hdj2009-03-03-21
__________*__________
Tuesday, March 3, 2009
TWENTY-FIRST 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 Monday, March 2, 2009, being the first order of
business, when the further reading thereof was dispensed with and the same approved.
Committee Reports
Chairman Webster, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
H. B. 2412, Providing certain county commissions with authority to regulate the location
of businesses selling sexually-oriented materials,
And reports back a committee substitute therefor, with a new title, as follows:
Com. Sub. for H. B. 2412 - "A Bill to amend and reenact §7-1-3jj of the Code of West
Virginia, 1931, as amended, relating to providing certain county commissions with authority to
regulate the location of businesses offering exotic entertainment,"
With the recommendation that the committee substitute do pass.
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. 4, The "CBM Howard W. Bannister Memorial Bridge",
H. C. R. 10, The "T-5 Leon Whitlock and PFC Forrest Wilson Memorial Bridge" and the
"SFC Stanley Williams Memorial Bridge",
H. C. R. 12, The "Serbert S. Duty Memorial Bridge",
H. R. 16, Designating March 1-7, 2009, as "National Problem Gambling Awareness Week
in West Virginia",
H. R. 18, Expressing the will of the House of Delegates regarding Congress and President
Obama planning a taxpayer-sponsored economic recovery package and the spending of economic
recovery plan moneys,
And reports the same back with the recommendation that they each be adopted.
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:
H. B. 2626, Requiring licensure of pharmacy benefit managers,
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 accordance with the former direction of the Speaker, the bill (H. B. 2626) was referred to
the Committee on the Judiciary.
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:
H. B. 2829, Pharmacy, rules regarding immunizations,
And,
H. B. 2830, Pharmacy, regulation of charitable clinic pharmacies,
And reports the same back with the recommendation that they each do pass, but that they first
be referred to the Committee on the Judiciary.
In accordance with the former direction of the Speaker, the bills (H. B. 2829 and H. B. 2830)
were each referred to the Committee on the Judiciary.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect from passage,
and requested the concurrence of the House of Delegates in the passage, of
Com. Sub. for S. B. 239 - "A Bill to amend the Code of West Virginia, 1931, as amended,
by adding thereto a new section, designated §7A-7-4a, relating to authorizing counties with a
population exceeding 150,000 and a Class I municipality to approve metro government by a majority
vote"; which was referred to the Committee on Political Subdivisions then Finance.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect from passage,
and requested the concurrence of the House of Delegates in the passage, of
Com. Sub. for S. B. 259 - "A Bill to amend and reenact §29-26-1 of the Code of West
Virginia, 1931, as amended, relating to updating language within the West Virginia Courthouse
Facilities Improvement Authority"; which was referred to the Committee on the Judiciary.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence
of the House of Delegates in the passage, of
Com. Sub. for S. B. 341 - "A Bill to amend and reenact §49-7-32 of the Code of West
Virginia, 1931, as amended, relating to transferring the authority to administer the juvenile justice
database from the Department of Military Affairs and Public Safety to the West Virginia Supreme
Court of Appeals"; which was referred to the Committee on the Judiciary.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence
of the House of Delegates in the passage, of
S. B. 346 - "A Bill to amend and reenact §20-2-22 of the Code of West Virginia, 1931, as
amended, relating to making a technical correction to an internal code reference related to bear
tagging"; which was referred to the Committee on Natural Resources then the Judiciary.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence
of the House of Delegates in the passage, of
S. B. 347 - "A Bill to amend and reenact §62-12-26 of the Code of West Virginia, 1931, as
amended, relating to making a technical correction to an internal code reference relating to extended
supervision for certain sex offenders"; which was referred to the Committee on the Judiciary.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect from passage,
and requested the concurrence of the House of Delegates in the passage, of
S. B. 403 - "A Bill supplementing, amending, decreasing and increasing items of the existing
appropriations from the State Road Fund to the Department of Transportation, Division of
Highways, fund 9017, fiscal year 2009, organization 0803, for the fiscal year ending June 30, 2009,
by supplementing and amending the appropriations for the fiscal year ending June 30, 2009"; which
was referred to the Committee on Finance.
Resolutions Introduced
Delegates Smith and Hamilton offered the following resolution, which was read by its title
and referred to the Committee on Rules:
H. C. R. 14 - "Requesting the Division of Highways to name Bridge No. 49-11/17-0.02,
located on County Route 11/17 in Selbyville, Upshur County the 'Corporal William Dely Memorial
Bridge'."
Whereas, Corporal William Dely was born on May 26, 1946 in Green Cove Springs, and
reared and educated in Upshur County, the son of Earl and Ivy Crum Bragg; and
Whereas, Corporal William Dely was sworn into the United States Marine Corps while still
a senior at Buckhannon-Upshur High School in 1964, and eventually rose to the rank of Corporal;
and
Whereas, Corporal William Dely was serving as an amphibian tractor driver as part of the
First Amphibian Tractor Battalion, E1 Platoon, H&S Company, Third Marine Division in Da Nang,
South Vietnam; and
Whereas, One of Corporal William Dely's duties in serving his country was to destroy with
explosives the many caves and tunnels where hostile forces hid; and
Whereas, Corporal William Dely was tragically killed on June 13, 1966, as a result of
multiple fragmentation wounds to the body sustained while participating in an operation against
hostile forces; and
Whereas, Corporal William Dely became the second son of Upshur County to make the
ultimate sacrifice for his country during the conflict in Vietnam; and
Whereas, Corporal William Dely left his parents, a step-brother James Bragg of Akron,
Ohio, and a step-sister Dorothy Adams of Richwood; and
Whereas, The ultimate sacrifice of this brave and courageous son of Upshur County, West
Virginia, requires us to honor Corporal William Dely, by ensuring that future generations are aware
of his sacrifice in the cause of freedom; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby request the Division of Highways to name bridge number 49-
11/17-0.02, located on County Route 11/17 in Selbyville, Upshur County the "Corporal William
Dely Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby requested to have made and
placed on the bridge, signs identifying it as the "Corporal William Dely Memorial Bridge"; and, be
it
Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this
resolution to the Secretary of Transportation, the Commissioner of the Division of Highways, and
the family of Corporal William Dely.
Delegates Iaquinta, Anderson, Argento, Ashley, Barker, Brown, Cann, Crosier, Ferro,
Fragale, Givens, Guthrie, Ireland, Klempa, Lane, Lawrence, Longstreth, Louisos, Mahan, Martin,
McGeehan, Michael, Moore, Moye, Paxton, Perdue, Perry, D. Poling, Rodighiero, Ross, Schadler,
Shaver, Smith, Spencer, Stowers, Talbott, Walker, Walters, Wells, White and Williams offered the
following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 15 - "Requesting that the West Virginia State Veterans Cemetery be named 'The
Donel Kinnard Veterans Cemetery'."
Whereas, Donel Kinnard was born on April 5, 1936 in Logan; and
Whereas, Donel Kinnard was married to Rebecca McCann Kinnard; and
Whereas, Donel Kinnard retired with twenty-two years in military service, first in the
United States Marine Corps and then in the United States Navy, where he served with UDT and the
SEALS team; and
Whereas, Donel Kinnard was a recipient of the Navy Cross, the Navy's highest medal,
seven Purple Hearts, the Bronze Star and many other medals, commendations and citations; and
Whereas, Donel Kinnard was the past state commander of the Veterans of Foreign Wars,
past district commander of the VFW, past post commander of the VFW and past president of the
Hurricane Lions Club; and
Whereas, Donel Kinnard was a member of the Legion of Valor, Military Order of the Purple
Heart, Veterans of Foreign Wars, American Legion, Disabled American Veterans, UDT-SEAL Association, Fleet Reserve Association, Marine Corps League, Vietnam Veterans of America and
the Military Order of the Cooties; and
Whereas, Donel Kinnard played an instrumental role in establishing a one hundred twenty
bed, $32 million nursing facility in Clarksburg; and
Whereas, Donel Kinnard was serving as chairman of the West Virginia Veterans Council,
chairman of the West Virginia Veterans Nursing Home Committee and chairman of the West
Virginia Veterans Cemetery; and
Whereas, Donel Kinnard asked that his final resting place be the West Virginia State
Veterans Cemetery; and
Whereas, Donel Kinnard died on February 14, 2009; therefore, be it
Resolved by the Legislature of West Virginia:
That it is hereby requested that the West Virginia State Veterans Cemetery be named "The
Donel Kinnard Veterans Cemetery"; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a copy of this resolution
to his wife, Rebecca McCann Kinnard; six children and their spouses, his daughter, Theresa Johnson
of Austin, Texas; his son, Donel Kinnard and his wife Tammy Kinnard of Milford, Ohio; his son,
Mike Kinnard and his wife Lina Kinnard of Milton; his daughter, Melissa Kay Cliver and her
husband Tim Cliver of San Antonio, Texas; his daughter, Petra Kresse and her husband Bob Kresse
of Virginia Beach, Va.; his daughter, Kimberly Tapia and her husband Ted Tapia of Longmont,
Colorado; his stepson, Larry Stamm and his wife Laurene Stamm of Mooresville, North Carolina:
his stepson, Wade Stamm of Huntersville, North Carolina; his stepdaughter, Alandra Warner and
her husband John Warner of Mooresville, North Carolina; his stepson, Ryan Stamm and his wife Louisa Stamm of Cornelius, North Carolina; his brother, Ben Kinnard of Wood River, Illinois; his
sister, Emma Robison of Palm Bay, Florida; his sister Lona Hayes and her husband Pete Hayes of
Milton; the Governor; the President of the Senate; the Speaker of the House of Delegates; Senator
Erik Wells; Keith Gwinn, Director of the Division of Veterans Affairs; and James Spears, Secretary
of Military Affairs and Public Safety.
Bills Introduced
On motions for leave, bills were introduced, read by their titles, and severally referred as
follows:
By Delegate Eldridge:
H. B. 2903 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §17C-15-51, relating to prohibiting the use of white strobe lights
on motor vehicles"; to the Committee on Roads and Transportation then the Judiciary.
By Delegates M. Poling and Paxton:
H. B. 2904 - "A Bill to amend and reenact §18B-17-2 and §18B-17-3 of the Code of West
Virginia, 1931, as amended, all relating to authorizing rules for higher education; authorizing rules
for the Higher Education Policy Commission and the West Virginia Council for Community and
Technical College Education; and authorizing rules regarding Guidelines for Governing Boards in
Employing and Evaluating Presidents, Employing and Evaluating Presidents, the Medical Student
Loan Program, the West Virginia Higher Education Grant Program, the Research Trust Fund
Program, Accountability System, Performance Indicators, and Finance"; to the Committee on
Education.
By Delegates Perdue, Wells, Beach, Marshall, Brown, Hatfield, Fragale and Rodighiero:
H. B. 2905 - "A Bill to amend and reenact §22-3-22, §22-3-22a and §22-3-30a of the Code
of West Virginia,1931, as amended, all relating to increasing the distance required for surface mining
activity in relation to cemeteries"; to the Committee on Energy, Industry and Labor, Economic
Development and Small Business then the Judiciary.
By Delegate Shook:
H. B. 2906 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §16-2B-5, relating to prohibiting any person who is not a physician
licensed to practice in this state from performing an abortion; and providing a criminal penalty"; to
the Committee on the Judiciary.
By Delegates Boggs, Cowles, Walker, Campbell, Argento, Smith and Ashley:
H. B. 2907 - "A Bill to amend and reenact §60-1-5 of the Code of West Virginia, 1931, as
amended; to amend and reenact §60-4-3b 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, §60-8-6, §60-8-6a, §60-8-19, §60-8-20, §60-8-28,
§60-8-32 and §60-8-34 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; providing for winery and farm winery license to manufacture and sell; 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 fifty thousand gallons of wine or less
per year; requiring the Alcohol Beverage Control Commissioner to propose rules for promulgation
setting standards for wine brand and label review and registration; creating a limited wine retailer license; allowing wine manufacturers, suppliers and distributors to agree in writing to a period of less
than ninety days for termination of a distribution agreement; prohibiting limited wine retailers and
wineries from selling during certain times"; to the Committee on Agriculture then the Judiciary.
By Delegates Phillips, Hall, Martin, Argento and Klempa:
H. B. 2908 - "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 a minor may refuse mental
health treatment from twelve to eighteen; and clarifying that the state not be obligated to pay for
voluntary hospitalization"; to the Committee on Health and Human Resources then the Judiciary.
By Delegate Cowles:
H. B. 2909 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §21-5A-12, relating to exempting construction performed on behalf
of county or municipal governments from the prevailing wage laws for those construction projects
under $200,000"; to the Committee on Political Subdivisions then the Judiciary.
By Delegate Cowles:
H. B. 2910 - "A Bill to amend and reenact §7-2-2 of the Code of West Virginia, 1931, as
amended, relating to increasing the minimum number of magisterial districts in a county from three
to four"; to the Committee on Political Subdivisions then the Judiciary.
By Delegates Caputo, D. Poling, Boggs, Swartzmiller, Mahan, Miley, Martin, Argento,
Guthrie, Walker and Duke:
H. B. 2911 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §15-2-53, relating to the establishment of a leave donation program
for the largest statewide professional law-enforcement association representing members of the West Virginia State Police"; to the Committee on Government Organization then Finance.
By Delegates Manchin, Caputo and Longstreth:
H. B. 2912 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §35-5-9, relating to creating a board and fund to be used to
maintain cemeteries that have been abandoned"; to the Committee on Government Organization then
Finance.
By Delegates Williams, Ennis, Pethtel, Morgan and Stephens:
H. B. 2913 - "A Bill to amend and reenact §18-10M-6 of the Code of West Virginia, 1931,
as amended, relating to the Statewide Independent Living Council; clarifying appointment of council
members by the Governor; deleting antiquated language and revising duties of the council"; to the
Committee on Senior Citizen Issues then Government Organization.
By Delegates Caputo, D. Poling, Boggs, Mahan, Guthrie, Spencer, Klempa, Walker,
Crosier and Campbell:
H. B. 2914 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §15-2-5a, relating to West Virginia State Police receiving on-call
and off-duty pay; providing for the State Police to be paid minimum wage for every hour on-call;
and guaranteeing a minimum of two hours pay to State Police when called to duty off hours"; to the
Committee on Finance.
By Delegates Eldridge, Manchin, Argento, Stowers, Perry, Rodighiero and Marshall:
H. B. 2915 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §11-15-7b; and to amend and reenact §29-3-24 of said code, all
relating to authorizing the sale of prohibited fireworks; requiring the sales tax on fireworks to be ten percent; and establishing a special fund that distributes the firework sales tax proceeds equally to
each West Virginia volunteer fire department"; to the Committee on the Judiciary then Finance.
By Delegates Staggers, Morgan, M. Poling, Caputo, Webster, White and Perdue:
H. B. 2916 - "A Bill to amend and reenact §16-4C-6, §16-4C-6b and §16-4C-8 of the Code
of West Virginia, 1931 as amended, all relating to the Emergency Medical Services Act; providing
rule-making authority for fees for certification and recertification of emergency services personnel;
providing for fees for certification and recertification of emergency services personnel to be
deposited in the Emergency Medical Services Agency Licensure Fund; requiring applicants for
certification to submit to a criminal history background check; prohibiting the release of results of
criminal history background check to or by private entities; and establishing fees for certification and
recertification of emergency services personnel"; to the Committee on the Judiciary then Finance.
By Delegate Guthrie:
H. B. 2917 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §17-4-36a, relating to bicycle, pedestrian and transit ways given
full consideration in the planning, development and redevelopment of state roads, railways and
waterways"; to the Committee on Roads and Transportation then Finance.
By Delegate Eldridge:
H. B. 2918 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new article, designated §47-25-1, relating to banning the sale of 'Barbie' dolls and other
dolls that influence girls to be beautiful"; to the Committee on the Judiciary.
By Delegates Caputo, D. Poling, Swartzmiller, Mahan, Manchin, Hamilton, Longstreth,
Guthrie, Fleischauer and Eldridge:
H. B. 2919 - "A Bill to amend and reenact §60-2-12 of the Code of West Virginia, 1931, as
amended, relating to providing that enforcement officers employed by the office of West Virginia
Alcohol Beverage Control Commissioner be included in the classified service under the Civil
Service System"; to the Committee on Government Organization then Finance.
By Delegate Ellem:
H. B. 2920 - "A Bill to repeal §61-11-20 of the Code of West Virginia, 1931, as amended,
relating to crimes and their punishment; and making a second conviction for petit larceny a felony";
to the Committee on the Judiciary then Finance.
By Delegates Caputo, D. Poling, Boggs, Pethtel, Walker, Klempa, Crosier, Manchin,
Stowers, Duke and Paxton:
H. B. 2921 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding
thereto a new section, designated §18B-10-7c, relating to tuition and fee waivers for members of the
West Virginia State Police to attend a college or university"; to the Committee on Education then
Finance.
By Delegates Ellem and D. Poling:
H. B. 2922 - "A Bill to amend and reenact §18B-14-10 of the Code of West Virginia, 1931,
as amended, relating to prohibiting credit card solicitation of students on college campuses"; to the
Committee on Education then the Judiciary.
By Delegates Klempa, Givens, Martin, Argento, Swartzmiller, Walker, Manypenny and
D. Poling:
H. B. 2923 - "A Bill to amend and reenact §5-22-1 of the Code of West Virginia, 1931, as
amended, relating to requiring the disclosure of subcontractors within two hours of the close of bids for public construction contracts"; to the Committee on Energy, Industry and Labor, Economic
Development and Small Business then Government Organization.
By Delegates Spencer, Barker, Iaquinta, Williams, Pethtel and Azinger:
H. B. 2924 - "A Bill to amend and reenact §5-10-15 of the Code of West Virginia, 1931, as
amended; to amend and reenact §15-2A-19 of said code; to amend and reenact §18-7A-17 of said
code; to amend said code by adding thereto a new section, designated §18-7A-17a; to amend and
reenact §18-7B-8a and §18-7B-11 of said code; and to amend and reenact §51-9-4 and §51-9-6 of
said code; all relating to providing up to twenty-four months of military service credit for the time
served in active military duty to any qualified member of the West Virginia Public Employees
Retirement Act, the West Virginia State Police Retirement System, the State Teachers Retirement
System, the Teachers' Defined Contribution Retirement System and the Retirement System for
Judges hired for the first time on or after July 1, 2009 or for any qualified member who is not vested
on June 30, 2009"; to the Committee on Pensions and Retirement then Finance.
By Delegates Webster, Doyle, Brown, Evans, Fleischauer, Guthrie, Schadler, Wells,
Hutchins, Marshall and Moore:
H. B. 2925 - "A Bill to amend and reenact §5-11-2, §5-11-3, §5-11-4, §5-11-8, §5-11-9 and
§5-11-13 of the Code of West Virginia, 1931, as amended; and to amend and reenact §5-11A-3,
§5-11A-5, §5-11A-6 and §5-11A-7 of said code, all relating to unlawful discriminatory practices;
prohibiting discrimination based upon age and sexual orientation"; to the Committee on the
Judiciary.
By Delegate Manchin:
H. B. 2926 - "A Bill to amend and reenact §3-5-4 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §3-5-7a; and to amend
said code by adding thereto a new section, designated §7-1-1b, all relating to establishing a
procedure for challenging a candidate's qualifications for elected office; and setting forth
qualifications for county commissioners"; to the Committee on Political Subdivisions then the
Judiciary.
By Delegates Sobonya, C. Miller, Azinger, Sumner, Rowan, Schoen, McGeehan, Ross,
Hunt, Eldridge and Barker:
H. B. 2927 - "A Bill to amend and reenact §5-16-4 and §5-16-5 of the Code of West
Virginia, 1931, as amended, all relating to requiring the Legislature to approve changes in costs
imposed by the Public Employees Insurance Agency Finance Board instead of being approved by
promulgation of new rules proposed by the board's director"; to the Committee on the Judiciary then
Finance.
By Delegates Perdue, Beach, Hatfield, Marshall, Brown, Caputo, Fragale and
Rodighiero:
H. B. 2928 - "A Bill to amend and reenact §29-1-8a of the Code of West Virginia, 1931, as
amended; to amend and reenact §37-13-2 and §37-13-4 of said code; and to amend and reenact
§37-13A-5 of said code, all relating to clarifying procedures for protection of graves and burial sites,
clarifying when disturbance is a crime and enhancing the opportunity for public access to cemeteries
on private land and for public involvement in petitions to excavate graves"; to the Committee on the
Judiciary.
House Calendar
Second Reading
The following bills on second reading, coming up in regular order, were each read a second
time and ordered to engrossment and third reading:
Com. Sub. for H. B. 2040, Relating to when a recognizance bond is released,
Com. Sub. for H. B. 2418, Relating to exemptions from disclosure under the Freedom of
Information Act,
And,
Com. Sub. for H. B. 2685, Amending the Uniform Principal and Income Act.
At 11:43 a.m., the House of Delegates adjourned until 11:00 a.m., Wednesday, March 4,
2009.