WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-EIGHTH LEGISLATURE

REGULAR SESSION, 2008

TWENTIETH DAY

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Charleston, W. Va., Monday, January 28, 2008

The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)

Prayer was offered by the Reverend Melissa White, Pineville United Methodist Church, Pineville, West Virginia, and Wyoming United Methodist Church, Wyoming, West Virginia.
Pending the reading of the Journal of Friday, January 25, 2008,
On motion of Senator Unger, the Journal was approved and the further reading thereof dispensed with.
The Senate proceeded to the second order of business and the introduction of guests.
The Senate then proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4019--A Bill to amend and reenact §56-1-1a of the Code of West Virginia, 1931, as amended, relating to civil actions filed in the courts of the state.
Referred to the Committee on the Judiciary.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills were introduced, read by their titles, and referred to the appropriate committees:
By Senators Love and Barnes:
Senate Bill No. 460--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-2-8a, relating to making it illegal to transport a minor across state lines to obtain an abortion without written consent from both parents; and providing a criminal penalty for violation.
Referred to the Committee on the Judiciary.
By Senators Prezioso, Kessler, Plymale and Hunter:
Senate Bill No. 461--A Bill to amend and reenact §5-10-22f of the Code of West Virginia, 1931, as amended; and to amend and reenact §18-7A-26r of said code, all relating to increasing the minimum retirement annuity for certain public employee and teacher retirants.
Referred to the Committee on Pensions; and then to the Committee on Finance.
By Senator Bailey:
Senate Bill No. 462--A Bill to amend and reenact §27-4-1 and §27-4-3 of the Code of West Virginia, 1931, as amended, all relating to raising the age of consent that an individual may refuse mental health treatment.
Referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.
By Senator Kessler:
Senate Bill No. 463--A Bill to amend and reenact §29-6-20 of the Code of West Virginia, 1931, as amended, relating to the exclusion of service as a poll worker from being deemed a prohibited political activity.
Referred to the Committee on the Judiciary.
By Senators Kessler and Love:
Senate Bill No. 464--A Bill to amend and reenact §46A-6H-3 of the Code of West Virginia, 1931, as amended, relating to requiring court approval for certain structured settlement transfers; enhancing protection for consumers and dependents thereon; requiring appointment of guardian ad litem; payment of guardian ad litem, attorneys' fees and costs; requiring findings; and standard of proof.
Referred to the Committee on Banking and Insurance; and then to the Committee on the Judiciary.
By Senators McCabe, Unger, Fanning, White, Boley, Deem, Sprouse, Love, Chafin, Kessler, Tomblin (Mr. President), Bowman, Green, Foster, Oliverio, Facemyer, Hall, Prezioso, Plymale, Stollings, Bailey, Jenkins, Hunter, Minard, Guills, Barnes, Helmick, Edgell, Wells, Yoder and Sypolt:
Senate Bill No. 465--A Bill to amend and reenact §11-23-6 of the Code of West Virginia, 1931, as amended, relating to eliminating the business franchise tax effective the first day of January, two thousand thirteen.
Referred to the Committee on Finance.
By Senators Unger, Plymale, Prezioso, Foster, Jenkins, Stollings and Hunter:
Senate Bill No. 466--A Bill to amend and reenact §22C-1-3, §22C-1-6 and §22C-1-16 of the Code of West Virginia, 1931, as amended, all relating to the Water Development Authority; defining terms; providing that stormwater systems may qualify as water development projects; and authorizing the Water Development Authority to administer the Dam Safety Rehabilitation Revolving Fund Loan Program.
Referred to the Committee on Natural Resources; and then to the Committee on Finance.
By Senators Unger, Prezioso, Plymale, Jenkins, Foster, Stollings, Hunter and Love:
Senate Bill No. 467--A Bill to amend and reenact §22-14-3, §22-14-15 and §22-14-19 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto three new sections, designated §22-14-20, §22-14-21 and §22-14-22, all relating to dam safety; defining terms; providing for the establishment, administration and management of the Dam Safety Rehabilitation Revolving Fund; providing moneys for the fund; providing eligibility requirements to receive loans from the fund; providing rule-making authority; providing application requirements for loans from the fund; establishing loan agreement requirements; providing for collection of moneys due the fund; providing authority to the Department of Environmental Protection for deficient dams that are privately owned by a noncompliant dam owner; and establishing civil penalties.
Referred to the Committee on Natural Resources; and then to the Committee on Finance.
By Senators Plymale and Jenkins:
Senate Bill No. 468--A Bill to amend and reenact §60A-9-5 of the Code of West Virginia, 1931, as amended, relating to authorizing county sheriffs to have access to the State Board of Pharmacy database.
Referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.
By Senators Love, Jenkins and Barnes:
Senate Bill No. 469--A Bill to amend and reenact §61-2-29 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto four new sections, designated §61-2-29a, §61-2-29b, §61-2-29c and §61-2-29d, all relating to protecting incapacitated persons and the elderly; defining terms; criminal penalties; and providing enhanced periods of incarceration for the offense of abuse or neglect of incapacitated adults or elder persons which result in the death of such persons.
Referred to the Committee on the Judiciary.
By Senators Love, Bailey, Bowman, Wells, Facemyer, Fanning and Green:
Senate Bill No. 470--A Bill to amend and reenact §12-6C-6 of the Code of West Virginia, 1931, as amended, relating to investments by political subdivisions; and clarifying that political subdivisions may invest with the West Virginia Investment Management Board and the West Virginia Board of Treasury Investments.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senator Bailey:
Senate Bill No. 471--A Bill to amend and reenact §17A-3-3 of the Code of West Virginia, 1931, as amended; and to amend and reenact §17D-2A-4 and §17D-2A-7 of said code, all relating to changing the penalty for driving without automobile insurance from license suspension to a fine if certain conditions are met.
Referred to the Committee on Banking and Insurance; and then to the Committee on the Judiciary.
By Senator Minard:
Senate Bill No. 472--A Bill to repeal §23-2C-9 of the Code of West Virginia, 1931, as amended; to amend and reenact §23-2C-2 and §23-2C-10 of said code; and to amend and reenact §33-26-3, §33-26-5, §33-26-6, §33-26-8 and §33-26-12 of said code, all relating to an assigned risk plan and guaranty association account for workers' compensation insurance; defining terms; eliminating certain funds in the Treasurer's office and transferring moneys in such funds to the Old Fund; eliminating the requirement that private carriers maintain an office in this state; providing for the establishment and operation of an assigned risk plan; making workers' compensation insurance applicable to the Insurance Guaranty Association Act; establishing a new account to be administered by the West Virginia Insurance Guaranty Association; modifying standards for paying duplicate claims; and providing that limits on benefits payable by the guaranty association are not applicable to obligations arising out of workers' compensation insurance.
Referred to the Committee on Banking and Insurance; and then to the Committee on Finance.
By Senators Oliverio, Minard, Wells, White, Barnes, Yoder, Kessler and Sypolt:
Senate Bill No. 473--A Bill to repeal §60-1-5a of the Code of West Virginia, 1931, as amended; to repeal §60-3-25 of said code; to amend and reenact §60-1-5 of said code; to amend said code by adding thereto four new sections, designated §60-4-2a, §60-4-2b, §60-4-2c and §60-4-22a; to amend and reenact §60-4-3b and §60-4-22 of said code; to amend and reenact §60-6-1 of said code; to amend and reenact §60-8-1, §60-8-2, §60-8-3, §60-8-4, §60-8-6, §60-8-6a, §60-8-19, §60-8-20, §60-8-24, §60-8-28, §60-8-30 and §60-8-32 of said code; and to amend said code by adding thereto two new sections, designated §60-8-3a and §60-8-3b, all relating to sales of wine; adding and removing certain definitions; establishing application and reporting requirements for farm wineries seeking a waiver of raw product quotas and import restrictions; defining "off-farm location" to mean a West Virginia farm or winery; limiting the duration of waivers; providing for winery and farm winery license to manufacture and sell; deleting provisions prohibiting wholesaler's representatives or their spouses from contributing to political party campaign funds; authorizing wine specialty shops to conduct wine sampling events and wine tasting events without obtaining a separate license; deleting provisions relating to wine tasting and wine sampling licenses; limiting direct shipping licenses to wineries or farm wineries producing twenty thousand gallons of wine or less per year; exempting from payment of the liter tax any winery or farm winery producing twenty thousand gallons of wine or less per year; providing that where a supplier or direct shipper does not have a minimum nexus with this state, the purchaser of wine from the supplier or direct shipper is responsible for reporting, collecting, remitting and paying taxes on the wine sold to the Tax Commissioner; adopting language relating to disposition of wine tax revenues; decreasing the cost and duration of wine brand and label registration; requiring the Alcohol Beverage Control Commissioner to propose rules for promulgation setting out standards for wine brand and label review and registration; and allowing wine manufacturers, suppliers and distributors to agree in writing to a period of less than ninety days for termination of a distribution agreement.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Tomblin (Mr. President) and Caruth (By Request of the Executive):
Senate Bill No. 474--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §11-15-9j, relating to providing a limited annual exemption from the consumers sales and service tax for purchases of certain Energy Star qualified products; specifying time period for exemption; and specifying definition.
Referred to the Committee on Finance.
By Senators Jenkins, Barnes and Sypolt:
Senate Bill No. 475--A Bill to amend and reenact §3-1-16 of the Code of West Virginia, 1931, as amended; to amend and reenact §3-4A-11 and §3-4A-11a of said code; to amend said code by adding thereto a new section, designated §3-5-6a; to amend and reenact §3- 5-7, §3-5-13 and §3-5-13a of said code; and to amend said code by adding thereto a new section, designated §3-6-2a, all relating to the nonpartisan election of justices of the Supreme Court of Appeals; timing and frequency of election; ballot design and printing; separation from partisan ballot; nonpartisan election of justices; filing announcement of candidacies; withdrawal of announcement of candidacies; refund of paid filing fees; and ballot content and form.
Referred to the Committee on the Judiciary.
By Senators Tomblin (Mr. President), Foster, Kessler and Love:
Senate Bill No. 476--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5-5-6, relating to allowing state employees with at least five years of continuous state service to be paid for unused sick leave days in excess of fifty days once per year.
Referred to the Committee on Finance.
By Senators Prezioso, Facemyer, Bowman, Deem, Green, Love, Barnes, White, Plymale, Jenkins, Kessler, Foster, Stollings and Hunter:
Senate Bill No. 477--A Bill to amend and reenact §20-7-1a and §20-7-1c of the Code of West Virginia, 1931, as amended, all relating to providing an increase in compensation for conservation officers.
Referred to the Committee on Natural Resources; then to the Committee on Finance.
Senator Chafin offered the following resolution:
Senate Concurrent Resolution No. 31--Requesting the Division of Highways name bridge number 10526 on Route 65/5 in Delbarton, Mingo County, the "Thomas Elbert Muncy, Jr., Memorial Bridge".
Whereas, Thomas Elbert Muncy, Jr., was a life-long resident of the Puritan Mines community where he worked as a miner for 34 years; and
Whereas, Thomas Elbert Muncy, Jr., was one of the first people to push for a vital water project in Puritan Mines which greatly improved the quality of life for all those living in the Puritan Mines community; and
Whereas, Thomas Elbert Muncy, Jr., was a very community-minded individual who diligently worked on projects in his neighborhood; and
Whereas, As a member of the Delbarton Church of God, Thomas Elbert Muncy, Jr., was always looking to help his fellow man, especially during the holiday season, and always made sure that the families in his community were able to eat a delicious holiday dinner; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name bridge number 10526 on Route 65/5 in Delbarton, Mingo County, the "Thomas Elbert Muncy, Jr., 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 "Thomas Elbert Muncy, Jr., Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Secretary of the Department of Transportation and the Mayor and City Council of Delbarton.
Which, under the rules, lies over one day.
Senators Unger, Yoder, Barnes and Plymale offered the following resolution:
Senate Resolution No. 9--Recognizing Leadership Berkeley for its service, dedication and commitment to Berkeley County.
Whereas, The objective of Leadership Berkeley is to promote knowledge and awareness of the problems, opportunities and issues facing Berkeley County; and
Whereas, Leadership Berkeley is designed to provide a series of educational and participatory experiences, as well as an opportunity for dialogue and the development of a correlation among participants in order to encourage local participation in the growth of Berkeley County; and
Whereas, The membership of Leadership Berkeley includes individuals from nearly every facet of Berkeley County's business, professional, religious, governmental, educational, civic, the arts, organized labor and minority organizations who demonstrate a commitment to the community; and
Whereas, The 2007-2008 membership of Leadership Berkeley consists of Patti Baldwin, City National Bank; Michael Ball, Region 9 Planning and Development; Michelle Barnes, Verizon; Tina Burns, Shenandoah Valley Medical System; Leah Catlett, Berkeley County Schools; Renee Davis, Centra Bank; Kendra Deoms, Chick-Fil-A; Elizabeth Guthrie, Potomac Construction, Inc.; Rev. Julie Harris, Trinity Episcopal Church; Jessica Jacot, Summit Community Bank; Dottie Johnson, Manpower; Elizabeth Jones, Decker & Company; Matthew Jozik, Centra Bank; Robin Kees, Telamon Corp.; Regina Keller, Berkeley County PSSD; Kimberly Lanager, Tri-State Moving; Randy Lewis, Main Street Martinsburg; Ethan Loewen, First United Bank and Trust; Charles Lowery, CNB Bank; Terri Martin, VA Medical Center; Kimberly McGarrah, Susquehanna Bank; Brenda Painter, Jefferson Security Bank; Rita Quinn, EastRidge Health Systems; Michael Roach, Centra Bank; Tina Stover, WVU Hospitals East; Margarita Walkup, Mountain State University; William Walkup, EWV Regional Airport; and the Martinsburg-Berkeley County Chamber of Commerce; therefore, be it
Resolved by the Senate:
That the Senate hereby recognizes Leadership Berkeley for its service, dedication and commitment to Berkeley County; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the appropriate officials of Leadership Berkeley.
At the request of Senator Unger, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
On motion of Senator Chafin, the Senate recessed for one minute.
Upon expiration of the recess, the Senate reconvened and proceeded to the seventh order of business.
Senate Concurrent Resolution No. 30, Requesting Division of Highways name section of Interstate 70 in Wheeling, Ohio County, "Doc and Chickie Williams Country Music Royal Couple Highway".
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Transportation and Infrastructure.
Senate Resolution No. 8, Expressing support for West Virginia University Institute of Technology.
On unfinished business, coming up in regular order, was reported by the Clerk.
At the request of Senator White, unanimous consent being granted, the resolution was laid over one day, retaining its place on the calendar.
The Senate proceeded to the eighth order of business.
Eng. Senate Bill No. 238, Increasing monetary limit to file circuit court suit.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--31.
The nays were: None.
Absent: Hall, McKenzie and Sharpe--3.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 238) passed.
On motion of Senator Kessler, the following amendment to the title of the bill was reported by the Clerk and adopted:
Eng. Senate Bill No. 238--A Bill to amend and reenact §51-2-2 of the Code of West Virginia, 1931, as amended, relating to increasing monetary limit required to file a suit in circuit court; and clarifying original and general jurisdiction of circuit courts.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 257, Repealing outdated penitentiary code provisions.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--31.
The nays were: None.
Absent: Hall, McKenzie and Sharpe--3.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 257) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 258, Repealing outdated code provisions relating to Huttonsville Correctional Center.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--31.
The nays were: None.
Absent: Hall, McKenzie and Sharpe--3.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 258) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 262, Repealing outdated code provisions relating to Denmar State Hospital.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--31.
The nays were: None.
Absent: Hall, McKenzie and Sharpe--3.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 262) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 263, Updating certain code provisions relating to Division of Corrections.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--31.
The nays were: None.
Absent: Hall, McKenzie and Sharpe--3.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 263) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate proceeded to the ninth order of business.
Senate Bill No. 72, Expanding Route 2 and Interstate 68 Authority territory.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Senate Bill No. 236, Eliminating obsolete election language.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Senate Bill No. 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 engrossment and third reading.
The Senate proceeded to the tenth order of business.
Com. Sub. for Senate Bill No. 234, Creating Maternal Mortality Review Team.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Senate Bill No. 337, Eliminating obsolete language concerning Supreme Court clerk.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Senate Bill No. 459, Authorizing rules of School Building Authority and Higher Education Policy Commission.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
On motion of Senator Chafin, leaves of absence for the day were granted Senators Sharpe, McKenzie and Hall.
Pending announcement of meetings of standing committees of the Senate, including the Committee on Rules,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Tuesday, January 29, 2008, at 11 a.m.
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