__________*__________
Monday, March 3, 2008
FIFTY-FIFTH DAY
[Mr. Speaker, Mr. Thompson, in the Chair]
The House of Delegates met at 11:00 a.m., and was called to order by the Honorable Richard
Thompson, Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Friday, February 29, 2008, being the first order
of business, when the further reading thereof was dispensed with and the same approved.
At the request of Delegate DeLong, and by unanimous consent, the applicable provisions of
House Rule 136, relating to privileges of the floor, were suspended for the day to extend privileges
of the floor to invited guests for a presentation by the House.
Committee Reports
Mr. Speaker, Mr. Thompson, from the Committee on Rules, submitted the following report,
which was received:
Your Committee on Rules has had under consideration:
H. C. R. 71, Requesting the Joint Committee on Government and Finance to study
compensating state troopers for off-duty time when required to be on standby to be called back to
work,
H. C. R. 74, Requesting the Joint Committee on Government and Finance to study West
Virginia's response to the problem of substance abuse,
H. C. R. 79, Requesting the Joint Committee on Government and Finance to study the
feasibility of election day registration in and for the State of West Virginia,
H. C. R. 80, Requesting the Joint Committee on Government and Finance to make a study
on promoting a safe and productive learning environment,
H. C. R. 81, Requesting the Joint Committee on Government and Finance to make a study
on providing supplemental state aid for the instruction of English as a second language,
H. C. R. 82, Requesting the Joint Committee on Government and Finance to make a study
to improve the efficiency of school level, county board and regional education service agency
accounting practices and procedures,
H. C. R. 83, Requesting that the Joint Committee on Government and Finance authorize a
study of meeting and conference rights for members of certain fire departments,
And,
S. C. R. 40, Requesting Division of Highways name bridge in Cabell County, "Phyllis E.
Given Memorial Bridge",
And reports the same back with the recommendation that they each be adopted.
Chairman Webster, 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 S. B. 492, Eliminating part-time prosecutors,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended.
Chairman Webster, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has given further consideration to:
S. B. 263, Updating certain code provisions relating to Division of Corrections,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended.
Chairman Webster, 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 S. B. 305, Clarifying procedures for seizing neglected or abused animals,
Com. Sub. for S. B. 340, Requiring consumers' notification of information security breach,
Com. Sub. for S. B. 398, Authorizing Department of Health and Human Resources to
promulgate legislative rules,
And,
Com. Sub. for S. B. 536, Exempting Supreme Court probation officers' vehicles from
certain registration requirements,
And reports the same back with the recommendation that they each do pass.
Chairman Webster, 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 S. B. 501, Transferring Stream Partners Fund from Division of Natural
Resources to Department of Environmental Protection,
And reports the same back with the recommendation that it do pass, but that it first be
referred to the Committee on Finance.
In accordance with the former direction of the Speaker, the bill (Com. Sub. for S. B. 501) was
referred to the Committee on Finance.
Chairman Webster, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
S. B. 217, Reducing compliance time for nonresident traffic violations,
And,
Com. Sub. for S. B. 504, Relating to child support enforcement,
And reports the same back, with amendment, with the recommendation that they each do
pass, as amended.
Chairman Perdue, from the Committee on Health and Human Resources, submitted the
following report, which was received:
Your Committee on Health and Human Resources has had under consideration:
S. B. 722, Granting regulatory power to certain Board of Pharmacy facilities.
And reports the same back, with amendment, with the recommendation that it do pass, as
amended, and with the recommendation that second reference of the bill to the Committee on
Government Organization be dispensed with.
In the absence of objection, reference of the bill (S. B. 722) to the Committee on Government
Organization was abrogated.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates as follows:
Com. Sub. for H. B. 4074, Creating an Office for Oral Health under the Bureau for Public
Health and authorizing a full time director.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof
the following:
"That §16-41-7 of the Code of West Virginia, 1931, as amended, be repealed; that §16-41-2,
§16-41-3, §16-41-4 and §16-41-6 of said code be amended and reenacted; and that said code be amended by adding thereto a new section, designated §16-41-2a, all to read as follows:
ARTICLE 41. ORAL HEALTH IMPROVEMENT ACT.
§16-41-2. Office for Oral Health.
(a) Commencing the first day of July, two thousand eight, the Commissioner of the Bureau
for Public Health shall establish and maintain an oral health program Office for Oral Health.
(b) The Commissioner of the Bureau for Public Health shall appoint employ a full-time
director who shall be a dentist licensed in this state. as director of the oral health program who The
director shall administer the program pursuant to the provisions of section three of this article. The
director shall report directly to the commissioner.
§16-41-2a. Advisory board.
(a) Commencing the first day of July, two thousand eight, an advisory board consisting of
fifteen members is hereby created to advise the Director of the Office for Oral Health in developing
a comprehensive plan to improve the oral health of the citizens in this state and implementing and
maintaining an oral health program.
(b) The Governor shall appoint the following fifteen board members, by and with the advice
and consent of the Senate:
(1) A representative from the West Virginia Dental Association;
(2) A representative from the West Virginia Dental Hygienist Association;
(3) A representative from the West Virginia University School of Dentistry;
(4) A representative from the West Virginia Primary Care Association;
(5) A representative from a free clinic in West Virginia;
(6) A representative from the Robert C. Byrd Center for Rural Health;
(7) A licensed dentist in private practice in West Virginia;
(8) A licensed oral surgeon;
(9) A licensed dental hygienist working in a private practice in West Virginia;
(10) A licensed pediatrician;
(11) A licensed family practice physician;
(12) A representative from the Bureau of Medical Services;
(13) A representative from the SCHIP program;
(14) A representative from the Public Employees Insurance Agency; and
(15) A representative from the Department of Education.
(c) When developing the comprehensive plan and implementing the oral health program, the
director and the advisory board may consult with interested parties, state agencies and private entities
who the board and director believe will bring a broad prevention perspective.
§16-41-3. Duties of the Office of Oral Health.
(a) In consultation with the advisory board established under the provisions of this article,
the director of the oral health program shall implement and maintain the oral health program to
include, but not be limited to, the following goals and objectives:
(1) The development of A comprehensive dental health plans plan; within the framework of
the state plan of operation, provided for in subsection (f), section six, article one of this chapter, to
maximize use of all available resources
(2) Providing the consultation necessary to coordinate federal, state, county and city agency
programs concerned with dental health;
(3) Encouraging, supporting and augmenting the efforts of local boards of health and boards
of education in the implementation of a dental health component in their program plans;
(4) Providing consultation and program information to, at a minimum, health professions,
health professional educational institutions, school educators, extension specialists and volunteer
agencies;
(5) Providing programs aimed at preventing and detecting oral cancer in the state, with a
primary focus of meeting the needs of high-risk underserved populations, with the intent to reduce oral cancer mortality;
(6) Providing programs addressing oral health education and promotion, including:
(A) Public health education to promote the prevention of oral disease through self-help
methods, including the initiation and expansion of preschool, school age and adult education
programs;
(B) Organized continuing health education training programs for, at a minimum, health care
providers, school educators and extension specialists; and
(C) Preventive health education information for the public;
(7) Facilitation of Facilitating access to oral health services, including:
(A) The improvement of the existing oral health services delivery system for the provision
of services to all West Virginia residents;
(B) Outreach activities to inform the public of the type and availability of oral health services
to increase the accessibility of oral health care for all West Virginia residents; and
(C) Design of oral health programs that assure children entering kindergarten, grade two and
grade six have an oral health exam and appropriate preventative programs, including
recommendations for potential funding sources;
(D) Design of a training program for pediatricians, primary care providers and their staff in
certain preventive oral health procedures; and
(C) (E) Assistance and cooperation in promoting better distribution of dentists and other oral
health professionals throughout the state;
(8) Providing programs specifically targeting prevention of tooth loss and the restoration of
existing teeth to the extent that funds are available;
(9) Providing oral or dental health services to individuals in need to the extent funds are available for the services; and
(10) Provide Providing evaluation of these programs in terms of preventive services.
(b) In consultation with dental care providers and the advisory board, the commissioner
director shall develop and implement ongoing oral cancer educational programs in the state:
(1) To train health care providers to screen and properly refer patients with oral cancers; and
(2) To promote the cessation of the use of alcohol and tobacco products with a primary focus
of meeting the needs of high-risk underserved populations.
(c) The programs developed and implemented under this section shall address:
(1) The risk factors that lead to oral cancer;
(2) The signs and symptoms of oral cancer;
(3) The high-risk behaviors that may lead to oral cancer; and
(4) The accessibility of screening to detect oral cancer.
(d) In addition to the duties and responsibilities required under this section, the director of
the oral health program shall administer and supervise all dental health programs within the Bureau
for Public Health.
§16-41-4. Receipt of funds; special revenue account.
(a) The Secretary of the Department of Health and Human Services Resources may in his or
her discretion, transfer funds, except those funds specifically earmarked for the Division of Maternal
and Child Health, from other programs within his or her control to the special revenue account
created in this section for the purposes established in this article.
(b) The director may apply for and receive for the oral health program any financial aid
granted by any private, federal, state or local or other grant or source.
(c) There is hereby established in the State Treasury a special revenue account designated the Oral Health Program Fund. All funds received by the director for the oral health program shall be
deposited in the special revenue account.
(d) Moneys deposited in this fund shall be used exclusively to provide oral health services
to accomplish the purposes of this article. Expenditures of moneys deposited in this fund are to be
made in accordance with appropriation by the Legislature and in accordance with article three,
chapter twelve of this code and upon fulfillment of the provisions of article two, chapter five-a
eleven-b of this code. Provided, That for the fiscal year beginning the first day of July, two thousand
two, expenditures are authorized from deposits rather than pursuant to appropriation by the
Legislature The director may disburse funds from the special revenue account as required by this
article.
§16-41-6. Reporting requirements.
On or before the first day of December of each year, the commissioner director shall submit
a report on the commissioner's findings and recommendations to the Governor, the Legislative
Oversight Commission on Health and Human Resources Accountability and the Joint Committee
on Government and Finance on the Office for Oral Health and its oral health programs established
under this article. The report shall include a summary of the programs' accomplishments during the
preceding year, the identification of existing barriers to proper oral health care in the state and
recommendations addressing the removal of the barriers."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4074 - "A Bill to repeal §16-41-7 of the Code of West Virginia, 1931,
as amended; to amend and reenact §16-41-2, §16-41-3, §16-41-4 and §16-41-6 of said code; and to
amend said code by adding thereto a new section, designated §16-41-2a, all relating to oral health;
establishing the Office for Oral Health within the Bureau for Public Health; requiring the director to be a licensed dentist; establishing an advisory board; and responsibilities of the Office for Oral
Health."
On motion of Delegate DeLong, the House refused to concur in the Senate amendment and
requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates as follows:
Com. Sub. for H. B. 4364, Amending various requirements for motor vehicle dealers.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one by striking out everything after the enacting clause and inserting in lieu thereof
the following:
"That §17A-6-1b, §17A-6-2a, §17A-6-4, §17A-6-7, §17A-6-15 and §17A-6-18a of the Code
of West Virginia, 1931, as amended, be amended and reenacted; that §17A-6E-2 and of said code
be amended and reenacted all to read as follows:
ARTICLE 6. LICENSING OF DEALERS AND WRECKERS OR DISMANTLERS;
SPECIAL PLATES; TEMPORARY PLATES OR MARKERS.
§17A-6-1b. Dealers authorized to issue motor vehicle registration.
(a) Notwithstanding any other provision in this chapter, the division may allow a licensed
motor vehicle dealer as defined in section one of this article authority to issue or transfer motor
vehicle registrations for vehicles sold by the dealer. The authority to issue and transfer motor vehicle registrations shall be contingent upon the dealer collecting all fees and taxes required for the titling
and registration of vehicles, receiving proof of insurance as described in subsection (e), section three,
article three of this chapter and, if applicable, receiving the receipt showing full payment of personal
property taxes in accordance with section three-a, article three of this chapter.
(b) Authorization to issue and transfer motor vehicle registrations shall be contingent on the
dealer completing an application provided by the division and meeting all criteria established by the
division. The authority shall also be contingent upon the dealer agreeing to participate fully in a
computerized system of electronic submission of registration, titling and lien information and all fees
and taxes required under the provisions of this chapter, either directly to the division or through an
authorized service provider selected and approved by the division. Any transaction conducted under
the provisions of this section shall be conditional pending the determination by the division that the
application for title, registration and lien recordation is complete, accurate and in accordance with
the provisions of this chapter.
(c) The authority to participate in the electronic transmission of title, registration and lien
information shall be immediately revoked upon revocation or cancellation of a dealer's license
issued under the provisions of this chapter: Provided, That the authority to issue and transfer motor
vehicle registrations may be revoked by the division immediately and separately from any other
action against the dealer's license if the division determines that the terms of the agreement or
agreements authorizing issuance, transfer or renewal of a vehicle registration or the electronic
transmission of information have been violated.
(d) A fee established by the Motor Vehicle Dealer Advisory Board may be charged by a
motor vehicle dealer for its services required under this section.
(e) Only motor vehicle registrations of a type specified by the division may be issued,
transferred or renewed by the authorized dealer.
(f) All fees and taxes collected by an authorized dealer under the provisions of this section shall be deposited in a financial institution designated by the division or the service provider in the
manner prescribed by the division.
(g) The division may authorize a service provider to supply an authorized dealer with the
necessary forms, supplies, registration plates and registration renewal decals necessary to enable the
authorized dealer to perform the duties and functions specified in this section.
(1) Any service provider authorized to perform services under the provisions of this section
shall post a bond of the applicant in the penal sum of one million dollars, in the form prescribed by
the commissioner, conditioned that the applicant will not, in the conduct of business, practice any
fraud which, or make any fraudulent representation which, shall cause a financial loss to any dealer,
financial institution or agency or the State of West Virginia with a corporate surety thereon
authorized to do business in this state, which bond shall be effective as of the date on which the
authorization to provide services commences.
(2) The service provider is solely responsible for the inventory, tracking, safety and
reconciliation of all supplies, registration plates, registration decals or other motor vehicle
credentialing items in accordance with procedures established by the division and subject to audits
by the division.
(3) The division may rescind without notice the authority of a service provider to perform
services when the division has cause to believe that any state or federal law has been violated or that
the service provider is not adhering to the terms and conditions of the authorization agreement.
(h) The service provider and the authorized dealer assume full responsibility for the care,
custody, control, disclosure and use of any information provided by the division in order to execute
the duties and responsibilities required by this section. Each service provider and each authorized
dealer agrees to ensure that the disclosure of information to it and its handling of information
received from the division complies with all federal and state statutes and division directives
governing the disclosure and protection of such information.
(i) The commissioner may enter into agreements with other states and jurisdictions granting
licensed dealers regulated by other states and jurisdictions the authority to issue or transfer motor
vehicle registrations for vehicles sold by the dealer in the same manner as dealers licensed by this
state.
§17A-6-2a. Dealer Recovery Fund created.
(a) There is hereby created a special fund in the State Treasury which is to be designated the
Dealer Recovery Fund. The fund shall consist of certain moneys received from persons engaged in
the business of selling new or used motor vehicles, new or used motorcycles, trailers, semi-trailers
or recreational vehicles or from grants, gifts, bequests or awards arising out of the settlement or
adjudication of a claim. The fund is not to be treated by the Auditor and Treasurer as part of the
general revenue of the state. The fund is to be a special revolving fund paid out upon order of the
Commissioner of Motor Vehicles based on the recommendation of the Dealer Recovery Fund
Control Board created in this section solely for the purposes specified in this section. The
commissioner may use up to one percent of funds from the dealer recovery fund for the
administrative expenses of operating the Dealer Recovery Fund Program.
(b) The Dealer Recovery Fund Control Board shall consist of the Commissioner of Motor
Vehicles or his or her designee, the Attorney General's designee representing the Office of
Consumer Protection and one representative selected by the Motor Vehicle Dealers Advisory Board.
The Commissioner of Motor Vehicles or his or her designee shall serve as chair and the board shall
meet at least once a year during the month of July and as required by the commissioner. The
commissioner may propose rules for promulgation in accordance with article three, chapter
twenty-nine-a of this code that are necessary to effectuate the provisions of this section. The
commissioner may employ the necessary staff needed to operate the program. The board may
prorate the amount paid on claims when the amount of valid claims submitted would exceed
thirty-three percent of the fund. However, claims presented by the Division of Motor Vehicles for taxes and fees shall be paid in full. The board may purchase insurance at a cost not to exceed one
percent of the fund to cover extraordinary or excess claims from the fund.
(c) Every applicant for either an original dealer license or renewal of an existing dealer
license of the type enumerated in subsection (a) of this section shall pay, in addition to any other
license fee, an annual Dealer Recovery Fund fee of one hundred fifty dollars. All dealers shall
continue to maintain a surety bond as required by this article and the Dealer Recovery Fund payment
unless exempt by one of the following requirements:
(1) Any dealer who, for the three years immediately preceding assessment of the fees, has not
had a claim paid against their bond or against the Dealer Recovery Fund, whose license has not been
suspended or revoked and who has not been assessed any civil penalties is not required to continue
to keep the bond required by this article. However, no dealer can submit a claim against the fund
unless it has contributed to the fund for at least three years.
(2) If the Dealer Recovery Fund reaches or exceeds the amount of three million dollars as of
the first day of July of any year, a dealer who meets the requirements of subdivision (1) of this
subsection is exempt from payment of the annual dealer recovery fund fee. However, if the fund
should, as of the first day of April of any year, drop below three million dollars, all dealers,
regardless of any previous exemption shall pay the annual dealer recovery fee of one hundred fifty
dollars. The exemption prescribed in subdivision (1) of this subsection remains in effect regardless
of the status of the fund.
(d) The Dealer Recovery Fund Control Board may consider payment only after any dealer
surety bond required pursuant to the provisions of section four of this article has been exhausted.
(e) When the fund reaches two hundred fifty thousand dollars, the board shall consider claims
for payment.
(f) Claims against the fund are not to be made for any act or omission which occurred prior to the first day of July, two thousand two.
(g) Claims for payment shall be submitted within six months of the date of sale or the date
the division is made aware of the claim.
(h) The board shall pay claims in the following order:
(1) Claims submitted by the Division of Motor Vehicles for unpaid taxes and fees;
(2) Claims submitted by a retail purchaser of a vehicle from a dealer covered by the fund with
an undisclosed lien or a retail purchaser of a vehicle from a dealer covered by the fund who finds that
the lien on the vehicle traded in has not been satisfied by the selling dealer if the lien satisfaction was
a condition of the purchase agreement;
(3) Claims submitted by a motor vehicle dealer contributing to the fund, which has purchased
a vehicle or vehicles from another dealer covered by the fund with an undisclosed lien; or
(4) Claims submitted by a retail purchaser of third-party goods or services from a dealer
covered by the fund for the unpaid charges when the dealer fails to pay the third party for the goods
or services; or
(5) Claims submitted by the Division of Motor Vehicles, a retail purchaser or a motor vehicle
dealer contributing to the fund, not authorized by subdivisions (1) through (4), inclusive, of this
subsection, but otherwise payable under the bond described in section four of this article, may be
considered for payment by the board up to the amount of fifty thousand dollars for each licensing
year the West Virginia dealer that is the subject of the complaint did not maintain the bond. The
board may not consider claims submitted by or on behalf of a financial institution that lends money
or credit to a dealer and holds the dealer inventory as collateral or payment of the loan or credit,
commonly referred to as a floor planner.
(i) The maximum claim against the fund for any unpaid lien of a used vehicle is the unpaid
balance of the lien up to the loan value of the vehicle as of the date of the sale or other transaction as shown by a generally accepted motor vehicle value guide. The maximum claim against the fund
for any new or unused vehicle is the amount of the invoice less any amounts rebated or to be rebated
to the dealer from the manufacturer. Payment is only to be made to a secured party who agrees to
accept payment from the dealer recovery fund and who accepts the payment in full settlement of any
claims and who releases the lien and the title, if applicable, prior to receiving payment. Any dealer
who agrees to accept payment from the Dealer Recovery Fund shall release the title prior to receiving
payment.
(j) On payment by the board to a claimant from the fund, the board shall immediately notify
the licensee against whom a claim was paid and request full reimbursement within thirty days of
notification. If a dealer fails to fully reimburse the board within the specified period of time, the
commissioner shall immediately and without prior hearing revoke the dealer license of dealer against
whom the claim was paid. No applicant with an unpaid claim is eligible for renewal or relicensure
until the full amount of the reimbursement plus interest as determined by the board is paid to the
fund. Nothing in this section shall limit the authority of the commissioner to suspend, revoke or levy
civil penalties against a dealer, nor shall full repayment of the amount owed to the fund necessarily
nullify or modify the effect of any action by the commissioner.
(k) Nothing in this section shall limit the right for any person to seek relief though civil action
against any other person.
(l) The provisions of this section do not apply to those class DTR dealers in the business of
selling manufactured housing and covered by the state manufactured housing recovery fund
established by the Division of Labor pursuant to a legislative rule.
§17A-6-4. Application for license certificate; insurance; bonds; investigation; information
confidential
.
(a) Application for any license certificate required by section three of this article shall be
made on a form prescribed by the commissioner. There shall be attached to the application a certificate of insurance certifying that the applicant has in force an insurance policy issued by an
insurance company authorized to do business in this state insuring the applicant and any other
person, as insured, using any vehicle or vehicles owned by the applicant with the express or implied
permission of the named insured, against loss from the liability imposed by law for damages arising
out of the ownership, operation, maintenance or use of the vehicle or vehicles, subject to minimum
limits, exclusive of interest and costs, with respect to each vehicle, as follows: Twenty thousand
dollars because of bodily injury to or death of one person in any one accident and, subject to the limit
for one person, forty thousand dollars because of bodily injury to or death of two or more persons
in any one accident and ten thousand dollars because of injury to or destruction of property of others
in any one accident.
(b) In the case of an application for a license certificate to engage in the business of new
motor vehicle dealer, used motor vehicle dealer or house trailer dealer, the application shall disclose,
but not be limited to, the following:
(1) The type of business for which a license certificate is sought;
(2) If the applicant is an individual, the full name and address of the applicant and any trade
name under which he or she will engage in the business;
(3) If the applicant is a copartnership, the full name and address of each partner in the
copartnership, the name of the copartnership, its post office address and any trade name under which
it will engage in the business;
(4) If the applicant is a corporation, its name, the state of its incorporation, its post office
address and the full name and address of each officer and director of the corporation;
(5) The location of each place in this state at which the applicant will engage in the business
and whether the business is owned or leased by the applicant;
(6) Whether the applicant, any partner, officer or director of the business has previously engaged in the business or any other business required to be licensed under the provisions of this
article and, if so, with or for whom, at what location and for what periods of time;
(7) Whether the applicant, any partner, officer, director or employer of the business has
previously applied for a license certificate under the provisions of this article or a similar license
certificate in this or any other state and, if so, whether the license certificate was issued or refused
and, if issued, whether it was ever suspended or revoked;
(8) A statement of previous general business experience and the past history of the applicant;
and
(9) Any other information that the commissioner may reasonably require, which may include
information relating to any contracts, agreements or understandings between the applicant and other
persons respecting the transaction of the business and any criminal record of the applicant if an
individual, or of each partner if a copartnership, or of each officer and director if a corporation.
(c) In the case of an application for a license certificate to engage in the business of new
motor vehicle dealer, the application shall, in addition to the matters outlined in subsection (b) of
this section, disclose:
(1) The make or makes of new motor vehicles which the applicant will offer for sale in this
state during the ensuing fiscal year; and
(2) The exact number of new and used motor vehicles, if any, sold at retail and wholesale by
the applicant or his or her predecessor, if any, during the preceding fiscal year and if no new and used
motor vehicles were sold at retail and wholesale by the applicant or his or her predecessor, if any,
during the preceding fiscal year, the number of new and used motor vehicles the applicant reasonably
expects to sell at retail and wholesale during the ensuing fiscal year.
(d) In the case of an application for a license certificate to engage in the business of used
motor vehicle dealer, the application shall in addition to the matters outlined in subsection (b) of this section, disclose the exact number of used motor vehicles, if any, sold at retail and wholesale by the
applicant or his or her predecessor, if any, during the preceding fiscal year and if no used motor
vehicles were sold at retail and wholesale by the applicant or his or her predecessor, if any, during
the preceding fiscal year, the number of used motor vehicles the applicant reasonably expects to sell
at retail and wholesale during the ensuing fiscal year.
(e) In the case of an application for a license certificate to engage in the business of trailer
dealer, recreational vehicle dealer, motorcycle dealer, used parts dealer or wrecker/
dismantler/rebuilder, the application shall disclose any information that the commissioner may
reasonably require.
(f) The application shall be verified by the oath or affirmation of the applicant, if an
individual, or if the applicant is a copartnership or corporation, by a partner or officer thereof, as the
case may be. Except as provided in section two-a of this article, the application shall be
accompanied by a bond of the applicant in the penal sum of ten twenty-five thousand dollars, in the
form prescribed by the commissioner, conditioned that the applicant will not in the conduct of his
or her business practice any fraud which, or make any fraudulent representation which, shall cause
a financial loss to any purchaser, seller or financial institution or agency, or the State of West
Virginia, with a corporate surety thereon authorized to do business in this state. The bond shall be
effective as of the date on which the license certificate sought is issued.
(g) Upon receipt of any fully completed application, together with any bond required under
subsection (f) of this section, the certificate of insurance as required in subsection (a) of this section
and the appropriate fee provided for in section ten of this article, the commissioner may conduct any
investigation he or she considers necessary to determine the accuracy of any statements contained
in the application and the existence of any other facts which he or she considers relevant in
considering the application. To facilitate the investigation, the commissioner may withhold issuance
or refusal of the license certificate for a period not to exceed twenty days.
(h) Any application for a license certificate under the provisions of this article and any
information submitted with the application is confidential for the use of the division. No person
shall divulge any information contained in any application or any information submitted with the
application except in response to a valid subpoena or subpoena duces tecum issued pursuant to law.
§17A-6-7. When application to be made; expiration of license certificate; renewal.
(a) Every license certificate issued in accordance with the provisions of this article shall,
unless sooner suspended or revoked, expire on June thirtieth next following the issuance thereof.
(b) A license certificate may be renewed each year in the same manner, for the same fee as
prescribed in section ten of this article and upon the same basis as an original license certificate is
issued under section six of this article: Provided, That the commissioner may not renew the license
of any new or used motor vehicle dealer who has sold less than twenty-five vehicles during the
proceeding year subject to the following:
(1) This proviso does not apply to a dealer in the business of selling commercial motor
vehicles of a gross vehicle weight of twenty-six thousand one pounds or more;
(2) The commissioner may approve the renewal of a dealer selling less than twenty-five
vehicles based on a finding of extenuating circumstances, including, but not limited to, the illness
of the dealer, adverse business conditions or sales credited to other types of dealer licenses held by
the dealer; and
(3) Any dealer may appeal the commissioner's refusal to the Motor Vehicle Dealer Advisory
Board which may consider extenuating circumstances and approve the renewal.
All applications for the renewal of any license certificate shall be filed with the commissioner
at least thirty days before the expiration thereof. Any application for renewal of any license
certificate not filed at least thirty days before the expiration may not be renewed except upon
payment of the same fee as an original license certificate as prescribed in subsection (a), section ten of this article. The commissioner may allow the delinquent applicant to complete an abbreviated
application for renewal in lieu of an original application.
§17A-6-15. Temporary registration plates or markers.
(a) In order to permit a vehicle which is sold to a purchaser by a dealer to be operated on the
streets and highways pending receipt of the annual registration plate from the division for such
vehicle, the commissioner may, subject to the limitations and conditions hereinafter set forth, deliver
temporary vehicle registration plates or markers to dealers who in turn may, subject to the limitations
and conditions hereinafter set forth, issue the same to purchasers of vehicles, but such purchasers
must comply with the pertinent provisions of this section.
(b) Application by a dealer to the commissioner for such temporary registration plates or
markers shall be made on the form and in the manner prescribed and furnished by the commissioner
for such purpose and shall be accompanied by a fee of three dollars for each such temporary
registration plate or marker. The commissioner may require the fee to be remitted to the division
in an electronic format. No refund or credit of fees paid by dealers to the commissioner for temporary
registration plates or markers shall be allowed, except that in the event the commissioner
discontinues the issuance of such temporary plates or markers, dealers returning temporary
registration plates or markers to the commissioner may petition for and be entitled to a refund or a
credit thereof. No temporary registration plates or markers shall be delivered by the commissioner
to any dealer in house trailers only and no such temporary plates or markers shall be issued for or
used on any house trailer for any purpose.
(c) Every dealer who has made application for and received temporary registration plates or
markers shall maintain, in permanent form a record of all temporary registration plates or markers
delivered to him in a manner prescribed by the commissioner, a record of all temporary registration
plates or markers issued by him or her and a record of any other information pertaining to the receipt
or the issuance of temporary registration plates or markers which the commissioner may require. Each such record shall be kept for a period of at least three years from the date of the making thereof.
Every dealer who issues a temporary registration plate or marker shall within five working days after
he issues such plate or marker, send to the division a copy of the temporary registration plate or
marker certificate properly executed by such dealer and the purchaser notify the division in the
manner prescribed by the commissioner. No temporary registration plates or markers may be
delivered to any dealer until such dealer has fully accounted to the commissioner for the temporary
registration plates or markers last delivered to such dealer by showing the number issued to
purchasers by such dealer and any on hand.
(d) A dealer shall may not issue, assign, transfer or deliver a temporary registration plate or
marker to anyone other than the bona fide purchaser of the vehicle to be registered; nor shall may
a dealer issue a temporary registration plate or marker to anyone possessed of an annual registration
plate for a vehicle which has been sold or exchanged, except a dealer may issue a temporary
registration plate or marker to the bona fide purchaser of a vehicle to be registered who possesses
an annual registration plate of a different class and makes application to the division to exchange
such annual registration plate of a different class in accordance with the provisions of section one,
article four of this chapter; nor shall may a dealer lend to anyone, or use on any vehicle which he or
she may own, a temporary registration plate or marker. It shall be is unlawful for any dealer to issue
any temporary registration plate or marker knowingly containing any misstatement of fact or
knowingly to insert any false information upon the face thereof.
(e) Every dealer who issues temporary registration plates or markers shall affix or insert
clearly and indelibly on the face of each temporary registration plate or marker in the manner
prescribed by the commissioner, the date of issuance and expiration thereof and the make and motor
or serial number of the vehicle for which issued.
(f) If the commissioner finds that the provisions of this section or his or her directions are not
being complied with by a dealer, he or she may suspend the right of such dealer to issue temporary registration plates or markers.
(g) Every person to whom a temporary registration plate or marker has been issued shall
permanently destroy such temporary registration plate or marker immediately upon receiving the
annual registration plate for such vehicle from the division: Provided, That if the annual registration
plate is not received within sixty days of the issuance of the temporary registration plate or marker,
the owner shall, notwithstanding the fact that the annual registration plate has not been received,
immediately and permanently destroy the temporary registration plate or marker: Provided, however,
That not more than one temporary registration plate or marker shall be issued to the same bona fide
purchaser for the same vehicle.
(h) A temporary registration plate or marker shall expire and become void upon the receipt
of the annual registration plate from the division or upon the rescission of the contract to purchase
the vehicle in question or upon the expiration of sixty days from the date of issuance, depending
upon whichever event shall first occur.
(i) For the purpose of this section, the term 'dealer' includes a wrecker/dismantler/rebuilder
and in the context of issuing temporary registration plates, any other business licensed by the
division in accordance with the provisions of this chapter and authorized to issue temporary
registration plates or markers.
(j) The commissioner shall require participation in an electronic temporary plate issuance
system as a precondition for authority to issue temporary license plates or markers.
§17A-6-18a. Motor Vehicle Dealers Advisory Board.
(a) There is continued a Motor Vehicle Dealers Advisory Board to assist and to advise the
commissioner on the administration of laws regulating the motor vehicle industry; to work with the
commissioner in developing new laws, rules or policies regarding the motor vehicle industry; to
advise the commissioner on setting documentary charges or similar charges for documentary service in relation to securing a title; and to give the commissioner any further advice and assistance as he
or she may, from time to time, require.
The board shall consist of nine members and the Commissioner of Motor Vehicles, or his
or her representative, who shall be an ex officio member. Two members shall represent new motor
vehicle dealers, with one of these two members representing dealers that sell less than one hundred
new vehicles per year; one member shall represent used motor vehicle dealers; one member shall
represent wrecker/dismantler/rebuilders; one member shall represent automobile auctions; one
member shall represent recreational dealers; one member shall represent the West Virginia Attorney
General's office; and two members shall represent consumers. All of the representatives, except the
Attorney General representative who shall be designated by the Attorney General, shall be appointed
by the Governor with the advice and consent of the Senate, with no more than five representatives
being from the same political party.
The terms of the board members shall be for three years. The attorney general representative
shall serve continuously.
The board shall meet at least four times annually and at the call of the commissioner.
(b) The commissioner shall consult with the board before he or she takes any disciplinary
action against a dealer, an automobile auction or a license service to revoke or suspend a license,
place the licensee on probation or levy a civil penalty, unless the commissioner determines that the
consultation would endanger a criminal investigation.
(c) The commissioner may consult with the board by mail, by facsimile, by telephone or at
a meeting of the board, but the commissioner is not bound by the recommendations of the board.
The commissioner shall give members seven days from the date of a mailing or other notification
to respond to proposed actions, except in those instances when the commissioner determines that the
delay in acting creates a serious danger to the public's health or safety or would unduly compromise
the effectiveness of the action.
(d) No action taken by the commissioner is subject to challenge or rendered invalid on
account of his or her failure to consult with the board.
(e) The appointed members shall serve without compensation, however, members are entitled
to reimbursement of travel and other necessary expenses actually incurred while engaged in
legitimate board activities in accordance with the guidelines of the Travel Management Office of the
Department of Administration or its successor agency.
ARTICLE 6E. MOTOR VEHICLE SALESPERSON LICENSE.
§17A-6E-2. Definitions.
The following words as used in this article, unless the context otherwise requires, have the
following meanings:
(1) 'Applicant' means any person making application for an original or renewal of a
salesperson license;
(2) 'Dealer' means any motor vehicle or auction business regulated under the provisions of
article six or six-c of this chapter;
(3) 'Licensee' means any person holding a license issued under the provisions of this article;
(4) 'Motor vehicle salesperson' or 'salesperson' means any person employed by a dealer to
sell, buy, display and offer for sale or deal in motor vehicles, recreational vehicles or trailers, as those
terms are defined in section one of article one of this chapter, for a commission or other valuable
consideration, but does not mean any public officer performing his or her official duties or the dealer
licensee. A person employed by a dealer as a finance and insurance representative is for the purposes
of this article a salesperson. For the purposes of this article, the term 'motor vehicle salesperson'
does not apply to persons employed by a dealer in the business of selling commercial motor vehicles
with a gross vehicle weight of twenty-six thousand one pounds or more, employees of financial
institutions or to businesses licensed as auctions.
CHAPTER 46A. WEST VIRGINIA CONSUMER CREDIT
AND PROTECTION ACT.
ARTICLE 3. FINANCE CHARGES AND RELATED PROVISIONS.
§46A-3-109. Additional charges; credit life or health insurance; notice of cancellation; when
refund required; obligations of creditor and insurer; civil penalty; rules
relating to insurance.
(a) In addition to the sales finance charge or loan finance charge permitted by this chapter,
a creditor may contract for and receive the following additional charges in connection with a
consumer credit sale or a consumer loan:
(1) Official fees and taxes;
(2) Charges for insurance as described in subsection (b) of this section: Provided, That
nothing contained in this section with respect to insurance in any way limits the power and
jurisdiction of the Insurance Commissioner of this state in the premises;
(3) Annual charges, payable in advance, for the privilege of using a lender credit card or
similar arrangement which entitles the user to purchase goods or services from at least one hundred
persons not related to the issuer of the lender credit card or similar arrangement, under an
arrangement pursuant to which the debts resulting from the purchases are payable to the issuer;
(4) Charges for other benefits, including insurance, conferred on the consumer, if the benefits
are of value to him or her and if the charges are reasonable in relation to the benefits, are of a type
which is not for credit and are excluded as permissible additional charges from the sales finance
charge or loan finance charge by rule adopted by the commissioner: Provided, That as to insurance,
the policy as distinguished from a certificate of coverage thereunder may only be issued by an
individual licensed under the laws of this state to sell the insurance and the determination of whether
the charges therefor are reasonable in relation to the benefits shall be determined by the insurance
commissioner of this state;
(5) Reasonable closing costs with respect to a debt secured by an interest in land; and
(6) Documentary charge or any other similar charge for documentary services in relation to
securing a title, so long as said charge is applied equally to cash customers and credit customers alike
and so long as such documentary charge does not exceed fifty dollars.
(b) A creditor may take, obtain or provide reasonable insurance on the life and earning
capacity of any consumer obligated on the consumer credit sale or consumer loan, reasonable
insurance on any real or personal property offered as security subject to the provisions of this
subsection and section one hundred nine-a of this article and vendor's or creditor's single interest
insurance with respect to which the insurer has no right of subrogation. Only one policy of life
insurance and/or one policy of health and accident insurance and/or one policy of accident insurance
and/or one policy of loss of income insurance on any one consumer may be in force with respect to
any one contract or agreement at any one time, but one policy may cover both a consumer and his
or her spouse:
(1) The amount, terms and conditions of property insurance shall have a reasonable relation
to the existing hazards or risk of loss, damage or destruction and be reasonable in relation to the
character and value of the property insured or to be insured; and the term of the insurance shall be
reasonable in relation to the terms of credit: Provided, That nothing may prohibit the consumer from
obtaining, at his or her option, greater coverages for longer periods of time if he or she so desires;
(2) Life insurance shall be in an initial amount not to exceed the total amount repayable under
the consumer credit agreement, and where a consumer credit sale or consumer loan is repayable in
installments, such insurance may at no time exceed the scheduled or actual amount of unpaid
indebtedness, whichever is greater. Life insurance authorized by this subdivision shall provide that
the benefits be paid to the creditor to reduce or extinguish the unpaid indebtedness: Provided, That
if a separate charge is made for the insurance and the amount of insurance exceeds the unpaid
indebtedness, where not prohibited, then the excess is payable to the estate of the consumer. The initial term of the life insurance in connection with a consumer credit sale, other than a sale pursuant
to a revolving charge account, or in connection with a consumer loan, other than a loan pursuant to
a revolving loan account, may not exceed the scheduled term of the consumer credit agreement by
more than fifteen days. The aggregate amount of periodic benefits payable by credit accident and
health insurance in the event of disability, as defined in the policy, and loss of income insurance in
the event of involuntary loss of employment, as defined in the policy, may not exceed the unpaid
amount of such indebtedness; periodic benefits payable in connection with a consumer credit sale
pursuant to a revolving charge account or of a consumer loan pursuant to a revolving loan account
may be based upon the authorized credit limit;
(3) When the insurance is obtained or provided by or through a creditor, the creditor may
collect from the consumer or include as part of the cash price of a consumer credit sale or as part of
the principal of a consumer loan or deduct from the proceeds of any consumer loan the premium or,
in the case of group insurance, the identifiable charge. The premium or identifiable charge for the
insurance required or obtained by a creditor may equal, but may not exceed the premium rate filed
by the insurer with the insurance commissioner. In any case when the creditor collects the entire
premium for such insurance in advance, the premium shall be remitted by the creditor to the insurer
or the insurance agent, as specified by the insurer, within ten days from or after the end of the month
in which the collection was made;
(4) With respect to insurance against loss of or damage to property or against liability, the
creditor shall furnish a clear and specific statement in writing to the debtor setting forth the cost of
the insurance if obtained from or through the creditor and stating that the debtor may choose the
person through whom the insurance is to be obtained;
(5) With respect to consumer credit insurance providing life, accident, health or loss of
income coverage, no creditor may require a consumer to purchase the insurance or to purchase the
insurance from the creditor or any particular agent, broker or insurance company as a condition precedent to extending credit to or on behalf of such consumer;
(6) When a consumer credit sale or consumer loan, refinancing or consolidation is paid in
full, the creditor receiving the payment shall inform the debtor of the cancellation of any consumer
credit insurance providing life, accident, health or loss of income coverage and advise the debtor of
the application of any unearned premiums to the loan balance. Notices required by this subdivision
shall be made in the following manner:
(A) If the insurance was not sold or provided by the creditor, the creditor receiving the
payment shall notify the debtor that he or she may have the right to receive a refund of unearned
premiums from any other seller or provider of the insurance and advise the debtor of his or her
obligation to notify any other insurer of the payment of the loan balance and the cancellation of the
consumer credit insurance and request a refund or credit of unearned premiums, if applicable. Such
notice shall be sent on a form as prescribed by the insurance commissioner as provided in chapter
twenty-nine-a of this code and shall contain the name and address of the seller and the insurer; or
(B) If the creditor was the seller or provider of the consumer credit insurance, the creditor
shall:
(i) Notify the insurer or shall cause the insurer to be notified of the cancellation of such
insurance; and
(ii) Notify the debtor of the cancellation of the insurance and of the application of any
unearned premiums to the loan balance, which notice may be on a form consistent with the general
course of business of the creditor;
(7) Upon receipt by the insurer of notification of the cancellation of consumer credit
insurance, the insurer shall cancel the insurance effective no later than thirty days from the date of
receipt of the notice. Within forty-five days following the date of notification of cancellation of the
insurance, the insurer shall pay any refund of unearned premiums to the debtor-insurer or such other person as directed by the debtor-insurer; and
(8) An insurer, seller or creditor who fails to refund any unused insurance premium or
provide the proper notification of payoff is liable for civil damages up to three times the amount of
the unused premium as well as other remedies as provided by section one hundred nine, article seven
of this chapter.
(c) The Insurance Commissioner of this state shall promulgate legislative rules in accordance
with the provisions of chapter twenty-nine-a of this code to implement the provisions of this article
relating to insurance and the authority of the Insurance Commissioner to promulgate the rules is
exclusive notwithstanding any other provisions of this code to the contrary."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4364 - "A Bill to amend and reenact §17A-6-1b, §17A-6-2a, §17A-6-4,
§17A-6-7, §17A-6-15 and §17A-6-18a of the Code of West Virginia, 1931, as amended; and to
amend and reenact §17A-6E-2 and 46A-3-109 of said code, all relating to the licensing of dealers;
extending authority to out-of-state dealers to issue vehicle registrations; expanding authority of
Dealer Recovery Fund Control Board to consider claims against the fund; increasing minimum bond
requirement from ten thousand dollars to twenty-five thousand dollars; establishing minimum
number of sales prior to renewal and opportunity for appeal; exempting salespersons employed by
dealers selling commercial vehicles, financial institutions and auctions from the requirement to
obtain a salesperson license; and authorizing the commissioner to require participation in an
electronic temporary plates or markers program as a precondition for issuance of temporary plates;
and transferring to commission authority to set documentary changes with the advice of the Motor
Vehicle Dealers' Dealer Advisory Board."
On motion of Delegate DeLong, the House refused to concur in the Senate amendment and requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take
effect July 1, 2008, a bill of the House of Delegates as follows:
H. B. 4676, Continuing the permissible appropriation of Public Employees Insurance Reserve
Fund moneys to the bureau for medical services.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
Delegate DeLong moved that the bill take effect July 1, 2008.
On this question, the yeas and nays were taken (Roll No. 249), and there were--yeas 97, nays
none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Frederick, Marshall and Michael.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4676) takes effect July 1, 2008.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, with amendment, of a
concurrent resolution of the House of Delegates as follows:
H. C. R. 6, The "Kenny Ray Hamrick Memorial Bridge".
On motion of Delegate DeLong, the resolution was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the title and inserting in lieu thereof the
following:
"Whereas, Kenney Ray Hamrick, Sr., a life-long resident of Webster Springs, operated
several successful businesses, including Hamrick's Texaco and Restaurant, and served as a city
councilman as well; and
Whereas, Kenney Ray Hamrick, Sr. served his country faithfully and courageously in World
War II, earning two purple hearts and two bronze stars for uncommon and exceptional acts of valor;
and
Whereas, Kenney Ray Hamrick, Sr. was a generous and charitable citizen of Webster
Springs, frequently offering people who were down on their luck free meals at his restaurant while
extending them credit for gasoline at his filling station; and
Whereas, It is fitting that this bridge be named for Kenney Ray Hamrick, Sr. to honor his
generosity and compassion; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways to name bridge number 51-20-
20.27 (4114) on Route 20 in Webster Springs, Webster County, the 'Kenney Ray Hamrick, Sr.
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 'Kenney Ray Hamrick, Sr. 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 and Kenney Ray Hamrick, Sr.'s son,
Kevin R. Hamrick."
And by amending the title of the resolution to read as follows:
H. C. R. 6 - "Requesting the Division of Highways name the bridge number 51-20-20.27
(4114) on Route 20 in Webster Springs, Webster County, the 'Kenney Ray Hamrick, Sr. Memorial
Bridge'."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate
amendments.
The resolution (H. C. R. 6) was then adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Resolutions Introduced
Mr. Speaker, Mr. Thompson, offered the following resolution, which was read by its title and
referred to the Committee on Rules:
H. C. R. 84 - "Requesting that the Joint Committee on Government and Finance authorize
the study to improve the state's efforts to better promote the availability of safe drinking water
projects funding; expedite the time line between inception of a project and its completion; establish
clearer communication regarding the application process and implementation stages of such projects;
and in general, more efficiently improve its efforts to insure safe drinking water for all West Virginia
Citizens."
Whereas, The Legislature recognizes the importance of the basic right of clean, suitable,
drinking water by annually providing the necessary funding for such projects; and
Whereas, That although funding is appropriated, it remains a sad reality that many of West
Virginia's families do not enjoy that which so many other parts of the country take for granted, that
being safe, suitable, drinking water; and
Whereas, Safe drinking water is a fundamental necessity to life itself; and
Whereas, Safe drinking water should be among one of the primary goals of a government to insure to its people; and
Whereas, Communities that have safe drinking water for its citizens and businesses have
a better chance at improving its business and development goals; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to authorize a
study to improve the state's efforts to better promote the availability of safe drinking water projects
funding; expedite the time line between inception of a project and its completion; establish clearer
communication regarding the application process and implementation stages of such projects; and
in general, more efficiently improve its efforts to insure safe drinking water for all West Virginia
Citizens; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the
Regular Session of the Legislature, 2009, on its findings, conclusions and recommendations, together
with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the Legislative expenses necessary to conduct this study, to prepare
a report and to draft necessary legislation be paid from legislative appropriations to the Joint
Committee on Government and Finance.
Delegates Brown, Azinger, Campbell, Crosier, Eldridge, Ellis, Fleischauer, Guthrie, Hatfield,
Hrutkay, Kessler, Kominar, Long, Mahan, Miley, Moore, Morgan, Paxton, Perdue, Perry, Pino, M.
Poling, Rodighiero, Shaver, Stephens, Talbott, Wells, White, Williams offered the following
resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 85 - "Urging the withdrawal of West Virginia National Guard military forces from
Iraq and the federal deployment of the National Guard."
Whereas, Under Article I, Section 8, Clause 15 of the United States Constitution, Congress
may call forth the militia to execute the laws of the union, suppress insurrections and repel invasions. Since 1933, federal law has provided that persons enlisting in a State National Guard unit
simultaneously enlist in the National Guard of the United States, a part of the U. S. Army. The
enlistees retain their status as state guard members unless and until ordered to active federal duty and
then revert to state status upon being relieved from federal service. In 1986, Congress passed and
the President signed the "Montgomery Amendment," which provides that a Governor cannot
withhold consent with regard to active duty outside the United States because of any objection to the
location, purpose, type or schedule of such duty; and
Whereas, Under the U. S. Constitution, each state's national unit is controlled by the
Governor, but can be called up for federal duty by the President, provided that the President is acting
pursuant to the Constitution and laws of the United States. In October 2002, the U. S. Congress
authorized military force under the Authorization for Use of Military Force Against Iraq, Public Law
No. 107-243 (AUMF), a law enacted in part that the President is authorized to use the Armed Forces
of the United States as he or she determines to be necessary and appropriate in order to: (a) Defend
the national security of the United States against the continuing threat posed by Iraq; and (b) enforce
all relevant United Nations Security Council Resolutions regarding Iraq. The AUMF contained
neither a termination date nor a process or procedure to determine when the authorization should
terminate. U. S. forces, including members of the West Virginia National Guard and guard
members from other states, have long since addressed the purposes recited under the AUMF, and
it is time for the Iraq National Guard to assume responsibility for the security and protection of their
country; and
Whereas, The President may not maintain U. S. forces, and in particular members of the
West Virginia National Guard, in Iraq other than for the purposes set forth by Congress in the
AUMF. Without a specific date for withdrawal of U. S. forces from Iraq in the AUMF or a method
or formula for determining the time for withdrawal, and in the absence of congressional legislation
curing these omissions, the President is required to order the withdrawal of troops within a reasonable time and in a reasonable manner. The President has taken no such action, other than the
AUMF, there is no authority under the Constitution or the laws of the United States for the continued
presence of West Virginia National Guard members in Iraq. The maintenance of West Virginia
National Guard members in Iraq beyond the time and scope set forth in the AUMF has resulted in
significant harm to guard members and their families, including death and injury, loss of time
together and financial hardship; and
Whereas, West Virginians are ever mindful of natural and man made disasters which
threaten lives and property such as the Buffalo Creek disaster of February 26, 1972, and the
importance of having West Virginia's National Guard units prepared and ready for deployment to
provide aid in any imminent emergency; therefore, be it
Resolved by the Legislature of West Virginia:
That Congress is urged to revisit the 1986 Montgomery Amendment and adopt legislation
that restores the powers of the Governors of the several states to withhold consent to federalization
of their National Guards, except where a declaration of war has been adopted or where the United
States faces attack or invasion and the President has invoked powers authorized by an Act of
Congress to address those circumstances; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this
resolution to the members of the West Virginia Delegation to Congress.
Petitions
Mr. Speaker, Mr. Thompson, presented a petition on behalf of the teachers of Berkeley and
Wood counties, expressing their disappointment in the Governor's proposed professional educator's
compensation package; which was referred to the Committee on Finance.
Calendar
Unfinished Business
H. C. R. 37, Urging the Government of Turkey to uphold and safeguard religious and human
rights and to cease its discrimination of the Ecumenical Patriarchate; coming up in regular order, as
unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Second Reading
S. B. 101, Exempting nonprofit companies providing electricity from property tax; on second
reading, coming up in regular order, was read a second time, and at the request of Delegate DeLong,
and by unanimous consent, the rule was suspended to permit the offering and consideration of
amendments on that reading.
S. B. 270, Eliminating provisions requiring circuit clerks handle and disburse inmate moneys;
on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 272, Clarifying "telemarketing solicitation" definition; on second reading, coming up
in regular order, was read a second time and ordered to third reading
Com. Sub. for S. B. 493, Granting emergency election powers to Secretary of State; on
second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page four, section six, line sixty-one, by striking out all of
subsection (e) and inserting in lieu thereof the following language:
"(e) (1) The Secretary of State shall also have the power, after consultation with the Secretary
of the Department of Military Affairs and Public Safety, to implement emergency procedures and
rules to ensure that all eligible voters have the opportunity to cast a valid ballot and to uphold the
integrity of an election in the event of natural disaster as declared by the Governor of this state,
terrorist attack, war, or general emergency, if any of which occur during or immediately preceding an election.
(2) For purposes of this subsection, a 'general emergency'means circumstances preventing
the casting of ballots in one or more voting precincts. The chief judge of the circuit court of the
county where the casting of ballots is being prevented must declare by order that a general
emergency exists."
The bill was then ordered to third reading.
Com. Sub. for S. B. 494, Providing voter verification through electronic poll book; on
second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary , was reported by the Clerk
and adopted, amending the bill on page fourteen, section seventeen, line thirty-eight, by striking out
the words "supply the precinct with" and inserting in lieu thereof the word "authorize".
And,
On page fourteen, section seventeen, line forty, after the period by inserting the following:
"A printed poll book shall accompany the electronic poll book to each precinct."
The bill was then ordered to third reading.
Com. Sub. for S. B. 495, Requiring certain poll worker training; on second reading, coming
up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 496, Protecting voter registration information; on second reading,
coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 505, Creating Veterans Cemetery Fund from lottery proceeds; on second
reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 507, Clarifying voting procedures; on second reading, coming up in
regular order, was read a second time and ordered to third reading.
S. B. 512, Increasing number of Records Management and Preservation Board members; on
second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 514, Permitting electronic mail absentee voting; on second reading,
coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 519, Extending Hazardous Waste Material Management Fee Fund
sunset provision; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Government Organization, was reported
by the Clerk, striking out everything after the enacting section and inserting in lieu thereof the
following:
"ARTICLE 18. HAZARDOUS WASTE MANAGEMENT ACT.
§22-18-22. Appropriation of funds; Hazardous Waste Management Fund.
(a) The net proceeds of all fines, penalties and forfeitures collected under this article shall
be appropriated as directed by article XII, section five of the Constitution of West Virginia. For the
purposes of this section, the net proceeds of the fines, penalties and forfeitures shall be considered
the proceeds remaining after deducting therefrom those sums appropriated by the Legislature for
defraying the cost of administering this article. All permit application fees collected under this
article shall be paid into the State Treasury into a special fund designated the Hazardous Waste
Management Fund. In making the appropriation for defraying the cost of administering this article,
the Legislature shall first take into account the sums included in that special fund prior to deducting
additional sums as may be needed from the fines, penalties and forfeitures collected pursuant to this
article.
(b) Effective on the first day of July, two thousand three, and for the next two fiscal years,
there is imposed an annual certification fee for facilities that manage hazardous waste, as defined
by the federal Resource Conservation and Recovery Act, as amended. The fee will be set by rule promulgated by the secretary in accordance with the provisions of article three, chapter twenty-nine-a
of this code. The rule shall be a product of a negotiated rule-making process with the facilities
subject to the rule. The rule shall, at a minimum, establish different fee rates for facilities based on
criteria established in the rule. The total amount of fees generated shall may raise no more funds
than are necessary and adequate to meet the matching requirements for all federal grants which
support the hazardous waste management program, but shall may not exceed seven hundred
thousand dollars per year.
(c) The revenues collected from the annual certification fee shall be deposited in the State
Treasury to the credit of the Hazardous Waste Management Fee Fund, which is hereby established
continued. Moneys of the fund, together with any interest or other return earned thereon, shall be
expended to meet the matching requirements of federal grant programs which support the hazardous
waste management program. Expenditures from the fund shall be are for the purposes set forth in
this article and are not authorized from collections, but are to be made only in accordance with
appropriation by the Legislature and in accordance with the provisions of article three, chapter
twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter five-a
of this code. Provided, That for the fiscal year ending the thirtieth day of June, two thousand four,
expenditures are authorized from collections rather than pursuant to an appropriation by the
Legislature. Amounts collected which are found, from time to time, to exceed the funds needed for
purposes set forth in this article may be transferred to other accounts by appropriation of the
Legislature.
(d) The fee provided for in subsection (b) of this section and the fund established in
subsection (c) of this section shall terminate on the thirtieth day of June, two thousand eight ten. The
division department shall, by the thirty-first day of December of each year, report to the Joint
Committee on Government and Finance regarding moneys collected into the Hazardous Waste
Management Fee Fund and expenditures by the agency, including any federal matching moneys received and providing an accounting on the collection of the fee by type of permit activity, funds
being expended and current and future projected balances of the fund."
On motion of Delegate Morgan, the Committee amendment was amended on page two,
section twenty-two, line nine, after the word "generated", by striking out the word "may" and
inserting in lieu thereof the word "shall".
And,
On page two, section twenty-two, line twelve, after the word "but", by striking out the word
"may" and inserting in lieu thereof the word "shall".
The question before the House being the amendment by the Committee on Government
Organization, as amended, the same was put and prevailed.
The bill was then ordered to third reading.
Com. Sub. for S. B. 580, Authorizing magistrate courts to accept unsigned citation
payments; on second reading, coming up in regular order, was read a second time and ordered to
third reading.
Com. Sub. for S. B. 619, Defining certain external defibrillators' user terms; on second
reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 654, Finding and declaring certain claims against state; on second reading, coming up
in regular order, was read a second time and ordered to third reading.
S. B. 775, Relating to state parks and state forests; on second reading, coming up in regular
order, was read a second time.
An amendment, recommended by the Committee on Agriculture and Natural Resources , was
reported by the Clerk and adopted, amending the bill on page three, line twenty, by striking out the
word, "Panther" and inserting the following: "Panther Forest/WMA, consisting of approximately
twenty-six acres containing park facilities" followed by a semicolon.
The bill was then ordered to third reading.
First Reading
The following bills on first reading, coming up in regular order, were each read a first time
and ordered to second reading:
Com. Sub. for S. B. 13, Relating to Dental Practice Act generally,
Com. Sub. for S. B. 88, Creating brownfield economic development districts,
Com. Sub. for S. B. 234, Creating Maternal Mortality Review Team,
S. B. 236, Eliminating obsolete election language,
S. B. 237, Repealing county officers' annual report requirement of certain expenditures,
S. B. 238, Increasing monetary limit to file circuit court suit,
S. B. 271, Establishing grievance procedure for State Police,
S. B. 317, Updating physician and podiatrist licensing requirements,
Com. Sub. for S. B. 325, Relating to state employee deferred compensation plan,
S. B. 337, Eliminating obsolete language concerning Supreme Court clerk,
Com. Sub. for S. B. 373, Authorizing Miscellaneous Boards and Agencies promulgate
legislative rules,
Com. Sub. for S. B. 481, Authorizing physician assistants to conduct mental health hygiene
process examinations,
S. B. 503, Requiring solid waste facility permit applicants furnish fingerprints for criminal
background checks,
Com. Sub. for S. B. 545, Relating to tax administration efficiency,
Com. Sub. for S. B. 552, Relating to prepaid wireless calling taxes, fees and charges,S. B. 570, Allowing county commissions' involvement in joint development efforts,
Com. Sub. for S. B. 596, Relating to Streamlined Sales and Use Tax Agreement,
S. B. 606, Requiring hiring preference for summer school program positions,
Com. Sub. for S. B. 638, Requiring information collection from catalytic converter
purchasers,
Com. Sub. for S. B. 645, Exempting city and county hospitals from certain audit
requirements,
S. B. 659, Increasing certain crime victims' benefits,
S. B. 671, Increasing presiding Court of Claims' judge compensation,
S. B. 673, Making supplementary appropriation to Department of Health and Human
Resources,
And,
S. B. 674, Making supplementary appropriation to Department of Administration and
Department of Military Affairs and Public Safety.
At 11:52 a.m., on motion of Delegate DeLong, the House of Delegates recessed until 5:00
p.m., and reconvened at that time.
* * * * * * * *
Afternoon Session
* * * * * * * *
At the respective requests of Delegate Caputo, and by unanimous consent, the bills received
on committee reports which were not referred to a second committee in earlier proceedings were
taken up for further consideration, each read a first time and ordered to second reading, as follows:
S. B. 217, Reducing compliance time for nonresident traffic violations,
Com. Sub. for S. B. 305, Clarifying procedures for seizing neglected or abused animals,
Com. Sub. for S. B. 340, Requiring consumers' notification of information security breach,
Com. Sub. for S. B. 398, Authorizing Department of Health and Human Resources
promulgate legislative rules,
S. B. 492, Eliminating part-time prosecutors,
Com. Sub. for S. B. 504, Relating to child support enforcement,
Com. Sub. for S. B. 536, Exempting Supreme Court probation officers' vehicles from certain
registration requirements,
And,
S. B. 722, Granting regulatory power to certain Board of Pharmacy facilities.
At the request of Delegate Caputo, and by unanimous consent, the House of Delegates
returned to the Third Order of Business for the purpose of receiving committee reports.
Committee Reports
Chairman Manchin, from the Committee on Political Subdivisions, submitted the following
petition, which was received:
Your Committee on Political Subdivisions has had under consideration:
Constitutional Petition Requesting the West Virginia Legislature to Reform the County's
Current Form of Government by the Berkeley County Commission,
And reports the same back with the recommendation that it be referred to the Committee on
the Judiciary.
In accordance with the former direction of the Speaker, the Constitutional Petition was referred to the Committee on the Judiciary.
Chairman Webster, 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 S. B. 311, Allowing judges to order jurors from other counties in certain
situations,
And reports the same back, with a title amendment, with the recommendation that it do pass,
as amended, and with the recommendation that second reference of the bill to the Committee on
Finance be dispensed with.
At the respective requests of Delegate DeLong, and by unanimous consent, reference of the
bill (Com. Sub. for S. B. 311) to the Committee on Finance was abrogated, and it was taken up for
immediate consideration, read a first time and ordered to second reading.
Chairman Morgan, from the Committee on Government Organization, submitted the
following report, which was received:
Your Committee on Government Organization has had under consideration:
Com. Sub. for S. B. 553, Creating Permitting and Licensing Act,
And,
S. B. 780, Relating to Public Employees Grievance Procedure,
And reports the same back, with amendment, with the recommendation that they each do
pass, as amended, but first that they be referred to the Committee on Judiciary.
In accordance with the former direction of the Speaker, the bills (Com. Sub. for S. B. 553 and
S. B. 780) were each referred to the Committee on the Judiciary.
Chairman Morgan, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration:
S. B. 72, Expanding Route 2 and Interstate 68 Authority territory,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended, but that it first be referred to the Committee on the Judiciary.
In the absence of objection, the bill (S. B. 72) was referred to the Committee on the Judiciary.
Chairman Webster, 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 S. B. 242, Allowing point deduction for certain licensees attending defensive
driving class,
And,
Com. Sub. for S. B. 292, Allowing Commissioner of Banking issue bond claims to collect
certain unpaid penalties and invoices,
And reports the same back with the recommendation that they each do pass.
At the respective requests of Delegate Caputo, and by unanimous consent, the bills (Com.
Sub. for S. B. 242 and Com. Sub. for S. B. 292) were each taken up for immediate consideration,
read a first time and then ordered to second reading.
Chairman Webster, 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 S. B. 286, Providing adult and child protective services workers personal
immunity from civil liability,
And,
Com. Sub. for S. B. 571, Relating to certain firefighters' workers' compensation benefits,
And reports the same back, with amendment, with the recommendation that they each do
pass, as amended.
At the respective requests of Delegate Caputo, and by unanimous consent, the bills (Com.
Sub. for S. B. 285 and S. B. 571) were each taken up for immediate consideration, read a first time
and then ordered to second reading.
On motion for leave, a resolution was introduced (Originating in the Committee on Education
and reported with the recommendation that it be adopted), which was read by its title, as follows:
By Delegates Browning, Pethtel, Frederick, Ireland, J. Miller, Paxton, Perry, M. Poling,
Shaver, Duke, Romine, Moye, Rodighiero, Ellis, Gall, Williams, Rowan, Fragale,
Crosier, Wells, Wysong and Sumner:
H. C. R. 99 - "Requesting the Joint Committee on Government and Finance to make a study
on a funding mechanism to increase the salaries of teachers and school service personnel."
Whereas, Schools, county boards and regional education service agencies raise and expend
funds in a variety of ways and for a variety of purposes; and
Whereas, Schools, county boards and regional education service agencies have limited
personnel to supervise financial accounts; and
Whereas, The establishment of more expedient and efficient accounting and auditing
practices and procedures for schools, county boards and regional education service agencies would
help make them more accountable and less subject to question for funds raised and expended;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to make a study
to improve the expediency and efficiency of school level, county board and regional education
service agency accounting and auditing practices and procedures; and be it
Further Resolved, That the said Joint Committee on Government and Finance is requested
conduct the study and prepare a report of its findings, conclusions and recommendations together
with drafts of any legislation necessary to effectuate its recommendations; and be it
Further Resolved, That the Joint Committee on Government and Finance is requested to
report to the regular session of the Legislature, 2009, on its findings, conclusions and
recommendations, together with drafts of any legislation necessary to effectuate its
recommendations; and be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
draft necessary legislation are requested to be paid from legislative appropriations to the Joint
Committee on Government and Finance.
The Speaker referred the resolution (H. C. R. 99) to the Committee on Rules.
Chairman Poling, from the Committee on Education, submitted the following report, which
was received:
Your Committee on Education has had under consideration:
Com. Sub. for S. B. 593, Clarifying library funding obligation from local share,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended, and with the recommendation that second reference of the bill to the Committee on
Finance be dispensed with.
In the absence of objection, reference of the bill (S. B. 593) to the Committee on Finance
was abrogated.
At the respective requests of Delegate Caputo, and by unanimous consent, the bill (Com. Sub. for S. B. 593) was taken up for immediate consideration, read a first time and then ordered to
second reading.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates
and the passage, as amended, of
S. B. 579, Appointing additional nonresident members to Bluefield's sanitary board.
Leaves of Absence
At the request of Delegate Caputo, and by unanimous consent, leaves of absence for the day
were granted Delegates Frederick and Michael.
Delegate Overington asked and obtained unanimous consent that the remarks of Delegate
Carmichael regarding the tax climate in West Virginia be printed in the Appendix to the Journal.
At 5:30 p.m., the House of Delegates adjourned until 11:00 a.m., Tuesday, March 4, 2008.