WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

EIGHTY-THIRD LEGISLATURE

REGULAR SESSION, 2017

TWENTY-SEVENTH DAY

____________

Charleston, West Virginia, Monday, March 6, 2017

The Senate met at 11 a.m.

(Senator Carmichael, Mr. President, in the Chair.)

Prayer was offered by the Reverend Father Matthew Moore, St. John Greek Orthodox Church, Charleston, West Virginia.

The Senate was then led in recitation of the Pledge of Allegiance by the Honorable Charles S. Trump IV, a senator from the fifteenth district.

Pending the reading of the Journal of Friday, March 3, 2017,

At the request of Senator Plymale, unanimous consent being granted, the Journal was approved and the further reading thereof dispensed with.

The Senate proceeded to the second order of business and the introduction of guests.

The Senate then proceeded to the third order of business.

A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect July 1, 2017, and requested the concurrence of the Senate in the House of Delegates amendment, as to

Eng. Senate Bill 231, Relating to State Board of Education and Medicaid-eligible children.

On motion of Senator Ferns, the bill was taken up for immediate consideration.

The following House of Delegates amendment to the bill was reported by the Clerk:

By striking out everything after the enacting section and inserting in lieu thereof the following:

ARTICLE 2. STATE BOARD OF EDUCATION.

§18-2-5b. Medicaid eligible children; school health services advisory committee.

(a) The state board shall become a Medicaid provider and seek out Medicaid eligible students for the purpose of providing Medicaid and related services to students eligible under the Medicaid program and to maximize federal reimbursement for all services available under the Omnibus Budget Reconciliation Act of 1989, as it relates to Medicaid expansion and any future expansions in the Medicaid program for Medicaid and related services for which state dollars are or will be expended. ~~Provided,~~ ~~That~~

(b) The state board may delegate this provider status and subsequent reimbursement to regional educational service agencies (RESA) and/or county boards. A county board may decline this designation if it determines there is not a net benefit after consideration of costs and time involved with seeking Medicaid reimbursements for eligible services and that the billing process does not detract from the educational program.

(1) The number and age of children eligible for Medicaid;

(2) The number and age of children with Medicaid coverage;

(3) The types of Medicaid eligible services provided;

(4) The frequency of services provided;

(5) The Medicaid dollars reimbursed; and

(6) The problems encountered in the implementation of this system. ~~and that this report shall be on a county by county basis and made available no later than January 1,1992, and annually thereafter.~~

~~(b)~~ (d) The state board shall appoint and convene a school health services advisory committee to advise the Secretary of Health and Human Resources and the state superintendent on ways to improve the ability of regional education service agencies, local school boards, and Department of Health and Human Resources employees to provide Medicaid eligible children with all the school-based Medicaid services for which they are eligible and to ensure that the school-based Medicaid service providers bill for and receive all the Medicaid reimbursement to which they are entitled.

(e) The committee shall consist of at least the following individuals:

(1) The person within the Department of Education responsible for coordinating the provision of and billing for school-based Medicaid services in schools throughout the state, who shall provide secretarial, administrative and technical support to the advisory committee;

(2) The person within the Department of Health and Human Resources responsible for coordinating the enrollment of Medicaid eligible school children throughout the state;

(3) Two representatives of regional education services agencies who are experienced with the process of billing Medicaid for school-based health services;

(4) Two Department of Health and Human Resources employees responsible for supervising employees;

(5) Two persons jointly appointed by the secretary of health and human resources and the state superintendent; and

(6) One representative of the Governor’s task force on school health.

(f) The school health services advisory committee shall meet in the first instance at the direction of the state superintendent, select a chairperson from among its members, and meet thereafter at the direction of the chairperson. The committee shall report its findings and recommendations to the state board and Department of Health and Human Resources, which findings shall then be included in the report to the Legislature by the state board and Department of Health and Human Resources provided ~~for~~ in subsection ~~(a)~~ (c) ~~of this section.~~

(g) All actual and necessary travel expenses of the members of the committee shall be reimbursed by the member’s employing agency, for those members not employed by a state agency, the member’s actual and necessary travel expenses shall be paid by the state board. All such expenses shall be reimbursed in the same manner as the expenses of state employees are reimbursed.

On motion of Senator Ferns, the following amendments to the House of Delegates amendment to the bill (Eng. S. B. 231) were reported by the Clerk, considered simultaneously, and adopted:

On page one, section five-b, by striking out all of subsection (b) and inserting in lieu thereof a new subsection, designated subsection (b), to read as follows:

(b) The state board may delegate this provider status and subsequent reimbursement to regional education service agencies, county boards or both: Provided, That a county board is not required to seek reimbursement if it determines there is not a net benefit after consideration of costs and time involved with seeking the reimbursement for eligible services and that the billing process detracts from the educational program.;

And,

By striking out the title and substituting therefor a new title, to read as follows:

Eng. Senate Bill 231—A Bill to amend and reenact §18-2-5b of the Code of West Virginia, 1931, as amended, relating to providing that a county board of education is not required to seek Medicaid reimbursement if it determines there is not a net benefit after consideration of costs and time involved with seeking the reimbursement for eligible services and that the billing process detracts from the educational program.

On motion of Senator Ferns, the Senate concurred in the House of Delegates amendment, as amended.

Engrossed Senate Bill 231, as amended, was then put upon its passage.

On the passage of the bill, the yeas were: Azinger, Beach, Blair, Boley, Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano, Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel and Carmichael (Mr. President)—33.

The nays were: None.

Absent: Maroney—1.

So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. 231) passed with its Senate amended title.

Senator Ferns moved that the bill take effect July 1, 2017.

On this question, the yeas were: Azinger, Beach, Blair, Boley, Boso, Clements, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann, Maynard, Miller, Mullins, Ojeda, Palumbo, Plymale, Prezioso, Romano, Rucker, Smith, Stollings, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel and Carmichael (Mr. President)—33.

The nays were: None.

Absent: Maroney—1.

So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. 231) takes effect July 1, 2017.

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

A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of

Eng. Com. Sub. for House Bill 2364—A Bill to amend and reenact §3-1-37 of the Code of West Virginia, 1931, as amended and to amend and reenact §3-9-9 of said Code, relating to restrictions on presence and conduct at or within 100 feet of polls, defining electioneering, prohibiting electioneering in or within 100 feet of a polling place, prohibiting electioneering in or within 100 feet of early voting polling places during early voting periods, providing exceptions to electioneering prohibitions for persons upon private property, and making stylistic changes to outdated language.

Referred to the Committee on the Judiciary.

A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of

Eng. Com. Sub. for House Bill 2619—A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §33-40B-1, §33-40B-2, §33-40B-3, §33-40B-4, §33-40B-5, §33-40B-6, §33-40B-7, §33-40B-8, §33-40B-9 and §33-40B-10, all relating to insurer risk management and solvency assessment; setting forth the purpose and scope of the article; defining terms; setting forth the requirement that insurers must maintain a risk management framework to assist the insurer with identifying, assessing, monitoring, managing and reporting on its material and relevant risks; setting forth and providing requirements for the own risk and assessment summary report; providing exemptions to the summary report requirements; providing confidentiality requirements related to the summary report; providing sanctions for failing to submit the summary report; and providing the effective date of this article.

Referred to the Committee on Banking and Insurance; and then to the Committee on the Judiciary.

A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of

Eng. House Bill 2630—A Bill to amend the Code of West Virginia, 1931, as amended, by adding a new section, designated §30-3-18; and to amend said code by adding thereto a new section, designated §30-14-16, all relating to authorizing the West Virginia Board of Medicine and the West Virginia Board of Osteopathic Medicine to share staff for functions common to both boards.

Referred to the Committee on Government Organization.

A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of

Eng. Com. Sub. for House Bill 2648—A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §60A-4-406a; and to amend and reenact §61-8D-1 and §61-8D-4 of said code, all relating to increased penalties for manufacturing or transportation of a controlled substance in the presence of a minor; providing for mandatory minimum period of incarceration for adult persons convicted of manufacturing, delivering, or possessing with the intent to manufacture or deliver a controlled substance, which is a Schedule I or II narcotic, in the presence of a minor; providing for mandatory minimum period of incarceration for adult persons convicted of manufacturing, delivering, or possessing with the intent to manufacture or deliver a controlled substance, which is a Schedule I, II or III non-narcotic, in the presence of a minor; providing for mandatory minimum period of incarceration for adult persons convicted of transporting a controlled substance into this state with the intent to deliver or manufacture a controlled substance, which is a Schedule I or II narcotic, while being in the presence of a minor at the time of the offense; providing for mandatory minimum period of incarceration for adult persons convicted of transporting a controlled substance into this state with the intent to deliver or manufacture a controlled substance, which is a Schedule I, II or III non-narcotic, while being in the presence of a minor at the time of the offense; requiring certain information and findings to be included in indictment or presentment; requiring certain facts to be determined by the court or jury; defining terms; creating a crime of neglect by a parent, guardian or custodian in which the parent, guardian or custodian is under the influence of a controlled substance and knowingly causes or permits a minor to be present in a location with the parent guardian or custodian, and no bodily injury occurs to the minor child; establishing criminal penalties; and authorizing the Court to require completion of certain classes, counseling, or other programs or services, including drug addiction treatment programs, as part of an imposed sentence or as an alternative sentence for persons convicted of certain misdemeanor offenses.

Referred to the Committee on the Judiciary.

A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of

Eng. Com. Sub. for House Bill 2651—A Bill to amend and reenact §18-28-3 of the Code of West Virginia, 1931, as amended, relating generally to standardized testing requirements for nonpublic schools; removing outdated language; requiring standardized test to be administered to nonpublic students at same grade levels and subject areas required in public schools; requiring the test administered to be a nationally normed standardized achievement test published or normed within ten years from the date of administration; allowing additional testing at sole discretion of school; limiting accountability for composite scores to grade levels and subject areas required in public schools; removing requirement that every child be tested; and requiring minimum student participation rate on test for composite score to be valid.

Referred to the Committee on Education.

A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of

Eng. House Bill 2684—A Bill to amend and reenact §17b-4-3 of the Code of West Virginia, 1931, as amended, relating to imposing penalties for repeat violations of the prohibition against driving a motor vehicle on any public highway of this state at a time when the privilege to do so has been lawfully suspended for driving while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent by weight.

Referred to the Committee on the Judiciary.

The Senate proceeded to the fourth order of business.

Senator Trump, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

Com. Sub. for Senate Bill 173 (originating in the Committee on Transportation and Infrastructure), Relating to autocycles.

And reports back a committee substitute for same with the following title:

Com. Sub. for Com. Sub. for Senate Bill 173 (originating in the Committee on the Judiciary)—A Bill to amend and reenact §17B-1-1 of the Code of West Virginia, 1931, as amended; to amend and reenact §17B-2-7b of said code; to amend said code by adding thereto a new section, designated §17C-1-69; and to amend and reenact §17C-15-44 of said code, all relating to certain motor vehicles, including motorcycles, motor-driven cycles and autocycles; creating an autocycle exemption from motorcycle examination, licensing and endorsement requirements; allowing a person with a valid driver’s license to operate an autocycle; creating an autocycle exemption from helmet and certain other motorcycle or motor-driven cycle safety requirements; defining terms; eliminating requirement that persons age eighteen and older operating or riding a motorcycle or motor-driven cycle wear a protective helmet; prohibiting individuals under the age of eighteen from operating or being a passenger on any motorcycle or motor-driven cycle without a protective helmet; deleting obsolete language regarding the motorcycle safety and education committee; and making technical corrections.

With the recommendation that the committee substitute for committee substitute do pass.

Respectfully submitted,

Charles S. Trump IV,

Chair.

Senator Hall, from the Committee on Finance, submitted the following report, which was received:

Your Committee on Finance has had under consideration

Senate Bill 185, Allowing spending units designate fund into which proceeds from sale of surplus property must be deposited.

And,

Senate Bill 365, Maintaining solvency of Unemployment Compensation Fund.

And reports the same back with the recommendation that they each do pass.

Respectfully submitted,

Mike Hall,

Chair.

Senator Trump, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration

Senate Bill 206, Expanding definition of “kidnapping” to include taking or gaining custody of, confining or concealing person by force.

And reports back a committee substitute for same with the following title:

Com. Sub. for Senate Bill 206 (originating in the Committee on the Judiciary)—A Bill to amend and reenact §61-2-14a of the Code of West Virginia, 1931, as amended, relating generally to the criminal offense of kidnapping; making unlawful the taking, gaining custody of, confining, concealing or restraining of another person by force or threat of force, duress, fraud, deceit, inveiglement, misrepresentation or enticement; and providing penalties.

And,

Senate Bill 220, Relating to offenses and penalties under Uniform Controlled Substances Act.

And reports back a committee substitute for same with the following title:

Com. Sub. for Senate Bill 220 (originating in the Committee on the Judiciary)—A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §60A-4-414, relating generally to offenses and penalties under the Uniform Controlled Substances Act; creating the felony offense of delivering or dispensing controlled substances or counterfeit controlled substances, the use, ingestion or consumption of which alone or in combination with another controlled substance or counterfeit controlled substances results in the death of another person; creating the felony offense of delivering or dispensing controlled substances or counterfeit controlled substances without remuneration and without an intent to cause death or serious bodily injury the use of which alone or in combination with another controlled substance or counterfeit controlled substances causes death; and providing criminal penalties.

With the recommendation that the two committee substitutes do pass.

Respectfully submitted,

Charles S. Trump IV,

Chair.

The Senate proceeded to the sixth order of business.

On motions for leave, severally made, the following bills were introduced, read by their titles and referred to the appropriate committees:

By Senators Ojeda, Azinger, Cline, Karnes, Prezioso, Rucker, Stollings, Plymale, Unger, Gaunch and Blair:

Senate Bill 517—A Bill to amend and reenact §60-3-24 of the Code of West Virginia, 1931, as amended, relating to permitting appointees or employees of the Alcohol Beverage Control Commission who inspect bars to carry firearms at work after completing training at the State Police Academy.

Referred to the Committee on the Judiciary.

By Senators Ojeda, Azinger, Beach, Facemire, Jeffries, Romano, Smith, Swope, Plymale, Cline, Unger, Blair and Stollings:

Senate Bill 518—A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5B-2I-1, §5B-2I-2, §5B-2I-3 and §5B-2I-4, all relating to creating the Returning Veterans and Displaced Miners Jobs Act; providing a short title and legislative findings and declaration; establishing a Veterans Job Coordinating Team and composition of the team; powers and duties, including reporting a plan to the Legislature; and providing for termination of the Veterans Job Coordinating Team unless the Legislature determines otherwise.

Referred to the Committee on Military; and then to the Committee on Government Organization.

By Senators Ojeda, Beach, Facemire, Jeffries, Romano, Rucker and Stollings:

Senate Bill 519—A Bill to amend and reenact §21-5F-1, §21-5F-2, §21-5F-3 and §21-5F-4 of the Code of West Virginia, 1931, as amended, all relating to amending the West Virginia Nurse Overtime and Patient Safety Act to include nurses employed in nursing homes as well as those employed in hospitals; establishing limits on hours such nurses may be mandated to work by their employers; and establishing enforcement offenses, penalties and a private cause of action for violations of the act.

Referred to the Committee on the Judiciary.

By Senators Weld, Blair and Takubo:

Senate Bill 520—A Bill to amend and reenact §18B-10-1a of the Code of West Virginia, 1931, as amended, relating to in-state residency tuition rates; providing that members of the reserve who are not residents of West Virginia but who are active members of a reserve unit in West Virginia shall qualify as residents for purposes of calculating tuition rates; and providing that current members of the United States armed forces and veterans of the United States armed forces shall qualify as residents for purposes of calculating tuition rates.

Referred to the Committee on Military; and then to the Committee on Education.

By Senator Trump:

Senate Bill 521—A Bill to amend and reenact §29-21-2, §29-21-6, §29-21-8, §29-21-9 and §29-21-13a of the Code of West Virginia, 1931, as amended, all relating generally to Public Defender Services; transferring authority to review, approve, reduce or reject panel attorney vouchers from circuit courts to Public Defender Services; providing for resubmission of vouchers previously reduced or rejected; authorizing the Executive Director of Public Defender Services, with approval of the Indigent Defense Commission, to establish conflict public defender corporations and establishing criteria therefor; authorizing the Executive Director of Public Defender Services to contract for legal services or specialized legal services in any circuit; revising order of preference for the appointment of attorneys; and requiring panel attorneys to maintain time-keeping records on a daily basis.

Referred to the Committee on the Judiciary; and then to the Committee on Finance.

By Senators Gaunch, Ferns, Blair, Stollings and Takubo:

Senate Bill 522—A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §33-51-1, §33-51-2, §33-51-3, §33-51-4, §33-51-5, §33-51-6, §33-51-7 and §33-51-8, all relating to pharmacy audit procedures for pharmacy benefits managers; defining terms; setting forth procedures and requirements for pharmacy audits; requiring registration for pharmacy benefits managers and auditing entities; providing internal review process applicable to disputed findings of pharmacy benefits manager upon audit; and providing rule-making authority to the Insurance Commissioner.

Referred to the Committee on Banking and Insurance.

By Senator Weld:

Senate Bill 523—A Bill to amend and reenact §4‑2A‑2 of the Code of West Virginia, 1931, as amended; to amend and reenact §11B‑2‑12 of said code; to amend and reenact §12‑3‑12a and §12‑3‑13b of said code; to amend and reenact §15‑2‑5 of said code; to amend and reenact §18‑3‑1 of said code; to amend and reenact §20‑1‑5 of said code; to amend and reenact §20‑7‑1 of said code; to amend and reenact §22C‑1‑4 of said code; to amend and reenact §24‑1‑3 of said code; to amend and reenact §24A‑6‑6 of said code; to amend and reenact §24B‑5‑2 of said code; to amend and reenact §25‑1‑19 of said code; to amend and reenact §31‑19‑4 of said code; to amend and reenact §33‑2‑2 of said code; to amend and reenact §50‑1‑8 and §50‑1‑9 of said code; to amend and reenact §51‑7‑3 and §51‑7‑5 of said code; to amend and reenact §51‑8‑2 of said code; and to amend and reenact §62‑12‑5 of said code, all relating to converting to a biweekly pay cycle from a monthly or semimonthly cycle for state employees.

Referred to the Committee on Government Organization.

By Senators Rucker, Azinger, Blair, Boley, Boso, Clements, Cline, Ferns, Gaunch, Hall, Karnes, Mann, Maroney, Maynard, Mullins, Ojeda, Smith, Swope, Sypolt, Takubo and Trump:

Senate Bill 524—A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18-2E-11, relating to West Virginia academic standards; defining academic standards; setting forth finding; prohibiting implementation of Common Core academic standards; requiring adoption and implementation of certain other academic standards; requiring academic standards be effective for a minimum of five school years after date of implementation; requiring any proposed changes to academic standards for public schools comply with certain section of code requiring notice, written comments and public hearings in certain instances; and requiring withdrawal from the memorandum of agreement which required that Common Core represent eighty-five percent of the state’s standards in English language arts and mathematics.

Referred to the Committee on Education.

By Senators Maynard, Cline and Blair:

Senate Bill 525—A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §18-2E-1, §18-2E-2, §18-2E-3, §18-2E-4, §18-2E-5, §18-2E-6, §18-2E-7, §18-2E-8, §18-2E-9 and §18-2E-10, all relating generally to establishing education savings accounts for West Virginia students; defining terms; authorizing establishment of education savings accounts; granting of funds; providing restrictions on use of funds; financial management of education savings funds; establishing terms of eligibility for participation in program; imposing testing and data collection requirements; and reaffirming independence of nonpublic schools.

Referred to the Committee on Education; and then to the Committee on Finance.

Senators Boso, Beach and Stollings offered the following resolution:

Senate Concurrent Resolution 27—Requesting the Division of Highways to name bridge number 30-52 2.73 (30A110), (37.82180, -82.39737) between Kermit and East Kermit, locally known as the Upper Burning Creek Bridge, carrying U. S. 52 over Upper Burning Creek and NS Railroad in Upshur County, the “U. S. Air Force Senior Airman Luke Christopher Wamsley Memorial Bridge”.

Whereas, Luke Christopher Wamsley was born September 28, 1986, to Janice Rollins and Dion Wamsley in Buckhannon, Upshur County, West Virginia; and

Whereas, Luke was a 2006 graduate from Spaulding High School in Barre, Vermont, where he later became a substitute teacher; and

Whereas, He was a 2009 graduate at Lackland AFB in San Antonio, Texas. He served in Afghanistan in 2013. He received 12 federal medals, including the Air Force Achievement Medal, Meritorious Unit Award, Air Force Outstanding Unit Award and Afghanistan Campaign Medal. He also received four state medals; and

Whereas, Luke worked as a Senior Airman for the Green Mountain Boys, Vermont National Air Guard, from 2009 until the time of his death, where he served as a CE electrician. He was proud to wear his uniform and stand beside all the men and women who fought with him on a daily basis to protect and serve our wonderful country. He was fun loving, he loved to make people laugh and loved most whomever he met, and most that met him loved him. He always would help anyone in need. Luke was a protector, provider and an asset to his family, friends and anyone on the street and at work. He loved fishing, hanging out with family and friends, hiking, imitating people and he loved to travel. He was multilingual and he loved to cook; and

Whereas, Luke Christopher Wamsley was survived by his mother, Janice Rollins of Burlington, Vermont; his father, Dion Wamsley from Buckhannon; his sister, Leona Wamsley; brother, Lloyd Rollins and other relatives; all from Burlington, Vermont; and

Whereas, Naming this bridge in his hometown is an appropriate recognition of Luke Christopher Wamsley’s contributions to his country and the community of his birth; therefore, be it

Resolved by the Legislature of West Virginia:

That the Division of Highways is hereby requested to name bridge number 30-52 2.73 (30A110), (37.82180, -82.39737) between Kermit and East Kermit, locally known as the Upper Burning Creek Bridge, carrying U. S. 52 over Upper Burning Creek and NS Railroad in Upshur County, the “U. S. Air Force Senior Airman Luke Christopher Wamsley Memorial Bridge”; and, be it

Further Resolved, That the Division of Highways is requested to have made and be placed signs identifying the bridge as the “U. S. Air Force Senior Airman Luke Christopher Wamsley Memorial Bridge”; and, be it

Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Commissioner of the Division of Highways.

Which, under the rules, lies over one day.

Senators Romano, Plymale, Cline, Beach, Unger, Prezioso and Stollings offered the following resolution:

Senate Resolution 30—Designating the month of March as American Red Cross Month.

Whereas, Founded in 1881 and chartered by Congress in 1905, the American Red Cross acts in times of need in West Virginia, in this country and around the world; and

Whereas, The American Red Cross is one of the most recognized humanitarian organizations and provides compassionate care to those who suffer disasters and life-altering emergencies; and

Whereas, When an injured service member ends up in a hospital far from home, the Red Cross offers comfort. When a hospital patient needs blood, American Red Cross blood donors help them. When a lifeguard jumped in to save a drowning child or someone stepped up to help a heart attack victim, the American Red Cross was there; and

Whereas, American Red Cross volunteers have provided food, clothing, shelter and mental health support to victims of disasters every year including 2,700 West Virginia families last year who experienced a disaster; and

Whereas, The generous contributions of time and money by the people of West Virginia help the American Red Cross alleviate human suffering and restore vital services to families in our state in times of need; therefore, be it

Resolved by the Senate:

That the Senate hereby designates the month of March as American Red Cross Month; and, be it

Further Resolved, That the Senate hereby recognizes the American Red Cross for its contributions to the State of West Virginia, the United States and the world; and, be it

Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the American Red Cross West Virginia Chapter.

At the request of Senator Romano, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with and adopted.

Thereafter, at the request of Senator Ferns, and by unanimous consent, the remarks by Senators Romano and Boso regarding the adoption of Senate Resolution 30 were ordered printed in the Appendix to the Journal.

On motion of Senator Ferns, the Senate recess for one minute.

Upon expiration of the recess, the Senate reconvened and resumed business under the sixth order.

Senators Stollings, Ojeda, Plymale, Cline, Beach, Unger, Blair and Takubo offered the following resolution:

Senate Resolution 31—Recognizing the contributions of southern West Virginia to the entire State of West Virginia and the United States of America.

Whereas, Southern West Virginia has a long and proud history of supporting their state and country in times of peace and war; and

Whereas, Southern West Virginia provided much of the fuel which spurred the United States Industrial Revolution; and

Whereas, Southern West Virginia’s people have mined coal for 100 years which supported the economy of the State of West Virginia; and

Whereas, Southern West Virginia has given more than $67 million in the past seven years to the counties and cities across the state through the coal severance tax and hundreds of millions of dollars to the State General Revenue Fund; and

Whereas, Southern West Virginia’s counties of Wyoming, Mingo, Logan, Boone and Lincoln, together with the Corridor G Regional Development Authority, have been dramatically affected by job losses in the coal mining and coal supply chain industries; and

Whereas, Southern West Virginia is uniquely positioned to create future economic development opportunities by leveraging its natural assets, available workforce, development sites created by innovative land use planning and a collaborative network of public/private partnerships into sustainable, job-creating opportunities; and

Whereas, Southern West Virginia’s counties are working together to improve their economies and the lives of the people of southern West Virginia through programs such as the Wyoming County Loan Program and Leadership Southern; and

Whereas, Southern West Virginia’s successful implementation of Land Use Master Plans has facilitated enhanced transportation and utilities infrastructure necessary to support economic expansion; provided opportunities for industry diversification and smart economic growth; and enhanced quality of life by securing, transitioning and repurposing land made available through coal mining activities into beneficial economic development assets; and

Whereas, Southern West Virginia, together with the Corridor G Regional Development Authority, intend to create a more vibrant economic future for coal-impacted communities by cultivating economic diversity, strengthening our regional collaborative efforts and leveraging our region’s existing assets through projects such as the Coalfields Expressway, Wood Products Industrial Park and Rock Creek Development Park; and

Whereas, Southern West Virginia is a national leader in providing rural healthcare through providers such as Southern WV Health Systems, Williamson Health and Wellness Center, Boone Memorial Hospital and Logan Regional Medical Center; and

Whereas, Southern West Virginia provides first class public transportation through Tri-River Transit allowing access to work, medical treatment and education; and

Whereas, Southern West Virginia is home to an outstanding community college network; and

Whereas, Southern West Virginia offers world class career and technical education in high schools like the Boone, Lincoln and Wyoming career and technical centers, and Mingo Central High School; and

Whereas, Southern West Virginia offers an abundance of outdoor recreational activities and tourist attractions such as the Hatfield-McCoy Trail System, Guyandotte Water Trail and the Coal River Trail; and

Whereas, This regional collaborative of southern West Virginia counties recognizes, with great pride, the contributions of the coal mining and coal supply chain industries in providing good jobs, family stability and community and economic prosperity for the past several decades; and

Whereas, This regional collaborative is committed to valuing southern West Virginia’s deeply rooted coal heritage while it also seeks to produce economic and workforce development outcomes that promote regional economic growth and diversification, new job creation and re-employment opportunities for our workers, and especially our displaced coal miners; therefore, be it

Resolved by the Senate:

That the Senate hereby recognizes the contributions of southern West Virginia to the entire State of West Virginia and the United States of America; and, be it

Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the appropriate representatives of southern West Virginia.

At the request of Senator Stollings, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with and adopted.

Thereafter, at the request of Senator Ferns, and by unanimous consent, the remarks by Senator Stollings regarding the adoption of Senate Resolution 31 were ordered printed in the Appendix to the Journal.

On motion of Senator Ferns, the Senate recess for one minute.

Upon expiration of the recess, the Senate reconvened and proceeded to the eighth order of business.

Eng. Com. Sub. for Senate Bill 190, Eliminating preferences for vendors bidding on state contracts for commodities or printing.

On third reading, coming up in regular order, was read a third time and put upon its passage.

On the passage of the bill, the yeas were: Azinger, Beach, Blair, Boso, Cline, Facemire, Ferns, Gaunch, Hall, Jeffries, Karnes, Mann, Maynard, Mullins, Palumbo, Plymale, Prezioso, Rucker, Smith, Swope, Sypolt, Takubo, Trump, Unger, Weld, Woelfel and Carmichael (Mr. President)—27.

The nays were: Boley, Clements, Miller, Ojeda, Romano and Stollings—6.

Absent: Maroney—1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. 190) passed with its title.

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

Eng. Com. Sub. for Senate Bill 209, Defining term “veteran” as it relates to veteran-owned business.

On third reading, coming up in regular order, was read a third time and put upon its passage.

The nays were: None.

Absent: Maroney—1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. 209) passed with its title.

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

Eng. Com. Sub. for Senate Bill 221, Relating to composition of PEIA Finance Board.

On third reading, coming up in regular order, was read a third time and put upon its passage.

Pending discussion,

The question being “Shall Engrossed Committee Substitute for Senate Bill 221 pass?”

On the passage of the bill, the yeas were: Azinger, Blair, Boley, Boso, Clements, Cline, Ferns, Gaunch, Hall, Karnes, Mann, Maynard, Mullins, Rucker, Smith, Swope, Sypolt, Takubo, Trump, Weld and Carmichael (Mr. President)—21.

The nays were: Beach, Facemire, Jeffries, Miller, Ojeda, Palumbo, Plymale, Prezioso, Romano, Stollings, Unger and Woelfel—12.

Absent: Maroney—1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. 221) passed with its title.

Senator Ferns moved that the bill take effect July 1, 2017.

On this question, the yeas were: Azinger, Blair, Boley, Boso, Clements, Cline, Ferns, Gaunch, Hall, Karnes, Mann, Maynard, Mullins, Rucker, Smith, Swope, Sypolt, Takubo, Trump, Weld and Carmichael (Mr. President)—21.

The nays were: Beach, Facemire, Jeffries, Miller, Ojeda, Palumbo, Plymale, Prezioso, Romano, Stollings, Unger and Woelfel—12.

Absent: Maroney—1.

So, less than two thirds of all the members elected to the Senate having voted in the affirmative, the President declared Senator Ferns aforestated motion had not prevailed.

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

Eng. Com. Sub. for Senate Bill 224, Repealing requirement for employer’s bond for wages and benefits.

On third reading, coming up in regular order, was read a third time and put upon its passage.

Pending extended discussion,

The question being “Shall Engrossed Committee Substitute for Senate Bill 224 pass?”

The nays were: Beach, Facemire, Jeffries, Miller, Ojeda, Palumbo, Plymale, Prezioso, Romano, Stollings, Unger and Woelfel—12.

Absent: Maroney—1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. 224) passed with its title.

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

Com. Sub. for Senate Bill 236, Relating to damages for medical monitoring.

On third reading, coming up in regular order, with the right having been granted on Tuesday, February 28, 2017, for amendments to be received on third reading, was reported by the Clerk.

At the request of Senator Ferns, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar, with the right to amend on third reading remaining in effect.

Eng. Senate Bill 263, Creating exemption from certain contract and common carrier laws for vehicles used exclusively for transportation of railroad personnel.

On third reading, coming up in regular order, was read a third time and put upon its passage.

The nays were: None.

Absent: Maroney—1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. 263) passed with its title.

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

Eng. Senate Bill 400, Regarding appointments to WV Infrastructure and Jobs Development Council.

On third reading, coming up in regular order, was read a third time and put upon its passage.

The nays were: None.

Absent: Maroney—1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. 400) passed with its title.

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

Eng. Com. Sub. for Senate Bill 429, Relating to monitoring inmate communications.

On third reading, coming up in regular order, was read a third time and put upon its passage.

The nays were: None.

Absent: Maroney—1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. 429) passed with its title.

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

Eng. Com. Sub. for Senate Bill 436, Permitting investigators from Attorney General’s office carry firearms.

On third reading, coming up in regular order, was read a third time and put upon its passage.

The nays were: None.

Absent: Maroney—1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. 436) passed with its title.

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

Eng. Com. Sub. for Senate Bill 445, Amending definition of “abused child”.

On third reading, coming up in regular order, was read a third time and put upon its passage.

The nays were: None.

Absent: Maroney—1.

So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. 445) passed with its title.

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

The Senate proceeded to the ninth order of business.

Com. Sub. for Senate Bill 239, Limiting use of wages by employers and labor organizations for political activities.

On second reading, coming up in regular order, was read a second time.

On motion of Senator Trump, the following amendment to the bill was reported by the Clerk and adopted:

On page five, section twelve, line ninety-eight, by striking out the word “article” and inserting in lieu thereof the word “subsection”.

The bill (Com. Sub. for S. B. 239), as amended, was then ordered to engrossment and third reading.

Senate Bill 392, Relating to Municipal Police Officers and Firefighters Retirement System.

On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

Com. Sub. for Senate Bill 442, Relating generally to crimes against persons.

On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

Com. Sub. for Senate Bill 456, Relating to standards for termination of parental rights in child abuse and neglect cases.

On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.

Eng. Com. Sub. for House Bill 2318, Relating generally to human trafficking.

On second reading, coming up in regular order, was read a second time.

The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:

By striking out everything after the enacting section and inserting in lieu thereof the following:

CHAPTER 15. PUBLIC SAFETY.

ARTICLE 9A. DIVISION OF JUSTICE AND COMMUNITY SERVICES.

§15-9A-2. Division established; appointment of director.

(a) The Division of Justice and Community Services is created. The purpose of the division is to provide executive and administrative support to the Governor’s Committee on Crime Delinquency and Correction in the coordination of planning for the criminal justice system, to administer federal and state grant programs assigned to it by the actions of the Governor or Legislature and to perform such other duties as the Legislature may from time to time assign to the division. The division is the designated staffing agency for the Governor’s Committee on Crime, Delinquency and Correction, and all of its subcommittees. The division may apply for grants and other funding from federal or state programs, foundations, corporations and organizations which funding is consistent with its responsibilities and the purposes assigned to it or the subcommittees it staffs. The Division of Justice and Community Services is hereby designated as the state administrative agency responsible for criminal justice and juvenile justice systems, and various component agencies of state and local government, for the planning and development of state programs and grants which may be funded by federal, state or other allocations in the areas of community corrections, law-enforcement training and compliance, sexual assault forensic examinations, victim services, human trafficking and juvenile justice.

(b) The director of the division shall be named by the Governor to serve at his will and pleasure.

(c) The director of the division shall take and subscribe to an oath of office in conformity with article IV, section five of the Constitution of the State of West Virginia.

article 12. sex offender registration act.

§15‑12‑2. Registration.

(a) The provisions of this article apply both retroactively and prospectively.

(b) Any person who has been convicted of an offense or an attempted offense or has been found not guilty by reason of mental illness, mental retardation or addiction of an offense under any of the following provisions of chapter sixty‑one of this code or under a statutory provision of another state, the United States Code or the Uniform Code of Military Justice which requires proof of the same essential elements shall register as set forth in subsection (d) of this section and according to the internal management rules promulgated by the superintendent under authority of section twenty‑five, article two of this chapter:

(1) Article eight‑a;

(2) Article eight‑b, including the provisions of former section six of said article, relating to the offense of sexual assault of a spouse, which was repealed by an Act of the Legislature during the year 2000 legislative session;

(3) Article eight‑c;

(4) Sections five and six, article eight‑d;

(5) Section fourteen, article two;

(6) Sections six, seven, twelve and thirteen, article eight; or

(7) Section fourteen‑b, article three‑c, as it relates to violations of those provisions of chapter sixty‑one listed in this subsection; or

(8) Sections two, five and six, article fourteen; Provided, That as to section two of said article only those violations involving human trafficking for purposes of sexual servitude require registration pursuant to this subdivision.

(c) Any person who has been convicted of a criminal offense and the sentencing judge made a written finding that the offense was sexually motivated shall also register as set forth in this article.

(d) Persons required to register under the provisions of this article shall register in person at the West Virginia State Police detachment responsible for covering the county of his or her residence, and in doing so, provide or cooperate in providing, at a minimum, the following when registering:

(1) The full name of the registrant, including any aliases, nicknames or other names used by the registrant;

(2) The address where the registrant intends to reside or resides at the time of registration, the address of any habitable real property owned or leased by the registrant that he or she regularly visits: Provided, That a post office box may not be provided in lieu of a physical residential address, the name and address of the registrant’s employer or place of occupation at the time of registration, the names and addresses of any anticipated future employers or places of occupation, the name and address of any school or training facility the registrant is attending at the time of registration and the names and addresses of any schools or training facilities the registrant expects to attend;

(3) The registrant’s Social Security number;

(4) A full‑face photograph of the registrant at the time of registration;

(5) A brief description of the crime or crimes for which the registrant was convicted;

(6) Fingerprints and palm prints;

(7) Information related to any motor vehicle, trailer or motor home owned or regularly operated by a registrant, including vehicle make, model, color and license plate number: Provided, That for the purposes of this article, the term “trailer” shall mean travel trailer, fold‑down camping trailer and house trailer as those terms are defined in section one, article one, chapter seventeen‑a of this code;

(8) Information relating to any Internet accounts the registrant has and the screen names, user names or aliases the registrant uses on the Internet; and

(9) Information related to any telephone or electronic paging device numbers that the registrant has or uses, including, but not limited to, residential, work and mobile telephone numbers.

(e) (1) On the date that any person convicted or found not guilty by reason of mental illness, mental retardation or addiction of any of the crimes listed in subsection (b) of this section, hereinafter referred to as a “qualifying offense”, including those persons who are continuing under some post‑conviction supervisory status, are released, granted probation or a suspended sentence, released on parole, probation, home detention, work release, conditional release or any other release from confinement, the Commissioner of Corrections, regional jail administrator, city official or sheriff operating a jail or Secretary of the Department of Health and Human Resources who releases the person and any parole or probation officer who releases the person or supervises the person following the release, shall obtain all information required by subsection (d) of this section prior to the release of the person, inform the person of his or her duty to register and send written notice of the release of the person to the State Police within three business days of receiving the information. The notice must include the information required by said subsection. Any person having a duty to register for a qualifying offense shall register upon conviction, unless that person is confined or incarcerated, in which case he or she shall register within three business days of release, transfer or other change in disposition status. Any person currently registered who is incarcerated for any offense shall re-register within three business days of his or her release.

(2) Notwithstanding any provision of this article to the contrary, a court of this State shall, upon presiding over a criminal matter resulting in conviction or a finding of not guilty by reason of mental illness, mental retardation or addiction of a qualifying offense, cause, within seventy‑two hours of entry of the commitment or sentencing order, the transmittal to the sex offender registry for inclusion in the registry all information required for registration by a registrant as well as the following nonidentifying information regarding the victim or victims:

(A) His or her sex;

(B) His or her age at the time of the offense; and

The provisions of this paragraph do not relieve a person required to register pursuant to this section from complying with any provision of this article.

(f) For any person determined to be a sexually violent predator, the notice required by subsection (d) of this section must also include:

(1) Identifying factors, including physical characteristics;

(2) History of the offense; and

(3) Documentation of any treatment received for the mental abnormality or personality disorder.

(g) At the time the person is convicted or found not guilty by reason of mental illness, mental retardation or addiction in a court of this state of the crimes set forth in subsection (b) of this section, the person shall sign in open court a statement acknowledging that he or she understands the requirements imposed by this article. The court shall inform the person so convicted of the requirements to register imposed by this article and shall further satisfy itself by interrogation of the defendant or his or her counsel that the defendant has received notice of the provisions of this article and that the defendant understands the provisions. The statement, when signed and witnessed, constitutes prima facie evidence that the person had knowledge of the requirements of this article. Upon completion of the statement, the court shall provide a copy to the registry. Persons who have not signed a statement under the provisions of this subsection and who are subject to the registration requirements of this article must be informed of the requirement by the State Police whenever the State Police obtain information that the person is subject to registration requirements.

(h) The State Police shall maintain a central registry of all persons who register under this article and shall release information only as provided in this article. The information required to be made public by the State Police by subdivision (2), subsection (b), section five of this article is to be accessible through the Internet. No information relating to telephone or electronic paging device numbers a registrant has or uses may be released through the Internet.

(i) For the purpose of this article, “sexually violent offense” means:

(1) Sexual assault in the first degree as set forth in section three, article eight‑b, chapter sixty‑one of this code or of a similar provision in another state, federal or military jurisdiction;

(2) Sexual assault in the second degree as set forth in section four, article eight‑b, chapter sixty‑one of this code or of a similar provision in another state, federal or military jurisdiction;

(3) Sexual assault of a spouse as set forth in the former provisions of section six, article eight‑b, chapter sixty‑one of this code, which was repealed by an Act of the Legislature during the 2000 legislative session, or of a similar provision in another state, federal or military jurisdiction;

(4) Sexual abuse in the first degree as set forth in section seven, article eight‑b, chapter sixty‑one of this code or of a similar provision in another state, federal or military jurisdiction.

(j) For purposes of this article, the term “sexually motivated” means that one of the purposes for which a person committed the crime was for any person’s sexual gratification.

(k) For purposes of this article, the term “sexually violent predator” means a person who has been convicted or found not guilty by reason of mental illness, mental retardation or addiction of a sexually violent offense and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.

(l) For purposes of this article, the term “mental abnormality” means a congenital or acquired condition of a person, that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons.

(m) For purposes of this article, the term “predatory act” means an act directed at a stranger or at a person with whom a relationship has been established or promoted for the primary purpose of victimization.

(n) For the purposes of this article, the term “business days” means days exclusive of Saturdays, Sundays and legal holidays as defined in section one, article two, chapter two of this code.

CHAPTER 49. CHILD WELFARE.

ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.

PART II. DEFINITIONS.

§49-1-201. Definitions related, but not limited, to child abuse and neglect.

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;

(B) Sexual abuse or sexual exploitation;

(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; or

(E) Human trafficking of a child, or attempting to traffic a child, in violation of section two, article fourteen, chapter sixty-one 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;

(D) Abandonment by the parent, guardian or custodian;

(E) Inadequate treatment of serious illness or disease;

(F) Substantial emotional injury inflicted by a parent, guardian or custodian;

(G) Sale or attempted sale of the child by the parent, guardian or custodian;

(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.

“Neglected child” means a child:

(A) Whose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child’s parent, guardian or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care or education, when 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.

“Sexual abuse” means:

(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;

(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.

“Sexual exploitation” means an act where:

(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;

(C) A parent, guardian or custodian knowingly maintains or makes available a child for the purpose of engaging the child in commercial sexual activity in violation of section five, article fourteen, chapter sixty-one of this code.

“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

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 2. CRIMES AGAINST THE PERSON.

§~~61‑2‑17. Human trafficking; criminal penalties.~~

~~(a) As used in this section:~~

(1) “Debt bondage” means the status or condition of a debtor arising from a pledge by the debtor of the debtor’s personal services or those of a person under the debtor’s control as a security for debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined.

~~(2) “Forced labor or services” means labor or services that are performed or provided by another person and are obtained or maintained through a person’s:~~

(A) Threat, either implicit or explicit, deception or fraud, scheme, plan, or pattern, or other action intended to cause a person to believe that, if the person did not perform or provide the labor or services that person or another person would suffer serious bodily harm or physical restraint: Provided, That, this does not include work or services provided by a minor to the minor’s parent or legal guardian so long as the legal guardianship or custody of the minor was not obtained for the purpose compelling the minor to participate in commercial sex acts or sexually explicit performance, or perform forced labor or services.

~~(B) Physically restraining or threatening to physically restrain a person;~~

~~(C) Abuse or threatened abuse of the legal process; or~~

(D) Knowingly destroying, concealing, removing, confiscating, or possessing any actual or purported passport or other immigration document, or any other actual or purported government identification document, of another person.

~~“Forced labor or services” does not mean labor or services required to be performed by a person in compliance with a court order or as a required condition of probation, parole, or imprisonment.~~

~~(3) “Human trafficking” means the labor trafficking or sex trafficking involving adults or minors where two or more persons are trafficked within any one year period.~~

(4) “Labor trafficking” means the promotion, recruitment, transportation, transfer, harboring, enticement, provision, obtaining or receipt of a person by any means, whether a United States citizen or foreign national, for the purpose of:

~~(A) Debt bondage or forced labor or services; or~~

~~(B) Slavery or practices similar to slavery.~~

(5) “Sex trafficking of minors” means the promotion, recruitment, transportation, transfer, harboring, enticement, provision, obtaining or receipt of a person under the age of eighteen by any means, whether a United States citizen or foreign national, for the purpose of causing the minor to engage in sexual acts, or in sexual conduct violating the provisions of subsection (b), section five, article eight of this chapter or article eight‑c of this chapter.

(6) “Sex trafficking of adults” means the promotion, recruitment, transportation, transfer, harboring, enticement, provision, obtaining, receipt of a person eighteen years of age or older, whether a United States citizen or foreign national for the purposes of engaging in violations of subsection (b), section five, article eight of this chapter by means of force, threat, coercion, deception, abuse or threatened abuse of the legal process, or any scheme, plan, pattern, or other action intended to cause a person to believe that, if the person did not engage in a violation of subsection (b), section five, article eight of this chapter, that person or another person would suffer serious bodily harm or physical restraint.

(b) Any person who knowingly and wilfully engages in human trafficking is guilty of a felony and upon conviction shall be incarcerated in a state correctional facility for an indeterminate sentence of not less than three nor more than fifteen years or fined not more than $200,000, or both.

(c) Any person who is a victim of human trafficking may bring a civil action in circuit court. The court may award actual damages, compensatory damages, punitive damages, injunctive relief and any other appropriate relief. A prevailing plaintiff is also entitled to attorneys fees and costs. Treble damages shall be awarded on proof of actual damages where defendant’s acts were willful and malicious.

(d) Notwithstanding the definition of victim in subsection (k), section three, article two‑a, chapter fourteen of this code, a person who is a victim of human trafficking is a victim for all purposes of article two‑a, chapter fourteen of this code.

~~(e) This article and the rights and remedies provided in this article are cumulative and in addition to other existing rights.~~

(f) Notwithstanding the age and criminal history limitations set forth in section twenty-six, article eleven of this chapter, any person convicted of prostitution in violation of subsection (b), section five, article eight of this chapter where the conviction was a result of the person being a victim of human trafficking as defined in this section, may petition the circuit court of the county of conviction for an order of expungement pursuant to section twenty-six, article eleven of this chapter.

~~No victim of human trafficking seeking relief under this subsection shall be required to prove her or she has rehabilitated himself or herself in order to obtain expungement.~~

ARTICLE 14. human trafficking.

§61-14-1. Definitions.

When used in this article, the following words and terms shall have meaning specified unless the context clearly indicates a different meaning:

(1) “Adult” means an individual eighteen years of age or older.

(2) “Coercion” means:

(A) The use or threat of force against, abduction of, serious harm to or physical restraint of an individual;

(B) The use of a plan, pattern or statement with intent to cause an individual to believe that failure to perform an act will result in the use of force against, abduction of, serious harm to, physical restraint of or deportation of an individual;

(D) The destruction or taking of, or the threatened destruction or taking of, an individual’s identification document or other property; or

(E) The use of an individual’s physical or mental impairment when the impairment has a substantial adverse effect on the individual’s cognitive or volitional function.

As used in this article, “coercion” does not include statements or actions made by a duly authorized state or federal law-enforcement officer as part of a lawful law enforcement investigation or undercover action.

(3) “Commercial sexual activity” means sexual activity for which anything of value is given to, promised to or received by a person.

(4) “Debt bondage” means inducing an individual to provide:

(A) Commercial sexual activity in payment toward or satisfaction of a real or purported debt; or

(B) Labor or services in payment toward or satisfaction of a real or purported debt if:

(i) The reasonable value of the labor or services is not applied toward the liquidation of the debt; or

(ii) The length of the labor or services is not limited, and the nature of the labor or services is not defined.

(5) “Forced labor” means labor or services that are performed or provided by another person and are obtained or maintained through the following:

(A) Threat, either implicit or explicit, deception or fraud, scheme, plan, or pattern or other action intended to cause a person to believe that, if the person did not perform or provide the labor or services, that person or another person would suffer serious bodily harm, physical restraint or deportation;

(B) Physically restraining or threatening to physically restrain a person;

(D) Destroying, concealing, removing, confiscating or possessing any actual or purported passport or other immigration document, or any other actual or purported government identification document of another person: Provided, That “forced labor” does not mean labor or services required to be performed by a person in compliance with a court order or as a required condition of probation, parole, or imprisonment.

As applied in this article, forced labor shall not include labor, work or services provided by a minor to the minor’s parent, legal custodian or legal guardian, so long as the legal guardianship or custody of the minor was not obtained for the purpose of compelling the minor to participate in commercial sex acts or sexually explicit performance, or perform forced labor or services; nor shall it include physical restraint of a minor, or the threat of physical restraint to a minor, by his or her parents, legal custodian or legal guardian if conducted in an otherwise lawful manner and for the purpose of discipline, supervision or teaching.

(6) “Human trafficking”, “trafficking”, or “traffics” means knowingly recruiting, transporting, transferring, harboring, receiving, providing, obtaining, isolating, maintaining or enticing an individual to engage in debt bondage, forced labor or sexual servitude.

(7) “Identification document” means a passport, driver’s license, immigration document, travel document or other government-issued identification document, including a document issued by a foreign government.

(8) “Labor or services” means activity having economic value.

(9) “Minor” means an individual less than eighteen years of age.

(10) “Patronize” means giving, agreeing to give or offering to give anything of value to another person in exchange for commercial sexual activity.

(11) “Person” means an individual, estate, business or nonprofit entity, or other legal entity. The term does not include a public corporation or government or governmental subdivision, agency or instrumentality.

(12) “Serious harm” means harm, whether physical or nonphysical, including psychological, economic or reputational, to an individual which would compel a reasonable individual of the same background and in the same circumstances to perform or continue to perform labor or services or sexual activity to avoid incurring the harm.

(13) “Sexual activity” means sexual contact, sexual intercourse or sexual intrusion, as defined in section one, article eight-b of this chapter, or sexually explicit conduct, as defined in section one, article eight-c of this chapter.

(14) “Sexual servitude” means:

(A) Maintaining or making available a minor for the purpose of engaging the minor in commercial sexual activity; or

(B) Using coercion to compel an adult to engage in commercial sexual activity.

(15) “Victim” means an individual who is subjected to human trafficking, regardless of whether a perpetrator is prosecuted or convicted.

§61-14-2. Human trafficking of an individual; penalties.

(a) Any person who knowingly and willfully traffics an adult is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than three nor more than fifteen years, fined not more than $200,000, or both imprisoned and fined.

(b) Any person who knowingly and willfully traffics a minor is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than five nor more than twenty years, fined not more than $300,000, or both imprisoned and fined.

§61-14-3. Use of forced labor; penalties.

(a) Any person who knowingly uses an adult in forced labor is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one nor more than five years, fined not more than $100,000, or both imprisoned and fined.

(b) Any person who knowingly uses a minor in forced labor is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than three nor more than fifteen years, fined not more than $300,000, or both imprisoned and fined.

§61-14-4. Use of persons in debt bondage; penalties.

(a) Any person who knowingly uses an adult in debt bondage is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one nor more than five years, fined not more than $100,000, or both imprisoned and fined.

(b) Any person who knowingly uses a minor in debt bondage is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than three nor more than fifteen years, fined not more than $300,000, or both imprisoned and fined.

§61-14-5. Sexual servitude; penalties.

(a) Any person who knowingly uses coercion to compel an adult to engage in commercial sexual activity is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than three nor more than fifteen years, fined not more than $200,000, or both imprisoned and fined.

(b) Any person who knowingly maintains or makes available a minor for the purpose of engaging the minor in commercial sexual activity is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than ten nor more than twenty years, fined not more than $300,000, or both imprisoned and fined.

(c) It is not a defense in a prosecution under subsection (b) of this section that the minor consented to engage in commercial sexual activity, or that the defendant believed the minor was an adult.

§61-14-6. Patronizing a victim of sexual servitude; penalties.

(a) Any person who knowingly patronizes another in commercial sexual activity and who knows that such person patronized is a victim of sexual servitude, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one nor more than five years, fined not more than $100,000, or both imprisoned and fined.

(b) Notwithstanding the provisions of subsection (a) of this section, any person who knowingly patronizes a minor to engage in commercial sexual activity and who knows or has reason to know that said minor is a victim of sexual servitude, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than three nor more than fifteen years, fined not more than $300,000, or both imprisoned and fined.

§61-14-7. General provisions and other penalties.

(a) Separate violations. — For purposes of this article, each adult or minor victim constitutes a separate offense.

(b) Aggravating circumstance. —

(1) Notwithstanding any provision of this code to the contrary, if an individual is convicted of an offense under this article and the trier of fact makes a finding that the offense involved an aggravating circumstance, the individual shall not be eligible for parole before serving three years in a state correctional facility.

(2) For purposes of this subsection, “aggravating circumstance” means the individual recruited, enticed or obtained the victim of the offense from a shelter or facility that serves runaway youths, children in foster care, the homeless or victims of human trafficking, domestic violence or sexual assault.

(1) The court shall order a person convicted of an offense under this article to pay restitution to the victim of the offense.

(2) A judgment order for restitution may be enforced by the state or a victim named in the order to receive the restitution in the same manner as a judgment in a civil action in accordance with section four, article eleven-a of this chapter, including filing a lien against the person, firm or corporation against whom restitution is ordered.

(3) The court shall order restitution under subdivision (1) of this subsection even if the victim is unavailable to accept payment of restitution.

(4) If the victim does not claim restitution ordered under subdivision (1) of this subsection within five years of the entry of the order, the restitution shall be paid to the Crime Victims Compensation Fund created under section four, article two-a, chapter fourteen of this code.

(d) Eligibility for Compensation Fund. — Notwithstanding the definition of victim in section three, article two-a, chapter fourteen of this code, a victim of any offense under this article is a victim for all purposes of article two-a, chapter fourteen of this code: Provided, That for purposes of subsection (b), section fourteen, article two-a, chapter fourteen of this code, if otherwise qualified, a victim of any offense under this article may not be denied eligibility solely for the failure to report to law enforcement within the designated time frame.

(e) Law Enforcement Notification. — Should a law-enforcement officer encounter a child who reasonably appears to be a victim of an offense under this article, the officer shall notify the Department of Health and Human Resources. If available, the Department of Health and Human Resources may notify the Domestic Violence Program serving the area where the child is found.

(f) Forfeiture; Debarment. —

(a) The following are declared to be contraband and no person shall have a property interest in them:

(1) All property which is directly or indirectly used or intended for use in any manner to facilitate a violation of this article; and

(2) Any property constituting or derived from gross profits or other proceeds obtained from a violation of this article.

(b) In any action under this section, the court may enter such restraining orders or take other appropriate action, including acceptance of performance bonds, in connection with any interest that is subject to forfeiture.

(c) Forfeiture actions under this section shall use the procedure set forth in article seven, chapter sixty-a of this code.

(d) Any person or business entity convicted of a violation of this article shall be debarred from state or local government contracts.

§61-14-8. Immunity for minor victim of sex trafficking.

(a) In a prosecution or a juvenile prosecution for an offense of prostitution in violation of subsection (b), section five, article eight of this chapter, a minor shall not be held criminally liable if the Court determines that the minor is a victim of an offense under this article: Provided, That subject to proof, a minor so charged shall be rebuttably presumed to be a victim under the provisions of this article.

(b) This section does not apply in a prosecution or a juvenile proceeding for any of the other offenses under subsection (b), section five, article eight of this chapter, including specifically soliciting, inducing, enticing or procuring another to commit an act or offense of prostitution, unless it is determined by the court that the minor was coerced into the criminal behavior.

(c) A minor who, under subsection (a) or (b) of this section, is not subject to criminal liability or adjudication as a juvenile delinquent is presumed to be an abused child, as defined in section two-hundred-one, article one, chapter forty-nine of this code, and may be eligible for services under chapter forty-nine of this code including, but not limited to, appropriate child welfare services.

§61-14-9. Petition to vacate and expunge conviction of sex trafficking victim.

(a) Notwithstanding the age and criminal history limitations set forth in section twenty-six, article eleven of this chapter, an individual convicted of prostitution in violation of subsection (b), section five, article eight of this chapter as a direct result of being a victim of trafficking, may apply by petition to the circuit court in the county of conviction to vacate the conviction and expunge the record of conviction. The court may grant the petition upon a finding that the individual’s participation in the offense was a direct result of being a victim of trafficking.

(b) A victim of trafficking seeking relief under this section is not required to complete any type of rehabilitation in order to obtain expungement.

(c) A petition filed under subsection (a) of this section, any hearing conducted on the petition, and any relief granted are subject to the procedural requirements of section twenty-six, article eleven of this chapter: Provided, That the age or criminal history limitations in that section are inapplicable to victims of human trafficking.

CHAPTER 62. CRIMINAL PROCEDURE.

ARTICLE 1D. WIRETAPPING AND ELECTRONIC SURVEILLANCE ACT.

§62-1D-8. County prosecuting attorney or duly appointed special prosecutor may apply for order authorizing interception.

The prosecuting attorney of any county or duly appointed special prosecutor may apply to one of the designated circuit judges referred to in section seven of this article and such judge, in accordance with the provisions of this article, may grant an order authorizing the interception of wire, oral or electronic communications by an officer of the investigative or law-enforcement agency when the prosecuting attorney or special prosecutor has shown reasonable cause to believe the interception would provide evidence of the commission of: (i) Kidnapping or abduction as defined and prohibited by the provisions of sections fourteen and fourteen-a, article two, chapter sixty-one of this code and including threats to kidnap or demand ransom as defined and prohibited by the provisions of section fourteen-c of said article two or; (ii) of any offense included and prohibited by section eleven, article four, chapter twenty-five of said code, sections eight, nine and ten, article five, chapter sixty-one of said code or section one, article eight, chapter sixty-two of said code to the extent that any of said sections provide for offenses punishable as a felony or; (iii) dealing, transferring or trafficking in any controlled substance or substances in the felonious violation of chapter sixty-a of this code; or (iv) of any offense included and prohibited by article fourteen, chapter sixty-one of this code; or (v) any aider or abettor to any of the foregoing offenses or any conspiracy to commit any of the foregoing offenses if any aider, abettor or conspirator is a party to the communication to be intercepted.

The bill (Eng. Com. Sub. for H. B. 2318), as amended, was then ordered to third reading.

The Senate proceeded to the tenth order of business.

The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:

Senate Bill 198, Expanding Health Sciences Program to allow certain medical practitioners in underserved areas.

Com. Sub. for Senate Bill 280, Moving administration of Civil Air Patrol to Adjutant General.

Com. Sub. for Senate Bill 338, Relating to medical professional liability.

And,

Com. Sub. for Senate Bill 358, Relating generally to trustee sale of timeshare estates.

The Senate proceeded to the eleventh order of business and the introduction of guests.

The Senate then proceeded to the thirteenth order of business.

At the request of Senator Blair, unanimous consent being granted, it was ordered that the Journal show had Senator Blair been present in the chamber on Tuesday, February 28, 2017, he would have voted “yea” on the passage of Engrossed Committee Substitute for Senate Bill 125, Engrossed Committee Substitute for Senate Bill 214, Engrossed Senate Bill 321 and Engrossed Senate Bill 426; and on Wednesday, March 1, 2017, he would have voted “yea” on the passage of Engrossed Committee Substitute for Senate Bill 5, Engrossed Committee Substitute for Senate Bill 9, Engrossed Committee Substitute for Senate Bill 180, Engrossed Committee Substitute for Senate Bill 225, Engrossed Committee Substitute for Senate Bill 261, Engrossed Committee Substitute for Senate Bill 337, Engrossed Committee Substitute for Committee Substitute for Senate Bill 345, Engrossed Senate Bill 346 and Engrossed Committee Substitute for Senate Bill 347.

At the request of Senator Swope, the name of Senator Swope was removed as a sponsor of Senate Bill 435 (Relating to Youth Mental Health Protection Act).

At the request of Senator Azinger, the name of Senator Azinger was removed as a sponsor of Senate Bill 518 (Creating Returning Veterans and Displaced Miners Job Act).

On motion of Senator Ferns, a leave of absence for the day was granted Senator Maroney.

Pending announcement of meetings of standing committees of the Senate,

On motion of Senator Ferns, the Senate adjourned until tomorrow, Tuesday, March 7, 2017, at 11 a.m.

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