__________*__________

Tuesday, February 15, 2005



The House of Delegates met at 11:00 a.m., and was called to order by the Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Monday, February 14, 2005, being the first order of business, when the further reading thereof was dispensed with and the same approved.
Committee Reports

Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration:
H. R. 6, Amending the rules of the House by adding a new rule, relating to prohibiting the use of electronic communication devices,
And reports the same back with the recommendation that it be adopted.
Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration:
H. R. 7, Amending Rule 104 of the Rules of the House of Delegates, providing that failure of the Clerk to timely provide a printed or reproduced bill or lack thereof in electronic format for the Chamber Automation System shall not be cause for delaying action on a bill,
And reports back a committee substitute therefor, with a new title, as follows:
Com. Sub. for H. R. 7 - "Amending Rule 104 of the Rules of the House of Delegates, providing that failure of the Clerk to timely provide a printed or reproduced bill or lack of availability thereof in electronic format on the Chamber Automation System shall not be cause for delaying action on the bill after the fiftieth day of the regular session or during any extraordinary session,"
H. R. 8, Amending the Rules of the House by adding a new rule, relating to attire of persons admitted to the floor,
And reports back a committee substitute therefor, with the same title, as follows:
Com. Sub. for H. R. 8 - "Amending the Rules of the House of Delegates by adding thereto a new rule, designated Rule 136b, relating to attire of persons admitted to the floor,"
With the recommendation that the committee substitutes each be adopted.
Chairman Campbell, from the Committee on Education, submitted the following report, which was received:
Your Committee on Education has had under consideration:
H. B. 2286, Relating to the sounding of Taps at veteran's honors funerals,
And reports the same back, by unanimous vote of the committee, with the recommendation that it do pass.
Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (H. B. 2286) will be placed on the Consent Calendar.

Messages from the Executive

Mr. Speaker, Mr. Kiss, presented the 2003-2004 annual report of the State of West Virginia Board of Chiropractic, in accordance section twelve-b, article one, chapter thirty; which is filled in the Clerk's Office.
Mr. Speaker, Mr. Kiss, presented the 2004 annual report of the State of West Virginia Massage Therapy Licensure Board, in accordance section twelve, article one, chapter thirty; which is filled in the Clerk's Office.
Mr. Speaker, Mr. Kiss, presented the 2004 annual report of the West Virginia Division of Forestry, in accordance with the provisions of the code; which was filed in the Clerk's Office.
Mr. Speaker, Mr. Kiss, presented the 2004 annual report of the James "Tiger" Morton Catastrophic Illness Commission, in accordance with the section two, article five-Q, chapter 16; which was filed in the Clerk's Office.
Mr. Speaker, Mr. Kiss, presented the 2003-2004 annual report of the West Virginia Division of Natural Resources, in accordance with the provisions of the code; which was filed in the Clerk's Office.
Resolutions Introduced

Delegate Hamilton offered the following resolution, which was read by its title and referred to the Committee on Rules, as follows:
H. C. R. 5 - "Requesting the Division of Highways to name the bridge on Cleveland Avenue in Buckhannon, West Virginia, the "William S. O'Brien Memorial Bridge."
Whereas, William S. O'Brien was born the son of Colonel Emmet J. and Marsha Ann O'Brien on January 8, 1862 at Audra, on the Middle Fork River in Barbour County, West Virginia and moved with them to Weston, Lewis County, West Virginia in 1867; and
Whereas, After obtaining his degree from West Virginia University in 1891, he began actively practicing law; and
Whereas, William S. O'Brien was married to his beloved wife, Emma White, on October 14, 1896, which produced four wonderful children, three sons and one daughter; and
Whereas, During his long career as a public servant, William O'Brien taught school, served as a captain in the National Guard, was a member of the Masons and the Knights of Pythias, served as editor of the newspaper, sat as judge of the twelfth judicial circuit from 1913 to 1920, and was elected a member of Congress from the Third District in 1926; and
Whereas, William S. O'Brien served as Secretary of State from 1932 until he passed on August 10, 1948; and
Whereas, The members of the West Virginia Legislature would like to honor the public service and the life of William O'Brien; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways to name the bridge on Cleveland Avenue in Buckhannon, West Virginia, Department of Highways design division bridge number, 10232, in honor of William O'Brien, a legislator, lawyer, educator, family man and public servant; and, be it
Further Resolved, That the Division of Highways is requested to have made and placed on the bridge signs identifying it as the "William S. O'Brien Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the House is hereby directed to forward a copy of this Resolution to the Secretary of the Department of Transportation.
Delegates Barker, Eldridge, Hrutkay, Butcher and Ferrell offered the following resolution, which was read by its title and referred to the Committee on Rules, as follows:
H. C. R. 7 - " Requesting the Division of Highways name the bridge located 0.01 miles

South of County Route 26 and located on Route 85 in the community of Van, West Virginia, the "Thom Cline Memorial Bridge."
Whereas, Thom Cline was a school teacher with thirty-five years of service; and
Whereas, Tragically, Thom Cline lost his life in a house fire January 6, 2003; and
Whereas, Thom Cline opened his students' eyes to the world with trips to Europe, sponsored school beautification projects, and planned, designed and organized the annual school honor banquet; and
Whereas, Thom Cline respected every school colleague and staff member and truly loved and cared for them unconditionally; and
Whereas, Thom Cline was a person who kindled the spirits of his students by his love and his commitment, and who enriched the lives of all who knew him personally or knew of him through others; and
Whereas, Thom Cline's contributions to his community and to the memories of his students and fellow citizens will be long cherished; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways to name the bridge located 0.01 miles South of County Route 26 and located on Route 85 in the community of Van, West Virginia, the "Thom Cline Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the House is hereby directed to forward a copy of this Resolution to the Secretary of Transportation, the Commissioner of the Division of Highways, the family of Thom Cline, and appropriate news media.
On motion for leave, a Joint Resolution was introduced, read by its title and referred as follows:
By Delegates Overington, Walters, Frich, Ellem, Schoen, Roberts and Blair:
H. J. R. 7 - "Proposing an amendment to the Constitution of the State of West Virginia, amending section one-b, article ten thereof, relating to homestead exemption increase; numbering and designating such proposed amendment; and providing a summarized statement of the purpose of such proposed amendment", to the Committee on Constitutional Revision then the Judiciary.
Petitions

Delegates Amores, Armstead, Brown, Hatfield, Hunt, Lane, Louisos, Palumbo, Perry, Pino, Spencer, Walters, Webster and Wells, presented a resolution adopted by the Upper Kanawha Valley Chamber of Commerce, in support of West Virginia University Institute of Technology; which was referred to the Committee on Education .
Bills Introduced

On motions for leave, bills were introduced, read by their titles, and severally referred as follows:
By Delegate Stalnaker (By Request):
H. B. 2336 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §21-14-1 and §21-14-2, all relating to requiring retail establishments to have bathroom facilities on the premises for use by members of the general public"; to the Committee on Industry and Labor, Economic Development and Small Business then the Judiciary.
By Delegates Overington, Sobonya, Sumner, Roberts, Howard, Ron Thompson and Susman:

H. B. 2337 - "A Bill to amend and reenact §11-16-8 of the code of West Virginia, 1931, as amended, relating to increasing the distance that a beer licensee must be located from a school or church from three hundred to one thousand feet"; to the Committee on the Judiciary.
By Delegates Perdue, Ron Thompson and Kominar:
H. B. 2338 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §24-3-10, relating to prohibiting termination or refusal of reinstatement of electric or gas service during certain months"; to the Committee on the Judiciary.
By Delegates Caputo, Tucker and Butcher:
H. B. 2339 - "A Bill to amend and reenact §21A-6A-3 of the code of West Virginia, 1931, as amended, relating to granting the Governor authority to grant an extension for unemployment compensation benefits when special circumstances exist"; to the Committee on the Judiciary then Finance.
By Delegates Palumbo and Amores:
H. B. 2340 - "A Bill to amend and reenact §17C-15-49 of the Code of West Virginia, 1931, as amended, relating to making the offense of failure to wear safety belts a primary offense"; to the Committee on the Judiciary.
By Delegates Amores, Brown and Manchin:
H. B. 2341 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §30-29-11, relating to prohibiting law-enforcement surveillance of individuals and groups of individuals participating in constitutionally protected activities without a particularized suspicion of criminal activity unrelated to the protected activity"; to the Committee on the Judiciary.
By Delegates Border, Anderson, Azinger and Ellem:
H. B. 2342 - "A Bill to amend and reenact §17-24A-1 and §17-24A-2 of the code of West Virginia,1931, as amended, all relating to creating a misdemeanor offense for abandoning unlicensed or inoperable motor vehicles; providing definitions, exceptions and penalties"; to the Committee on the Judiciary.
By Delegates Morgan, Leach, Caputo, Beane and Michael:
H. B. 2343 - "A Bill to amend and reenact §3-1-21 of the Code of West Virginia, 1931, as amended, relating to providing that candidates for statewide political office belonging to the party with the most registered voters in the State, or in the case of congressional elections, then belonging to the political party with the most registered voters in the congressional district, be placed in a preeminent position on the election ballot; charging the Secretary of State with the duty of determining officially which party has the most registered voters"; to the Committee on the Judiciary.
By Delegates Sumner, Sobonya, Schoen and Duke:
H. B. 2344 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §4-13-1, relating to prohibiting the naming of a publicly funded building, road, structure or project for a living elected official by any governmental entity in this State and assessing personal liability for violations"; to the Committee on the Judiciary.
By Delegates Kominar, Varner, Swartzmiller and Stemple:
H. B. 2345 - "A Bill to amend and reenact §62-1C-14 of the Code of West Virginia, 1931, as amended, relating to increasing the criminal penalties imposed on a bail bondsperson who willfully fails to attempt to obtain the bailpiece within the allotted time period"; to the Committee on the Judiciary.
By Delegates Amores and Staton:
H. B. 2346 - "A Bill to amend and reenact §24C-1-3 of the Code of West Virginia, 1931, as amended, relating to underground facility safety generally and including public and privately owned water utilities in the one-call system"; to the Committee on the Judiciary.
By Delegates Stalnaker and Amores:
H. B. 2347 - "A Bill to amend and reenact §27-5-2 of the Code of West Virginia, 1931, as amended, relating generally to the institution of proceedings for the involuntary commitment of individuals; and requiring the Supreme Court of Appeals to prescribe alternative procedures for mental hygiene proceedings"; to the Committee on the Judiciary.
By Delegates Ron Thompson and Perdue:
H. B. 2348 - "A Bill to amend and reenact §5-16-13 of the Code of West Virginia, 1931, as amended, relating to allowing retiring state employees to use accrued annual leave and sick leave days to meet early retirement eligibility criteria"; to the Committee on Pensions and Retirement then Finance.
By Delegates Doyle and Overington:
H. B. 2349 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18A-4-8j, relating to salary increases for school service employees based upon residential housing costs"; to the Committee on Education then Finance.
By Delegates Schadler, Marshall, Leggett and Williams:
H. B. 2350 - "A Bill to amend and reenact §18A-3-1 of the Code of West Virginia, 1931, as amended, relating to conditions for awarding teaching certificates"; to the Committee on Education and Finance.
By Delegate Stalnaker (By Request):
H. B. 2351 - "A Bill to amend and reenact §33-6-31 of the code of West Virginia, 1931, as amended, relating to prohibiting insurers from basing the cost of a premium on the number of miles driven by an insured"; to the Committee on Banking and Insurance then Judiciary.
By Delegates Stalnaker, H. White and Talbott:
H. B. 2352 - "A Bill to amend and reenact §17D-2A-3 of the Code of West Virginia, 1931, as amended, relating to authorizing the police to impound a motor vehicle and auction it to the highest bidder in the event the owner of the motor vehicle has been convicted of driving with no insurance three or more times; providing for the use of funds collected from the sale of impounded motor vehicles; requiring seizing authorities to turn over leftover funds to the State Treasurer; creating a fund to be administered by the State Treasurer in concert with the Superintendent of the State Police to be used to compensate victims of uninsured and underinsured motorists; directing the State Treasurer and the State Police to propose rules for legislative approval designed to administer the fund in accordance with the fund's intended purpose; and, prohibiting operators of motor vehicles who do not have insurance coverage from instituting lawsuits for damages"; to the Committee on Banking and Insurance then the Judiciary.
By Delegates Stalnaker and H. White:
H. B. 2353 - "A Bill to amend and reenact §17D-2A-3 of the Code of West Virginia, 1931, as amended, relating to prohibiting operators of motor vehicles who do not have insurance coverage from instituting lawsuits for damages"; to the Committee on Banking and Insurance then the Judiciary.
By Delegate Stalnaker (By Request):
H. B. 2354 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §33-4-21, relating to prohibiting insurers from using credit reports to raise insurance rates"; to the Committee on Banking and Insurance then the Judiciary.
By Delegates Morgan, Craig, Leach, Sobonya and Howard:
H. B. 2355 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §11-15-9i, relating to creating exemptions from the consumers sales and services tax for sales of tangible personal property, parts, materials, apparatus and equipment to be directly incorporated into the initial construction or installation of a qualified amusement ride that is directly sold or leased to a qualified operator of a qualified amusement park located in this State; for leases of qualified amusement rides that are directly leased to a qualified operator of a qualified amusement park located in this State; and for sales of qualified amusement ride design and engineering services that are directly sold to a qualified operator of a qualified amusement park located in this State; and providing definitions"; to the Committee on Finance.
By Delegates Browning and Staton:
H. B. 2356 - "A Bill to amend and reenact §19-20-13 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §19-20-8b, all relating to authorizing county commissions to enact ordinances prohibiting cats from running at large and authorizing county dog wardens or others to seize and impound cats under authority of the ordinance; requiring the giving of notice to owners of impounded cats; and providing owners of cats who cause damage while running loose are liable for the damage"; to the Committee on Agriculture and Natural Resources then the Judiciary.
By Delegates Hamilton, Crosier, Argento, Canterbury, Stemple, Evans and Pino:
H. B. 2357 - "A Bill to amend and reenact §20-2-7 of the code of West Virginia, 1931, as amended, relating to hunting with dogs; and providing that persons may not be guilty of trespassing or hunting without permission because the person unintentionally permits his or her dog to pursue an animal or wild bird onto another person's land"; to the Committee on Agriculture and Natural Resources then the Judiciary.
By Delegates Frederick, Long, Frich, Stalnaker and H. White:
H. B. 2358 - "A Bill to amend and reenact §11-24-4 of the Code of West Virginia, 1931, as amended, relating to the West Virginia corporate net income tax; and reducing the rate of the corporate net income tax from nine percent to six percent by reducing the rate of tax by one half of one percent per year, beginning the first day of January, two thousand six"; to the Committee on Roads and Transportation then Finance.
By Delegates Perry and Crosier:
H. B. 2359 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §17C-3-11, relating to designating school crossing signs by the color lime green"; to the Committee on Roads and Transportation then Finance.
By Delegates Hatfield, Perdue and Brown:
H. B. 2360 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto seven new sections, designated §16-5C-20, §16-5C-21, §16-5C-22, §16-5C-23, §16-5C-24, §16-5C-25 and §16-5C-26, all relating to nursing homes; requiring adequate staffing, specifying certain staff to resident rations; providing enforcement provisions; including civil penalties; requiring a study committee; providing enhanced training requirements for nurse aides; and providing a grant program for projects aimed at reducing employee turnover in nursing homes"; to the Committee on Health and Human Resources then Finance.
By Delegate Stemple:
H. B. 2361 - "A Bill to amend and reenact §5F-2-1 of the Code of West Virginia, 1931, as amended; and to amend and reenact §16-4C-4 of said code, all relating to transferring the office of emergency medical services from the Department of Health and Human Resources to the Department of Military Affairs and Public Safety"; to the Committee on Government Organization then Finance.
By Delegates Stalnaker and Michael:
H. B. 2362 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §8-12-5e, relating to restricting political subdivisions of the state from conducting businesses selling tangible personal property in competition with private enterprises"; to the Committee on Political Subdivisions then the Judiciary.
By Delegates Spencer, Pino, Amores and Palumbo:
H. B. 2363 - "A Bill to amend and reenact §7-1-3v of the Code of West Virginia, 1931, as amended, relating to county commissions making flood insurance available to property owners"; to the Committee on Political Subdivisions then Government Organization.
By Delegates Beach, Perry and Swartzmiller:
H. B. 2364 - "A Bill to amend and reenact §18-2D-1 of the Code of West Virginia, 1931, as amended, relating to community education; legislative findings and purpose; and clarifying that certain community education programs support public education"; to the Committee on Education then Finance.
By Delegates Perry, Beach and Swartzmiller:
H. B. 2365 - "A Bill to amend and reenact §18-5-5 of the Code of West Virginia, 1931, as amended, relating to county boards of education generally; prohibiting individual board members from acting on behalf of the board in an individual capacity unless authorized by statute; and assessing personal liability for violations"; to the Committee on Education then the Judiciary.
By Delegates Ennis, Yost, Long, Swartzmiller, Kominar and Tucker:
H. B. 2366 - "A Bill to amend and reenact §17C-6-1 of the Code of West Virginia, 1931, as amended, relating to speed limits generally and authorizing the commissioner of the Division of Highways to establish speed limits lower than twenty-five miles per hour"; to the Committee on Roads and Transportation then the Judiciary.
By Delegates Williams and Stemple:
H. B. 2367 - "A Bill to amend and reenact §17A-3-14 of the Code of West Virginia, 1931, as amended, relating to authorizing the issuance of a special motor vehicle license plate for persons who have received the Combat Infantry Badge or the Combat Medic Badge"; to the Committee on Roads and Transportation then Finance.
By Delegate Stalnaker:
H. B. 2368 - "A Bill to amend and reenact §19-20A-5 of the Code of West Virginia, 1931, as amended, relating to vaccination of dogs and cats; increasing the veterinary fee for vaccinating dogs and cats for rabies from four dollars to eight dollars each"; to the Committee on Agriculture and Natural Resources then Finance.
By Delegates Hamilton, Boggs, Crozier and Leggett:
H. B. 2369 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §15-2-9, relating to authorizing the Superintendent of the West Virginia State Police to operate a voluntary contribution fund for designated beneficiaries of deceased officers; providing legislative findings and a statement of legislative intent; providing for voluntary contributions to and payments from the fund; authorizing the creation and maintenance of a bank account for the fund; and authorizing the Superintendent to develop forms and internal procedures for the operation of the voluntary contribution fund"; to the Committee on Finance.
By Delegates Doyle and Duke:
H. B. 2370 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5-5-6; and to amend said code by adding thereto two new sections, designated §18A-4-5e and §18A-4-8j, all relating to providing an augmentation to any salary increase for any public employee, teacher or school service personnel"; to the Committee on Education then Finance.
Consent Calendar

Second Reading

The following bills on second reading, coming up in regular order, were each read a second time and ordered to engrossment and third reading:
H. B. 2102, Making tongue splitting a crime unless performed by a licensed physician,
Com. Sub. for H. B. 2128, Authorizing the Executive Director of the Regional Jail and Correctional Facility Authority to establish an inmate furlough program,
And,
H. B. 2129, Creating misdemeanor offense of motion picture piracy.

The Clerk announced that, pursuant to House Rule 70a, the following requests had been filed with him for the removal of bills from the Consent Calendar to the House Calendar:
Com. Sub. for H. B. 2128, on second reading, Consent Calendar, to the House Calendar, by Delegate Walters.
House Calendar

Second Reading

Com. Sub. for H. B. 2015, Providing employer immunity from civil liability for job related

information disclosed regarding former employees; on second reading, coming up in regular order, was read a second time.
Delegate Martin moved to amend the bill on page two, section eighteen-a, line five, at the end of the sentence, by striking out the period and inserting in lieu thereof a colon and the words "Provided, That the disclosure is in writing."
And,
On page three, section eighteen-a, line nineteen, by striking out the word "conduct,".
On the adoption of the amendment, Delegate Martin demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 24), and there were--yeas 34, nays 60, absent and not voting 6, with the yeas and absent and not voting being as follows:
Yeas: Argento, Barker, Blair, Brown, Butcher, Canterbury, Caputo, Eldridge, Hatfield, Hrutkay, Hunt, Iaquinta, Longstreth, Louisos, Manchin, Marshall, Martin, Miley, Paxton, Perdue, Poling, Porter, Rowan, Spencer, Stephens, Susman, Talbott, Tansill, Rick Thompson, Tucker, Wakim, Walters, Webster and Yost.
Absent And Not Voting: Anderson, Boggs, Browning, Ferrell, Fragale and Staton.
So, a majority of the members present and voting not having voted in the affirmative, the amendment was not adopted.
The bill was then ordered to engrossment and third reading.
Leaves of Absence

At the request of Delegate Varner, and by unanimous consent, leaves of absence for the day were granted Delegates Anderson, Boggs, Browning, Ferrell Fragale and Staton.
At 12:17 p.m., on motion of Delegate Varner, the House of Delegates adjourned until 11:00 a.m., Wednesday, February 16, 2005.