16, Food Permits at Farmers Markets in promulgating the rules.”

Delegate Cowles moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.

On this question, the yeas and nays were taken (Roll No. 533), and there were--yeas 92, nays none, absent and not voting 8, with the absent and not voting being as follows:

Absent And Not Voting: Arvon, Byrd, Deem, Longstreth, L. Phillips, Pushkin, Walters and Weld.

So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 534), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 304) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

S. B. 310, Exempting nonprofit public utility companies from B&O tax; on second reading, coming up in regular order, was read a second time and ordered to third reading.

S. B. 312, Relating to disqualification of general election nominees for failure to file campaign finance statements; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk

and adopted, amending the bill amend the bill on page one, following the enacting section, by striking the remainder of the bill and inserting in lieu thereof the following:

§3-8-7. Failure to file statement; delinquent or incomplete filing; criminal and civil penalties.

(a) Any person, candidate, financial agent or treasurer of a political party committee who fails to file a sworn, itemized statement required by this article within the time limitations specified in this article or who willfully files a grossly incomplete or grossly inaccurate statement shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 or confined in jail for not more than one year, or both fined and confined. in the discretion of the court Sixty days after any primary or other election, the Secretary of State, or county clerk or municipal recorder, as the case may be, shall give notice of any failure to file a sworn statement or the filing of any grossly incomplete or grossly inaccurate statement by any person, candidate, financial agent or treasurer of a political party committee and forward copies of any grossly incomplete or grossly inaccurate statement to the prosecuting attorney of the county where the person, candidate, financial agent or treasurer resides, is located or has its principal place of business.

(b) (1) Any person, candidate, financial agent or treasurer of a political party committee who fails to file a sworn, itemized statement as required in this article or who files a grossly incomplete or grossly inaccurate statement may be assessed a civil penalty by the Secretary of State of $25 a day for each day after the due date the statement is delinquent, grossly incomplete or grossly inaccurate. Sixty days after any primary or other election, the county clerk shall give notice to the Secretary of State of any failure to file a sworn statement or the filing of any grossly incomplete or grossly inaccurate statement by any person, candidate, financial agent or treasurer of a political party committee and forward copies of such delinquent, incomplete or inaccurate statements to the Secretary of State.

(2) A civil penalty assessed pursuant to this section shall be payable to the State of West Virginia and is collectable as authorized by law for the collection of debts.

(3) The Secretary of State may negotiate and enter into settlement agreements for the payment of civil penalties assessed as a result of the filing of a delinquent, grossly incomplete or inaccurate statement.

(4) The Secretary of State and county clerk may review and audit any sworn statement required to be filed pursuant to this article. The State Election Commission shall propose legislative rules for promulgation, in accordance with chapter twenty-nine-a of this code, to establish procedures for the assessment of civil penalties as provided in this section.

(c) No candidate nominated at a primary election who has failed to file a sworn statement, as required by this article, shall have his or her name placed on the official ballot for the ensuing election, unless there has been filed by or on behalf of such candidate, or by his or her financial agent, if any, the financial statement relating to nominations required by this article. (1) Any candidate, whether nominated by primary election or appointed by executive committee or executive committee chair, who has failed to file any sworn statement as required by this article, relating to the immediately preceding primary election for any office by the eighty-fourth day before the general election, is disqualified and may not have his or her name appear on the general election ballot. The provisions of subsection (d), section five-b of this article notwithstanding, any sworn statement filed after the deadline required by section five of this article must be received in the office indicated by subsection (a), section five-b of this article by the close of business on the eighty-fourth day before the general election.

(2) It is unlawful to issue a commission or certificate of election, or to administer the oath of office, to any person elected to any public office who has failed to file a any sworn statement as required by this article and no person may enter upon the duties of his or her office until he or she has filed such statement, nor may he or she receive any salary or emolument for any period prior to the filing of such the statement.

(3) The vacancy on the ballot created by the disqualification in this subsection is subject to section nineteen, article five, chapter three of this code.

(d) As used in this section, ‘grossly’ means substantive and material, and specifically includes false or misleading representations and acts of omissions.

(e) The Secretary of State shall provide by rule protocols for written notice via certified mail return receipt requested to the person, candidate, financial agent or treasurer of a political party committee that is not in compliance with the requirements of this section. With respect to a violation of subsection (c) of this section, the notice shall be provided sixty days after any primary or other election.”

Delegate Cowles moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.

On this question, the yeas and nays were taken (Roll No. 535), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 536), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 312) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

Com. Sub. for S. B. 315, Relating to civil actions filed under Consumer Protection Act; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page eleven, section one hundred six, line thirteen, following the period by inserting the following:

“Any party to an action for damages under this subsection has the right to demand a jury trial.”

On page eleven, section one hundred six, line fourteen, by striking out the subsection in its entirety, and inserting in lieu thereof the following:

“(b) No award of damages in an action pursuant to subsection (a) may be made without proof that the person seeking damages suffered an actual out-of-pocket loss that was proximately caused by a violation of this article. If a person seeking to recover damages for a violation of this article alleges that an affirmative misrepresentation is the basis for his or her claim then he or she must prove that the deceptive act or practice caused him or her to enter into the transaction that resulted in his or her damages. If a person seeking to recover damages for a violation of this article alleges that the concealment or omission of information is the basis for his or her claim, then he or she must prove that the person’s loss was proximately caused by the concealment or omission.”

On page eleven, section one hundred six, line twenty-one, following the word “action”, by inserting the words “counterclaim, cross-claim, or third party claim”.

On page eleven, section one hundred six, line twenty-four, following the word “mail”, by inserting the words “return receipt requested”.

On page eleven, section one hundred six, line twenty-six, following the word “violation”, by inserting a comma and the words “but ten days in the case a cause of action has already been filed” followed by a comma.

Com. Sub. for S. B. 316, Exempting new veteran-owned business from certain fees paid to Secretary of State; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page twenty-three, section twelve, line fifty-three, following the words “of this code” and the period, by adding a new sentence to read as follows: “Notwithstanding anything in this code to the contrary, a veteran must be honorably discharged or under honorable conditions, and as described in 38 U.S.C. §101.”

S. B. 318, Relating to payment of wages by employers; on second reading, coming up in regular order, was read a second time and ordered to third reading.

Com. Sub. for S. B. 325, Relating to filing of candidates’ financial disclosure statements; on second reading, coming up in regular order, was read a second time.

At the request of Delegate Cowles, and by unanimous consent, the bill was advanced to third reading with an amendment pending, and the further right to amend jointly by Delegates Shott and Manchin, and the rule was suspended to permit the consideration of the amendment on that reading.

S. B. 363, Establishing maximum rates and service limitations for reimbursement of health care services by Court of Claims; on second reading, coming up in regular order, was read a second time and ordered to third reading.

Com. Sub. for S. B. 373, Allowing wireless communication image serve as proof of motor vehicle insurance; on second reading, coming up in regular order, was read a second time.

Delegate Cowles moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.

On this question, the yeas and nays were taken (Roll No. 537), and there were--yeas 93, nays 1, absent and not voting 6, with the nays and absent and not voting being as follows:

So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 538), and there were--yeas 92, nays 1, absent and not voting 7, with the nays and absent and not voting being as follows:

Absent And Not Voting: Arvon, Deem, Guthrie, L. Phillips, Storch, Walters and Weld.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 373) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

S. B. 418, Relating to trustee real estate sale under deed of trust; on second reading, coming up in regular order, was read a second time and ordered to third reading.

Delegate Cowles moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.

On this question, the yeas and nays were taken (Roll No. 539), and there were--yeas 94, nays none, absent and not voting 6, with the absent and not voting being as follows:

So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.

Delegates Byrd, Lane and Moye and requested to be excused from voting on the passage of S. B. 418 under the provisions of House Rule 49.

The Speaker replied that any impact on the Delegates would be as members of a class of persons possibly to be affected by the passage of the bill, and refused to excuse the Members from voting.

Delegates Marcum, Skinner and H. White requested to be excused from voting on the passage of S. B. 418 under the provisions of House Rule 49.

The Speaker replied that Delegates did exhibit direct personal or pecuniary interest therein and not as a member of a class of persons, and excused the Members from voting.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 540), and there were--yeas 89, nays 2, absent and not voting 6, excused 3, with the nays and absent and not voting and excused being as follows:

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 418) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

At 7:28 p.m., on motion of Delegate Cowles, the House of Delegates recessed until 8:00 p.m.

S. B. 425, Providing WVU, MU and WVSOM more authority to invest assets; on second reading, coming up in regular order, was read a second time and ordered to third reading.

Com. Sub. for S. B. 439, Relating to higher education personnel; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page ten, section two-a, line one, following the words “of the council, shall”, by striking out the remainder of the subsection and inserting in lieu thereof the following: “create the following positions, and fill the positions beginning July 1, 2016, with well qualified and appropriately credentialed individuals who will report to the Vice Chancellor for Human Resources and work collaboratively with governing boards and their employees at all levels:

(1) A Generalist/Manager who is responsible for a wide range of human resources management, the Human Resources Information System, reporting, and program development activities;

(2) A Director of Classification and Compensation who is responsible for maintaining job classification systems, assisting organizations with classification and compensation matters, coordinating compensation studies with the compensation planning and review committee and external vendors, and conducting annual compensation program updates or market reviews;

(3) A Training and Development Specialist who is responsible for assessing training needs, and for planning, designing, developing, implementing and/or coordinating delivery of training and development programs and activities as required in subdivision (9), subsection (e) of this section, and section six, article seven of this chapter.

On page eleven, section one, lines three and four, following the word “transparency”, by striking out the comma and the words “when possible” and the comma.

On page thirteen, section one, following line two, by inserting a new subsection (e) as follows:

“(e) It is further the intent of the Legislature to encourage strongly that each organization dedicate a portion of future tuition increases to fund the classified salary schedule, and after full funding of the salary schedule is achieved, to move toward meeting salary goals for faculty, classified and nonclassified employees.”

On page thirteen, two, line eight, before the word “Benefits” and the semicolon, by inserting the subdivision designation “(1)”.

On page thirteen, two, line twelve, before the word “Compensation”, by inserting the subdivision designation “(2)”.

On page thirteen, section two, line fourteen, before the words “Compensatory time”, by inserting the subdivision designation “(3)”.

On page fourteen, section two, line one, before the words “Employee classification”, by inserting the subdivision designation “(4)”.

On page fourteen, section two, line six, before the words “Full-time”, by inserting the subdivision designation “(5)”.

On page fourteen, section two, line ten, before the word “Health”, by inserting the subdivision designation “(6)”.

On page twenty, section eight, line fourteen, by striking out the subdivision designation “(A)” and inserting in lieu thereof the designation “(1)”;

On page twenty, section eight, line sixteen, by striking out the subdivision designation “(B)” and inserting in lieu thereof the designation “(2)”.

On page twenty-three, section eleven, line nineteen, following the period, by inserting the following: “An institution may not have more than ten percent of its total number of classified and nonclassified employees in positions considered by the president to be critical to the institution pursuant to said section two, article nine-a of this chapter.”

On page twenty-five, section eleven, line two, by striking out the word “reports” and inserting in lieu thereof the word “report”.

On page twenty-six, eleven, line seven, by striking out the subdivision designation “(A)” and inserting in lieu thereof the designation “(1)”.

On page twenty-six, section eleven, line thirteen, by striking out the word “reports” and inserting in lieu thereof the word “report”.

On page twenty-six, eleven, line fifteen, by striking out the subdivision designation “(B)” and inserting in lieu thereof the designation “(2)”.

On page twenty-seven, section eleven, line ten, by striking out the subsection designation “(c)” and inserting in lieu thereof the designation “(d)”.

On page twenty-seven, section eleven, line sixteen, by striking out the subdivision designation “(d)” and inserting in lieu thereof the designation “(e)”.

On page thirty-one, two, line five, before the word “Classified employee”, by inserting a subdivision designation “(1)”.

On page thirty-two, section two, line four, before the word “Salary”, by inserting a subdivision designation “(2)”.

On page thirty-two, two, line eight, before the words “Schedule’ or”, by inserting a subdivision designation “(3)”.

On page thirty-two, section two, line ten, preceding the words “Years of”, by inserting a subdivision designation “(4)”.

On page thirty-five, section two, line nineteen, before the word “Classification”, by inserting a subdivision designation “(1)”.

On page thirty-six, section two, line three, before the word “Classified”, by inserting a subdivision designation “(2)”.

On page thirty-six, section two, line twelve, before the word “Job”, by inserting a subdivision designation “(3)”.

On page thirty-six, section two, line fifteen, before the word “Job”, by inserting a subdivision designation “(4)”.

On page thirty-six, section two, line eighteen, before the word “Job”, by inserting a subdivision designation “(5)”.

On page thirty-seven, section two, line five, before the word “Job”, by inserting a subdivision designation “(6)”.

On page thirty-seven, section two, line eight, preceding the word “Job”, by inserting a subdivision designation “(7)”.

On page thirty-seven, section two, line fifteen, before the word “Job”, by inserting a subdivision designation “(8)”.

On page thirty-seven, section two, line nineteen, before the word “Job”, by inserting a subdivision designation “(9)”.

On page thirty-eight, section two, line two, before the word “Midpoint”, by inserting a subdivision designation “(10)”.

On page thirty-eight, section two, line six, before the word “Nonclassified”, by inserting a subdivision designation “(11)”;

On page thirty-eight, section two, line twelve, by striking out the subdivision designation “(1)” and inserting a subdivision designation “(A)”.

On page thirty-eight, section two, line thirteen, following the semicolon, by striking out the word “or”.

On page thirty-eight, section two, line fourteen, by striking out the subdivision designation “(2)” and inserting a subdivision designation “(B)”.

On page thirty-eight, section two, line fifteen, before the period, by inserting a semicolon, followed by the word “or” and a new paragraph (C) as follows:

“(C) Is in a position considered by the president to be critical to the institution pursuant to policies adopted by the governing board”.

On page thirty-eight, section two, line sixteen, before the word “Organization”, by inserting a subdivision designation “(12)”.

On page 39, section two, line 1, before the word “Pay” by inserting a subdivision designation “(13)”.

On page thirty-nine, section two, line three, before the word “Point”, by inserting a subdivision designation “(14)”.

On page thirty-nine, section two, line nine, before the word “Position”, by inserting a subdivision designation “(15)”.

On page forty, section two, line three, before the word “Pay”, by inserting a subdivision designation “(16)”.

On page forty, section three, line ten, by striking out the subsection designation “(a)”.

On page forty-one, section four, line seventeen, by striking out the subdivision designation “(A)” and inserting a subdivision designation “(1).

On page forty-two, section four, line six, by striking out the subdivision designation “(B)” and inserting in lieu thereof the designation “(2)”.

On page forty-two, section four, line eleven, by striking out the subdivision designation “(C)” and inserting in lieu thereof the designation “(3)”.

On page forty-seven, section five, line fourteen, by striking out the word “external”.

On page forty-seven, section five, line fourteen, following the words “salary study”, by striking out the semicolon and inserting the words "conducted by an external vendor pursuant to section six of this article", followed by a semicolon.

On page forty-nine, section six, line fourteen, by striking out the subsection designation “(c)” and inserting in lieu thereof the designation “(b)”.

On page fifty, section six, line one, by striking out the subsection designation “(d)” and inserting in lieu thereof the designation “(c)”.

On page fifty, section six, line twelve, by striking out the subsection designation “(e)” and inserting in lieu thereof the designation “(d)”.

On page fifty, section six, line fourteen, following the word “study”, by inserting a period and striking out the remainder of the sentence.

On page fifty, section six, line fourteen, before the words “At the conclusion”, by inserting the new sentence ”The study shall be completed by December 1, 2016, and on December 1 every fifth year thereafter.”

On page fifty, section six, line fifteen, before the word “study” by striking out the word “the” and inserting in lieu thereof the word “each”.

On page fifty-one, section six, line six, by striking out the subsection designation “(f)” and inserting in lieu thereof the subsection designation “(e)”.

On page fifty-one, section six, line seventeen, by striking out the subsection designation “(g)” and inserting in lieu thereof the subsection designation “(f)”.

On page fifty-two, section six, line sixteen, by striking out the subsection designation “(h)” and inserting in lieu thereof the subsection designation “(g)”.

S. B. 447, Allowing issuance of diploma by public, private or home school administrator; on second reading, coming up in regular order, was read a second time and ordered to third reading.

Com. Sub. for S. B. 453, Relating to motor vehicle dealers, distributors, wholesalers and manufacturers; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk on page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:

That §17A-6A-1, §17A-6A-3, §17A-6A-4, §17A-6A-5, §17A-6A-6, §17A-6A-8, §17A-6A-8a, §17A-6A-9, §17A-6A-10, §17A-6A-11, §17A-6A-12, §17A-6A-13, §17A-6A-15 and §17A-6A-18 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto five new sections, designated §17A-6A-12a, §17A-6A-14a, §17A-6A-15a, §17A-6A-15b and §17A-6A-15c, all to read as follows:

The Legislature finds and declares that the distribution and sale of motor vehicles in this state vitally affects the general economy and the public welfare and that in order to promote the public welfare and in exercise of its police power, it is necessary to regulate motor vehicle dealers, manufacturers, distributors and representatives of vehicle manufacturers and distributors doing business in this state in order to avoid undue control of the independent new motor vehicle dealer by the vehicle manufacturer or distributor and to insure that dealers fulfill their obligations under their franchises and provide adequate and sufficient service to consumers generally, and to protect and preserve the investments and properties of the citizens and motor vehicle dealers of this state.

For the purposes of this article, the words and phrases defined in this section have the meanings ascribed to them, except where the context clearly indicates a different meaning.

(1) ‘Dealer agreement’ means the franchise, agreement or contract in writing between a manufacturer, distributor and a new motor vehicle dealer which purports to establish the legal rights and obligations of the parties to the agreement or contract with regard to the purchase, lease or sale of new motor vehicles, accessories, service and sale of parts for motor vehicles.

(2) ‘Designated family member’ means the spouse, child, grandchild, parent, brother or sister of a deceased new motor vehicle dealer who is entitled to inherit the deceased dealer’s ownership interest in the new motor vehicle dealership under the terms of the dealer’s will, or who has otherwise been designated in writing by a deceased dealer to succeed the deceased dealer in the new motor vehicle dealership, or is entitled to inherit under the laws of intestate succession of this state. With respect to an incapacitated new motor vehicle dealer, the term means the person appointed by a court as the legal representative of the new motor vehicle dealer’s property. The term also includes the appointed and qualified personal representative and the testamentary trustee of a deceased new motor vehicle dealer. However, the term means only that designated successor nominated by the new motor vehicle dealer in a written document filed by the dealer with the manufacturer or distributor, if such a document is filed.

(3) ‘Distributor’ means any person, resident or nonresident who, in whole or in part, offers for sale, sells or distributes any new motor vehicle to a new motor vehicle dealer or who maintains a factor representative, resident or nonresident, or who controls any person, resident or nonresident who, in whole or in part, offers for sale, sells or distributes any new motor vehicle to a new motor vehicle dealer.

(4) ‘Established place of business’ means a permanent, enclosed commercial building located within this state easily accessible and open to the public at all reasonable times and at which the business of a new motor vehicle dealer, including the display and repair of motor vehicles, may be lawfully carried on in accordance with the terms of all applicable building codes, zoning and other land-use regulatory ordinances and as licensed by the Division of Motor Vehicles.

(5) ‘Factory branch’ means an office maintained by a manufacturer or distributor for the purpose of selling or offering for sale vehicles to a distributor, wholesaler or new motor vehicle dealer, or for directing or supervising, in whole or in part, factory or distributor representatives. The term includes any sales promotion organization maintained by a manufacturer or distributor which is engaged in promoting the sale of a particular make of new motor vehicles in this state to new motor vehicle dealers.

(6) ‘Factory representative’ means an agent or employee of a manufacturer, distributor or factory branch retained or employed for the purpose of making or promoting the sale of new motor vehicles or for supervising or contracting with new motor vehicle dealers or proposed motor vehicle dealers.

(7) ‘Good faith’ means honesty in fact and the observation of reasonable commercial standards of fair dealing in the trade.

(8) ‘Manufacturer’ means any person who manufactures or assembles new motor vehicles; or any distributor, factory branch or factory representative and, in the case of a school bus, truck tractor, road tractor or truck as defined in section one, article one of this chapter, also means a person engaged in the business of manufacturing a school bus, truck tractor, road tractor or truck, their engines, power trains or rear axles, including when engines, power trains or rear axles are not warranted by the final manufacturer or assembler, and any distributor, factory branch or representative.

(9) ‘Motor vehicle’ means that term as defined in section one, article one of this chapter, including motorcycle, school bus, truck tractor, road tractor, truck and recreational vehicle, all-terrain vehicle and utility terrain vehicle as defined in subsections (c), (d), (f), (h), (l) and (nn) and (vv), respectively, of said section, but not including a farm tractor or farm equipment. The term ‘motor vehicle’ also includes, for a school bus, truck tractor, road tractor, truck, its component parts, including, but not limited to, its engine, transmission or real axle manufactured for installation in a school bus, truck tractor, road tractor or truck.

(10) ‘New motor vehicle’ means a motor vehicle which is in the possession of the manufacturer, distributor or wholesaler, or has been sold only to a new motor vehicle dealer and on which the original title has not been issued from the new motor vehicle dealer.

(11) ‘New motor vehicle dealer’ means a person who holds a dealer agreement granted by a manufacturer or distributor for the sale of its motor vehicles, who is engaged in the business of purchasing, selling, leasing, exchanging or dealing in new motor vehicles, service of said vehicles, warranty work and sale of parts who has an established place of business in this state and is licensed by the Division of Motor Vehicles.

(12) ‘Person’ means a natural person, partnership, corporation, association, trust, estate or other legal entity.

(13) ‘Proposed new motor vehicle dealer’ means a person who has an application pending for a new dealer agreement with a manufacturer or distributor. ‘Proposed motor vehicle dealer’ does not include a person whose dealer agreement is being renewed or continued.

(14) ‘Relevant market area’ means the area located within a twenty-air mile radius around an existing same line-make new motor vehicle dealership: Provided, That a fifteen-mile relevant market area as it existed prior to the effective date of this statute shall apply to any proposed new motor vehicle dealership as to which a manufacturer or distributor and the proposed new motor vehicle dealer have executed on or before the effective date of this statute a written agreement, including a letter of intent, performance agreement or commitment letter, concerning the establishment of the proposed new motor vehicle dealership.

(1) Notwithstanding any agreement, a manufacturer or distributor shall not cancel, terminate, fail to renew or refuse to continue any dealer agreement with a new motor vehicle dealer unless the manufacturer or distributor has complied with all of the following:

(d) Has good cause for the cancellation, termination, nonrenewal or discontinuance.

(2) Notwithstanding any agreement, good cause exists when a manufacturer or distributor can demonstrate termination is necessary due to a material breach of a reasonable term or terms of the agreement by a dealer when weighed against the interests of the dealer and the public. The burden of proof is on the manufacturer to prove good cause by a preponderance of the evidence. The interests of the dealer and the public shall include consideration of:

(a) The relationship of the dealer’s sales to the sales in the relevant market;

(b) The investment and financial obligations of the dealer under the terms of the franchise agreement;

(d) The adequacy of the dealer’s sales and service facilities, equipment, parts and personnel in relation to other dealers in the relevant market;

(f) Whether the dealer is complying, or can comply within a reasonable time, with reasonable capitalization requirements; and

(g) The dealer’s overall performance under the reasonable terms of the franchise agreement. This shall include the overall fairness of the agreement terms, the enforceability of the agreement and the relative bargaining power of the parties.

(h) Whether the manufacturer made available the appropriate volumes and type of motor vehicles to the dealer, and a reasonable opportunity for sales and service training to the dealer.

(3) If In addition to the requirements of subsection (2) of this section, if the failure by the new motor vehicle dealer to comply with a provision of the dealer agreement relates to the performance of the new motor vehicle dealer in sales or service, good cause exists for the purposes of a termination, cancellation, nonrenewal or discontinuance under subsection (1) of this section when the new motor vehicle dealer failed to effectively carry out the performance provisions of the dealer agreement if all of the following have occurred:

(a) The new motor vehicle dealer was given written notice by the manufacturer or distributor of the failure;

(b) The notification stated that the notice of failure of performance was provided pursuant to this article;

(c) The new motor vehicle dealer was afforded a reasonable opportunity to exert good faith efforts to carry out the dealer agreement; and

(d) The failure continued for more than three hundred sixty days after the date notification was given pursuant to subdivision (a) of this subsection.

Notwithstanding any agreement, the following alone shall does not constitute good cause for the termination, cancellation, nonrenewal or discontinuance of a dealer agreement under subdivision (d), subsection (1), section four of this article:

(a) A change in ownership of the new motor vehicle dealer's dealership. This subdivision does not authorize any change in ownership which would have the effect of a sale or an assignment of the dealer agreement or a change in the principal management of the dealership without the manufacturer's or distributor's prior written consent which may not be unreasonably or untimely withheld.

(b) The refusal of the new motor vehicle dealer to purchase or accept delivery of any new motor vehicle parts, accessories or any other commodity or services not ordered by the new motor vehicle dealer.

(c) The fact that the new motor vehicle dealer owns, has an investment in, participates in the management of, or holds a dealer agreement for the sale of another make or line of new motor vehicles, or that the new motor vehicle dealer has established another make or line of new motor vehicles in the same dealership facilities as those of the manufacturer or distributor: Provided, That the new motor vehicle dealer maintains a reasonable line of credit for each make or line of new motor vehicles, and that the new motor vehicle dealer remains in substantial compliance with the terms and conditions of the dealer agreement and with any reasonable facilities' requirements of the manufacturer or distributor.

(d) The fact that the new motor vehicle dealer sells or transfers ownership of the dealership or sells or transfers capital stock in the dealership to the new motor vehicle dealer's spouse, son or daughter: Provided, That the sale or transfer shall not have the effect of a sale or an assignment of the dealer agreement or a change in the principal management of the dealership without the manufacturer's or distributor's prior written consent.

(e) This section does not apply to any voluntary agreement entered into after a disagreement or civil action has arisen for which the dealer has accepted separate and valuable consideration. Any prospective agreement is void as a matter of law.

For each termination, cancellation, nonrenewal or discontinuance, the manufacturer or distributor shall have has the burden of proof by a preponderance of the evidence for showing that he or she has acted in good faith, that the notice requirement has been complied with, and that there was good cause by a preponderance of the evidence for the termination, cancellation, nonrenewal or discontinuance.

(1) Upon the termination, cancellation, nonrenewal or discontinuance of any dealer agreement, the new motor vehicle dealer shall be allowed fair and reasonable compensation by the manufacturer or distributor for the following:

(a) Any new motor vehicle inventory, manufactured for sale in the United States, purchased from the manufacturer, distributor or other dealers, in the ordinary course of business, which has not been materially altered, substantially damaged or driven for more than seven hundred fifty one thousand miles, except that for any new motorcycle, new all-terrain vehicle or utility terrain vehicle inventory including motorhomes and travel trailers, regardless of gross vehicle weight, purchased from the manufacturer or distributor, that inventory must not have been materially altered, substantially damaged or driven for more than fifty miles and for motor vehicles with a rating greater than twenty-six thousand one pounds gross vehicle weight driven no more than five thousand miles. For purposes of a school bus, truck tractor, road tractor or truck, materially altered does not include dealer add-ons, such as, but not limited to, racks, mud flaps, fifth wheel assemblies, dump or tank bodies;

(b) Supplies and parts inventory purchased at the published list price purchased from, or at the direction of, the manufacturer or distributor. Parts shall be restricted to those and listed in the manufacturer's or distributor's current parts catalog;

(c) Equipment, special tools, furnishings and signs purchased or leased from, or at the direction of, the manufacturer or distributor; and

(d) Special computer software, hardware, license fees and other programs mandated by the manufacturer to provide training or communication with the manufacturer.

(2) Upon the termination, cancellation, nonrenewal or discontinuance of a dealer agreement by the manufacturer or distributor, the manufacturer or distributor shall also pay to the new motor vehicle dealer a sum equal to the current, fair rental value of his or her established place of business for a period of three years from the effective date of termination, cancellation, nonrenewal or discontinuance, or the remainder of the lease, whichever is less. If the dealer, directly or indirectly, owns the dealership facility, the manufacturer shall pay the dealer a sum equal to the reasonable rental value of the dealership premises for three years. However, the dealer shall have the obligation to mitigate his or her damages, including, but not limited to, listing the facility with a commercial real estate agent and other reasonable steps to sell or lease the property. During this three-year period the manufacturer shall have the right to occupy and use the facilities until such time as the dealer is able to otherwise sell or lease the property to another party. The payment required by this subsection does not apply to any termination, cancellation, nonrenewal or discontinuance made pursuant to subsection (c), section five seven of this article.

(3) Upon In addition to the items listed in subsections (1) and (2) of this section, the termination, cancellation or nonrenewal where the manufacturer or distributor is discontinuing the sale of a product line, the manufacturer or distributor shall pay or provide to the motor vehicle dealer:

(a) Compensation consistent with the length of time the dealer carried the line and the investment and timing thereof required by the manufacturer or distributor of the dealer; and

(b)(a) Support of the manufacturer’s or distributor’s warranty obligations by making parts available and compensating dealers for warranty parts and labor for five years: Provided, That the motor vehicle dealer has adequate facilities, trained personnel and equipment to perform warranty repairs.

(b) Any actual damages that can be proven by a dealer by a preponderance of the evidence;

(c) Any costs the dealer incurred for facility upgrades or alternations required by the manufacturer, distributor or factory branch within the previous five years; and

(d) Within forty-five days after termination, dealer shall submit evidence of items to the manufacturer in accordance with reasonable manufacturer requirements. The manufacturer shall have thirty days from receipt of this evidence to note any objection. If not objected thereto, payment by the manufacturer to the dealer shall be made within thirty days. Thereafter, interest accumulates at the rate of the Fifth Federal Reserve District’s secondary discount rate in effect on January 2 of the year in which payment is due plus five percentage points. If a dispute arises over the sufficiency of any evidence or an amount submitted, when interest begins to accumulate will be determined in accordance with West Virginia common law.

(1) Every motor vehicle manufacturer, distributor or wholesaler, factory branch or distributor branch, or officer, agent or representative thereof, shall:

(a) Specify in writing to each of its motor vehicle dealers, the dealer's obligation for delivery, preparation, warranty and factory recall services on its products;

(b) Compensate the motor vehicle dealer for warranty and factory recall service required of the dealer by the manufacturer, distributor or wholesaler, factory branch or distributor branch or officer, agent or representative thereof; and

(c) Provide the dealer the schedule of compensation to be paid the dealer for parts, work and service in connection with warranty and recall services and the time allowance for the performance of the work and service.

(a) The schedule of compensation fail to compensate the dealers for the work and services they are required to perform in connection with the dealer's delivery and preparation obligations, or fail to adequately and fairly compensate the dealers for labor, parts and other expenses incurred by the dealer to perform under and comply with manufacturer's warranty agreements and factory recalls;

(b) Any manufacturer, distributor or wholesaler, or representative thereof, pay its dealers an amount of money for warranty or recall work that is less than that charged by the dealer to the retail customers of the dealer for nonwarranty and nonrecall work of the like kind; and

(c) Any manufacturer, distributor or wholesaler, or representative thereof, compensate for warranty and recall work based on a flat-rate figure that is less than what the dealer charges for retail work.

(3) It is a violation of this section for any manufacturer, distributor, wholesaler or representative to require any dealer to pay in any manner, surcharges, limited allocation, audits, charge backs or other retaliation if the dealer seeks to recover its nonwarranty retail rate for warranty and recall work.

(4) The retail rate charged by the dealer for parts is established by the dealer submitting to the manufacturer or distributor one hundred sequential nonwarranty customer-paid service repair orders that contain warranty-like parts or ninety consecutive days of nonwarranty customer-paid service repair orders that contain warranty-like parts covering repairs made no more than one hundred eighty days before the submission and declaring the average percentage markup.

(5) The retail rate customarily charged by the dealer for labor rate must be established using the same process as provided under subsection (4) of this section and declaring the average labor rate. The average labor rate must be determined by dividing the amount of the dealer’s total labor sales by the number of total hours that generated those sales. If a labor rate and parts markup rate simultaneously declared by the dealer, the dealer may use the same repair orders to complete each calculation as provided under subsection (4) of this section. A reasonable allowance for labor for diagnostic time shall be either included in the manufacturer’s labor time allowance or listed as a separate compensable item. A dealer may request additional time allowance for either diagnostic or repair time, which request shall not be unreasonable denied by the manufacturer.

(6) In calculating the retail rate customarily charged by the dealer for parts and labor, the following work may not be included in the calculation:

(a) Repairs for manufacturer or distributor special events, specials or promotional discounts for retain customer repairs;

(c) Routine maintenance not covered under any retail customer warranty, including fluids, filters and belts not provided in the course of repairs;

(d) Nuts, bolts fasteners and similar items that do not have an individual part number;

(7) The average of the parts markup rates and labor rate is presumed to be reasonable and must go into effect thirty days following the manufacturer’s approval. A manufacturer or distributor may rebut the presumption by a preponderance of the evidence that a rate is unreasonable in light of the practices of all other same line-make franchised motor vehicle dealers in an economically similar area of the state offering the same line-make vehicles, not later than thirty days after submission. If the average parts markup rate or average labor rate is rebutted, or both, the manufacturer or distributor shall propose an adjustment of the average percentage markup based on that rebuttal not later than thirty days after submission.

(8) Each manufacturer, in establishing a schedule of compensation for warranty work, shall rely on the vehicle dealer’s declaration of hourly labor rates and parts as stated in subsections (4), (5) and (6) of this section and may not obligate any vehicle dealer to engage in unduly burdensome or time-consuming documentation of rates or parts, including obligating vehicle dealers to engage in transaction-by-transaction or part-by-part calculations.

(9) A dealer or manufacturer may demand that the average parts markup or average labor rate be calculated using the process provided under subsections (4) and (5) of this section; however, the demand for the average parts markup may not be made within twelve months of the last parts markup declaration and the demand for the average labor rate may not be made within twelve months of the last labor rate declaration. If a parts markup or labor rate is demanded by the dealer or manufacturer, the dealer shall determine the repair orders to be included in the calculation under subsections (4) and (5) of this section.

(10) As it applies to a school bus, truck tractor, road tractor and truck as defined in section one, article one of this chapter, with a gross vehicle weight on excess of twenty-six thousand one pounds the manufacturer, distributor and/or O. E. M. supplier shall pay the dealer its incurred actual time at the retail labor rate for retrieving a motor vehicle and returning a motor vehicle to dealer’s designated parking area. Dealer shall be paid $50 minimum for each operation that requires the use of each electronic tool (i.e. laptop computer). The manufacturer or distributor may not reduce what is paid to a dealer for this retrieval or return time, or for the electronic tool charge. The dealer is allowed to add to a completed warranty repair order three hours for every twenty-four hours the manufacturer, distributor and/or O. E. M. supplier makes the dealer stop working on a vehicle while the manufacturer, distributor and/or O. E. M. supplier decides how it wants the dealer to proceed with the repairs.

(4)(11) All claims made by motor vehicle dealers pursuant to the section for compensation for delivery, preparation, warranty and recall work, including labor, parts and other expenses, shall be paid by the manufacturer within thirty days after approval and shall be approved or disapproved by the manufacturer within thirty days after receipt. When any claim is disapproved, the dealer shall be notified in writing of the grounds for disapproval. No claim which has been approved and paid may be charged back to the dealer unless it can be shown that the claim was false or fraudulent, that the repairs were not properly made or were unnecessary to correct the defective condition or the dealer failed to reasonable substantiate the claim in accordance with the written requirements of the manufacturer or distributor in effect at the time the claim arose. No charge back may be made until the dealer has had notice and an opportunity to support the claim in question. No otherwise valid reimbursement claims may be denied once properly submitted within manufacturers’ submission guidelines due to a clerical error or omission or based on a different level of technician technical certification or the dealer’s failure to subscribe to any manufacturer’s computerized training programs.

(5)(12) Notwithstanding the terms of a franchise agreement or provision of law in conflict with this section, the dealer’s delivery, preparation, warranty and recall obligations constitutes the dealer’s sole responsibility for product liability as between the dealer and manufacturer and, except for a loss caused by the dealer’s failure to adhere to the obligations, a loss caused by the dealer’s negligence or intentional misconduct or a loss caused by the dealer’s modification of a product without manufacturer authorization, the manufacturer shall reimburse the dealer for all loss incurred by the dealer, including legal fees, court costs and damages, as a result of the dealer having been named a party in a product liability action.

(1) Compensation for new motor vehicle inventory under subdivision (a), subsection (1), section eight of this article shall be paid within sixty days after the effective date of the termination, cancellation, nonrenewal or discontinuance. Compensation for items of personal property required by subdivisions (b), (c) and (d), subsection (1), section eight of this article shall be paid within sixty days after the effective date of the termination, cancellation, nonrenewal or discontinuance. if the The new motor vehicle dealer has met will meet all reasonable requirements of the dealer agreement with respect to the return of the repurchased personal property, including providing clear title.

(2) Reasonable compensation pursuant to subdivision (a), subsection (1), section eight of this article may not be less than the new motor vehicle dealer's net acquisition cost, including any special promotions ordered by the manufacturer, such as advertising charges, and special tools purchased from the manufacturer or distributor within three years of the date of termination, cancellation, nonrenewal or discontinuance. Reasonable compensation pursuant to subdivision (b) of said subsection shall be the amount stated in the manufacturer's or distributor's current parts price list. Reasonable compensation pursuant to subdivisions (c) and (d) of said subsection shall be the fair market value of the personal property. determined by a five-year straight line depreciation schedule.

(3) In the event payment is not made within ninety days as provided in subsection (1) of this section, interest accrues on all amounts due the new motor vehicle dealer at a rate of twelve percent per annum. shall accumulate at the rate of the Fifth Federal Reserve District’s secondary discount rate in effect on January 2 of the year in which payment is due plus five percentage points. In determining when interest begins to accumulate, the court may consider whether the dealer reasonably complied with the reasonable manufacturer’s submission requirements and the reasonableness of the manufacturer’s determinations in refusing or delaying payment to the dealer.

(1) A manufacturer or distributor may not require any new motor vehicle dealer in this state to do any of the following:

(a) Order or accept delivery of any new motor vehicle, part or accessory of the vehicle, equipment or any other commodity not required by law which was not voluntarily ordered by the new motor vehicle dealer. This section does not prevent the manufacturer or distributor from requiring that new motor vehicle dealers carry a reasonable inventory of models offered for sale by the manufacturer or distributor;

(b) Order or accept delivery of any new motor vehicle with special features, accessories or equipment not included in the list price of the new motor vehicle as publicly advertised by the manufacturer or distributor;

(c) Unreasonably participate monetarily in any advertising campaign or contest, or purchase any promotional materials, display devices, display decorations, brand signs and dealer identification, nondiagnostic computer equipment and displays or other materials at the expense of the new motor vehicle dealer;

(d) Enter into any agreement with the manufacturer or distributor or do any other act prejudicial to the new motor vehicle dealer by threatening to terminate a dealer agreement, limit inventory, invoke sales and service warranty or other types of audits or any contractual agreement or understanding existing between the dealer and the manufacturer or distributor. Notice in good faith to any dealer of the dealer's violation of any terms or provisions of the dealer agreement is not a violation of this article;

(e) Change the capital structure or financial requirements of the new motor vehicle dealership without reasonable business justification in light of the dealer’s market, historical performance and compliance with prior capital structure or financial requirements and business necessity, or the means by or through which the dealer finances the operation of the dealership if the dealership at all times meets any reasonable capital standards determined by the manufacturer in accordance with uniformly applied criteria. The burden of proof is on the manufacturer to prove business justification by a preponderance of the evidence;

(f) Refrain from participation in the management of, investment in or the acquisition of any other line of new motor vehicle or related products, provided that the dealer maintains a reasonable line of credit for each make or line of vehicle, remains in compliance with reasonable facilities requirements and makes no change in the principal management of the dealer. Notwithstanding the terms of any franchise agreement, a manufacturer or distributor may not enforce any requirements, including facility requirements, that a new motor vehicle dealer establish or maintain exclusive facilities, personnel or display space, when the requirements are unreasonable considering current economic conditions and are not otherwise justified by reasonable business considerations. The burden of proving that current economic conditions or reasonable business considerations justify exclusive facilities is on the manufacturer or distributor and must be proven by a preponderance of the evidence;

(g) Change the location of the new motor vehicle dealership or make any substantial alterations to the dealership premises, where to do so would be unreasonable. The burden is on the manufacturer or distributor to prove reasonableness by a preponderance of the evidence; and

(h) Prospectively assent to a waiver of trial by jury release, arbitration, assignment, novation, waiver or estoppel which would relieve any person from liability imposed by this article or require any controversy between a new motor vehicle dealer and a manufacturer or distributor to be referred to a person other than the duly constituted courts of the this state or the United States District Courts of the Northern or Southern Districts of West Virginia. Nothing in this prevents a motor vehicle dealer, after a civil action is filed, from entering into any agreement of settlement, arbitration, assignment or waiver of a trial by jury; if the referral would be binding upon the new motor vehicle dealer.

(i) To coerce or require any dealer, whether by agreement, program, incentive provision or otherwise, to construct improvements to its facilities or to install new signs or other franchisor image elements that replace or substantially alter those improvements, signs or franchisor image elements completed within the proceeding ten years that were required and approved by the manufacturer, factory branch, distributor or distributor branch or one of its affiliates. If a manufacturer, factory branch, distributor or distributor branch offers incentives or other payments to a consumer or dealer paid on individual vehicle sales under a program offered after the effective date of this subdivision and available to more than one dealer in the state that are premised, wholly or in part, on dealer facility improvements or installation of franchiser image elements required by and approved by the manufacturer, factory branch, distributor or distributor branch and completed within ten years preceding the program shall be deemed to be in compliance with the program requirements pertaining to construction of facilities or installation of signs or other franchisor image elements that would replace or substantially alter those previously constructed or installed with that ten year period. This subdivision shall not apply to a program that is in effect with more than one dealer in the state on the effective date of this subsection, nor to any renewal of such program, nor to a modification that is not a substantial modification of a material term or condition of such program;

(j) To condition the award, sale, transfer, relocation or renewal of a franchise or dealer agreement or to condition sales, service, parts or finance incentives upon site control or an agreement to renovate or make substantial improvements to a facility: Provided, That voluntary and noncoerced acceptance of such conditions by the dealer in writing, including, but not limited to, a written agreement for which the dealer has accepted separate and valuable consideration, does not constitute a violation;

(k) To enter into a contractual requirement imposed by the manufacturer, distributor or a captive finance source as follows:

(i) In this section, ‘captive finance source’ means any financial source that provides automotive-related loans or purchases retail installment contracts or lease contracts for motor vehicles in this state and is, directly or indirectly, owned, operated or controlled by such manufacturer, factory branch, distributor or distributor branch.

(ii) It shall be unlawful for any manufacturer, factory branch, captive finance source, distributor or distributor branch, or any field representative, officer, agent or any representative of them, notwithstanding the terms, provisions or conditions of any agreement or franchise, to require any of its franchised dealers located in this state to agree to any terms, conditions or requirements in subdivisions (a) through (j), inclusive, of this subsection in order for any such dealer to sell to any captive finance source any retail installment contract, loan or lease of any motor vehicles purchased or leased by any of the dealer’s customers, or to be able to participate in, or otherwise, directly or indirectly, obtain the benefits of the consumer transaction incentive program payable to the consumer or the dealer and offered by or through any captive finance source as to that incentive program.

(iii) The applicability of this section is not affected by a choice of law clause in any agreement, waiver, novation or any other written instrument.

(iv) It shall be unlawful for a manufacturer or distributor to use any subsidiary corporation, affiliated corporation or any other controlled corporation, partnership, association or person to accomplish what would otherwise be illegal conduct under this section on the part of the manufacturer or distributor.

(a) (i) Fail to deliver new motor vehicles or new motor vehicle parts or accessories within a reasonable time and in reasonable quantities relative to the new motor vehicle dealer's market area and facilities, unless the failure is caused by acts or occurrences beyond the control of the manufacturer or distributor, or unless the failure results from an order by the new motor vehicle dealer in excess of quantities reasonably and fairly allocated by the manufacturer or distributor. No manufacturer or distributor may penalize a new motor vehicle dealer for an alleged failure to meet sales quotas where the alleged failure is due to actions of the manufacturer or distributor;

(ii) Refuse to offer to its same line-make new motor vehicle dealers all models manufactured for that line-make, including, but not limited to, any model that contains a separate label or badge indicating a upgraded version of the same model. This provision does not apply to motorhome, travel trailer, or fold-down camping trailer manufacturers; or

(iii) Require as a prerequisite to receiving a model or series of vehicles that a new motor vehicle dealer pay an extra unreasonable acquisition fee or surcharge, or purchase unreasonable advertising displays or other materials, or conduct unreasonable remodeling, renovation or reconditioning of the dealer’s facilities, or any other type of unreasonable upgrade requirement;

(b) Refuse to disclose to a new motor vehicle dealer the method and manner of distribution of new motor vehicles by the manufacturer or distributor, including any numerical calculation or formula used, nationally or within the dealer’s market, to make the allocations within thirty days of a request. Any information or documentation provided by the manufacturer may be subject to a reasonable confidentiality agreement;

(c) Refuse to disclose to a new motor vehicle dealer the total number of new motor vehicles of a given model, which the manufacturer or distributor has sold during the current model year within the dealer's marketing district, zone or region, whichever geographical area is the smallest within thirty days of a request;

(d) Increase prices of new motor vehicles which the new motor vehicle dealer had ordered and then eventually delivered to the same retail consumer for whom the vehicle was ordered, if the order was made prior to the dealer's receipt of the written official price increase notification. A sales contract signed by a private retail consumer and binding on the dealer which has been submitted to the vehicle manufacturer is evidence of each order. In the event of manufacturer or distributor price reductions or cash rebates, the amount of any reduction or rebate received by a dealer shall be passed on to the private retail consumer by the dealer. Any price reduction in excess of $5 shall apply to all vehicles in the dealer's inventory which were subject to the price reduction. A price difference applicable to new model or series motor vehicles at the time of the introduction of the new models or the series is not a price increase or price decrease. This subdivision does not apply to price changes caused by the following:

(i) The addition to a motor vehicle of required or optional equipment pursuant to state or federal law;

(ii) In the case of foreign-made vehicles or components, revaluation of the United States dollar; or

(iii) Any increase in transportation charges due to an increase in rates charged by a common carrier and transporters;

(e) Offer any refunds or other types of inducements to any dealer for the purchase of new motor vehicles of a certain line-make to be sold to this state or any political subdivision of this state without making the same offer available upon request to all other new motor vehicle dealers of the same line-make;

(f) Release to an outside party, except under subpoena or in an administrative or judicial proceeding to which the new motor vehicle dealer or the manufacturer or distributor are parties, any business, financial or personal information which has been provided by the dealer to the manufacturer or distributor, unless the new motor vehicle dealer gives his or her written consent;

(g) Deny a new motor vehicle dealer the right to associate with another new motor vehicle dealer for any lawful purpose;

(h) Establish a new motor vehicle dealership. which would unfairly compete with a new motor vehicle dealer of the same line-make operating under a dealer agreement with the manufacturer or distributor in the relevant market area. A manufacturer or distributor shall is not be considered to be unfairly competing to have established a new motor vehicle dealership if the manufacturer or distributor is:

(C) Operating a dealership with another person who has made a significant investment in the dealership and who will acquire full ownership of the dealership under reasonable terms and conditions;

(i) A manufacturer may not, except as provided by this section, directly or indirectly:

(A) Own an interest in a dealer or dealership: Provided, That a manufacturer may own stock in a publicly held company solely for investment purposes;

(B) Operate a dealership, including, but not limited to, displaying a motor vehicle intended to facilitate the sale of new motor vehicles other than through franchised dealers, unless the display is part of an automobile trade show that more than two automobile manufacturers participate in; or

(C) Act in the capacity of a new motor vehicle dealer. Provided, That a manufacturer may own an interest, other than stock in a publicly held company, solely for investment purposes;

(j) A manufacturer or distributor may own an interest in a franchised dealer, or otherwise control a dealership, for a period not to exceed twelve months from the date the manufacturer or distributor acquires the dealership if:

(i) The person from whom the manufacturer or distributor acquired the dealership was a franchised dealer; and

(ii) The dealership is for sale by the manufacturer or distributor at a reasonable price and on reasonable terms and conditions;

(k) The twelve-month period may be extended for an additional twelve months. Notice of any such extension of the original twelve-month period must be given to any dealer of the same line-make whose dealership is located in the same county, or within twenty air miles of, the dealership owned or controlled by the manufacturer or distributor prior to the expiration of the original twelve-month period. Any dealer receiving the notice may protest the proposed extension within thirty days of receiving notice by bringing a declaratory judgment action in the circuit court for the county in which the new motor vehicle dealer is located to determine whether good cause exists for the extension;

(l) For the purpose of broadening the diversity of its dealer body and enhancing opportunities for qualified persons who are part of a group who have historically been under represented in its dealer body, or other qualified persons who lack the resources to purchase a dealership outright, but for no other purpose, a manufacturer or distributor may temporarily own an interest in a dealership if the manufacturer’s or distributor’s participation in the dealership is in a bona fide relationship with a franchised dealer who:

(iii) Operates the dealership under a plan to acquire full ownership of the dealership within a reasonable time and under reasonable terms and conditions;

(m) Unreasonably withhold consent to the sale, transfer or exchange of the dealership to a qualified buyer capable of being licensed as a new motor vehicle dealer in this state;

(n) Fail to respond in writing to a request for consent to a sale, transfer or exchange of a dealership within sixty days after receipt of a written application from the new motor vehicle dealer on the forms generally utilized by the manufacturer or distributor for such purpose and containing the information required therein. Failure to respond to the request within the sixty days is consent;

(o) Unfairly prevent a new motor vehicle dealer from receiving reasonable compensation for the value of the new motor vehicle dealership;

(p) Audit any motor vehicle dealer in this state for warranty parts or warranty service compensation, service compensation, service or sales incentives, manufacturer rebates or other forms of sales incentive compensation more than twelve months after the claim for payment or reimbursement has been made by the automobile dealer. No chargeback may be made until the dealer has had notice and an opportunity to support the claim in question within thirty days of receiving notice of the chargeback. No otherwise valid reimbursements claims may be denied once properly submitted in accordance with the manufacturer’s submission guidelines due to clerical error or omission. Provided, That the provisions of this This subsection do does not apply where a claim is fraudulent. In addition, the manufacturer or distributor is responsible for reimbursing the audited dealer for all copying, postage and administrative costs incurred by the dealer during the audit. Any charges to a dealer as a result of the audit must be separately billed to the dealer;

(q) Unreasonably restrict a dealer’s ownership of a dealership through noncompetition covenants, site control, sublease, collateral pledge of lease, right of first refusal, option to purchase, or otherwise. A right of first refusal is created when:

(i) A manufacturer has a contractual right of first refusal to acquire the new motor vehicle dealer’s assets where the dealer owner receives consideration, terms and conditions that are either the same as or better than those they have already contracted to receive under the proposed change of more than fifty percent of the dealer’s ownership.

(ii) The proposed change of the dealership’s ownership or the transfer of the new vehicle dealer’s assets does not involve the transfer of assets or the transfer or issuance of stock by the dealer or one of the dealer’s owners to one of the following:

(B) A manager employed by the dealer in the dealership during the previous five years and who is otherwise qualified as a dealer operator;

(i) For the purpose of allowing the new vehicle dealer to continue to qualify as such under the manufacturer’s or distributor’s standards; or

(ii) To provide for the succession of the franchise agreement to designated family members or qualified management in the event of death or incapacity of the dealer or its principle owner or owners.

(iii) Upon exercising the right of first refusal by a manufacturer, it eliminates any requirement under its dealer agreement or other applicable provision of this statute that the manufacturer evaluate, process or respond to the underlying proposed transfer by approving or rejecting the proposal, is not subject to challenge as a rejection or denial of the proposed transfer by any party.

(iv) Except as otherwise provided in this subsection, the manufacturer or distributor agrees to pay the reasonable expenses, including reasonable out-of-pocket professional fees which shall include, but not be limited to, accounting, legal or appraisal services fees that are incurred by the proposed owner or transferee before the manufacturer’s or distributor’s exercise of its right of first refusal. Payment of the expenses and fees for professional services are not required if the dealer fails to submit an accounting of those expenses and fees within twenty days of the dealer’s receipt of the manufacturer’s or distributor’s written request for such an accounting. Such a written account of fees and expenses may be requested by a manufacturer or distributor before exercising its right of first refusal;

(r) Except for experimental low-volume not-for-retail sale vehicles, cause warranty and recall repair work to be performed by any entity other than a new motor vehicle dealer;

(s) Make any material or unreasonable change in any franchise agreement, including, but not limited to, the dealer’s area of responsibility without giving the new motor vehicle dealer written notice by certified mail of the change at least sixty days prior to the effective date of the change, and shall include an explanation of the basis for the alteration. Upon written request from the dealer, this explanation shall include, but is not limited to, a reasonable and commercially acceptable copy of all information, data, evaluations, and methodology relied on or based its decision on, to propose the change to the dealer’s area of responsibility. Any information or documentation provided by the manufacturer or distributor may be produced subject to a reasonable confidentiality agreement. At any time prior to the effective date of an alteration of a new motor vehicle dealer’s area of responsibility, and after the completion of any internal appeal process pursuant to the manufacturer’s or distributor’s policy manual, the motor vehicle dealer may petition the court to enjoin or prohibit the alteration within thirty days of receipt of the manufacturer’s internal appeal process decision. The court shall enjoin or prohibit the alteration of a motor vehicle dealer’s area of responsibility unless the franchisor shows, by a preponderance of the evidence, that the alteration is reasonable and justifiable in light of market conditions. If a motor vehicle dealer petitions the court, no alteration to a motor vehicle dealer’s area of responsibility shall become effective until a final determination by the court. If a new motor vehicle dealer’s area of responsibility is altered, the manufacturer shall allow twenty-four months for the motor vehicle dealer to become sales effective prior to taking any action claiming a breach or nonperformance of the motor vehicle dealer’s sales performance responsibilities;

(t) Fail to reimburse a new motor vehicle dealer, at the dealer’s regular rate, or the full and actual cost of providing a loaner vehicle to any customer who is having a vehicle serviced at the dealership if the provision of the loaner vehicle is required by the manufacturer;

(u) Compel a new motor vehicle dealer through its finance subsidiaries to agree to unreasonable operating requirements or to directly or indirectly terminate a franchise through the actions of a finance subsidiary of the franchisor. This subsection does not limit the right of a finance subsidiary to engage in business practices in accordance with the usage of trade in retail or wholesale vehicle financing;

(v) Discriminate directly or indirectly between dealers on vehicles of like grade or quantity where the effect of the discrimination would substantially lessen competition; and

(w) Use or employ any performance standard that is not fair and reasonable and based upon accurate and verifiable data made available to the dealer;

(x) To require or coerce any new motor vehicle dealer to sell, offer to sell or sell exclusively extended service contract, maintenance plan or similar product, including gap or other products, offered, endorsed or sponsored by the manufacturer or distributor by the following means:

(i) By an act of statement that the manufacturer or distributor will adversely impact the dealer, whether it is express or implied;

(ii) By a contract made to the dealer on the condition that the dealer shall sell, offer to sell or sell exclusively an extended service contract, extended maintenance plan or similar product offered, endorsed or sponsored by the manufacturer or distributor;

(iii) By measuring the dealer's performance under the franchise agreement based on the sale of extended service contracts, extended maintenance plans or similar products offered, endorsed or sponsored by the manufacturer or distributor;

(iv) By requiring the dealer to actively promote the sale of extended service contracts, extended maintenance plans or similar products offered, endorsed or sponsored by the manufacturer or distributor;

(v) Nothing in this paragraph prohibits a manufacturer or distributor from providing incentive programs to a new vehicle dealer who makes the voluntary decision to offer to sell, sell or sell exclusively an extended service contract, extended maintenance plan or similar product offered, endorsed or sponsored by the manufacturer or distributor.

(y) Require a dealer to purchase goods or services from a vendor selected, identified or designated by a manufacturer, factory branch, distributor, distributor branch or one of its affiliates by agreement, program, incentive provision or otherwise without making available to the dealer the option to obtain the goods or services of substantially similar quality and overall design from a vendor chosen by the dealer and approved by the manufacturer, factory branch, distributor or distributor branch: Provided, That such approval may not be unreasonably withheld: Provided, however, That the dealer's option to select a vendor is not available if the manufacturer or distributor provides substantial reimbursement for the goods or services offered. Substantial reimbursement is equal to the difference in price of the goods and services from manufacturer’s proposed vendor and the motor vehicle dealer’s selected vendor: Provided further, That the goods are not subject to the manufacturer or distributor's intellectual property or trademark rights, or trade dress usage guidelines.

(z) Notwithstanding any provision of this article to the contrary, a manufacturer who does not use dealer franchises as part of its business model may operate not more than five separate dealership locations that sell new motor vehicles.

(3) A manufacturer or distributor, either directly or through any subsidiary, may not terminate, cancel, fail to renew or discontinue any lease of the new motor vehicle dealer's established place of business except for a material breach of the lease.

(4) Except as may otherwise be provided in this article, no manufacturer or franchisor shall may sell, directly or indirectly, any new motor vehicle to a consumer in this state, except through a new motor vehicle dealer holding a franchise for the line-make covering such new motor vehicle. This subsection shall does not apply to manufacturer or franchisor sales of new motor vehicles to charitable organizations, qualified vendors or employees of the manufacturer or franchisor.

(5) Except when prevented by an act of God, labor strike, transportation disruption outside the control of the manufacturer or time of war, a manufacturer or distributor may not refuse or fail to deliver, in reasonable quantities and within a reasonable time, to a dealer having a franchise agreement for the retail sale of any motor vehicle sold or distributed by the manufacturer, any new motor vehicle or parts or accessories to new motor vehicles as are covered by the franchise if the vehicles, parts and accessories are publicly advertised as being available for delivery or are actually being delivered. All models offered for sale by the manufacturer, without any enrollment, surcharge, unreasonable facility or building or any other unreasonable type of upgrade requirement or acquisition fee, shall be available to the franchised dealer at no additional cost for that particular model of vehicle.

(1) Any designated family member of a deceased or incapacitated new motor vehicle dealer may succeed the dealer in the ownership or operation of the dealership under the existing dealer agreement if the designated family member gives the manufacturer or distributor written notice of his or her intention to succeed to the dealership within one hundred twenty days after the dealer's death or incapacity, agrees to be bound by all of the terms and conditions of the dealer agreement, and the designated family member meets the current criteria generally applied by the manufacturer or distributor in qualifying new motor vehicle dealers. A manufacturer or distributor may refuse to honor the existing dealer agreement with the designated family member only for good cause. In determining whether good cause exists for refusing to honor the agreement, the manufacturer or distributor has the burden of proving that the designated successor is a person who is not of good moral character or does not meet the manufacturer’s existing written, reasonable and uniformly applied standards for business experience and financial qualifications. The designated family member will have a minimum of one year to satisfy that manufacturer’s written and reasonable standards and financial qualifications for appointment as the dealer and principal.

(2) The manufacturer or distributor may request from a designated family member such personal and financial data as is reasonably necessary to determine whether the existing dealer agreement should be honored. The designated family member shall supply the personal and financial data promptly upon the request.

(3) If a manufacturer or distributor believes that good cause exists for refusing to honor the succession, the manufacturer or distributor may, within forty-five days after receipt of the notice of the designated family member's intent to succeed the dealer in the ownership and operation of the dealership, or within forty-five days after the receipt of the requested personal and financial data, serve upon the designated family member notice of its refusal to approve the succession.

(4) The notice of the manufacturer or distributor provided in subsection (3) of this section shall state the specific grounds for the refusal to approve the succession and that discontinuance of the agreement shall take effect not less than ninety one hundred-eighty days after the date the notice is served.

(5) If notice of refusal is not served within the sixty days provided for in subsection (3) of this section, the dealer agreement continues in effect and is subject to termination only as otherwise permitted by this article.

(6) This section does not preclude a new motor vehicle dealer from designating any person as his or her successor by will or any other written instrument filed with the manufacturer or distributor, and if such an instrument is filed, it alone determines the succession rights to the management and operation of the dealership.

(7) If the manufacturer challenges the succession, it maintains the burden of proof to show good cause by a preponderance of the evidence. If the person seeking succession files a civil action within the one hundred eighty days set forth in subsection (4) of this section, no action may be taken by the manufacturer contrary to the dealer agreement until such time as the civil action and any appeal has been exhausted: Provided, That when a motor vehicle dealer appeals a decision upholding a manufacturer's decision to not allow succession based upon the designated person's insolvency, conviction of a crime punishable by imprisonment in excess of one year under the law which the designated person was convicted, the dealer agreement shall remain in effect pending exhaustion of all appeals only if the motor vehicle dealer establishes a likelihood of success on appeal and the public interest will not be harmed by keeping the dealer agreement in effect pending entry of final judgment after the appeal.

§17A-6A-12. Establishment and relocation or establishment of additional dealers.

(1) As used in this section, ‘relocate’ and ‘relocation’ do not include the relocation of a new motor vehicle dealer within four miles of its established place of business or an existing new motor vehicle dealer sells or transfers the dealership to a new owner and the successor new motor vehicle dealership owner relocates to a location within four miles of the seller’s last open new motor vehicle dealership location. The relocation of a new motor vehicle dealer to a site within the area of sales responsibility assigned to that dealer by the manufacturing branch or distributor may not be within six air miles of another dealer of the same line-make.

(2) Before a manufacturer or distributor enters into a dealer agreement establishing or relocating a new motor vehicle dealer within a relevant market area where the same line-make is represented, the manufacturer or distributor shall give written notice to each new motor vehicle dealer of the same line-make in the relevant market area of its intention to establish an additional dealer or to relocate an existing dealer within that relevant market area.

(3) Within sixty days after receiving the notice provided in subsection (2) of this section, or within sixty days after the end of any appeal procedure provided by the manufacturer or distributor, a new motor vehicle dealer of the same line-make within the affected relevant market area may bring a declaratory judgment action in the circuit court for the county in which the new motor vehicle dealer is located to determine whether good cause exists for the establishing or relocating of the proposed new motor vehicle dealer. Provided, That a new motor vehicle dealer of the same line-make within the affected relevant market area shall not be permitted to bring such an action if the proposed relocation site would be further from the location of the new motor vehicle dealer of the same line-make than the location from which the dealership is being moved. Once an action has been filed, the manufacturer or distributor may not establish or relocate the proposed new motor vehicle dealer until the circuit court has rendered a decision on the matter. An action brought pursuant to this section shall be given precedence over all other civil matters on the court’s docket. The manufacturer has the burden of proving that good cause exists for establishing or relocating a proposed new motor vehicle dealer.

(4) This section does not apply to the reopening in a relevant market area of a new motor vehicle dealer that has been closed or sold within the preceding two years if the established place of business of the new motor vehicle dealer is within four air miles of the established place of business of the closed or sold new motor vehicle dealer.

(5) In determining whether good cause exists for establishing or relocating an additional new motor vehicle dealer for the same line-make, the court shall take into consideration the existing circumstances, including, but not limited to, the following:

(a) Permanency and amount of the investment, including any obligations incurred by the dealer in making the investment;

(b) Effect on the retail new motor vehicle business and the consuming public in the relevant market area;

(d) Whether the new motor vehicle dealers of the same line-make in the relevant market area are providing adequate competition and convenient consumer care for the motor vehicles of that line-make in the market area, including the adequacy of motor vehicle sales and qualified service personnel;

(e) Whether the establishment or relocation of the new motor vehicle dealer would promote competition;

(f) Growth or decline of the population and the number of new motor vehicle registrations in the relevant market area; and

(g) The effect on the relocating dealer of a denial of its relocation into the relevant market area.

(1) A manufacturer shall not require that a new motor vehicle dealer, a proposed new motor vehicle dealer, or any owner of an interest in a dealership facility enter into or agree to a property use agreement as a condition to any of the following:

(b) Adding a line make or dealer agreement to an existing new motor vehicle dealer.

(e) Approving a sale or transfer of the ownership of a dealership or a transfer of a dealer agreement to another person.

(2) Subsection (1) of this section does not apply to a property use agreement if any of the following are offered and accepted for that agreement:

(b) Separate and valuable consideration that can be calculated to a sum certain.

(3) If a manufacturer and new motor vehicle dealer are in parties to a property use agreement, the dealer agreement between the manufacturer and new motor vehicle dealer is terminated by a manufacturer or by a successor manufacturer or by operation of law and the reason for the termination is not a reason described in paragraphs one through five, inclusive, subdivision (c), section seven of this article, the property use agreement terminates and ceases to be effective at the time the dealer agreement is terminated.

(4) If any provision contained in a property use agreement entered into on or after the effective date of the amendatory act that added this subsection is inconsistent with this section, the provision is voidable at the election of the affected new motor vehicle dealer, proposed new motor vehicle dealer, or owner of an interest in the dealership facility.

(5) As used in this section, ‘property use agreement’ means any of the following:

(a) An agreement that requires that a new motor vehicle dealer establish or maintain exclusive dealership facilities.

(b) An agreement that restricts the ability of a new motor vehicle dealer, or the ability of the dealer's lessor if the dealer is leasing the dealership facility, to transfer, sell, lease, or change the use of the place of business of the dealership, whether by sublease, lease, collateral pledge of lease, right of first refusal to purchase or lease, option to purchase, option to lease, or other similar agreement, regardless of who the parties to that agreement are.

(c) Any similar agreement between a manufacturer and a new motor vehicle dealer and commonly known as a site control agreement or exclusive use agreement.

(1) Each new motor vehicle manufacturer or distributor shall specify in writing to each of its new motor vehicle dealers licensed in this state the dealer's obligations for preparation, delivery and warranty service on its products. The manufacturer or distributor shall compensate the new motor vehicle dealer for warranty service required of the dealer by the manufacturer or distributor. The manufacturer or distributor shall provide the new motor vehicle dealer with the schedule of compensation to be paid to the dealer for parts, work and service, and the time allowance for the performance of the work and service in a manner in compliance with section eight-a of this article.

(2) The schedule of compensation shall include reasonable compensation for diagnostic work, as well as repair service and labor. Time allowances for the diagnosis and performance of warranty work and service shall be reasonable and adequate for the work to be performed. In the determination of what constitutes reasonable compensation under this section, the principal factor to be given consideration shall be the prevailing wage rates being paid by dealers in the community in which the dealer is doing business, and in no event may the compensation of a dealer for warranty labor and parts be less than the rates charged by the dealer for like service to retail customers for nonwarranty service and repairs, provided that the rates are reasonable. section eight-a of this article shall govern: However, Provided, That in the case of a new motor vehicle dealer of new motorcycles or recreational vehicles, motorboat trailers, all-terrain vehicles, utility terrain vehicles and snowmobiles, in no event may the compensation of a dealer for warranty parts be less than is the greater of the dealer’s cost of acquiring the part plus twenty thirty percent or the manufacturer’s suggested retail price: Provided, however, That in the case of a dealer of travel trailers, fold-down camping trailers and motorhomes, the compensation of a dealer’s cost for warranty parts is not less than the dealer’s cost of acquiring the part plus twenty percent.

(b) Fail to include in written notices of factory recalls to new motor vehicle owners and dealers the expected date by which necessary parts and equipment will be available to dealers for the correction of the defects; or

(4) All claims made by a new motor vehicle dealer pursuant to this section for labor and parts shall be paid within thirty days after their approval. All claims shall be either approved or disapproved by the manufacturer or distributor within thirty days after their receipt on a proper form generally used by the manufacturer or distributor and containing the usually required information therein. Any claim not specifically disapproved in writing within thirty days after the receipt of the form is considered to be approved and payment shall be made within thirty days. The manufacturer has the right to initiate an audit of a claim within twelve months after payment and to charge back to the new motor vehicle dealer the amount of any false, fraudulent or unsubstantiated claim, subject to the requirements of section eight-a of this article.

(5) The manufacturer shall accept the return of any new and unused part, component or accessory that was ordered by the dealer, and shall reimburse the dealer for the full cost charged to the dealer for the part, component or accessory if the dealer returns the part and makes a claim for the return of the part within one year of the dealer’s receipt of the part, component or accessory and provides reasonable documentation, to include any changed part numbers to match new part numbers, provided that the part was ordered for a warranty repair.

If there is a dispute between the manufacturer, factory branch, distributor or distributor branch and the dealer with respect to any matter referred to this article, either party may notify, in writing, the other party of its request to challenge, through the manufacturer’s appeal process or the circuit courts of the state of West Virginia. A manufacturer, factory branch, distributor, or distributor branch may not collect chargebacks, fully or in part, either through direct payment or by charge to the dealer's account, for warranty parts or service compensation, including service incentives, sales incentives, other sales compensation, surcharges, fees, penalties or any financial imposition of any type arising from an alleged failure of the dealer to comply with a policy of, directive from or agreement with the manufacturer, factory branch, distributor or distributor branch until thirty days following final notice of the amount charged to the dealer following all internal processes of the manufacturer, factory, factory branch, distributor or distributor branch. Within thirty days following receipt of final notice, the dealer may, in writing, request a hearing or seek civil relief from the manufacturer's appeal process or the circuit courts of the state of West Virginia. If a dealer requests a hearing or files a civil action, the manufacturer, factory branch, distributor or distributor branch may not collect the chargeback, fully or in part, either through direct payment or by charge to the dealer's account, until the completion of the hearing or civil action, and all appeal, civil or otherwise, have been exhausted concerning the validity of the chargeback.

Notwithstanding the terms of any dealer agreement, a manufacturer or distributor shall indemnify and hold harmless its dealers for any reasonable expenses incurred, including damages, court costs and attorney's fees, arising solely out of complaints, claims or actions to the extent such complaints, claims or actions which relate to the manufacture, assembly, design of a new motor vehicle or other functions by the manufacturer or distributor beyond the control of the dealer, including, without limitation, the selection by the manufacturer or distributor of parts or components for the vehicle, and any damages to merchandise occurring prior to acceptance of the vehicle by the dealer to the dealer if the carrier is designated by the manufacturer or distributor, if the new motor vehicle dealer gives timely notice to the manufacturer or distributor of the complaint, claim or action.

§17A-6A-15a. Dealer data, obligation of manufacturer, vendors, suppliers and others; consent to access dealership information; indemnification of dealer.

(a) Except as expressly authorized in this section, a manufacturer or distributor cannot require a motor vehicle dealer to provide it customer information to the manufacturer or distributor unless necessary for the sale and delivery of a new motor vehicle to a consumer, to validate and pay consumer or dealer incentives, for manufacturer’s marketing purposes, for evaluation of dealer performance, for analytics, or to support claims submitted by the new motor vehicle dealer for reimbursement for warranty parts or repairs. Nothing in this section shall limit the manufacturer’s ability to require or use customer information to satisfy any safety or recall notice obligation or other legal obligation.

(b) The dealer is only required to provide the customer information to the extent lawfully permissible; and to the extent the requested information relates solely to specific program requirements or goals associated with the manufacturer's or distributor's own vehicle makes. A manufacturer, factory branch, distributor, distributor branch, dealer management computer system vendor or any third party acting on behalf of any manufacturer, factory branch, distributor, distributor branch or dealer management computer system vendor may not prohibit a dealer from providing a means to regularly and continually monitor the specific data accessed from or written to the dealer's computer system and from complying with applicable state and federal laws and any rules or regulations promulgated thereunder. These provisions do not impose an obligation on a manufacturer, factory branch, distributor, distributor branch, dealer management computer system vendor or any third party acting on behalf of any manufacturer, factory branch, distributor, distributor branch or dealer management computer system vendor to provide that capability.

(c) A manufacturer, factory branch, distributor, distributor branch, dealer management computer system vendor, or any third party acting on behalf of any manufacturer, factory branch, distributor, distributor branch or dealer management computer system vendor, may not provide access to customer or dealership information maintained in a dealer management computer system used by a motor vehicle dealer located in this state, other than a subsidiary or affiliate of the manufacturer factory branch, distributor or distributor branch without first obtaining the dealer's prior express written consent, revocable by the dealer upon ten business days written notice, to provide the access.

Upon a written request from a motor vehicle dealer, the manufacturer, factory branch, distributor, distributor branch, dealer management computer system vendor, or any third party acting on behalf of, or through any manufacturer, factory branch, distributor, distributor branch or dealer management computer system vendor shall provide to the dealer a written list of all specific third parties other than a subsidiary or affiliate of the manufacturer, factory branch, distributor or distributor branch to whom any data obtained from the dealer has actually been provided within the twelve-month period prior to date of dealer’s written request. If requested by the dealer, the list shall further describe the scope and specific fields of the data provided. The consent does not change the person's obligations to comply with the terms of this section and any additional state or federal laws, and any rules or regulations promulgated thereunder, applicable to them with respect to the access.

(d) A manufacturer, factory branch, distributor, distributor branch, dealer management computer system vendor or any third party acting on behalf of or through any dealer management computer system vendor, having electronic access to customer or motor vehicle dealership data in a dealership management computer system used by a motor vehicle dealer located in this state shall provide notice in a reasonable timely manner to the dealer of any security breach of dealership or customer data obtained through the access.

(1) ‘Dealer management computer system’ means a computer hardware and software system that is owned or leased by the dealer, including a dealer's use of web applications, excluding a web application operated by a manufacturer, software or hardware, whether located at the dealership or provided at a remote location and that provides access to customer records and transactions by a motor vehicle dealer located in this state and that allows the motor vehicle dealer timely information in order to sell vehicles, parts or services through the motor vehicle dealership.

(2) ‘Dealer management computer system vendor’ means a seller or reseller of dealer management computer systems, a person that sells computer software for use on dealer management computer systems or a person who services or maintains dealer management computer systems.

(3) ‘Security breach’ means an incident of unauthorized access to and acquisition of records or data containing dealership or dealership customer information where unauthorized use of the dealership or dealership customer information has occurred.

(4) ‘Customer information’ means ‘nonpublic personal’ as defined in 16 C. F. R. §313.

(f) Notwithstanding the terms or conditions of any consent, authorization, release, novation, franchise or other contract or agreement, every manufacturer, factory branch, distributor, distributor branch, dealer management computer system vendor or any third party acting on behalf of or through a manufacturer, factory branch, distributor, distributor branch or dealer management computer system vendor shall fully indemnify, defend and hold harmless any dealer or manufacturer, factory branch, distributor or distributor branch from all damages, attorney fees and costs, other costs and expenses incurred by the dealer from complaints, claims or actions arising out of manufacturer’s, factory’s branch, distributor’s, distributor’s branch, dealer management computer system vendor’s or any third party for its willful, negligent or illegal use or disclosure of dealers consumer or customer data or other information in dealer’s computer system. The indemnification includes, but is not limited to, judgments, settlements, fines, penalties, litigation costs, defense costs, court costs, costs related to the disclosure of security breaches and attorneys’ fees arising out of complaints, claims, civil or administrative actions.

(g) This section applies to contracts entered into after the effective date of this section.

It is unlawful for a manufacturer or distributor to take or threaten to take any adverse action against a dealer pursuant to an export or sale-for-resale prohibition because the dealer sold or leased a vehicle to a customer who either exported the vehicle to a foreign country or resold the vehicle in violation of the prohibition, unless the export or sale-for-resale prohibition policy was provided to the dealer in writing prior to the sale or lease, and the dealer knew or reasonably should have known of the customer’s intent to export or resell the vehicle in violation of the prohibition at the time of sale or lease. If the dealer causes the vehicle to be registered in this state or any other state and has determined that the customer is not on a list of known or suspected exporters provided by the manufacturer at the time of sale, a rebuttable presumption is established that the dealer did not have reason to know of the customer's intent to export or resell the vehicle.

§17A-6A-15c. Manufacturer performance standards; uniform application, prohibited practices.

A manufacturer may not require dealer adherence to a performance standard or standards which are not applied uniformly to other similarly situated dealers. In addition to any other requirements of the law, the following shall apply:

(1) A performance standard, sales objective or program for measuring dealer performance that may have a material effect on a dealer, including the dealer's right to payment under any incentive or reimbursement program, and the application of the standard, sales objective or program by a manufacturer, distributor or factory branch shall be reasonable and based on accurate information.

(2) Upon written request from a dealer participating in the program, the manufacturer shall provide in writing the dealer's performance requirement or sales goal or objective, which shall include a reasonable and general explanation of the methodology, criteria and calculations used.

(3) A manufacturer shall allocate a reasonable and appropriate supply of vehicles to assist the dealer in achieving any performance standards established by the manufacturer and distributor.

(4) The manufacturer or distributor has the burden of proving by a preponderance of the evidence that the performance standard, sales objective or program for measuring dealership performance complies with this article.

Notwithstanding the terms, provisions or requirements of any franchise agreement, contract or other agreement of any kind between a new motor vehicle dealer and a manufacturer or distributor captive finance source or any subsidiary, affiliate or partner of a manufacturer or distributor, the provisions of this code apply to all such agreements and contracts. Any provisions in the agreements and contracts which violate the terms of this section are null and void.”

An amendment to the amendment offered by Delegates Ashley, R. Phillips, McCuskey, Zatezalo, Storch, Weld, Kelly, Blair, R. Smith, Campbell, B. White, Folk, Hartman, Bates, Perry, H. White, Marcum and Lynch was reported by the Clerk on page twenty-five, section ten, line twenty-eight, by deleting subsection (z) in its entirety.”

Delegates Miller, Moffatt and Morgan requested to be excused from voting on Com. Sub. for S. B. 453 under the provisions of House Rule 49.

The Speaker replied that any impact on the Delegates would be as members of a class of persons possibly to be affected by the passage of the bill, and refused to excuse the Members from voting.

The yeas and nays having been ordered, they were taken (Roll No. 541), and there were--yeas 66, nays 31, absent and not voting 3, with the nays and absent and not voting being as follows:

Nays: Azinger, Boggs, Caputo, Cowles, Fast, Ferro, Fleischauer, Guthrie, Hamilton, Hanshaw, Hartman, Hornbuckle, Ihle, Kurcaba, Lane, Longstreth, Manchin, Marcum, McGeehan, Miley, Moore, Moye, Perdue, Pethtel, Pushkin, Rowe, P. Smith, Sponaugle, Trecost, Walters and H. White.

So, a majority of the members present and voting having voted in the affirmative, the amendment to the amendment was adopted.

Com. Sub. for S. B. 455, Relating to public higher education procurement and payment of expenses; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on Finance, was reported by the Clerk on page two, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:

“That §12-3A-6 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §18B-1F-4 of said code be amended and reenacted; that §18B-5-4, §18B-5-6 and §18B-5-7 of said code be amended and reenacted; and that said code be amended by adding thereto a new section, designated §18B-5-4a, all to read as follows:

(a) The State Treasurer may establish a system for acceptance of credit card and other payment methods for electronic commerce purchases from spending units. Notwithstanding any other provision of this code to the contrary, each spending unit utilizing WEB commerce, electronic commerce or other method that offers products or services for sale shall utilize the State Treasurer's system for acceptance of payments except as provided in subsection (b) of this section.

(b) A state institution of higher education may receive credit card payments from systems of acceptance other than that provided by the State Treasurer if:

(1) The proposed alternate system is compliant with the Payment Card Industry Data Security Standards for acceptance of payments, and the institution is proposing to use the alternate system for the sole purpose of:

(B) Accepting payment for applications for admission if necessary to participate in a national or regional program for applications for admission; or

(2) The institution certifies that the use of the alternate system will not cause a reduction in the volume of credit card revenues by more than ten percent as compared to previous credit card revenues processed on behalf of the institution during the previous fiscal year and the State Treasurer consents to the use.

(b)(c) To facilitate electronic commerce, the State Treasurer may charge a spending unit for the banking and other expenses incurred by the Treasurer on behalf of the spending unit and for any work performed, including, without limitation, assisting in the development of a website and utilization of the Treasurer's payment gateway. A special revenue account, entitled the Treasurer's Financial Electronic Commerce Fund, is created in the State Treasury to receive the amounts charged by the Treasurer. The Treasurer may expend the funds received in the Treasurer's Financial Electronic Commerce Fund only for the purposes of this article and for other purposes as determined by the Legislature.

(c) (d) The State Treasurer may authorize a spending unit to assess and collect a fee to recover or pay the cost of accepting bank, charge, check, credit or debit cards from amounts collected.

(d) (e) Upon written request from a political subdivision, the State Treasurer may provide services of his or her office to a political subdivision and charge for the services.

(e) (f) The State Treasurer shall propose legislative rules for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this section.

(a) The primary responsibility of the corporation is to manage the day to day operations of the Technology Park through collaboration agreements with the commission. To that end, the board of directors has the following powers and duties:

(1) To employ an executive director subject to the provisions of section five of this article;

(2) To approve employment of other staff recommended by the executive director as being necessary and appropriate to carry out the purposes of this article and subject to agreements with the commission;

(3) To serve as fiscal agent and provide additional services, including, but not limited to, property management, human resources management, and purchasing;

(4) To meet as a governing body. A corporation created under this article is exempt from the provisions of section three, article nine-a, chapter six of this code and from the provisions of article one, chapter twenty-nine-b of this code;

(5) To receive, purchase, hold, lease, use, sell and dispose of real and personal property of all classes, subject to the provisions of subdivision (8) of this subsection and section eight of this article;

(6) To receive from any source whatsoever grants to be expended in accomplishing the objectives of this article;

(7) To receive from any source whatsoever aid or contributions of money, property or other things of value to be held, used and applied only for the purposes for which the aid or contributions may be made;

(8) To accept and expend any gift, grant, contribution, bequest, endowment or other money for the purposes of this article. Any transfer of endowment or other assets by the commission to the corporation or by the corporation to the commission for management shall be formalized in a memorandum of agreement to assure, at a minimum, that any restrictions governing the future disposition of funds are preserved. The commission may not transfer ownership of the Technology Park property to the corporation;

(9) To make, amend and repeal bylaws, rules and its governing documents consistent with the provisions of this article to effectuate the purpose and scope of the corporation;

(11) To delegate the exercise of any of its powers except for the power to approve budgets to the executive director, subject to the directions and limitations contained in its governing documents.

(b) The commission may issue revenue bonds under the terms of section ten, article eight of this chapter for capital improvements at the Technology Park.

(b)(c) In addition to the powers and duties provided for in this section and any other powers and duties that may be assigned to it by law or agreement, the corporation has other powers and duties necessary to accomplish the objectives of this article or as provided by law.

§18B-5-4. Purchase or acquisition of materials, supplies, equipment, services and printing.

(a) The council, commission and each governing board shall purchase or acquire all materials, supplies, equipment, services and printing required for that governing board or the council or commission, as appropriate, and the state institutions of higher education under their jurisdiction, except the governing boards of Marshall University and West Virginia University, respectively, are subject to subsection (d) of this section.

(b) The commission and council jointly shall adopt rules governing and controlling acquisitions and purchases in accordance with this section. The rules shall ensure that the following procedures are followed:

(1) No person is precluded from participating and making sales thereof to the council, commission or governing board except as otherwise provided in section five of this article. Providing consulting services such as strategic planning services does not preclude or inhibit the governing boards, council or commission from considering a qualified bid or response for delivery of a product or a commodity from the individual providing the services;

(2) Specifications are established and prescribed for materials, supplies, equipment, services and printing to be purchased;

(3) Purchase order, requisition or other forms as may be required are adopted and prescribed;

(4) Purchases and acquisitions in such quantities, at such times and under contract, are negotiated for and made in the open market or through other accepted methods of governmental purchasing as may be practicable in accordance with general law;

(5) Bids are advertised on all purchases exceeding $25,000 $50,000 and made by means of sealed or electronically-submitted bids and competitive bidding or advantageous purchases effected through other accepted governmental methods and practices. Competitive bids are not required for purchases of $25,000 $50,000 or less.

(6) Notices for acquisitions and purchases for which competitive bids are being solicited are posted either in the purchasing office of the specified institution involved in the purchase or by electronic means available to the public, at least two weeks five days prior to making the purchases. The rules shall ensure that the notice is available to the public during business hours;

(9) No fewer than three bids are obtained when bidding is required, except if fewer than three bids are submitted, an award may be made from among those received.

(c) When a state institution of higher education submits a contract, agreement or other document to the Attorney General for approval as to form as required by this chapter the following conditions apply:

(1) ‘Form’ means compliance with the Constitution and statutes of the State of West Virginia;

(2) The Attorney General does not have the authority to reject a contract, agreement or other document based on the substantive provisions in the contract, agreement or document or any extrinsic matter as long as it complies with the Constitution and statutes of this state;

(3) Within fifteen days of receipt, the Attorney General shall notify the appropriate state institution of higher education in writing that the contract, agreement or other document is approved or disapproved as to form. If the contract, agreement or other document is disapproved as to form, the notice of disapproval shall identify each defect that supports the disapproval; and

(4) If the state institution elects to challenge the disapproval by filing a writ of mandamus or other action and prevails, then the Attorney General shall pay reasonable attorney fees and costs incurred.

(d) Pursuant to this subsection, the governing boards of Marshall University and West Virginia University, respectively, may carry out the following actions:

(1) Purchase or acquire all materials, supplies, equipment, services and printing required for the governing board without approval from the commission or the Vice Chancellor for Administration and may issue checks in advance to cover postage as provided in subsection (f) of this section;

(2) Make purchases Purchase from cooperative buying groups, consortia, the federal government or from federal government contracts if the materials, supplies, services, equipment or printing to be purchased is available from these groups and if this would be the most financially advantageous manner of making the purchase;

(3) Select and acquire by contract or lease all grounds, buildings, office space or other space, and capital improvements, including equipment, if the rental is necessarily required by the governing board; and

(4) Use purchase cards under terms approved for the commission, the council and governing boards of state institutions of higher education and participate in any expanded program of use as provided in subsection (u) of this section.

(e) The governing boards shall adopt sufficient accounting and auditing procedures and promulgate and adopt appropriate rules subject to section six, article one of this chapter to govern and control acquisitions, purchases, leases and other instruments for grounds, buildings, office or other space, and capital improvements, including equipment, or lease-purchase agreements.

(f) The council, commission or each governing board may issue a check in advance to a company supplying postage meters for postage used by that board, the council or commission and by the state institutions of higher education under their jurisdiction.

(g) When a purchase is to be made by bid, any or all bids may be rejected. However, all purchases based on advertised bid requests shall be awarded to the lowest responsible bidder taking into consideration the qualities of the articles to be supplied, their conformity with specifications, their suitability to the requirements of the governing boards, council or commission and delivery terms. The preference for resident vendors as provided in section thirty-seven, article three, chapter five-a of this code applies to the competitive bids made pursuant to this section.

(h) The governing boards, council and commission shall maintain a purchase file, which shall be a public record and open for public inspection.

(1) After the award of the order or contract, the governing boards, council and commission shall indicate upon the successful bid the following information:

(2) A record in the purchase file may not be destroyed without the written consent of the Legislative Auditor. Those files in which the original documentation has been held for at least one year and in which the original documents have been reproduced and archived on microfilm or other equivalent method of duplication may be destroyed without the written consent of the Legislative Auditor.

(3) All files, no matter the storage method, shall be open for inspection by the Legislative Auditor upon request.

(i) The commission and council, also jointly, shall promulgate rules to prescribe qualifications to be met by any person who is to be employed as a buyer pursuant to this section. These rules shall require that a person may not be employed as a buyer unless that person, at the time of employment, has one of the following qualifications:

(2) Has at least four years' experience in purchasing for any unit of government or for any business, commercial or industrial enterprise.

(j) Any person making purchases and acquisitions pursuant to this section shall execute a bond in the penalty of $50,000, payable to the State of West Virginia, with a corporate bonding or surety company authorized to do business in this state as surety thereon, in form prescribed by the Attorney General and conditioned upon the faithful performance of all duties in accordance with this section and sections five through eight, inclusive, of this article and the rules of the governing board and the council and commission. In lieu of separate bonds for these buyers, a blanket surety bond may be obtained. The bond shall be filed with the Secretary of State and the cost of the bond shall be paid from funds appropriated to the applicable governing board or the council or commission.

(k) All purchases and acquisitions shall be made in consideration and within limits of available appropriations and funds and in accordance with applicable provisions of article two, chapter five-a of this code relating to expenditure schedules and quarterly allotments of funds. Notwithstanding any other provision of this code to the contrary, only those purchases exceeding the dollar amount for competitive sealed bids in this section are required to be encumbered. and they Such purchases may be entered into the state's centralized accounting system by the staff of the commission, council or governing boards to satisfy the requirements of article two, chapter five-a of this code to determine whether the amount of the purchase is within the quarterly allotment of the commission, council or governing board, is in accordance with the approved expenditure schedule and otherwise conforms to the article: Provided, That, notwithstanding the foregoing provisions of this subsection or any other provision of this code to the contrary, purchases by Marshall University or West Virginia University are not required to be encumbered.

(l) The governing boards, council and commission may make requisitions upon the State Auditor for a sum to be known as an advance allowance account, not to exceed five percent of the total of the appropriations for the governing board, council or commission, and the State Auditor shall draw a warrant upon the Treasurer for those accounts. All advance allowance accounts shall be accounted for by the applicable governing board or the council or commission once every thirty days or more often if required by the State Auditor.

(m) Contracts entered into pursuant to this section shall be signed by the applicable governing board or the council or commission in the name of the state and shall be approved as to form by the Attorney General. A contract which requires approval as to form by the Attorney General is considered approved if the Attorney General has not responded within fifteen days of presentation of the contract. A contract or a change order for that contract and notwithstanding any other provision of this code to the contrary, associated documents such as performance and labor/material payments, bonds and certificates of insurance which use terms and conditions or standardized forms previously approved by the Attorney General and do not make substantive changes in the terms and conditions of the contract do not require approval as to form by the Attorney General. The Attorney General shall make a list of those changes which he or she considers to be substantive and the list, and any changes to the list, shall be published in the State Register. A contract that exceeds the dollar amount requiring competitive sealed bids in this section shall be filed with the State Auditor. If requested to do so, the governing boards, council or commission shall make all contracts available for inspection by the State Auditor. The governing board, council or commission, as appropriate, shall prescribe the amount of deposit or bond to be submitted with a bid or contract, if any, and the amount of deposit or bond to be given for the faithful performance of a contract.

(n) If the governing board, council or commission purchases or contracts for materials, supplies, equipment, services and printing contrary to sections four through seven of this article or the rules pursuant to this article, the purchase or contract is void and of no effect.

(o) A governing board or the council or commission, as appropriate, may request the director of purchasing to make available the facilities and services of that department to the governing boards, council or commission in the purchase and acquisition of materials, supplies, equipment, services and printing. The director of purchasing shall cooperate with that governing board, council or commission, as appropriate, in all such purchases and acquisitions upon that request.

(p) Each governing board or the council or commission, as appropriate, may permit private institutions of higher education to join as purchasers on purchase contracts for materials, supplies, services and equipment entered into by that governing board or the council or commission. A private institution desiring to join as purchaser on purchase contracts shall file with that governing board or the council or commission, as appropriate, an affidavit signed by the president or designee of the private institution requesting that it be authorized to join as purchaser on purchase contracts of that governing board or the council or commission, as appropriate. The private institution shall agree that it is bound by such terms and conditions as that governing board or the council or commission may prescribe and that it will be responsible for payment directly to the vendor under each purchase contract.

(q) Notwithstanding any other provision of this code to the contrary, the governing boards, council and commission, as appropriate, may make purchases from cooperative buying groups, consortia, the federal government or from federal government contracts if the materials, supplies, services, equipment or printing to be purchased is available from that source, and purchasing from that source would be the most financially advantageous manner of making the purchase.

(r) An independent performance audit of all purchasing functions and duties which are performed at any state institution of higher education except Marshall University and West Virginia University shall be performed at least once in each fiscal year three-year period. The Joint Committee on Government and Finance shall conduct the performance audit and the governing boards, council and commission, as appropriate, are responsible for paying the cost of the audit from funds appropriated to the governing boards, council or commission.

(1) The governing boards of Marshall University and West Virginia University, respectively board shall provide for independent performance audits of all purchasing functions and duties on their its campuses at least once in each three-year period.

(2) Each audit shall be inclusive of the entire time period that has elapsed since the date of the preceding audit.

(3) Copies of all appropriate documents relating to any audit performed by the governing boards of Marshall University and West Virginia University a governing board shall be furnished to the Joint Committee on Government and Finance and the Legislative Oversight Commission on Education Accountability within thirty days of the date the audit report is completed.

(s) The governing boards shall require each institution under their respective jurisdictions to notify and inform every vendor doing business with that institution of section fifty-four, article three, chapter five-a of this code, also known as the Prompt Pay Act of 1990.

(t) Consultant services, such as strategic planning services, do not preclude or inhibit the governing boards, council or commission from considering any qualified bid or response for delivery of a product or a commodity because of the rendering of those consultant services.

(u) Purchasing card use may be expanded by the council, commission and state institutions of higher education pursuant to this subsection.

(1) The council and commission jointly shall establish procedures to be implemented by the council, commission and any institution under their respective jurisdictions using purchasing cards. The procedures shall ensure that each meets the following conditions:

(B) Full compliance with article three, chapter twelve of this code relating to the purchasing card program; and

(2) Notwithstanding any other provision of this code to the contrary, the council, commission and any institution authorized pursuant to subdivision (3) of this subsection may use purchasing cards for the following purposes:

(A) Payment of travel expenses directly related to the job duties of the traveling employee, including, but not limited to, fuel and food; and

(B) Payment of any routine, regularly scheduled payment, including, but not limited to, utility payments and real property rental fees.

(3) The commission and council each shall evaluate the capacity of each institution under its jurisdiction for complying with the procedures established pursuant to subdivision (2) of this subsection. The commission and council each shall authorize expanded use of purchasing cards pursuant to that subdivision for any institution it determines has the capacity to comply.

Notwithstanding any other provision of this code to the contrary, and specifically section one, article twenty-two, chapter five of this code, a state institution of higher education under the jurisdiction of the commission is not required to solicit competitive bids or require a valid bid bond or other surety for any construction project unless the value exceeds $100,000 in total cost.

§18B-5-6. Other code provisions relating to purchasing and design-build procurement not controlling; exceptions; criminal provisions and penalties; financial interest of governing boards, etc.; receiving anything of value from interested party and penalties therefor; application of bribery statute.

The provisions of article three, chapter five-a of this code and section five, article twenty-two-a, chapter five of this code do not control or govern design-build procurement or the purchase, acquisition or other disposition of any equipment, materials, supplies, services or printing by the commission or the governing boards, except as provided in sections four through seven of this article. Sections twenty-nine, thirty and thirty-one, article three, chapter five-a of this code apply to all purchasing activities of the commission and the governing boards.

Neither the commission, the governing boards, nor any employee of the commission or governing boards, may be financially interested, or have any beneficial personal interest, directly or indirectly, in the purchase of any equipment, materials, supplies, services or printing, nor in any firm, partnership, corporation or association furnishing them, except as may be authorized by the provisions of chapter six-b of this code. Neither the commission, the governing boards nor any employee of the commission or governing boards may accept or receive directly or indirectly from any person, firm or corporation, known by the commission, governing boards or such employee to be interested in any bid, contract or purchase, by rebate, gift or otherwise, any money or other thing of value whatsoever or any promise, obligation or contract for future reward or compensation, except as may be authorized by the provisions of chapter six-b of this code.

A person who violates any of the provisions of this section is guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned in jail not less than three months nor more than one year, or fined not less than $50 nor more than $1,000, or both imprisoned and fined, in the discretion of the court. Any person who violates any provisions of this section by receiving money or other thing of value under circumstances constituting the crime of bribery under the provisions of section three, article five-a, chapter sixty-one of this code shall, upon conviction of bribery, be punished as provided in section nine of said article.

§18B-5-7. Disposition of obsolete and unusable equipment, surplus supplies and other unneeded materials.

(a) The commission, the council and the governing boards shall dispose of obsolete and unusable equipment, surplus supplies and other unneeded materials, either by transfer to other governmental agencies or institutions, by exchange or trade, or by sale as junk or otherwise. The commission, the council and each governing board shall adopt rules governing and controlling the disposition of all such equipment, supplies and materials. The rules shall provide for disposition of the equipment, supplies and materials as sound business practices warrant under existing circumstances and conditions and for adequate prior notice to the public of the disposition.

(1) At least ten days prior to the disposition, the Commission, the Council or the governing boards, as applicable, shall advertise, by newspaper publication as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, in the county in which the equipment, supplies and materials are located, the availability or sales of such disposable equipment, supplies and materials.

(2) The Commission, the Council or governing boards, as applicable, may sell the disposable equipment, supplies and materials, in whole or in part, at public auction or by sealed bid, or may transfer, exchange or trade the same to other governmental agencies or institutions (if by transfer, exchange or trade, then without advertising), in whole or in part, as sound business practices may warrant under existing circumstances and conditions.

(3) The requirements set forth in subsection (a) of this section apply to Marshall University and West Virginia University relating only to those items of obsolete and unusable equipment, surplus supplies and other unneeded materials that exceed five thousand dollars in recorded net book value. Marshall University and West Virginia University may dispose of obsolete and unusable computers and computer-related equipment pursuant to the provisions of section two, article three of this chapter.

(b) The commission, council or governing board, as appropriate, except for Marshall University and West Virginia University shall report annually biannually to the Legislative Auditor all sales of commodities made during the preceding six months biennium. (1) The report shall include a description of the commodities sold, the name of the buyer to whom each commodity was sold, and the price paid by the buyer.

(2) Marshall University and West Virginia University shall report biennially to the Legislative Auditor the total sales of commodities made during the preceding biennium along with the total recorded net book value of such commodities.

(c) The proceeds of sales or transfers shall be deposited in the State Treasury to the credit on a pro rata basis of the fund or funds from which the purchase of the particular commodities or expendable commodities was made. The commission, council or governing board, as appropriate, may charge and assess fees reasonably related to the costs of care and handling with respect to the transfer, warehousing, sale and distribution of state property that is disposed of or sold pursuant to the provisions of this section.

(d) Notwithstanding the provisions of this section, the commission, council or a governing board may donate equipment, supplies and materials with the approval of the commission, council or governing board or their designee, as appropriate.”

On motion of Delegates Westfall and Ashley, the Finance Committee amendment was amended on page fourteenh, section 4a, beginning on line six, following the words “state institution of higher education”, by striking out the words “under the jurisdiction of the commission”.

On motion of Delegates Nelson and Pasdon the House Finance Committee amendment was amended on page four, section four, line fourteen, by striking out the words “ten, article eight” and inserting in lieu thereof the words “eight, article ten”.

S. B. 510, Amending Uniform Interstate Family Support Act; on second reading, coming up in regular order, was read a second time and ordered to third reading.

Delegate Cowles moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.

On this question, the yeas and nays were taken (Roll No. 542), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:

So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 543), and there were--yeas 92, nays 3, absent and not voting 5, with the nays and absent and not voting being as follows:

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 510) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

Com. Sub. for S. B. 523, Creating Alcohol and Drug Overdose Prevention and Clemency Act; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page nine, section three, lines one through six, by striking out subdivision (b)(4).

On motion of Delegate Pushkin, the bill was amended on page ten, section four, line eighteen, by inserting a new subsection (g), to read as follows:

“(g) A person who seeks assistance pursuant to subsection (a) of this section is not subject to any sanction for a violation of a condition of pretrial release, probation, furlough or parole.”

Com. Sub. for S. B. 529, Relating to PERS, SPRS and TRS benefits and costs; on second reading, coming up in regular order, was read a second time.

At the request of Delegate Cowles, and by unanimous consent, the bill was advanced to third reading with amendments pending, and with restricted right to amend jointly by Delegates Nelson and Boggs, and the rule was suspended to permit the consideration of the amendments on that reading.

Com. Sub. for S. B. 537, Changing mandatory school instructional time from days to minutes; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on Education, was reported by the Clerk and adopted, amending the bill on page one, following the enacting clause, by striking the remainder of the bill and inserting in lieu thereof the following:

“That §18-5-45 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

(1) ‘Instructional day’ means a day within the instructional term which meets the following criteria:

(A) Instruction is offered to students for at least the minimum amount of hours provided by state board rule;

(2) ‘Cocurricular activities’ are activities that are closely related to identifiable academic programs or areas of study that serve to complement academic curricula as further defined by the state board.

(1) The primary purpose of the school system is to provide instruction for students.

(2) The school calendar, as defined in this section, is designed to define the school term both for employees and for instruction.

(3) The school calendar shall provide for one hundred eighty separate instructional days.

(1) An employment term that excludes Saturdays and Sundays and consists of at least two hundred days, which need not be successive. The beginning and closing dates of the employment term may not exceed forty-eight weeks;

(2) Within the employment term, an instructional term for students of no less than one hundred eighty separate instructional days, which includes an inclement weather and emergencies plan designed to guarantee an instructional term for students of no less than one hundred eighty separate instructional days;

(3) Within the employment term, noninstructional days shall total twenty and shall be comprised of the following:

(B) Election day as specified in section two, article five, chapter eighteen-a of this code;

(C) Six days to be designated by the county board to be used by the employees outside the school environment, with at least four outside the school environment days scheduled to occur after the one hundred thirtieth instructional day of the school calendar; and

(D) The remaining days to be designated by the county board for purposes to include, but not be limited to:

(vii) At least four two-hour blocks of time for faculty senate meetings with each two-hour block of time scheduled once at least every forty-five instructional days; and

(4) Scheduled out-of-calendar days that are to be used for instructional days in the event school is canceled for any reason.

(d) A county board of education shall develop a policy that requires additional minutes of instruction in the school day or additional days of instruction to recover time lost due to emergency closures, late arrivals and early dismissals related to weather or other conditions as determined by the county superintendent, at his or her sole discretion, that make attendance unsafe for students. Effective with the effective date of this section, any amount of instructional time previously accrued during the instructional term or added to the instructional day subsequent to emergency closures that results in instructional time provided to students in excess of the following minimums shall be counted toward meeting the 180 separate instructional day requirement as follows:

(1) For schools with grades kindergarten up to and including the 5^th grade, instructional time provided in excess of 315 minutes per instructional day may be accrued or added and each accumulated 315 minutes of such time shall count as an instructional day recovered;

(2) For schools with grades 6 through and including the 8^th grade, instructional time provided in excess of 330 minutes per instructional day may be accrued or added and each accumulated 330 minutes of such time shall count as an instructional day recovered;

(3) For schools with grades 9 through and including the 12^th grade, instructional time provided in excess of 345 minutes per instructional day may be accrued or added and each accumulated 345 minutes of such time shall count as an instructional day recovered; and

(4) For schools with grade levels in more than one of the above subdivisions (1), (2) and (3), the subdivision applicable to the highest grade level at the school is applicable for the entire school.

(e) If it is not possible to complete one hundred eighty separate instructional days with the current school calendar after counting the accrued and added instructional time in accordance with subsection (d) of this section, the county board shall schedule instruction on any available noninstructional day, regardless of the purpose for which the day originally was scheduled, or an out-of-calendar day and the day will be used for instruction of students: Provided, That the provisions of this subsection do not apply to:

(f) The instructional term shall commence and terminate on a date selected by the county board.

(g) The state board may not schedule the primary statewide assessment program more than thirty days prior to the end of the instructional year unless the state board determines that the nature of the test mandates an earlier testing date.

(1) The state board shall determine what activities may be considered cocurricular;

(2) The state board shall determine the amount of instructional time that may be consumed by cocurricular activities; and

(3) Other requirements or restrictions the state board may provide in the rule required to be promulgated by this section.

(j) Noninstructional interruptions to the instructional day shall be minimized to allow the classroom teacher to teach.

(k) Prior to implementing the school calendar, the county board shall secure approval of its proposed calendar from the state board or, if so designated by the state board, from the state superintendent.

(l) In formulation of a school's calendar, a county school board shall hold at least two public meetings that allow parents, teachers, teacher organizations, businesses and other interested parties within the county to discuss the school calendar. The public notice of the date, time and place of the public hearing must be published in a local newspaper of general circulation in the area as a Class II legal advertisement, in accordance with the provisions of article three, chapter fifty-nine of this code.

(m) The county board may contract with all or part of the personnel for a longer term of employment.

(n) The minimum instructional term may be decreased by order of the state superintendent in any county declared a federal disaster area, and in any county in which the Governor declares a state of emergency or emergency preparedness, and where the event causing the declaration is substantially related to a reduction of instructional days.

(o) Notwithstanding any provision of this code to the contrary, the state board may grant a waiver to a county board for its noncompliance with provisions of this chapter eighteen and chapters eighteen-a, eighteen-b and eighteen-c of this code to maintain compliance in reaching the mandatory one hundred eighty separate instructional days established in this section.

(p) The state board shall promulgate a rule in accordance with the provisions of article three-b, chapter twenty-nine-a of this code for the purpose of implementing the provisions of this section.

(q) The amendments to this section during the 2013 regular session of the Legislature shall be effective for school years beginning on or after July 1, 2014, and the provisions of this section existing immediately prior to the 2013 regular session of the Legislature remain in effect for school years beginning prior to July 1, 2014.

(q) Nothing in this section prohibits a county board from proposing nor the state board from approving in accordance with section five, article two of this chapter, a school term or instructional term that is part of a comprehensive plan to optimize student learning and meets meets the spirit and intent of this section, but is an alternative to this section.”

Com. Sub. for S. B. 542, Clarifying provisions of Consumer Credit and Protection Act relating to debt collection; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page seventeen, section one hundred one, line eighteen, following the word “creditor”, by adding the words “or debt collector”.

On page nineteen, section one hundred one, line twelve, following the word “creditor”, by adding the words “or debt collector”.

An amendment to the bill, offered by Delegates Rowe and Fleischauer, was reported by the Clerk.

Delegate Rowe asked and obtained unanimous consent that the amendment be withdrawn.

Com. Sub. for S. B. 548, Changing procedure for filling U. S. Senator vacancies; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill section four on page ten, line nineteen, immediately following the word “for” by inserting “a special primary election that is not less than ninety nor more than one hundred twenty days from the date of the vacancy and a”.

On page eleven, section four, line one, by striking out the word “eighty-four” and inserting in lieu thereof the word “ninety”.

On page eleven, section four, line two, by striking the words “vacancy and requiring nomination of candidates as provided in subdivision (2) of this subsection” and inserting in lieu thereof the words “special primary election”.in section four on page eleven, line ten by striking the entirety of subdivision (2).

On page eleven, section four, line eighteen after the word “special” by inserting the following: “primary election that is not less than ninety nor more than one hundred twenty days from the date of the vacancy and a special”.

On page eleven, section four, line nineteen by striking the word “eighty-four” and inserting in lieu thereof the word “ninety”.

On page twelve, section four, line one by striking the words “vacancy and requiring nomination of candidates as provided in subdivision (2) of this subsection” and inserting in lieu thereof the words “special primary election”.

On page thirteen, section four, line one by striking the entirety of subdivision (2)

Delegates Marcum and White moved to amend the bill on page ten, section one, line five, following the period, by inserting a new subsection (h), to read as follows:

“(h) Notwithstanding any provision of this code to the contrary, whenever a person has been elected or appointed to a public office that will require his or her resignation to hold another public office, if appointed or elected to such other public office, the elected official is deemed to have resigned from the public office he or she currently holds, upon the certification of his or her election or appointment to the subsequent public office: Provided, That the effective date of such resignation shall be no later than the day the person is eligible to take the subsequent public office.”

On the adoption of the amendment, Delegate Marcum demanded the yeas and nays, which demand was sustained.

The yeas and nays having been ordered, they were taken (Roll No. 544), and there were--yeas 38, nays 58, absent and not voting 4, with the yeas and absent and not voting being as follows:

Yeas: Bates, Boggs, Byrd, Campbell, Caputo, Eldridge, Ferro, Fleischauer, Fluharty, Guthrie, Hamilton, Hartman, Hicks, Hornbuckle, Longstreth, Lynch, Manchin, Marcum, Miley, Moore, Morgan, Moye, Perdue, Perry, Pethtel, R. Phillips, Pushkin, Reynolds, Rodighiero, Rohrbach, Rowe, Skinner, P. Smith, Sponaugle, Summers, Trecost, H. White and Williams.

So, a majority of the members present and voting not having voted in the affirmative, the amendment was rejected

S. B. 577, Allowing higher education governing boards invest certain funds with nonprofit foundations; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page two, section twelve-e, line three, following the words “of this article” and the comma, by inserting the words “after first consulting with the West Virginia investment management board and the state board of treasury investments to determine what their estimated rate of return on investment, including administrative expenses, would be if the moneys to be invested with the foundation were instead to be invested with the investment management board or the board of treasury investments when compared to any estimated return on investment, including administrative expenses, provided by the foundation” followed by a comma.

On page four, section twelve-e, line one, by striking out subsection (f) in its entirety and inserting in lieu thereof a new subsection (f) to read as follows:

“(f) Prior to the initial transfer of funds to a foundation, the four-year public college or university shall submit its plan for the investment of the funds with its foundation to the higher education policy commission for its review. The purpose of review shall solely be to determine if the plan is financially prudent for the institution. Upon the commission's written finding that the plan is financially prudent for the institution, the institution is authorized to transfer its funds to the foundation for purposes of investment under this section.”

On page four, section twelve-e, line nine, following the words “university has”, by striking out the remainder of the subsection and inserting in lieu thereof the following: “a long-term bond from not less than two of the following rating entities of at least A3 by Moody's Investors Service, A- by Standard & Poor's and A- by Fitch Ratings.”

S. B. 582, Relating to Herbert Henderson Office of Minority Affairs; on second reading, coming up in regular order, was read a second time.

At the request of Delegate Cowles, and by unanimous consent, the bill was advanced to third reading with amendments pending and with restricted right to amend by the Gentleman, and the rule was suspended to permit the consideration of the amendments on that reading.

Delegate Cowles then asked and obtained unanimous consent to withdraw his motion.

At the request of Delegate Cowles, and by unanimous consent, the bill was advanced to third reading with the right to amend, and the rule was suspended to permit the consideration of the amendments on that reading.

S. B. 584, Transferring Cedar Lakes Camp and Conference Center to private, nonstock, not-for-profit corporation; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Finance, was reported by the Clerk and adopted, amending the bill on page two, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:

“That §18-2-16 and §18-2-16a of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto a new article, designated §18-2L-1, §18-2L-2, §18-2L-3, §18-2L-4, §18-2L-5, §18-2L-6, §18-2L-7, §18-2L-8, §18-2L-9, §18-2L-10 and §18-2L-11, all to read as follows:

§18-2-16. Establishment and operation of state camp and conference center; rental thereof; expenditures; gifts and donations; county court may erect and equip buildings.

(a) For the purpose of developing competent leadership, developing character, training for useful citizenship, fostering patriotism and of providing and encouraging the development of organized recreational activities for Future Farmers of America and Future Homemakers of America members, and other youth and adult groups, a camp and conference center is hereby established.

The West Virginia Board of Education is hereby authorized to secure a site for the camp and conference center at some suitable place and provide the necessary buildings and equipment therefor. The camp and conference center shall be operated by the division of vocational education of the West Virginia Board of Education. The camp and conference center may be rented for educational purposes only and the rent received therefor shall be deposited in the State Treasury and paid out on requisition of the division of vocational education of the West Virginia Board of Education for the maintenance and operation of the camp and conference center.

The minimum salary requirements in sections eight-a and eighteen, article four, chapter eighteen-a of this code do not apply to service employees who are initially employed on or after July 1, 2014 by the division of vocational education to provide services at the camp and conference center.

Any appropriations now or hereafter made by the Legislature to carry out the provisions and purposes of this section shall be expended through the West Virginia Board of Education.

The West Virginia Board of Education may receive and use such gifts and donations of money, land, buildings, materials, equipment, supplies and labor, either from public or private sources, as may be offered unconditionally or under such conditions as in the judgment of the West Virginia Board of Education are proper and consistent with the provisions of this section.

All the money received as gifts and donations by the West Virginia Board of Education shall be deposited in the State Treasury to be used by the Board of Education in establishing and maintaining the aforesaid camp and conference center. A report of all gifts and donations offered and accepted, together with the names of the donors and the amounts contributed by each and all disbursements therefrom shall be submitted annually to the Governor of the state by the West Virginia Board of Education.

The county commission of any county may appropriate and expend money from the general county fund, or from any special fund available for such purpose, to erect and equip a cottage or county building on the camp and conference center property.

(b) The provisions of this section shall expire upon the transfer of Cedar Lakes Camp and Conference Center to a private, nonstock, not-for-profit corporation in accordance with the provisions of article two-l of this chapter.

§18-2-16a. Construction of buildings and recreational facilities at state camp and conference center; charges for use; financing by revenue bonds or notes permissible; trustee for holders of bonds or notes; contents of trust agreement.

(a) The West Virginia Board of Education is hereby authorized to construct, erect, acquire and improve dining halls, cottages and other buildings or recreational facilities it considers necessary and beneficial for the proper conduct and management of the camp and conference center and may charge such rates, fees, rentals and other charges for the use of the buildings and recreational facilities as it determines necessary and advisable.

The construction, erection, acquisition and improvement of dining halls, cottages and other buildings or recreational facilities may be financed by the issuance of revenue bonds or notes of the state of West Virginia payable solely from the revenues derived from the operation of the camp and conference center notwithstanding any of the provisions of section sixteen of this article.

The revenue bonds or notes shall be authorized by resolution of the West Virginia Board of Education, hereinafter referred to in this section as the ‘board’, and the revenue bonds or notes shall not constitute a debt of the state of West Virginia within the meaning of any of its statutes or constitution.

The principal of and interest on the bonds or notes shall be payable solely from the special fund provided for in this section for such payment. The board shall pledge the moneys in the special fund, except that part of the proceeds of sale of any bonds or notes to be used to pay the cost of a project, for the payment of the principal of and interest on bonds or notes issued pursuant to this section. The pledge shall apply equally and ratably to separate series of bonds or notes or upon such priorities as the board determines. The bonds or notes shall be authorized by resolution of the board which shall recite an estimate of the cost of the project, and shall provide for the issuance of bonds or notes in an amount sufficient, when sold as provided in this section, to produce such cost, less the amount of any funds, grant or grants, gift or gifts, contribution or contributions received, or in the opinion of the board expected to be received from any source. The acceptance by the board of any and all funds, grants, gifts and contributions, whether in money or in land, labor or materials, is hereby expressly authorized. All bonds or notes shall have and are hereby declared to have all the qualities of negotiable instruments. The bonds or notes shall bear interest at not more than twelve percent per annum, payable semiannually, and shall mature in not more than forty years from their date or dates of issuance, and may be made redeemable at the option of the board, at such price and under such terms and conditions, as the board may fix prior to the issuance of the bonds or notes. The board shall determine the form of the bonds or notes, including coupons, if any, to be attached thereto to evidence the right of interest payments, which bonds or notes shall be signed by the chairman and secretary of the board, under the great seal of the state, attested by the Secretary of State, and the coupons, if any, attached thereto shall bear the facsimile signature of the chairman of the board. In case any of the officers whose signatures appear on the bonds or notes or coupons issued as authorized under this section shall cease to be such officers before the delivery of the bonds or notes, the signatures are nevertheless valid and sufficient for all purposes the same as if they had remained in office until such delivery. The board shall fix the denominations of the bonds or notes, the principal and interest of which shall be payable at the office of the Treasurer of the state of West Virginia at the state capitol, or at the option of the holder, at some bank or trust company within or without the state of West Virginia to be named in the bonds or notes, in such medium as may be determined by the board. The bonds or notes and interest thereon are exempt from taxation by the state of West Virginia, or any county or municipality in the state. The board may provide for the registration of the bonds or notes in the name of the owners as to principal alone, and as to both principal and interest under such terms and conditions as the board may determine, and shall sell the bonds or notes in such manner as it may determine to be for the best interest of the state and the board, taking into consideration the financial responsibility of the purchaser, and the terms and conditions of the purchase, and especially the availability of the proceeds of the bonds or notes when required for payment of the cost of the project, the sale to be made at a price not lower than a price which, computed upon standard tables of bond values, will show a net return of not more than thirteen percent per annum to the purchaser upon the amount paid therefor. The proceeds of the bonds or notes shall be used solely for the payment of the cost of the project for which bonds or notes were issued, and shall be deposited and checked out in the same manner as provided by article six, chapter five of this code, and under such further restrictions, if any, as the board may provide. If the proceeds of bonds or notes issued for a project or a specific group of projects exceeds the cost of the project or projects, the surplus shall be paid into the fund provided for in this section for payment of the principal and interest of the bonds or notes. The fund may be used for the purchase of any of the outstanding bonds or notes payable from the fund at the market price, but at not exceeding the price, if any, at which the bonds or notes are in the same year redeemable. All bonds or notes redeemed or purchased shall forthwith be canceled and shall not again be issued. Prior to the preparation of definitive bonds or notes, the board may, under like restrictions, issue temporary bonds or notes with or without coupons, exchangeable for definitive bonds or notes upon the issuance of the latter.

Notwithstanding the provisions of sections nine and ten, article six, chapter twelve of this code, revenue bonds or notes issued under the authority granted in this section are eligible as investments for the Workers' Compensation Fund, Teachers Retirement Fund, Division of Public Safety Death, Disability and Retirement Fund, West Virginia Public Employees Retirement System and as security for the deposit of all public funds. The revenue bonds or notes may be issued without any other proceedings or the happening of any other conditions or things than those proceedings, conditions and things which are specified and required by this article, or by the constitution of the state. For all projects authorized under the provisions of this section, the aggregate amount of all issues of bonds or notes outstanding at one time shall not exceed $2.5 million including the renegotiation, reissuance or refinancing of any bonds or notes.

Notwithstanding anything in this section to the contrary, the board is authorized to issue bonds or notes or otherwise finance or refinance the projects in this section, including the costs of issuance and sale of the bonds or notes or financing, all necessary financial and legal expenses and creation of debt service reserve funds in an amount not to exceed $2.5 million.

The board may enter into an agreement or agreements with any trust company, or with any bank having the powers of a trust company, whether within or outside of the state, as trustee for the holders of bonds or notes issued under this section, setting forth in the agreement the duties of the state and of the board in respect of the acquisition, construction, improvement, maintenance, operation, repair and insurance of the project, the conservation and application of all moneys, the insurance of moneys on hand or on deposit, and the rights and remedies of the trustee and the holders of the bonds or notes, as may be agreed upon with the original purchasers of the bonds or notes. The agreement or agreements shall include provisions restricting the individual right of action of bondholders or noteholders as is customary in trust agreements respecting bonds or notes and debentures of corporations, protecting and enforcing the rights and remedies of the trustee and the bondholders or noteholders, and provide for approval by the original purchasers of the bonds or notes of the appointment of consulting architects, and of the security given by those who contract to construct the project, and by any bank or trust company in which the proceeds of bonds or notes or rentals shall be deposited, and for approval by the consulting architects of all contracts for construction. All expenses incurred in carrying out the agreement may be treated as a part of the cost of maintenance, operation and repairs of the project.

(b) The bonding authority granted under subsection (a) of this section shall expire upon the transfer of Cedar Lakes Camp and Conference Center to a private, nonstock, not-for-profit corporation in accordance with the provisions of article two-l of this chapter.ARTICLE 2L. TRANSFER OF CEDAR LAKES CAMP AND CONFERENCE CENTER.

(2) ‘Cedar Lakes’ means the camp and conference center established pursuant to section sixteen, article two of this chapter.

(3) ‘Cedar Lakes employee’ means any employee of the board whose job responsibilities are primarily at or concern Cedar Lakes.

(5) ‘Foundation’ means a private, nonstock, not-for-profit corporation established under the laws of this state to which the board will transfer Cedar Lakes and which otherwise meets the requirements of section four of this article.

(6) ‘Transfer agreement’ means the agreement between the board and the foundation that transfer ownership, operation and control of Cedar Lakes from the board to the foundation.

(7) ‘Transfer date’ means either July 1, 2017, or the date by which the board has secured or performed all approvals, authorizations and any other actions necessary to transfer Cedar Lakes from the board to the foundation.

(8) ‘Transition fund’ means the Cedar Lakes Transition Fund established pursuant to section five of this article.

(a) Legislative intent. – It is the intent of the Legislature in enacting this article to transfer ownership, operation and control of Cedar Lakes to private, nonstock, not-for-profit corporation, in order for the camp and conference center to continue independently and to best fulfill its purpose of developing competent leadership, developing character, training for useful citizenship, fostering patriotism and of providing and encouraging the development of organized recreational activities for Future Farmers of American and Future Homemakers of America members, and other youth and adult groups.

(1) Pursuant to section sixteen, article two of this chapter, the Legislature authorized the board to establish Cedar Lakes for the purpose of developing competent leadership, developing character, training for useful citizenship, fostering patriotism and of providing and encouraging the development of organized recreational activities for Future Farmers of American and Future Homemakers of America members, and other youth and adult groups.

(2) Over the decades, Cedar Lakes has fulfilled this purpose and has become an integral part of the local economy and the Jackson County community;

(3) The Legislature recognizes the economic and social value of Cedar Lakes and that its continued viability depends on it becoming an independent, self-sustaining entity; and

(4) A private, not-for-profit structure is the best means of assuring prudent financial management and, in turn, the fulfilling of the purposes of Cedar Lakes and serving the local economy, the Jackson County community and the state.

The board is hereby authorized to enter into the transfer agreement and all other contractual agreements necessary to transfer Cedar Lakes to the foundation, as consistent with this article.

The foundation to which the board transfers Cedar Lakes upon the transfer date shall be a nonstock, not-for-profit corporation established pursuant to the provisions of chapter thirty-one-e of this code, known as the West Virginia Nonprofit Corporation Act.

Upon the effective date of the enactment of this article in 2015, there is hereby established in the State Treasury a Cedar Lakes Transition Fund over which the state treasurer is custodian to be administered by the department. Moneys transferred or otherwise payable to the transition fund shall be deposited in the State Treasury to the credit of the transition fund. Disbursements shall be made from the transition fund pursuant to and for the purposes provided in the article.

Notwithstanding section ten, article three, chapter twelve of this code, or any other provision of this code to the contrary, the board is hereby authorized to enter into a transfer agreement with the foundation, which shall contain the following provisions, subject to further specification as shall be mutually agreed upon by the board and the foundation:

(a) On the transfer date, the board shall disburse and pay to the foundation all moneys subject to the control of the board then held in any state fund or wherever located which had theretofore been delivered as a donation to the department or otherwise for or on behalf of the Cedar Lake Camp and Conference Center, the FFA-FHA Camp and Conference Center, or such other purpose or activity related to the department’s governance of Cedar Lakes.

(b) On the transfer date, the board shall transfer and deed to the foundation in fee simple absolute all real estate at Cedar Lakes owned by the board, and this transfer of real estate shall comply and be consistent with the provisions of section three, article five, chapter one of this code;

(c) The board shall transfer and assign contractual rights and contractual duties specifically relating to Cedar Lakes to the foundation: Provided, That contractual rights and contractual duties that are not specifically related to Cedar Lakes remain with the board;

(d) Effective on the transfer date, the foundation shall assume responsibility for and shall defend, indemnify and hold harmless the board, the department, and the state with respect to all liabilities and duties of Cedar Lakes and all claims for breach of contract resulting from the foundation’s action or failure to act after the transfer date; and

(e) On and after the transfer date, the foundation shall own, operate and control Cedar Lakes and all of its property and assets in fee simple absolute.

In order, as expeditiously as possible, to transfer Cedar Lakes from the board to the foundation, the transactions provided by this article shall be exempt from the bidding and public sale requirements, from the approval of contractual agreements by the Department of Administration or the Attorney General, and from the requirements of chapter five-a of this code. Moreover, the board shall also be exempt from these provisions with respect to its operations of Cedar Lakes prior to and up to the transfer date. The board, with respect to its operations of Cedar Lakes prior to and up to the transfer date, shall not be required to use the Enterprise Resource Planning System or other related rules established or authorized in article six-d, chapter twelve of this code.

(a) Immediately upon the transfer of Cedar Lakes from the board to the foundation on the transfer date, all Cedar Lakes employees shall become at-will employees of the foundation.

(2) was a Cedar Lakes employee who become an employee of the foundation upon the transfer date; and

(3) Is laid off by the foundation on or before July 1, 2018, is entitled to be placed on an appropriate reemployment list maintained by the Division of Personnel and to be allowed a preference on that list. The Division of Personnel shall maintain such an employee on the reemployment list indefinitely, or until the employee has declined three offers of employment at a paygrade substantially similar to that of his or her position as a Cedar Lakes employee upon termination from employment, or until he or she is reemployed by the executive branch of state government, whichever occurs earlier.

(c) The foundation shall enter into an agreement with the Division of Personnel for the provision of services and training to an employee of the foundation who is laid off on or before July 1, 2018, and requires additional training to obtain other gainful employment. The Division of Personnel shall administer the program. The fees required for those services and training shall be in an amount established by the Division of Personnel and the foundation, and shall be paid out of the transition fund.

(d) Any Cedar Lakes employee as of the transfer date and who becomes an employee of the foundation shall have the following options related to their accrued and unused sick leave: Freeze said accrued and unused sick leave at the balance that exists as of the transfer date and use said sick leave at the time of retirement for those purposes that would have been available to the employee under law in existence at the date of the transfer had the employee retired on the transfer date. With respect to any Cedar Lakes employee as of the transfer date and who becomes an employee of the foundation, the department shall pay the employee such amounts as the employee is entitle for his or her accrued but unused annual leave, not to exceed forty days.

(e) The Division of Personnel shall cooperate fully by assisting in all activities necessary to expedite all changes for the board, Cedar Lakes and employees, including, but not limited to, all of the above subsections.

Nothing contained in this article shall be deemed or construed to waive or abrogate in any way the sovereign immunity of the state or to deprive the board, department or any officer or employee thereof of sovereign immunity.

The obligations of the foundation shall not constitute debts or obligations of the board, department or the state.

The sections of this article, and the provisions and parts of said sections, are severable and it is the intention to confer the whole or any part of the powers provided for in this article and, if any of said sections, or the provisions or parts of any said sections, or the application thereof to any person or circumstance, are for any reason held unconstitutional or invalid, it is the intention that the remaining sections of this article, and the remaining provisions or parts of any said sections, shall remain in full force and effect.”

On motion of Delegates Westfall and Ashley the committee amendment was amended on page twelve, section eight, line six, following the words “retired on the transfer date”, by striking out the period and inserting in lieu thereof a semicolon and the words “or have his or her accrued and unused sick leave irrevocably surrendered in exchange for one hour of pay for each hour of accrued and unused sick leave surrendered to be payable from the transition fund”, followed by a period.

On motion of Delegate E. Nelson, committee amendment was amended on page ten, section six, line five, following the word “absolute”, by striking out the remainder of the subsection and inserting in lieu thereof the words “all right, title and interest of the state in the surface of any and all real estate at Cedar Lakes owned by the board, reserving to the state any and all mineral rights appertaining thereto.”

The Clerk of the Senate, announced that the Senate had refused to concur in the amendment of the House of Delegates and requested the House to recede from its amendment to

On motion of Delegate Cowles, the House of Delegates refused to recede from its amendment and requested the Senate to agree to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses.

The Speaker appointed as conferees on the part of the House of Delegates the following:

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:

Com. Sub. for H. B. 2098, Authorizing those health care professionals to provide services to patients or residents of state-run veterans' facilities without obtaining an authorization to practice.

On motions of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate amendments:

The Committee on Health and Human Resources moved to amend the bill on page two, section eleven-b, line one, by striking out the word “shall” and inserting in lieu thereof the words “is authorized and encouraged to the best of its ability to”.

On page three, section twelve-c, line one, by striking out the word “shall” and inserting in lieu thereof the words “is authorized and encouraged to the best of its ability to ”.

Com. Sub. for H. B. 2098 - “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §30-3-11b; and to amend said code by adding thereto a new section, designated §30-14-12c, all relating to services provided by allopathic and osteopathic physicians in federal veterans’ affairs facilities in this state; authorizing allopathic and osteopathic physicians to provide services to patients or residents of state-run veterans’ facilities by allowing them to obtain license without the required examination from the appropriate licensing agency of this state; limiting scope of the license to practice only in the state-run veterans’ facilities; providing rule-making authority to the appropriate licensing agencies of allopathic and osteopathic physicians; and requiring report to the Legislature.”

On the passage of the bill, the yeas and nays were taken (Roll No. 545), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2098) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

The Clerk of the Senate, announced that the Senate had passed, with a title amendment, a bill of the House of Delegates, as follows:

H. B. 2224, Providing that historical reenactors are not violating the provision prohibiting unlawful military organizations.

On motions of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate title amendment:

H. B. 2224 - “A Bill to amend and reenact §15-1F-7 of the Code of West Virginia, 1931, as amended, relating to unlawful military organizations; providing that historical reenactors are not violating the provision prohibiting unlawful military organizations; and providing that individuals or groups of individuals who drill, perform or parade at public ceremonies, including funerals, are not violating the provision prohibiting unlawful military organizations.”

On the passage of the bill, the yeas and nays were taken (Roll No. 546), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2224) passed.

On this question, the yeas and nays were taken (Roll No. 547), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2224) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect, July 1, 2015, a bill of the House of Delegates, as follows:

Delegate Hartman noted to the Clerk that he was absent on yesterday when the vote was taken on Roll No.453, and that had he been present, he would have voted “Yea” thereon.

Delegate B. White noted that he was absent when the votes weretaken on Roll Nos. 511 and 546, and that had he been present, he would have voted “Yea” thereon.

Delegate L. Phillips noted that she was absent when the vote was taken on Roll No. 514, and that had she been present, she would have voted “Yea” thereon.

Delegate Zatezalo noted that he was absent when the votes were taken on Roll Nos. 519 and 520, and that had he been present, he would have voted “Yea” thereon.

Delegate Bates asked and obtained unanimous consent that the remarks of Delegate Lane regarding Com. Sub. for 423 be printed in the Appendix to the Journal.

Delegates Storch and Weld noted that they were absent when the vote was taken on Roll No. 538, and that had they been present, they would have voted “Yea” thereon.

Delegate Guthrie announced that she was absent when the votes were taken on Roll Nos. 519 and 520, and that had he been present, she would have voted “Yea” thereon.

Delegate Canterbury announced that he was absent when the votes were taken on Roll Nos. 546 and 547, and that had he been present, he would have voted “Yea” thereon.

Delegate Cadle noted to the Clerk that he was absent when the vote was taken on Roll No. 540, and that had he been present, he would have voted “Yea” thereon.

At 10:47 p.m., the House of Delegates adjourned until 10:00 a.m., Saturday, March 14, 2015.