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Senate Journal



Day 014 (Part 8-)
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WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

EIGHTY-FIRST LEGISLATURE

REGULAR SESSION, 2014

TWENTIETH DAY

____________

Charleston, W. Va., Monday, January 27, 2014

    The Senate met at 1:30 p.m.

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

    Prayer was offered by Minister Donnie Chapman, Dunbar Church of Christ, Dunbar, West Virginia.

    Pending the reading of the Journal of Friday, January 24, 2014,

    On motion of Senator Green, the Journal was approved and the further reading thereof dispensed with.

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

    The Senate then proceeded to the third order of business.

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

    Eng. Com. Sub. for House Bill No. 2020--A Bill to amend and reenact §62-1C-17c of the Code of West Virginia, 1931, as amended, relating to conditions of bond for defendants in cases of crimes between family or household members generally; and setting forth certain specific statutory conditions in lieu of allowing the issuing authority to set conditions of bail.

    Referred to the Committee on the Judiciary.

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

    Eng. House Bill No. 2477--A Bill to amend and reenact §17C-15-23 of the Code of West Virginia, 1931, as amended, relating to permitting certain auxiliary lighting on motorcycles.

    Referred to the Committee on the Judiciary.

    The Senate proceeded to the sixth order of business.

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

    By Senators Plymale, Kessler (Mr. President), Kirkendoll, Prezioso, Stollings, Edgell, Beach, Fitzsimmons, D. Hall, Williams, Yost and Wells:

    Senate Bill No. 432--A Bill to amend and reenact §11-1C-5b of the Code of West Virginia, 1931, as amended; and to amend and reenact §18-9A-2, §18-9A-2a and §18-9A-11 of said code, all relating to calculating local share; changing the deadline for Tax Commissioner to report the total assessed values to the State Board of Education; delaying use of assessment ratio study for calculating local share until the second consecutive year, and consecutive years thereafter, that assessments are below sixty percent of market value including the ten-percent variance; creating assumption that all property in a county is assessed at sixty percent for the purpose of determining whether to use the sales ratio analysis in the calculation of local share when a valid sales ratio analysis cannot be obtained due to a lack of arm’s-length sales of property in a county; allowing Tax Commissioner to waive the use of the sales ratio analysis for calculating local share upon a showing by the assessor of that county that the preliminary sales ratio for the next succeeding year would meet the minimum ratio; delaying the increase in the percent of local levy rate for county boards of education used for calculating local share until the second consecutive year, and consecutive years thereafter, that assessments are below sixty percent of market value including the ten-percent variance; and requiring the state to use the most recent projections or estimations that may be available from the Tax Department for any estimation or preliminary computations of local share required prior to the report to the state board by the Tax Commissioner.

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

    By Senators Nohe and Tucker:

    Senate Bill No. 433--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §11-15-9o, relating to exempting sales of precious metals from the sales tax under certain conditions.

    Referred to the Committee on Finance.

    By Senator Beach:

    Senate Bill No. 434--A Bill to amend and reenact §17C-5A-3a of the Code of West Virginia, 1931, as amended, relating to the establishment of and participation in the Motor Vehicle Alcohol Test and Lock Program; allowing DUI offenders to forgo the applicable revocation period for their offense and waive the right to their administrative hearing to expedite participation in the program; and making technical and descriptive corrections to this section of the code.

    Referred to the Committee on Transportation and Infrastructure; and then to the Committee on the Judiciary.

    By Senators Palumbo, Kessler (Mr. President) and Beach:

    Senate Bill No. 435--A Bill to amend and reenact §61-7-14 of the Code of West Virginia, 1931, as amended, relating to correcting an incorrect code reference resulting from a recent amendment to said code requiring certain court personnel to complete certain handgun safety and training requirements before carrying a concealed handgun.

    Referred to the Committee on the Judiciary.

    By Senators Laird, M. Hall, Miller, Plymale and Stollings:

    Senate Bill No. 436--A Bill to amend and reenact §6-7-2a of the Code of West Virginia, 1931, as amended; and to amend and reenact §7-4-6 of said code, all relating to providing that the salary of the Executive Director of the West Virginia Prosecuting Attorneys Institute shall be established by the executive council of the institute, with a minimum salary of $70,000.

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

    By Senators Tucker, McCabe, Palumbo and Plymale:

    Senate Bill No. 437--A Bill to amend and reenact §31-17-11 of the Code of West Virginia, 1931, as amended, relating to the filing of reports, data and other information deemed necessary by the Commissioner of Financial Institutions with the Division of Financial Institutions; permitting the commissioner to determine when those reports, data or information are filed; and providing that in addition to the reports not being public records, the filed data and information are also not public records.

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

    By Senators Tucker, McCabe, Palumbo and Plymale:

    Senate Bill No. 438--A Bill to amend and reenact §32A-2-1, §32A-2-3, §32A-2-4, §32A-2-5, §32A-2-8, §32A-2-10, §32A-2-11, §32A-2-13, §32A-2-18, §32A-2-19, §32A-2-22 and §32A-2-27 of the Code of West Virginia, 1931, as amended, all relating to definitions for “commissioner”, “currency transmission” and “money transmission”; providing an exemption from licensing for the State Regulatory Registry, LLC; providing that the authorized delegate of a licensee may only conduct business on behalf of the licensee and may not have subdelegates; authorizing the commissioner to require use of the Nationwide Mortgage Licensing System and Registry for license applications and renewals; reducing the renewal fee for a delegate from $20 to $5; adding an assessment of $.001 for every dollar of transmission services provided in the prior year; raising the cap on fees to $25,000; correcting citations to federal regulations and laws; requiring that tangible net worth be required of licensees; eliminating the need for a delegate to be located in this state; amending the bond required of licensees by replacing the increase for each delegate location with the ability to increase the bond by one percent of the annual volume of business in this state exceeding $10 million while retaining the existing bond cap of $1 million; eliminating the ability to provide a cash deposit or pledge of securities in lieu of a surety bond while allowing for the continuation of any cash deposit or pledge in existence prior to April 1, 2014; eliminating the charge of $50 per hour of examination time; requiring a licensee to report to the commissioner any enforcement action taken against the licensee by another state or federal regulator and any change in the licencee’s business activities or principals; authorizing the commissioner to assess an administrative penalty of up to $5,000 for a violation of this article and providing that in the case of a continuing violation a penalty may be assessed for each day the violation continues and that any penalty imposed is subject to appeal and judicial review under chapter twenty-nine-a, article five of this code; authorizing the commissioner to issue a cease-and-desist order for any violation of federal law or regulation pertaining to the business of currency exchange, money transportation or transmission or check cashing.

    Referred to the Committee on Banking and Insurance; and then to the Committee on Government Organization.

    By Senators Fitzsimmons, Kessler (Mr. President), Beach, Edgell and Yost:

    Senate Bill No. 439--A Bill to amend and reenact §7-22-9 of the Code of West Virginia, 1931, as amended, relating to permitting the Ohio County Commission to levy a special district excise tax; and increasing the Fort Henry economic opportunity development project district from three hundred to five hundred contiguous acres of land.

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

    Senators Prezioso, Plymale, Edgell, Unger, Stollings, Laird, Kessler (Mr. President), Snyder, Jenkins, McCabe, Beach, Fitzsimmons and D. Hall offered the following resolution:

    Senate Concurrent Resolution No. 18--Recognizing that any additional cuts to the funding for higher education institutions would be detrimental to the growth and the financial wellbeing of West Virginia.

    Whereas, Tuition rates have risen five to ten percent each year, both within the state and nationwide; and

    Whereas, Future cuts to higher education would perpetuate the perplexing problem of tuition rate increases, making higher education less accessible to West Virginia students; and

    Whereas, Retention rates among West Virginia higher education institutions are falling, and higher tuition rates will continue the downward trend of students not completing their two-year and four-year degrees; and

    Whereas, Textbook prices have risen threefold the rate of inflation since 1960; and

    Whereas, Last year’s seven and one-half percent cuts created fiscal hurdles for West Virginia higher education institutions during a time of economic instability; and

    Whereas, West Virginia’s higher education institutions give a substantial return on investment for every dollar spent; therefore, be it

    Resolved by the Legislature of West Virginia:

    That the Legislature hereby recognizes that any additional cuts to the funding for higher education institutions would be detrimental to the growth and the financial wellbeing of West Virginia; and, be it

    Further Resolved, That budgetary cuts to higher education in West Virginia will not help the serious economic and educational issues that face the state, nor would cuts allow an optimal return on investment; and, be it

    Further Resolved, That to achieve a modern and robust economy, educational investment must be a priority; and, be it

    Further Resolved, That maintaining reasonable tuition rates that are directly correlated to the retention rates among students in higher education institutions will result in significant economic benefits; and, be it

    Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Governor of West Virginia.

    Which, under the rules, lies over one day.

    Senators Green, D. Hall, Laird, Miller, Tucker, Yost, Wells, Stollings, Jenkins and Carmichael offered the following resolution:

    Senate Resolution No. 9--Urging construction of a 120-bed state veterans’ nursing home on the Department of Agriculture property in Beckley, West Virginia, adjacent to the state-owned Jackie Withrow Hospital, formerly known as Pinecrest Hospital.

    Whereas, The West Virginia Veterans Coalition was established in 1996 to bring the veterans’ service organizations together to present issues concerning the 220,000 veterans residing in the State of West Virginia to the Governor and the Legislature; and

    Whereas, The West Virginia Veterans Coalition established a prioritized list of issues to be addressed and their top priority is the construction of a 120-bed state veterans’ nursing home on the Department of Agriculture property in Beckley beside the state Jackie Withrow Hospital, formerly known as Pinecrest Hospital; and

    Whereas, The current West Virginia veterans’ nursing home located in Clarksburg, adjacent to the Louis A. Johnson Veterans’ Administration Medical Center, is currently at its maximum capacity and has a large waiting list for admission; and

    Whereas, With a veteran population of over 220,000 there is an overwhelming need for additional nursing home beds to accommodate our veterans as they become unable to take care of themselves; and

    Whereas, The current number of veterans in the Beckley Veterans Administration Medical Center catchment area is in excess of 39,000 veterans and the Beckley VAMC only has fifty extended care rehabilitation care (ECRC) beds; and

    Whereas, The construction of the West Virginia veterans’ nursing home in Clarksburg gave our veterans in that area an outstanding place to spend their final years with fellow veterans, and veterans have the same need in the Beckley area; and

    Whereas, The veterans of West Virginia should be treated with dignity and respect and be allowed to spend their final days with fellow veterans in a facility which reflects our state's appreciation for their service and sacrifices; therefore, be it

    Resolved by the Senate:

    That the Senate hereby urges construction of a 120-bed state veterans nursing home on the Department of Agriculture property in Beckley, West Virginia, adjacent to the state-owned Jackie Withrow Hospital, formerly known as Pinecrest Hospital; and, be it

    Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the West Virginia Veterans Coalition, the Governor of West Virginia and the Secretary of the West Virginia Department of Veterans’ Assistance.

    Which, under the rules, lies over one day.

    Senators Unger, Kessler (Mr. President), Plymale, Snyder, Stollings and Beach offered the following resolution:

    Senate Resolution No. 10--Recognizing Leadership Berkeley for its service, dedication and commitment to Berkeley County.

    Whereas, The objective of Leadership Berkeley is to promote knowledge and awareness of the problems, opportunities and issues facing Berkeley County; and

    Whereas, Leadership Berkeley is designed to provide a series of educational and participatory experiences, as well as an opportunity for dialogue and the development of a correlation among participants in order to encourage local participation in the growth of Berkeley County; and

    Whereas, The membership of Leadership Berkeley includes individuals from nearly every facet of Berkeley County’s business, professional, religious, governmental, educational, civic, the arts, organized labor and minority organizations who demonstrate a commitment to the community; and

    Whereas, The 2014 membership of Leadership Berkeley consists of Catherine E. Barton, United Bank; Stephanie Clark; Bruce M. Avery, Jr., CPA; Robin A. Collo, Bank of Charles Town; Kylee L. Eshbaugh, Kelley Allstate Agency; Kimberly A. Foore, WVU Online; Ian B. Gingold; Sam W. Gudex, VA Medical Center; Felicia L. Harmison, VA Medical Center; Oren Hilty, Berkeley Medical Center; Lesley Hower, Essroc; Gina M. Hudock, Williamsport Retirement Village; Cynthia K. Hull, Blue Ridge Community and Technical College; William Igoe III, Farmers and Mechanics Insurance Cos.; Keisha N. Jackson, Steptoe & Johnson PLLC; Sara R. Koontz, Shenandoah Community Health; Michael D. McCarty, Historic McFarland House; Carol L. McDonald, Ecolab; Dana W. Phelps, Martinsburg-Berkeley County Public Library-North Berkeley Branch; Julia E. Quodala, Berkeley County Fire Service Board, Inc.; Karen A. Richards, CNB Bank, Inc.; Tracey A. Rohrbaugh, Bowles Rice LLP; Amanda B. Ryder, BB&T; Sean D. Speer, MVB Bank; Rebecca S. Thompson, Ecolab; Mary E. Zufall, Valley Health System; Tina H. Combs, Martinsburg-Berkeley County Chamber of Commerce; and Todd McKinney, Outdoor Education Center; therefore, be it

    Resolved by the Senate:

    That the Senate hereby recognizes Leadership Berkeley for its service, dedication and commitment to Berkeley County; and, be it

    Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the appropriate officials of Leadership Berkeley.

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

    On motion of Senator Unger, the Senate recessed for one minute.

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

    Senate Concurrent Resolution No. 16, Urging Congress revise Biggert-Waters Flood Insurance Reform Act of 2012.

    On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Banking and Insurance.

    Senate Concurrent Resolution No. 17, Requesting DOH name bridge in Greenbrier County, "Sgt. James Lee Holcomb Memorial Bridge".

    On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Transportation and Infrastructure.

    The Senate proceeded to the eighth order of business.

    Eng. Com. Sub. for Senate Bill No. 12, Relating to expedited partner therapy treatment.

    On third reading, coming up in regular order, was reported by the Clerk.

    At the request of Senator Unger, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar.

    Eng. Senate Bill No. 208, Relating to Rural Health Initiative Act.

    On third reading, coming up in regular order, was reported by the Clerk.

    At the request of Senator Unger, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar.

    Eng. Senate Bill No. 209, Allowing special needs students to participate in graduation ceremonies.

    On third reading, coming up in regular order, was reported by the Clerk.

    At the request of Senator Unger, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar.

    Eng. Com. Sub. for Senate Bill No. 310, Adjusting penalties for willful failure to pay child support.

    On third reading, coming up in regular order, was reported by the Clerk.

    At the request of Senator Unger, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar.

    Eng. Com. Sub. for Senate Bill No. 316, Relating to tolling with regard to civil actions.

    On third reading, coming up in regular order, was reported by the Clerk.

    At the request of Senator Unger, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar.

    Eng. Senate Bill No. 359, Removing hand canvassing requirements of electronic voting machines.

    On third reading, coming up in regular order, was reported by the Clerk.

    At the request of Senator Unger, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar.

    The Senate proceeded to the ninth order of business.

    Com. Sub. for Senate Bill No. 196, Authorizing Division of Rehabilitation Services promulgate legislative rule relating to Ron Yost Personal Assistance Services Act Board.

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

    Senate Bill No. 251, Implementing terms of Uniform Arbitration Act.

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

    Senate Bill No. 341, Making supplementary appropriation from State Excess Lottery Revenue Fund to Division of Human Services.

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

    Com. Sub. for Com. Sub. for Senate Bill No. 373, Relating to water resources protection.

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

    On motion of Senator Prezioso, the following amendments to the bill were reported by the Clerk, considered simultaneously, and adopted:

    On pages thirty-nine and forty, section thirteen, by striking out all of subsection (a) and inserting in lieu thereof a new subsection, designated subsection (a), to read as follows:

    (a) The secretary shall collect annual registration fees from owners or operators of each aboveground storage tank in an amount sufficient to cover the regulatory oversight and services to be provided by designated agencies, including necessary technical and administrative personnel, as set forth by rule. All registration and permit fees and the net proceeds of all fines, penalties and forfeitures collected under this article, including accrued interest, shall be paid into a special revenue account, hereby created within the State Treasury, designated the Aboveground Storage Tank Administrative Fund, and shall be used solely to defray the cost of administering this act.;

    And,

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

    (a) Each owner or operator of an aboveground storage tank located in this state shall pay an annual fee to establish a fund to assure adequate response to leaking aboveground storage tanks. The amount of fees assessed pursuant to this section shall be set forth by rule. The fees must be sufficient to cover the regulatory oversight and services to be provided by designated agencies, including necessary technical and administrative personnel. The proceeds of the assessment shall be paid into a special revenue account, hereby created within the State Treasury, designated the Leaking Aboveground Storage Tank Response Fund, and shall be used solely to respond to leaking aboveground storage tanks.

    On motion of Senator Palumbo, the following amendments to the bill (Com. Sub. for Com. Sub. for S. B. No. 373) were next reported by the Clerk, considered simultaneously, and adopted:

    On page twenty-five, section three, line four, by striking out the word “and”;

    On page twenty-five, section three, by striking out all of subdivision (19) and inserting in lieu thereof two new subdivisions, designated subdivisions (19) and (20), to read as follows:

    (19) Tanks regulated under section 1321 of the federal Water Pollution Control Act (section 311 of the federal Clean Water Act) and the regulations promulgated thereunder, 40 C. F. R. §112, et seq.; and

    (20) Tanks used for the storage of fluids that are gases at standard temperature and pressure.;

    On page twenty-seven, section five, lines fourteen and fifteen, by striking out the words “during the 2014 Regular Session of the 81st Legislature”;

    On page thirty-three, section nine, lines twenty-one and twenty-two, by striking out the words “water resources and” and inserting in lieu thereof the words “safety, water resources or”;

    On page thirty-six, section ten, line five, by striking out the words “contain, at a minimum, the following” and inserting in lieu thereof the words “at a minimum”;

    On page thirty-seven, section ten, line nine, by striking out the word “Pertinent” and inserting in lieu thereof the word “Provide”;

    On page thirty-seven, section ten, line fourteen, by striking out the words “The owner or operator shall provide” and inserting in lieu thereof the word “Provide”;

    On page thirty-eight, section ten, line twenty-two, by striking out the comma and “1-800-642-3074”;

    On page forty-one, section fourteen, line thirteen, after the word “health,” by inserting the word “safety,”;

    On pages forty-two and forty-three, section sixteen, by striking out all of subsection (a) and inserting in lieu thereof a new subsection, designated subsection (a), to read as follows:

    (a) For the purposes of developing or assisting in the development of any rule, conducting any study, taking any corrective action or enforcing any provision of this article, any owner or operator of an aboveground storage tank shall, upon request of the secretary:

    (1) Furnish information relating to the aboveground storage tanks, their associated equipment and contents;

    (2) Conduct reasonable monitoring or testing;

    (3) Permit the secretary, at all reasonable times, to inspect and copy records relating to aboveground storage tanks; and

    (4) Permit the secretary to have access to the aboveground storage tanks for corrective action.;

    On page forty-three, section sixteen, line thirteen, by striking out the word “act” and inserting in lieu thereof the word “article”;

    On page forty-three, section sixteen, line twenty-five, by striking out the word “act” and inserting in lieu thereof the word “article”;

    On page forty-six, section twenty, line eight, after the word “unless” by inserting the word “the”; 

    On page forty-six, section twenty-one, line twenty-three, by striking out the word “specific” and inserting in lieu thereof the word “detailed”;

    On page forty-eight, section twenty-three, line eight, after the word “health,” by inserting the word “safety,”; 

    On page forty-eight, section twenty-three, line ten, by striking out the words “public health” and inserting in lieu thereof the words “human health, safety,”;

    On page forty-eight, section twenty-three, line fifteen, after the word “health,” by inserting the word “safety,”;

    On page forty-nine, section twenty-four, line five, by striking out the words “Within ninety days of the effective date of this article” and inserting in lieu thereof the words “By July 1, 2015”;

    On page fifty, section twenty-four, by striking out all of subsection (d), and inserting in lieu thereof a new subsection, designated subsection (d), to read as follows:

    (d) The Secretary of the Department of Health and Human Resources shall accept a plan submitted pursuant to this section and provide a copy to the secretary. Thereafter, within ninety days, the secretary and the Secretary of the Department of Health and Human Resources may reject the plan and require modifications as may be necessary and reasonable to satisfy the purposes of this article. Failure by a public water system to comply with a plan approved pursuant to this section is a violation of this article.;

    On page fifty, section twenty-four, by striking out all of subsection (g);

    And,

    On page fifty-one, section twenty-five, line one, by striking out the word “propose” and inserting in lieu thereof the word “promulgate”.

    The bill (Com. Sub. for Com. Sub. for S. B. No. 373), as amended, was then ordered to engrossment and third reading.

    The Senate proceeded to the tenth order of business.

    Senate Bill No. 394, Redesignating Health Sciences Scholarship Program as Health Sciences Service Program.

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

    Pending announcement of meetings of standing committees of the Senate,

    On motion of Senator Unger, the Senate adjourned until tomorrow, Tuesday, January 28, 2014, at 11 a.m.

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