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SB515 SUB1 Senate Bill 515 History

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SB515 SUB1
COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 515

(By Senators Kessler and Barnes)

____________

[Originating in the Committee on the Judiciary;

reported February 19, 2010.]

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A BILL to amend and reenact §61-7-2, §61-7-4, §61-7-6, §61-7-7 and §61-7-10 of the Code of West Virginia, 1931, as amended, all relating to firearms and licensing thereof generally; authorizing magistrates to carry a concealed handgun without a license; clarifying the requirements for a criminal background check; making July 10, 2010, the effective date of amendments made during the 2010 Regular Session of the West Virginia Legislature; allowing a West Virginia licensee who changes county residence to obtain a new license; prohibiting the purchase or attempt to purchase a firearm from a firearm dealer by certain persons; increasing fines for certain offenses; prohibiting and punishing a person other than a law- enforcement officer who knowingly solicits, persuades, encourages or entices a firearm or ammunition dealer or private seller to violate firearm sales laws; providing definitions; and conforming certain definitions to federal law.

Be it enacted by the Legislature of West Virginia:
That §61-7-2
, §61-7-4, §61-7-6, §61-7-7 and §61-7-10 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-2. Definitions.
As used in this article, unless the context otherwise requires:
(1) "Blackjack" means a short bludgeon consisting, at the striking end, of an encased piece of lead or some other heavy substance and, at the handle end, a strap or springy shaft which increases the force of impact when a person or object is struck. The term "blackjack" shall include, but not be limited to, a billy, billy club, sand club, sandbag or slapjack.
(2) "Gravity knife" means any knife that has a blade released from the handle by the force of gravity or the application of centrifugal force and when so released is locked in place by means of a button, spring, lever or other locking or catching device.
(3) "Knife" means an instrument, intended to be used or readily adaptable to be used as a weapon, consisting of a sharp- edged or sharp-pointed blade, usually made of steel, attached to a handle which is capable of inflicting cutting, stabbing or tearing wounds. The term "knife" shall include, but not be limited to, any dagger, dirk, poniard or stiletto, with a blade over three and one- half inches in length, any switchblade knife or gravity knife and any other instrument capable of inflicting cutting, stabbing or tearing wounds. A pocket knife with a blade three and one-half inches or less in length, a hunting or fishing knife carried for hunting, fishing, sports or other recreational uses, or a knife designed for use as a tool or household implement shall not be included within the term "knife" as defined herein unless such knife is knowingly used or intended to be used to produce serious bodily injury or death.
(4) "Switchblade knife" means any knife having a spring- operated blade which opens automatically upon pressure being applied to a button, catch or other releasing device in its handle.
(5) "Nunchuka" means a flailing instrument consisting of two or more rigid parts, connected by a chain, cable, rope or other nonrigid, flexible or springy material, constructed in such a manner as to allow the rigid parts to swing freely so that one rigid part may be used as a handle and the other rigid part may be used as the striking end.
(6) "Metallic or false knuckles" means a set of finger rings attached to a transverse piece to be worn over the front of the hand for use as a weapon and constructed in such a manner that, when striking another person with the fist or closed hand, considerable physical damage may be inflicted upon the person struck. The terms "metallic or false knuckles" shall include any such instrument without reference to the metal or other substance or substances from which the metallic or false knuckles are made.
(7) "Pistol" means a short firearm having a chamber which is integral with the barrel, designed to be aimed and fired by the use of a single hand.
(8) "Revolver" means a short firearm having a cylinder of several chambers that are brought successively into line with the barrel to be discharged, designed to be aimed and fired by the use of a single hand.
(9) "Deadly weapon" means an instrument which is designed to be used to produce serious bodily injury or death or is readily adaptable to such use. The term "deadly weapon" shall includes, but is not limited to, the instruments defined in subdivisions (1) through (8), inclusive, of this section a firearm, blackjack, nunchuka, metallic or false knuckles, knife or other deadly weapons of like kind or character which may be easily concealed on or about the person. For the purposes of section one-a, article five, chapter eighteen-a and section eleven-a, article seven of this chapter, in addition to the definition of "knife" set forth in subdivision (3) of this section, the term "deadly weapon" also includes any instrument included within the definition of "knife" with a blade of three and one-half inches or less in length. Additionally, for the purposes of section one-a, article five, chapter eighteen-a and section eleven-a, article seven of this chapter, the term "deadly weapon" includes explosive, chemical, biological and radiological materials. Notwithstanding any other provision of this section, the term "deadly weapon" does not include any item or material owned by the school or county board, intended for curricular use, and used by the student at the time of the alleged offense solely for curricular purposes.
(10) "Concealed" means hidden from ordinary observation so as to prevent disclosure or recognition. A deadly weapon is concealed when it is carried on or about the person in such a manner that another person in the ordinary course of events would not be placed on notice that the deadly weapon was being carried.
(11) "Firearm" means:
(A) Any weapon, including a starter pistol, which will expel a projectile by action of an explosion;
(B) Except that an antique firearm, as defined in this section, may not be considered a firearm for purposes of this article.
(12) "Antique firearm" means:
(A) Any firearm with a matchlock, flintlock, percussion cap or similar type of ignition system manufactured in or before 1898; or
(B) Any replica of any firearm described in paragraph (A) of this subdivision if such replica:
(i) Is not designed or redesigned for using rimfire or conventional fixed ammunition, or
(ii) Uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or
(C) Any muzzle loading rifle, muzzle loading shotgun or muzzle loading pistol, which is designed to use black powder or a black powder substitute, and which cannot use fixed ammunition. However, an antique firearm may not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock or any combination thereof.
(12) (13) "Controlled substance" has the same meaning as is ascribed to that term in section one hundred one, article one, chapter sixty-a (d).
(13) (14) "Drug" has the same meaning as is ascribed to that term in subsection (1) section one, article one hundred one, chapter sixty-a.
(15) "Ammunition" means ammunition or cartridge cases, primers, bullets or propellant powder designed for use in any firearm.
(16) "Crime punishable by imprisonment for a term exceeding one year" does not include:
(A) Any federal or state offenses pertaining to antitrust violations, unfair trade practices, restraints of trade or other similar offenses relating to the regulation of business practices; or
(B) Any state offense classified by the laws of the state as a misdemeanor and, punishable by a term of imprisonment of two years or less.
(17)(A) Except as otherwise provided in this subdivision, "misdemeanor crime of domestic violence" means an offense that:
(i) Is a misdemeanor under federal or state law; and
(ii) Has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian or by a person similarly situated to a spouse, parent, or guardian of the victim.
(B) A person is not considered to have been convicted of an offense for purposes of this article, unless:
(i) The person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and
(ii) In the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either:
(I) The case was tried by a jury, or
(II) The person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.

§61-7-4. License to carry deadly weapons; how obtained.
(a) Except as provided in subsection (h) of this section, any person desiring to obtain a state license to carry a concealed deadly weapon shall apply to the sheriff of his or her county for the license, and shall pay to the sheriff, at the time of application, a fee of $75, of which $15 of that amount shall be deposited in the Courthouse Facilities Improvement Fund created by section six, article twenty-six, chapter twenty-nine of this code. Concealed weapons permits may only be issued for pistols or revolvers. Each applicant shall file with the sheriff, a complete application, as prepared by the Superintendent of the West Virginia State Police, in writing, duly verified, which sets forth only the following licensing requirements:
(1) The applicant's full name, date of birth, social security number and a description of the applicant's physical features;
(2) That, on the date the application is made, the applicant is a bona fide resident of this state and of the county in which the application is made and has a valid driver's license or other state-issued photo identification showing the residence;
(3) That the applicant is twenty-one years of age or older: Provided, That any individual who is less than twenty-one years of age and possesses a properly issued concealed weapons license as of the effective date of this article shall be licensed to maintain his or her concealed weapons license notwithstanding the provisions of this section requiring new applicants to be at least twenty-one years of age: Provided, however, That upon a showing of any applicant who is eighteen years of age or older that he or she is required to carry a concealed weapon as a condition for employment, and presents satisfactory proof to the sheriff thereof, then he or she shall be issued a license upon meeting all other conditions of this section. Upon discontinuance of employment that requires the concealed weapons license, if the individual issued the license is not yet twenty-one years of age, then the individual issued the license is no longer eligible and must return his or her license to the issuing sheriff;
(4) That the applicant is not addicted to alcohol, a controlled substance or a drug and is not an unlawful user thereof;
(5) That the applicant has not been convicted of a felony or of an act of violence involving the misuse of a deadly weapon;
(6) That the applicant has not been convicted of a misdemeanor crime of domestic violence
offense of assault or battery either under the provisions of section twenty-eight, article two of this chapter or the provisions of subsection (b) or (c), section nine, article two of this chapter in which the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense; or a misdemeanor offense with similar essential elements in a jurisdiction other than this state;
(7) That the applicant is not under indictment for a felony offense or is not currently serving a sentence of confinement, parole, probation or other court-ordered supervision imposed by a court of any jurisdiction or is the subject of an emergency or temporary domestic violence protective order or is the subject of a final domestic violence protective order entered by a court of any jurisdiction;
(8) That the applicant is physically and mentally competent to carry the weapon;
(9) That the applicant has not been adjudicated to be mentally incompetent;
(10) That the applicant has qualified under the minimum requirements set forth in subsection (d) of this section for handling and firing the weapon: Provided, That this requirement shall be waived in the case of a renewal applicant who has previously qualified;
(11) That the applicant authorizes the sheriff of the county, or his or her designee, to conduct an investigation relative to the information contained in the application.
(b) The sheriff shall conduct an investigation including a nationwide criminal background check, in order to verify that the information required in subdivisions (1), (2), (3), (5), (6), (8) and (9), subsection (a) of this section is true and correct. The criminal background check required by this subsection shall include the National Instant Criminal Background Check, the Interstate Identification Index and the West Virginia State Police Criminal Investigation Bureau Background Check.
(c) Sixty dollars $60 of the application fee and any fees for replacement of lost or stolen licenses received by the sheriff shall be deposited by the sheriff into a concealed weapons license administration fund. The fund shall be administered by the sheriff and shall take the form of an interest bearing account with any interest earned to be compounded to the fund. Any funds deposited in this concealed weapon license administration fund are to be expended by the sheriff to pay for the costs associated with issuing concealed weapons licenses. Any surplus in the fund on hand at the end of each fiscal year may be expended for other law-enforcement purposes or operating needs of the sheriff's office, as the sheriff may consider appropriate.
(d) All persons applying for a license must complete a training course in handling and firing a handgun. The successful completion of any of the following courses fulfills this training requirement:
(1) Any A official National Rifle Association handgun safety or training course;
(2) Any A handgun safety or training course or class available to the general public offered by an official law-enforcement organization, community college, junior college, college or private or public institution or organization or handgun training school utilizing instructors duly certified by the institution;
(3) Any A handgun training or safety course or class conducted by a handgun instructor certified as such by the state or by the National Rifle Association;
(4) Any A handgun training or safety course or class conducted by any branch of the United States Military, Reserve or National Guard.
A photocopy of a certificate of completion of any of the courses or classes or an affidavit from the instructor, school, club, organization or group that conducted or taught said course or class attesting to the successful completion of the course or class by the applicant or a copy of any document which shows successful completion of the course or class shall constitute evidence of qualification under this section.
(e) All concealed weapons license applications must be notarized by a notary public duly licensed under article four, chapter twenty-nine of this code. Falsification of any portion of the application constitutes false swearing and is punishable under the provisions of section two, article five, chapter sixty-one of this code.
(f) If the information in the application is found to be true and correct, the sheriff shall issue a license. The sheriff shall issue, reissue or deny the license within forty-five days after the application is filed if all required background checks authorized by this section are completed.
(g) Before any approved license shall be issued or become effective, the applicant shall pay to the sheriff a fee in the amount of $15 which the sheriff shall forward to the Superintendent of the West Virginia State Police within thirty days of receipt. The license shall be valid for five years throughout the state, unless sooner revoked.
(h) All persons holding a current and valid concealed weapons license as of December 16, 1995 the effective date of the amendments to this section enacted during the 2010 Regular Session of the West Virginia Legislature, shall continue to hold a valid concealed weapons license until his or her license expires or is revoked as provided in this article: Provided, That all reapplication fees shall be waived for applications received by January 1, 1997, for any person holding a current and valid concealed weapons license as of December 16, 1995, which contains use restrictions placed upon the license as a condition of issuance by the issuing circuit court. Any licenses reissued pursuant to this subsection will be issued for the time period of the original license.
(i) Each license shall contain the full name and address of the licensee and a space upon which the signature of the licensee shall be signed with pen and ink. The issuing sheriff shall sign and attach his or her seal to all license cards. The sheriff shall provide to each new licensee a duplicate license card, in size similar to other state identification cards and licenses, suitable for carrying in a wallet, and the license card is considered a license for the purposes of this section.
(j) The Superintendent of the West Virginia State Police shall prepare uniform applications for licenses and license cards showing that the license has been granted and shall do any other act required to be done to protect the state and see to the enforcement of this section.
(k) If an application is denied, the specific reasons for the denial shall be stated by the sheriff denying the application. Any person denied a license may file, in the circuit court of the county in which the application was made, a petition seeking review of the denial. The petition shall be filed within thirty days of the denial. The court shall then determine whether the applicant is entitled to the issuance of a license under the criteria set forth in this section. The applicant may be represented by counsel, but in no case may the court be required to appoint counsel for an applicant. The final order of the court shall include the court's findings of fact and conclusions of law. If the final order upholds the denial, the applicant may file an appeal in accordance with the Rules of Appellate Procedure of the Supreme Court of Appeals.
(l) If a license is lost or destroyed, the person to whom the license was issued may obtain a duplicate or substitute license for a fee of $5 by filing a notarized statement with the sheriff indicating that the license has been lost or destroyed.
(m) The sheriff shall, immediately after the license is granted as aforesaid, furnish the Superintendent of the West Virginia State Police a certified copy of the approved application. The sheriff shall furnish to the Superintendent of the West Virginia State Police at any time so requested a certified list of all licenses issued in the county. The Superintendent of the West Virginia State Police shall maintain a registry of all persons who have been issued concealed weapons licenses.
(n) All licensees must carry with them a state-issued photo identification card with the concealed weapons license whenever the licensee is carrying a concealed weapon. Any licensee who fails to have in his or her possession a state-issued photo identification card and a current concealed weapons license while carrying a concealed weapon is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 or more than $200 for each offense.
(o) The sheriff shall deny any application or revoke any existing license upon determination that any of the licensing application requirements established in this section have been violated by the licensee.
(p) A person who is engaged in the receipt, review or in the issuance or revocation of a concealed weapon license does not incur any civil liability as the result of the lawful performance of his or her duties under this article.
(q) Notwithstanding the provisions of subsection (a) of this section, with respect to application by a former law-enforcement officer honorably retired from agencies governed by article fourteen, chapter seven of this code; article fourteen, chapter eight of this code; article two, chapter fifteen of this code; and article seven, chapter twenty of this code, an honorably retired officer is exempt from payment of fees and costs as otherwise required by this section, and the application of the honorably retired officer shall be granted without proof or inquiry by the sheriff as to those requirements set forth in subdivision (9), subsection (a) of this section, if the officer meets the remainder of the requirements of this section and has the approval of the appropriate chief law-enforcement officer.
(r) Except as restricted or prohibited by the provisions of this article or as otherwise prohibited by law, the issuance of a concealed weapon permit issued in accordance with the provisions of this section authorizes the holder of the permit to carry a concealed pistol or revolver on the lands or waters of this state.
(s) A West Virginia licensee who changes his or her county of residence within the state during a license period may obtain a license reflecting his or her new address valid for the remaining period of licensure from the sheriff of his or her new county of residence for a fee of $5.
§61-7-6. Exceptions as to prohibitions against carrying concealed deadly weapons.

The licensure provisions set forth in this article do not apply to:
(1) Any person carrying a deadly weapon upon his or her own premises; nor shall anything herein prevent a person from carrying any firearm, unloaded, from the place of purchase to his or her home, residence or place of business or to a place of repair and back to his or her home, residence or place of business, nor shall anything herein prohibit a person from possessing a firearm while hunting in a lawful manner or while traveling from his or her home, residence or place of business to a hunting site and returning to his or her home, residence or place of business;
(2) Any person who is a member of a properly organized target-shooting club authorized by law to obtain firearms by purchase or requisition from this state or from the United States for the purpose of target practice from carrying any pistol, as defined in this article, unloaded, from his or her home, residence or place of business to a place of target practice and from any place of target practice back to his or her home, residence or place of business, for using any such weapon at a place of target practice in training and improving his or her skill in the use of the weapons;
(3) Any law-enforcement officer or law-enforcement official as defined in section one, article twenty-nine, chapter thirty of this code;
(4) Any employee of the West Virginia Division of Corrections duly appointed pursuant to the provisions of section five, article five, chapter twenty-eight of this code while the employee is on duty;
(5) Any member of the Armed Forces of the United States or the militia of this state while the member is on duty;
(6) Any circuit judge, including any retired circuit judge designated senior status by the Supreme Court of Appeals of West Virginia, magistrate, Prosecuting Attorney, Assistant Prosecuting Attorney or a duly appointed investigator employed by a Prosecuting Attorney;
(7) Any resident of another state who holds a valid license to carry a concealed weapon by a state or a political subdivision which has entered into a reciprocity agreement with this state, subject to the provisions and limitations set forth in section six-a of this article;
(8) Any federal law-enforcement officer or federal police officer authorized to carry a weapon in the performance of the officer's duty; and
(9) Any Hatfield-McCoy regional recreation authority ranger while the ranger is on duty.
§61-7-7. Persons prohibited from possessing firearms; classifications; reinstatement of rights to possess; offenses; penalties.

(a) Except as provided in this section, no person shall possess a firearm, as such is defined in section two of this article, who:
(1) Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
(2) Is habitually addicted to alcohol;
(3) Is an unlawful user of or habitually addicted to any controlled substance;
(4) Has been adjudicated as a mental defective or who has been involuntarily committed to a mental institution pursuant to the provisions of chapter twenty-seven of this code: Provided, That once an individual has been adjudicated as a mental defective or involuntarily committed to a mental institution, he or she shall be duly notified that they are to immediately surrender any firearms in their ownership or possession: Provided, however, That the mental hygiene commissioner or circuit judge shall first make a determination of the appropriate public or private individual or entity to act as conservator for the surrendered property;
(5) Is an alien illegally or unlawfully in the United States;
(6) Has been discharged from the armed forces under dishonorable conditions;
(7) Is subject to a domestic violence protective order that:
(A) Was issued after a hearing of which such person received actual notice and at which such person had an opportunity to participate;
(B) Restrains such person from harassing, stalking or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)(i) Includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) By its terms explicitly prohibits the use, attempted use or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(8) Has been convicted of a misdemeanor crime of domestic violence offense of assault or battery either under the provisions of section twenty-eight, article two of this chapter or the provisions of subsection (b) or (c), section nine of said article in which the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or has been convicted in any court of any jurisdiction of a comparable misdemeanor crime of domestic violence.
Any person who violates the provisions of this subsection shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars $100 nor more than one thousand dollars $1,000 or confined in the county jail for not less than ninety days nor more than one year, or both.
(b) Notwithstanding the provisions of subsection (a) of this section, any person:
(1) Who has been convicted in this state or any other jurisdiction of a felony crime of violence against the person of another or of a felony sexual offense; or
(2) Who has been convicted in this state or any other jurisdiction of a felony controlled substance offense involving a Schedule I controlled substance other than marijuana, a Schedule II or a Schedule III controlled substance as such are defined in sections two hundred four, two hundred five and two hundred six, article two, chapter sixty-a of this code and who possesses a firearm as such is defined in section two of this article shall be guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for not more than five years or fined not more than five thousand dollars $5,000, or both. The provisions of subsection (c) of this section shall not apply to persons convicted of offenses referred to in this subsection or to persons convicted of a violation of this subsection.
(c) Any person prohibited from possessing a firearm by the provisions of subsection (a) of this section may petition the circuit court of the county in which he or she resides to regain the ability to possess a firearm and if the court finds by clear and convincing evidence that the person is competent and capable of exercising the responsibility concomitant with the possession of a firearm, the court may enter an order allowing the person to possess a firearm if such possession would not violate any federal law: Provided, That a person prohibited from possessing a firearm by the provisions of subdivision (4), subsection (a) of this section may petition to regain the ability to possess a firearm in accordance with the provisions of section five, article seven-a of this chapter.
§61-7-10. Display of deadly weapons for sale or hire; sale to prohibited persons; penalties.

(1) It shall be is unlawful for any A person to may not publicly display and offer for rent or sale, or, where the person is other than a natural person, to knowingly permit an employee thereof to publicly display and offer for rent or sale, to any passers by on any street, road or alley, any deadly weapon. machine gun, submachine gun or other fully automatic weapon, any rifle, shotgun or ammunition for same.
(2) Any person violating the provisions of this subsection shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $5,000 or shall be confined in the county jail for not more than one year, or both fined and confined, except that where the person violating the provisions of this subsection is other than a natural person, such person shall be fined not more than $10,000.
(3) It shall be unlawful for any A person to may not knowingly sell, rent, give or lend, or, where the person is other than a natural person, to knowingly permit an employee thereof to knowingly sell, rent, give or lend, any deadly weapon firearm or ammunition to a person prohibited from possessing same firearm or ammunition by any provision of this article by 18 U.S.C. §922(g) or (n) or other applicable federal law.
(4) Any person violating the provisions of who violates any of the provisions of subsection (2)of this subsection shall be section is guilty of a felony and, upon conviction thereof, shall be fined not more than twenty-five thousand dollars $100,000, or shall be imprisoned in the penitentiary of this state in a state correctional facility for a definite term of years of not less than three years nor more than ten years, or both fined and imprisoned, except that where the person violating the provisions of committing an offense punishable under this subsection is other than a natural person, such person shall be fined not more than fifty thousand dollars $250,000.
(5) A person who knowingly solicits, persuades, encourages or entices a licensed dealer or private seller of firearms or ammunition to transfer a firearm or ammunition under circumstances which the person knows would violate the laws of this state or the United States is guilty of a felony. A person who willfully procures another to engage in conduct prohibited by this subsection shall be punished as a principal. This subsection does not apply to a law-enforcement officer acting in his or her official capacity.
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(Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
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