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sdj -22nd day
WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-NINTH LEGISLATURE

REGULAR SESSION, 2010

TWENTY-SECOND DAY

____________

Charleston, W. Va., Wednesday, February 3, 2010

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

Prayer was offered by the Most Reverend Michael J. Bransfield, Bishop, Roman Catholic Diocese of Wheeling-Charleston, West Virginia.
Pending the reading of the Journal of Tuesday, February 2, 2010,
On motion of Senator Edgell, 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. 2561--A Bill to amend and reenact §17A-3-2 of the Code of West Virginia, 1931, as amended, relating to providing that an applicant for a farm use exemption certificate may not be required to appear before any assessor for renewal.
Referred to the Committee on Transportation and Infrastructure; and then to the Committee on the Judiciary.
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. 2612--A Bill to amend and reenact §49-6A-8 of the Code of West Virginia, 1931, as amended, relating to increasing criminal penalties for failing to report child abuse.
Referred to the Committee on the Judiciary.
The Senate proceeded to the fourth order of business.
Senator Prezioso, 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
Senate Bill No. 8, Including pharmacist and pharmacy in "health care provider" definition.
And,
Senate Bill No. 373, Creating Caregivers Consent Act.
And reports the same back with the recommendation that they each do pass; but under the original double committee references first be referred to the Committee on the Judiciary.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
The bills, under the original double committee references, were then referred to the Committee on the Judiciary.
Senator Unger, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Senate Bill No. 40, Expanding counties covered by Route 2 and Interstate 68 Authority.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Government Organization.
Respectfully submitted,
John R. Unger II,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on Government Organization.
Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Senate Bill No. 240, Authorizing Department of Administration promulgate legislative rule relating to state-owned vehicles.
Senate Bill No. 244, Authorizing Athletic Commission promulgate legislative rule relating to administration of commission.
Senate Bill No. 250, Authorizing Board of Barbers and Cosmetologists promulgate legislative rule relating to licensing schools of barbering and beauty culture.
Senate Bill No. 253, Authorizing Board of Barbers and Cosmetologists promulgate legislative rule relating to schedule of fines.
And,
Senate Bill No. 283, Authorizing Fire Commission promulgate legislative rule relating to State Fire Code.
And reports the same back with the recommendation that they each do pass; but under the original double committee references first be referred to the Committee on the Judiciary.
Respectfully submitted,
Edwin J. Bowman,
Chair.
The bills, under the original double committee references, were then referred to the Committee on the Judiciary.
Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Senate Bill No. 255, Authorizing Conservation Agency promulgate legislative rule relating to operation of State Conservation Committee and conservation districts.
And has amended same.
Senate Bill No. 284, Authorizing Fire Commission promulgate legislative rule relating to State Building Code.
And has amended same.
Senate Bill No. 313, Authorizing Division of Personnel promulgate legislative rule relating to administration of division.
And has amended same.
Senate Bill No. 314, Authorizing Real Estate Appraiser Licensing and Certification Board promulgate legislative rule relating to requirements for licensure and certification.
And has amended same.
And,
Senate Bill No. 315, Authorizing Real Estate Appraiser Licensing and Certification Board promulgate legislative rule relating to renewal of licensure or certification.
And has amended same.
And reports the same back with the recommendation that they each do pass, as amended; but under the original double committee references first be referred to the Committee on the Judiciary.
Respectfully submitted,
Edwin J. Bowman,
Chair.
The bills, under the original double committee references, were then referred to the Committee on the Judiciary, with amendments from the Committee on Government Organization pending.
Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Senate Bill No. 263, Authorizing Board of Examiners in Counseling promulgate legislative rule relating to licensed professional counselor fees.
And,
Senate Bill No. 311, Authorizing Board of Osteopathy promulgate legislative rule relating to fees for services rendered by board.
And reports the same back with the recommendation that they each do pass; but under the original triple committee references first be referred to the Committee on Finance; and then to the Committee on the Judiciary.
Respectfully submitted,
Edwin J. Bowman,
Chair.
The bills, under the original triple committee references, were referred to the Committee on Finance; and then to the Committee on the Judiciary.
Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Senate Bill No. 266, Authorizing Board of Examiners in Counseling promulgate legislative rule relating to marriage and family therapists' fees.
And has amended same.
And,
Senate Bill No. 305, Authorizing Board of Occupational Therapy promulgate legislative rule relating to fees for services rendered by board.
And has amended same.
And reports the same back with the recommendation that they each do pass, as amended; but under the original triple committee references first be referred to the Committee on Finance; and then to the Committee on the Judiciary.
Respectfully submitted,
Edwin J. Bowman,
Chair.
The bills, under the original triple committee references, were referred to the Committee on Finance; and then to the Committee on the Judiciary, with amendments from the Committee on Government Organization pending.
Senator Prezioso, 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
Senate Bill No. 341, Creating DHHR Safety and Treatment Fund.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on Finance.
Senator Unger, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Senate Bill No. 352, Creating WV Community Empowerment Transportation Act.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 352 (originating in the Committee on Transportation and Infrastructure)--A Bill to amend and reenact §13-1-2 of the Code of West Virginia, 1931, as amended; to amend and reenact §17-4-47 and §17-4-49 of said code; and to amend said code by adding thereto a new article, designated §17-28-1, §17-28-2, §17-28-3, §17-28-4, §17-28-5, §17-28-6, §17-28-7, §17-28-8, §17-28-9, §17-28-10, §17-28-11 and §17-28-12, all relating generally to the creation of the West Virginia Community Empowerment Transportation Act; authorizing county commissions to issue general obligation bonds for acquiring, maintaining, improving public roads and transportation facilities; giving counties authority to impose, administer, collect and enforce payment of voter-approved user fees to pay for or finance cost of transportation projects within their counties, defining certain terms, giving county commissions authority to issue special revenue bonds to finance transportation projects and including authority to issue refunding bonds; giving authority to take other actions to finance and complete transportation projects; authorizing the Commissioner of Highways to establish procedures relating to review of transportation projects; making legislative findings; stating legislative purpose; requiring certain governmental entities seeking state funds for transportation projects to submit a transportation project plan to Commissioner of Highways; setting forth transportation project plan requirements; setting forth conditions for approval by the Commissioner of Highways; providing notice, advertisement and election requirements for user fees; providing for a comprehensive agreement for a transportation facility between the sponsoring governmental entity and the Division of Highways; establishing the requirements for qualifying a transportation facility as a public improvement; authorizing information sharing; requiring a bond covering the division for improvements to highway facilities required as a result of development; providing that transportation projects are awarded by competitive bidding and subject to prevailing wages; authorizing municipal utilities and public service districts to include into rates costs borne by the utility in contributing moneys or dedicate revenue to transportation project costs; regulating access from properties to and from state roads; and providing recovery of cost of highway improvements from commercial and residential developments.
With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
John R. Unger II,
Chair.
The bill (Com. Sub. for S. B. No. 352), under the original double committee reference, was then referred to the Committee on Finance.
Senator Minard, from the Committee on Banking and Insurance, submitted the following report, which was received:
Your Committee on Banking and Insurance has had under consideration
Senate Bill No. 381, Regulating ability of Division of Banking employees to obtain certain loans.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Joseph M. Minard,
Chair.
Senator Minard, from the Committee on Banking and Insurance, submitted the following report, which was received:
Your Committee on Banking and Insurance has had under consideration
Senate Bill No. 385, Requiring banks provide bond to secure certain county deposits.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on Government Organization.
Respectfully submitted,
Joseph M. Minard,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on Government Organization, with an amendment from the Committee on Banking and Insurance pending.
Senator Unger, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Senate Bill No. 396, Updating commercial driver's license requirements.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 396 (originating in the Committee on Transportation and Infrastructure)--A Bill to amend and reenact §17B-2-1a, §17B-2-4 and §17B-2-5a of the Code of West Virginia, 1931, as amended; and to amend and reenact §17E-1-3, §17E-1-4, §17E-1-6, §17E-1-12, §17E-1-13 and §17E-1-25 of said code, all relating to the issuance of driver's licenses; background checks for employees involved in the issuance of driver's licenses; and updating the criteria for issuance, renewal, disqualification, surrender and maintenance of a commercial driver's license in conformance with federal law.
With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on the Judiciary.
Respectfully submitted,
John R. Unger II,
Chair.
The bill (Com. Sub. for S. B. No. 396), under the original double committee reference, was then referred to the Committee on the Judiciary.
Senator Unger, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Senate Concurrent Resolution No. 7, Requesting DOH name bridge in Woodville, Lincoln County, "Private First Class Karol Clay Memorial Bridge".
Senate Concurrent Resolution No. 10, Requesting DOH name bridge on Coalfields Expressway, Raleigh County, "Craig Dorsey II Memorial Bridge".
Senate Concurrent Resolution No. 11, Requesting DOH name bridge at Mercer's Bottom, Mason County, "Private First Class Kenneth W. Bright Memorial Bridge".
Senate Concurrent Resolution No. 13, Requesting DOH name bridge in Big Chimney, Kanawha County, "Private First Class Thomas Keith Coleman Memorial Bridge".
And,
Senate Concurrent Resolution No. 14, Requesting DOH name bridge in Scott Depot, Putnam County, "Trooper William 'Bill' Phillips Memorial Bridge".
And reports the same back with the recommendation that they each be adopted.
Respectfully submitted,
John R. Unger II,
Chair.
Senator Unger, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Senate Concurrent Resolution No. 12, Requesting Joint Committee on Government and Finance study motor carrier industry regulation.
And reports the same back with the recommendation that it be adopted; but under the original double committee reference first be referred to the Committee on Rules.
Respectfully submitted,
John R. Unger II,
Chair.
The resolution, under the original double committee reference, was then referred to the Committee on Rules.
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 Kessler and Unger:
Senate Bill No. 451--A Bill to amend and reenact §49-2-17 of the Code of West Virginia, 1931, as amended, relating to the establishment of a system of assistance from funds appropriated to the Department of Health and Human Resources for facilitating the adoption or legal guardianship of children who are dependents of the department or a child welfare agency licensed to place children for adoption.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Kessler, Unger and Edgell:
Senate Bill No. 452--A Bill to amend and reenact §8-14-12 of the Code of West Virginia, 1931, as amended, relating to raising the upper level age restriction for new hires for certain law- enforcement agencies from thirty-five to forty-five years of age.
Referred to the Committee on Government Organization.
By Senators Snyder, Jenkins, D. Facemire, Plymale and Foster:
Senate Bill No. 453--A Bill to amend and reenact §29A-2-7 of the Code of West Virginia, 1931, as amended, relating to publication of the State Register.
Referred to the Committee on Finance.
By Senator Browning:
Senate Bill No. 454--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5-13A-1, §5-13A-2, §5-13A-3, §5-13A-4, §5-13A-5, §5- 13A-6 and §5-13A-7, all relating to transfer from Higher Education Retirement Plan to the Public Employees Retirement System; definitions; voluntary transfers; converting assets from Higher Education Retirement Plan to Public Employees Retirement System; service credit in Public Employees Retirement System following transfer; converting assets; vesting; minimum guarantees; and transferees' eligibility to retire.
Referred to the Committee on Pensions; and then to the Committee on Finance.
By Senators Hall, Bowman and Sypolt:
Senate Bill No. 455--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §15-2B-6a, relating to requiring persons arrested for a felony to submit to a DNA sample; and providing procedures for expungement if the felony has been dismissed.
Referred to the Committee on the Judiciary.
By Senator White:
Senate Bill No. 456--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §61-6-26 and §61-6-27, all relating to making it a criminal offense to disturb the peace; and providing criminal penalties.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators D. Facemire, Foster and Kessler:
Senate Bill No. 457--A Bill to repeal §61-8-3 and §61-8-4 of the Code of West Virginia, 1931, as amended, relating to adultery and lewd cohabitation being misdemeanors.
Referred to the Committee on the Judiciary.
By Senators Helmick, McCabe, Tomblin (Mr. President), Browning, White, Chafin and Stollings:
Senate Bill No. 458--A Bill to amend and reenact §31-15A-16 of the Code of West Virginia, 1931, as amended, relating to dedication of severance tax proceeds; specifying a minimum share of coalbed methane severance tax revenue be distributed to producing counties in an amount at least equal to the share received by nonproducing counties; and specifying computation.
Referred to the Committee on Energy, Industry and Mining; and then to the Committee on Finance.
By Senators Kessler, Barnes, White, Plymale, Wells, Chafin and Bowman:
Senate Bill No. 459--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §6-5-13, relating to boards and commissions whose members serve staggered terms and whose appointment requires the advice and consent of the Senate; and requiring a majority of the total number of persons to be appointed to the board or commission to have been confirmed by the Senate in order to validly take certain actions.
Referred to the Committee on Government Organization; and then to the Committee on the Judiciary.
By Senators Helmick, McCabe and Unger:
Senate Bill No. 460--A Bill to amend and reenact §11-12-5 of the Code of West Virginia, 1931, as amended, relating to the business registration tax; specifying that the business registration tax and business registration certificate are subject to the exemptions, exceptions and requirements set forth in §11-12- 3 of said code; and specifying that the tax is imposed for each and every issuance, reissuance or reinstatement of a business registration certificate.
Referred to the Committee on Finance.
By Senators Helmick, McCabe and Minard:
Senate Bill No. 461--A Bill to amend and reenact §11-15B-2, §11-15B-2a, §11-15B-11, §11-15B-17, §11-15B-25, §11-15B-26 and §11- 15B-32 of the Code of West Virginia, 1931, as amended, all relating to the administration of sales and use tax; definitions; latest year agreement amended; registration of seller making no sales in state; registration fees; advertising and promotional direct mail; seller's relief in collecting and remitting taxes; purchasers' obligations and rights; simplified electronic returns; form contents; required filers; loss of exemption for failing to file; adoption of standardized transmission process; notice to sellers to file returns; Tax Commissioner's authority to establish liability amount of taxes; additional return options; remittances in payment of taxes on simplified return; and new effective dates.
Referred to the Committee on Finance.
By Senators D. Facemire and Foster:
Senate Bill No. 462--A Bill to amend and reenact §15-2-7 of the Code of West Virginia, 1931, as amended, relating to limiting the age of applicants for appointment to membership in the West Virginia State Police.
Referred to the Committee on Government Organization.
By Senator Tomblin (Mr. President) (By Request):
Senate Bill No. 463--A Bill to amend and reenact §5A-8-15 of the Code of West Virginia, 1931, as amended, relating to public records management and preservation; removing references to disposing of records by means other than destroying the records; and requiring a minimum allocation of funds in the Public Records and Preservation Revenue Account for grants to counties for records management, access and preservation purposes.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
Senators Kessler, Barnes, Jenkins, White, D. Facemire, Palumbo, McCabe, Plymale, Wells, Prezioso, Unger, Stollings, Laird, Edgell, Foster, Bowman, Yost and Minard offered the following resolution:
Senate Resolution No. 13--Declaring February 3, 2010 to be Domestic and Sexual Violence Prevention Day in West Virginia.
Whereas, All people have a right to be safe in their homes, workplace, college campus and community; and
Whereas, During the fiscal year 2008-2009, over fifteen thousand individuals were served by one or more of the fourteen licensed domestic violence programs in West Virginia, six of which also provide rape crisis services; and
Whereas, Domestic and sexual violence erode the infrastructure of our families, our social makeup and our culture, and threaten the integrity of our future; and
Whereas, Stalking is often a factor in domestic and sexual violence and a serious offense in its own right; and
Whereas, Women compromise fifty-one percent of our state's population but account for over seventy-five percent of all domestic violence victims; and
Whereas, In 2008, domestic and sexual violence were major law enforcement problems within West Virginia, and over thirteen thousand domestic violence offenses were committed requiring one hundred seventy-eight thousand six hundred fifty-six hours spent by law enforcement investigating incidents of domestic violence;
Whereas, In 2008, twenty-nine homicides in our state were the result of domestic violence; and
Whereas, Women are three times more likely than males to be murdered by an intimate partner; and
Whereas, Boys who witness domestic violence are twice as likely to abuse their own partners and children when they become adults; and
Whereas, One in six women and one in twenty-one men will be victims of rape or attempted rape in West Virginia; and
Whereas, Children are at increased risk to be sexually victimized with sixty percent of female and seventy percent of male rape victims having been first raped before age eighteen; and
Whereas, Domestic and sexual violence can be deterred, prevented and reduced through a large network of private, public and nonprofit entities working together to form a coalition providing social, legal, medical, educational and protective services for victims of domestic and sexual violence; and
Whereas, The West Virginia Foundation for Rape Information and Services has been serving sexual assault victims for twenty-eight years with a mission to promote the compassionate and just treatment of survivors and create attitudinal and behavioral changes around sexual violence and stalking; and
Whereas, The West Virginia Coalition Against Domestic Violence has been working for thirty years to provide safe space, quality services and systemic change to give families options for building lives free from violence; therefore, be it
Resolved by the Senate:
That the Senate declares February 3, 2010 to be Domestic and Sexual Violence Prevention Day in West Virginia and commits itself to treating this problem with the seriousness that it deserves and working to achieve solutions that deter, prevent, and reduce domestic and sexual violence.
At the request of Senator Chafin, 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 resumed business under the sixth order.
Senators Foster, Barnes, Jenkins, White, D. Facemire, Palumbo, McCabe, Plymale, Wells, Prezioso, Chafin, Unger, Stollings, Laird, Edgell, Minard and Yost offered the following resolution:
Senate Resolution No. 14--Designating February 3, 2010, as "Social Work Day" at the Legislature.
Whereas, Social workers are dedicated to the successful functioning of American society; and
Whereas, Social workers inspire community action that improves life for all people; and
Whereas, Social workers have the right education and experience to guide individuals, families and communities through complex issues and choices; and
Whereas, Social workers stand up for others to make sure everyone has access to the same basic rights, protections and opportunities; and
Whereas, Social workers have been the driving force behind important social movements in the United States; and
Whereas, Social workers help resolve systemic issues that negatively affect community life; and
Whereas, Social workers believe there are no limits to human potential; and
Whereas, Social workers work through private practices, agencies and organizations, hospitals, the military government and educational institutions to provide resources and guidance that support social functioning; and
Whereas, Social workers are on the frontlines, responding to such human needs as homelessness, poverty, family break-up, mental illness, physical and mental disability, substance abuse, domestic violence and many other issues; and
Whereas, Social workers make a wide range of social contributions throughout their careers; and
Whereas, A social work career is one filled with purpose and possibilities; and
Whereas, Social workers help millions of Americans lead more rewarding lives; therefore, be it
Resolved by the Senate:
That the Senate hereby designates February 3, 2010, as "Social Work Day" at the Legislature; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the appropriate officials representing social workers.
At the request of Senator Foster, 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.
Pending announcement of meetings of standing committees of the Senate, including a minority party caucus,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Thursday, February 4, 2010, at 11 a.m.
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