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sdj-17th day
WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-NINTH LEGISLATURE

REGULAR SESSION, 2010

SEVENTEENTH DAY

____________

Charleston, W. Va., Friday, January 29, 2010

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

Prayer was offered by the Reverend Dennis Sparks, Executive Director, West Virginia Council of Churches, Charleston, West Virginia.
Pending the reading of the Journal of Thursday, January 28, 2010,
On motion of Senator K. Facemyer, 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 concurrence by that body in the adoption of
Senate Concurrent Resolution No. 9, Expressing will of Legislature opposing adoption of national cap and trade program.
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. 120, Requiring certain students provide dental exam proof.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 120 (originating in the Committee on Health and Human Resources)--A Bill
to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §16-3-4a; and to amend and reenact §18-28-6 of said code, all relating to requiring all children who enter a public or private school for the first time, whether it be in kindergarten or first grade, to provide adequate proof of having undergone a dental examination by a licensed dentist; exceptions; school personnel responsibility; school nurse responsibility; provisional enrollment; and satisfactory proof.
With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on Education.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
The bill (Com. Sub. for S. B. No. 120), under the original double committee reference, was then referred to the Committee on Education.
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. 122, Increasing mental health treatment refusal age of consent.
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 the Judiciary.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on the Judiciary.
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. 149, Relating to liability of certain volunteering physicians.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 149 (originating in the Committee on Health and Human Resources)--A Bill
to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §55-7-26, relating to the liability of physicians, osteopathic physicians, nurses, medical students, physician assistants and graduate medical students who render services as volunteer health care providers at youth camps and programs; limiting liability; and providing exceptions.
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,
Roman W. Prezioso, Jr.,
Chair.

The bill (Com. Sub. for S. B. No. 149), under the original double committee reference, was then referred to the Committee on the Judiciary.
Senator Plymale, from the Committee on Education, submitted the following report, which was received:
Your Committee on Education has had under consideration
Senate Bill No. 324, Establishing tax credit for repayment of certain student loans.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 324 (originating in the Committee on Education)--A Bill
to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §11- 13AA-1, §11-13AA-2, §11-13AA-3 and §11-13AA-4; and to amend and reenact §11-21-12 of said code, all relating to establishing a tax credit for graduates of a higher education institution for a portion of the interest paid on student loans; providing for the promulgation of rules by the State Tax Commissioner for such purpose; establishing a modification reducing federal adjusted gross income for recent graduates of higher education institutions; and providing for the promulgation of rules by the Tax Commissioner for such purpose.
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,
Robert H. Plymale,
Chair.
The bill (Com. Sub. for S. B. No. 324), under the original double committee reference, was then referred to the Committee on Finance.
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. 327, Creating Office for Oral Health.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 327 (originating in the Committee on Health and Human Resources)--A Bill to repeal §16-41-7 of the Code of West Virginia, 1931, as amended; and to amend and reenact §16-41-2, §16-41-3, §16-41-4 and §16-41-6 of said code, all relating to the establishment of the Office for Oral Health in the Bureau for Public Health; creating a full-time director; establishing an advisory board; and the responsibilities of the Office for Oral Health.
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,
Roman W. Prezioso, Jr.,
Chair.

The bill (Com. Sub. for S. B. No. 327), under the original double committee reference, was then referred to the Committee on Finance.
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 Senator Kessler:
Senate Bill No. 389--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §9-5-21, relating to opting out of 21 U. S. C. §862a restriction concerning the eligibility of certain persons from receiving the benefits of certain federally funded programs.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Palumbo, Yost and Green:
Senate Bill No. 390--A Bill to amend and reenact §30-18-11 of the Code of West Virginia, 1931, as amended, relating to penalties for violations of private investigative and security services regulations.
Referred to the Committee on the Judiciary.
By Senators Palumbo, Yost and Green:
Senate Bill No. 391--A Bill to amend and reenact §18-5-1a of the Code of West Virginia, 1931, as amended, relating to eligibility of members; and training requirements.
Referred to the Committee on Education.
By Senators White, Browning, Laird, Foster, Chafin, Kessler and Stollings:
Senate Bill No. 392--A Bill to amend and reenact §5B-2E-5 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto two new sections, designated §5B-2E-7b and §5B- 2E-7c, all relating generally to the West Virginia Tourism Development Act; and adding a small scale tourism development component and an ancillary project component.
Referred to the Committee on Economic Development; and then to the Committee on Finance.
By Senators Palumbo, Yost, Green and Chafin:
Senate Bill No. 393--A Bill to amend and reenact §29-19-2, §29-19-5 and §29-19-6 of the Code of West Virginia, 1931, as amended, all relating to the solicitation of charitable funds; defining the term "audit"; and raising the threshold for exemption from filing audits and registering.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Unger, McCabe, Chafin and Plymale:
Senate Bill No. 394--A Bill to amend and reenact §17A-3-3 of the Code of West Virginia, 1931, as amended; to amend and reenact §17D-2A-1, §17D-2A-2, §17D-2A-3, §17D-2A-6 and §17D-2A-7 of said code; to amend said code by adding thereto a new section, designated §17D-2A-6a; and to amend said code by adding thereto a new section, designated §33-6-31g, all relating to enforcement of the required security upon motor vehicles; requiring insurance companies licensed to do business in this state to provide policy information to the Division of Motor Vehicles or its agent; authorizing the commissioner to establish a system for online real- time insurance verification; and establishing administrative and criminal penalties.
Referred to the Committee on Transportation and Infrastructure; and then to the Committee on Banking and Insurance.
By Senators Jenkins, White and Williams:
Senate Bill No. 395--A Bill to amend and reenact §3-4A-17 of the Code of West Virginia, 1931, as amended, relating to providing counties the discretion to accompany an electronic poll book with a printed poll book.
Referred to the Committee on Government Organization; and then to the Committee on the Judiciary.
By Senators Unger, Kessler and Chafin:
Senate Bill No. 396--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.
Referred to the Committee on Transportation and Infrastructure; and then to the Committee on the Judiciary.
By Senators Snyder, Unger and Chafin:
Senate Bill No. 397--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §11-1-2b, relating to creating a single dwelling residential housing index and multiplier; requirements for the Tax Commissioner; contents of the index and multiplier; and reporting requirement.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senator K. Facemyer:
Senate Bill No. 398--A Bill to amend and reenact §22-15A-22 of the Code of West Virginia, 1931, as amended, relating to prohibiting disposal of certain electronics in landfills.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Kessler, Chafin, Sypolt, Williams and Foster:
Senate Bill No. 399--A Bill to amend and reenact §50-1-1 of the Code of West Virginia, 1931, as amended, relating to the election of magistrates by division; providing that all magistrates will be elected by divisions; providing that all magistrates will be elected at large from the entire county he or she serves; and requiring the Supreme Court of Appeals to assign magistrates to districts.
Referred to the Committee on the Judiciary.
By Senators Foster and Chafin:
Senate Bill No. 400--A Bill to amend and reenact §30-7-12 of the Code of West Virginia, 1931, as amended; and to amend and reenact §30-7A-9 of said code, all relating to exempting care of the sick from nursing licensing provisions when the nonmedical care is provided in connection with the practice of the religious tenets of any church or religious organization and is by or for its members.
Referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.
By Senators McCabe, Wells, Prezioso, K. Facemyer, Boley, Plymale, Fanning, Minard, Edgell, Jenkins, Chafin and Foster:
Senate Bill No. 401--A Bill to amend and reenact §11-3-1, §11- 3-2a, §11-3-10, §11-3-12, §11-3-15, §11-3-19, §11-3-24, §11-3-24a and §11-3-25 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto fourteen new sections, designated §11-3-15a, §11-3-15b, §11-3-15c, §11-3-15d, §11-3-15e, §11-3-15f, §11-3-15g, §11-3-15h, §11-3-15i, §11-3-23a, §11-3-24b, §11-3-25a, §11-3-32 and §11-3-33; to amend said code by adding thereto a new article, designated §11-6K-1, §11-6K-2, §11-6K-3, §11-6K-4, §11-6K- 5, §11-6K-6, §11-6K-7 and §11-6K-8; and to amend and reenact §18- 9A-12 of said code, all relating to taxation of real and personal property for ad valorem property tax purposes; defining and conforming terms used; making technical corrections in certain code sections to conform to prior acts of the Legislature; accelerating date for issuance of notices of increase in assessed value of real property; updating penalties for failure to file required property tax reports and returns; clarifying report and return filing requirements; accelerating due dates for filing reports and returns; assessment of property of limited liability companies; requiring assessors to notify owners of commercial business personal property of increases in assessed values for current assessment year by an established deadline; providing procedures for property owners to protest notices of assessed valuation and obtain appropriate adjustments from county assessors; providing for appeal of protested assessments to county board of equalization and review, board of assessment appeals and circuit court; providing for protest of classification or taxability to Tax Commissioner; specifying effective dates; providing methods for assessment of industrial property and natural resources property; establishing time and basis for assessments; providing for pertinent definitions; specifying form and manner of making returns; establishing criminal penalties for failure to file; providing for tentative appraisals by Tax Commissioner and notification to taxpayers; providing procedures for informal review of tentative appraisals; making of final appraisals; transmitting final appraisals to assessors; providing for appeals; authorizing reductions of assessments upon instruction of Tax Commissioner in certain circumstances; specifying effective dates; and holding harmless the local share for public school support for reductions in revenues resulting from decisions of a board of assessment appeals.
Referred to the Committee on Finance.
By Senators Kessler, Chafin, Sypolt and Foster:
Senate Bill No. 402--A Bill to amend and reenact §51-1-1 of the Code of West Virginia, 1931, as amended, relating to the Supreme Court of Appeals; and providing for election of Supreme Court Justices by divisions.
Referred to the Committee on the Judiciary.
Senator Unger offered the following resolution:
Senate Concurrent Resolution No. 12--Requesting the Joint Committee on Government and Finance study issues related to the regulation of the motor carrier industry and the Commercial Vehicles Information Systems and Networks (CVISN) Program.
Whereas, The responsibility for delivery of government services and the enforcement laws pertaining to the motor carrier industry currently reside in several state agencies, including the Public Service Commission, Division of Highways, Division of Motor Vehicles, State Tax Division and the State Police; and
Whereas, The unimpeded flow of commerce facilitated by the motor carrier industry is essential for the safety and well-being of all Americans; and
Whereas, Nearly seventy percent of all freight transported annually in the United States is transported by trucks; and
Whereas, Freight volume is expected to double by the year 2035; and
Whereas, State infrastructure and resources to deliver the services and monitoring required by the motor carrier industry to compete in the international arena of the transportation of goods and services are scarce; and
Whereas, It may be more cost effective and efficient to both the state and the motor carrier industry to provide these services on a one-stop basis through consolidated facilities and enhanced e- government; and
Whereas, There is published information available involving the deployment in the various states of a national set of systems known as the Commercial Vehicles Information Systems and Networks (CVISN) Program, relating to the safety, credentials and weight regulations of motor carriers as well as fuel tax; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study issues related to the regulation of the motor carrier industry and the Commercial Vehicles Information Systems and Networks (CVISN) Program; and, be it
Further Resolved, That the Joint Committee on Government and Finance seek input from the Public Service Commission, Division of Highways, Division of Motor Vehicles, State Tax Division and the State Police, as well as from the West Virginia Motor Truck Association, as to how services required by the motor carrier industry may be more efficiently provided; and, be it
Further Resolved, That the Joint Committee on Government and Finance seek input from the Division of Motor Vehicles and from the other sources referred by that division pertaining to whether and to what extent this state should adopt and implement the provisions of the Commercial Vehicles Information Systems and Networks (CVISN) Program; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2011, 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 to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

Which, under the rules, lies over one day.
Senators Kessler, Unger, McCabe and Palumbo offered the following resolution:
Senate Concurrent Resolution No. 13--Requesting the Division of Highways to name Bridge No. 1009, located on U. S. Route 119 at mile post 25.53 crossing Coopers Creek, Big Chimney, Kanawha County, specifically bridge number 20-119-25.53, the "Private First Class Thomas Keith Coleman Memorial Bridge."
Whereas, Thomas Keith Coleman was born on December 7, 1948, in Big Chimney, raised and educated in Kanawha County, the son of Marvin and Kathleen Coleman; and
Whereas, He graduated from Herbert Hoover High School in 1966 where he excelled in academics, was an athlete participating on the football, wrestling and track teams and was well-liked and respected by his classmates, as well as the faculty; and
Whereas, After graduation, he proudly volunteered for service in the United States Marine Corps Reserve and rose to the rank of Private First Class, believing that he could best serve his country in the Marine Corps; and
Whereas, Private First Class Coleman was deployed to South Vietnam in December 1967; and
Whereas, After serving less than a year, he was tragically killed on January 27, 1968, in Quang Tri, South Vietnam, by small arms fire and grenades, at the age of nineteen; and
Whereas, He became the first son from the community of Big Chimney to make the ultimate sacrifice for his country, during the conflict in Vietnam, earning the bronze star and purple heart posthumously; and
Whereas, At the time of his passing, he was survived by his parents and sisters, Barbara Ravenscroft and Susan Coleman; and
Whereas, The nature of the sacrifice of this brave and courageous son from Kanawha County requires us to honor his memory, 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 requests the Commissioner of the Division of Highways to name Bridge number 20-119-25.53, located on U. S. Route 119 at mile post 25.53 crossing Coopers Creek, Big Chimney, Kanawha County the "Private First Class Thomas Keith Coleman Memorial Bridge"; and, be it
Further Resolved, That the Commissioner of the Division of Highways is hereby requested to cause to be fabricated signs to be erected at each entry of said bridge, containing bold and prominent letters proclaiming the bridge to be the "Private First Class Thomas Keith Coleman 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 Transportation, the Commissioner of the Division of Highways, and the family of Private First Class Thomas Keith Coleman

Which, under the rules, lies over one day.
Senators Hall and K. Facemyer offered the following resolution:
Senate Concurrent Resolution No. 14--
Requesting the Division of Highways name bridge number 40-35-0.04 located on U. S. Route 35 crossing I-64 in Scott Depot, Putnam County, the "Trooper William 'Bill' Phillips Memorial Bridge".
Whereas, William "Bill" Phillips was born on September 28, 1953, in Elkins, West Virginia, the son of Howard and Jeanette Phillips; and
Whereas, William "Bill" Phillips subscribed to the ideals of freedom and liberty and, prior to his career in the West Virginia State Police, he served full time in the United States Air Force for four years as a member of the Strategic Air Command here in the United States, as well as in Turkey; and
Whereas, William "Bill" Phillips was sworn into the West Virginia State Police Academy in January, 1979; and
Whereas, Upon graduation from the West Virginia State Police Academy in June, 1979, Trooper William "Bill" Phillips was assigned to the Winfield Detachment of the West Virginia State Police until May, 1987, when he was transferred to the West Virginia State Police Headquarters in South Charleston; and
Whereas, While upholding the law and keeping his neighbors safe, Trooper William "Bill" Phillips tragically died while on duty in a motor vehicle accident on U. S. Route 35 on July 30, 1987; and
Whereas, Although Trooper William "Bill" Phillips' work in Putnam County only spanned eight years, his professionalism and dedication to his career left an indelible impression on many in the county. His service was not on corporate boards, but directly to friends and neighbors who may have needed snow plowed or help with building a deck or an ear for listening; and
Whereas, Among his many activities in Putnam County, Trooper William "Bill" Phillips was a member of the Putnam County EMS, the West Virginia State Police SWAT and Dive Teams, and also raised funds and participated in the Special Olympics Law-Enforcement Torch Run; and
Whereas, Trooper William "Bill" Phillips was a dedicated family man, married eleven years to Joan Antolini Phillips, M. D., and was the father to two beautiful daughters named Heather Lyons and Laura Fullerton; and
Whereas, Many people in the Putnam County area held Trooper William "Bill" Phillips in such high regard that at least three boys have been named William in his memory; and
Whereas, Trooper William "Bill" Phillips was also an active member of the Catholic Church of the Ascension where he belonged to the Knights of Columbus; and
Whereas, The ultimate sacrifice of this brave and courageous son of West Virginia requires us to honor Trooper William "Bill" Phillips by ensuring that future generations are aware of his sacrifice in the cause of law, order and freedom; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name bridge number 40-35-0.04 located on U. S. Route 35 crossing I-64 in Scott Depot, Putnam County, the "Trooper William 'Bill' Phillips Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby requested to have made and be placed signs identifying the bridge as the "Trooper William 'Bill' Phillips 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 family of Trooper William 'Bill' Phillips

Which, under the rules, lies over one day.
At the request of Senator Chafin, and by unanimous consent, the Senate returned to the fourth order of business.
Senator Plymale, from the Committee on Education, submitted the following report, which was received:
Your Committee on Education has had under consideration
Senate Concurrent Resolution No. 15 (originating in the Committee on Education)--
Requesting the Joint Committee on Government and Finance study the issue of student performance in relation to instructional time and the issue of counting as full instructional days those days which have two hour delays or early dismissals.
Whereas, There is some evidence indicating that the amount of time spent in engaged academic learning in school correlates positively with academic achievement, particularly in reading, math and science, and especially for low performing students; and
Whereas, A study of Grade 8 students in 39 countries found a moderate positive association between total school days per year and mathematics and science scores, such that students in countries with longer school years also had higher achievement rates in these areas of study; and
Whereas, The majority of states, including West Virginia, set the school year at 180 days; and
Whereas, Only three counties in West Virginia met the statutorily mandated 180 days with half falling at or below 176
days in 2008-2009; and
Whereas, Unscheduled two hour delays or early dismissals were called in the state an average of 6.9 days during the 2008-2009 school year due to inclement weather; therefore, be it

Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance
is hereby
requested to study instructional time in and for the state; and,
be it
Further Resolved, That the Joint Committee on Government and
Finance
report to the regular session of the Legislature, 2011, 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 to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

And reports the same back with the recommendation that it be adopted; but with the further recommendation that it first be referred to the Committee on Rules.
Respectfully submitted,
Robert H. Plymale,
Chair.
On motion of Senator Plymale, the resolution (S. C. R. No. 15) contained in the foregoing report from the Committee on Education was then referred to the Committee on Rules.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 6, Requesting DOH name bridge in Mingo County "Matoma C. Sansom Memorial Bridge".
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate proceeded to the tenth order of business.
Com. Sub. for Senate Bill No. 215, Creating offense of assaulting volunteer firefighters and emergency medical service employees.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Senate Bill No. 339, Correcting invalid code reference related to voter registration list.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Senate Bill No. 388, Specifying number of members on municipal planning commissions.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate adjourned until Monday, February 1, 2010, at 11 a.m.
____________

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