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sdj-21st day
WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-NINTH LEGISLATURE

REGULAR SESSION, 2010

TWENTY-FIRST DAY

____________

Charleston, W. Va., Tuesday, February 2, 2010

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

Prayer was offered by the Reverend Rodney Campbell, Fifth Avenue Church of God, South Charleston, West Virginia. The First Presbyterian Church Preschool All Stars, Charleston, West Virginia, led the Senate in the recitation of the Pledge of Allegiance and then proceeded in the singing of "It's a Grand Old Flag".
Pending the reading of the Journal of Monday, February 1, 2010,
On motion of Senator Deem, 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. 2485--A Bill to amend and reenact §60A-10- 3, §60A-10-4, §60A-10-5 and 60A-10-8 of the Code of West Virginia, 1931, as amended, all relating to persons who may sell pseudoephedrine and other chemical precursors of methamphetamine.
Referred to the Committee on Health and Human Resources; 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. Com. Sub. for House Bill No. 4018--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §60A-4-413, relating to establishing that the manufacture or possession of an extract or compound intended for human consumption containing Salvia divinorum is unlawful; and creating criminal penalties.
Referred 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. Com. Sub. for House Bill No. 4139--A Bill to repeal §30- 1-15 of the Code of West Virginia, 1931, as amended; and to amend and reenact §30-1-2a, §30-1-5, §30-1-6, §30-1-8, §30-1-11 and §30- 1-14 of said code; and to amend said code by adding thereto a new section, designated §30-1-19, all relating to professional licensing boards; repealing antiquated ineffective provisions; revising requirements for specific subject matter at orientation sessions; clarifying who may call a board meeting; establishing quorums; reporting violations; clarifying the issuance of notices to cease and desist; requiring boards to maintain a business office open to the public; authorizing boards to propose fees notwithstanding specific fees established in code; notifying licensees of proposal of fees in legislative rules; authorizing boards to levy fines; hiring administrative law judges; clarifying law governing hearings and administrative hearings; requiring board members to adhere to ethical standards for appointed officials; permitting boards to establish a process for modifying or waiving continuing education requirements or renewal fees for licensees in active duty military service; and requiring regulatory board reviews.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
The Senate proceeded to the fourth order of business.
Senator Palumbo, from the Joint Committee on Enrolled Bills, submitted the following report, which was received:
Your Joint Committee on Enrolled Bills has examined, found truly enrolled, and on the 2nd day of February, 2010, presented to His Excellency, the Governor, for his action, the following bill, signed by the President of the Senate and the Speaker of the House of Delegates:
(H. B. No. 4040), Requiring county boards to adopt contingency plans designed to guarantee one hundred eighty separate days of instruction for students.
Respectfully submitted,
Corey Palumbo,
Chair, Senate Committee.
Danny Wells,
Chair, House Committee.

Senator White, from the Committee on Agriculture, submitted the following report, which was received:
Your Committee on Agriculture has had under consideration
Senate Bill No. 208, Creating felony offense for animal fighting ventures involvement.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 208 (originating in the Committee on Agriculture)--A Bill
to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-8-19c, relating to making it a felony to wager at animal fighting ventures; making it a felony to conduct, finance, manage, supervise, direct, lease or own any part of an animal fighting venture or the premises on which it takes place with knowledge that wagering is occurring; and providing criminal penalties.
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,
C. Randy White,
Chair.
The bill (Com. Sub. for S. B. No. 208), under the original double committee reference, was then referred to the Committee on the Judiciary.
Senator White, from the Committee on Agriculture, submitted the following report, which was received:
Your Committee on Agriculture has had under consideration
Senate Bill No. 236, Creating Aquaculture Development Act.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 236 (originating in the Committee on Agriculture)--A Bill
to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §19-32-1, §19-32-2, §19-32-3, §19-32-4 and §19-32-5, all relating to promoting aquacultural development in West Virginia; creating the Aquaculture Development Act; providing definitions; setting forth legislative findings and purpose; setting forth the powers and duties of the Department of Agriculture; creating the Aquaculture Advisory Board; and setting forth the duties of the board.
With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on Economic Development.
Respectfully submitted,
C. Randy White,
Chair.
The bill (Com. Sub. for S. B. No. 236), under the original double committee reference, was then referred to the Committee on Economic Development.
Senator White, from the Committee on Agriculture, submitted the following report, which was received:
Your Committee on Agriculture has had under consideration
Senate Bill No. 241, Authorizing Commissioner of Agriculture promulgate legislative rule relating to animal disease control.
Senate Bill No. 242, Authorizing Commissioner of Agriculture promulgate legislative rule relating to integrated pest management programs in schools, child care centers and facilities.
And,
Senate Bill No. 286, Authorizing DHHR promulgate legislative rule relating to Grade "A" pasturized milk.
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,
C. Randy White,
Chair.
The bills, under the original double committee references, were then referred to the Committee on the Judiciary.
Senator White, from the Committee on Agriculture, submitted the following report, which was received:
Your Committee on Agriculture has had under consideration
Senate Bill No. 243, Authorizing Commissioner of Agriculture promulgate legislative rule relating to shellfish.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original triple committee reference first be referred to the Committee on Finance; and then to the Committee on the Judiciary.
Respectfully submitted,
C. Randy White,
Chair.
The bill, under the original triple committee reference, was referred to the Committee on Finance; and then to the Committee on the Judiciary, with an amendment from the Committee on Agriculture pending.
Senator Browning, from the Committee on Economic Development, submitted the following report, which was received:
Your Committee on Economic Development has had under consideration
Senate Bill No. 282, Authorizing Division of Energy promulgate legislative rule relating to community development assessment and real property valuation procedures for Office of Coalfield Community Development.
And reports the same back with the recommendation that it do pass; but under the original triple committee reference first be referred to the Committee on Finance; and then to the Committee on the Judiciary.
Respectfully submitted,
Richard Browning,
Chair.
The bill, under the original triple committee reference, was referred to the Committee on Finance; and then to the Committee on the Judiciary.
Senator Fanning, from the Committee on Natural Resources, submitted the following report, which was received:
Your Committee on Natural Resources has had under consideration
Senate Bill No. 301, Authorizing DNR promulgate legislative rule relating to commercial whitewater outfitters.
Senate Bill No. 302, Authorizing DNR promulgate legislative rule relating to deer hunting.
And,
Senate Bill No. 303, Authorizing DNR promulgate legislative rule relating to special fishing.
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,
John Pat Fanning,
Chair.
The bills, under the original double committee references, were then referred to the Committee on the Judiciary.
Senator Browning, from the Committee on Economic Development, submitted the following report, which was received:
Your Committee on Economic Development has had under consideration
Senate Bill No. 392, Adding small scale development and ancillary project component to Tourism Development Act.
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,
Richard Browning,
Chair.
The bill, 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 Senators Oliverio, Browning, Jenkins, Chafin and McCabe:
Senate Bill No. 432--A Bill to amend and reenact §24-2F-3 of the Code of West Virginia, 1931, as amended, relating to adjusting the definition of "renewable and recycled energy resource".
Referred to the Committee on Energy, Industry and Mining; and then to the Committee on Economic Development.
By Senators Chafin and Green:
Senate Bill No. 433--A Bill to amend and reenact §18-8-1a of the Code of West Virginia, 1931, as amended, relating to changing the age of compulsory school attendance from sixteen to eighteen.
Referred to the Committee on Education; and then to the Committee on Finance.
By Senator Barnes:
Senate Bill No. 434--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5-10-56, relating to municipalities participating in the Public Employees Retirement System; requiring the West Virginia Consolidated Public Retirement Board to annually report to each participating municipality the liabilities of current and former employees for which the municipality is responsible; and requiring the board to propose rules for legislative approval to permit a municipality to make payments on a delinquency.
Referred to the Committee on Pensions; and then to the Committee on Finance.
By Senators Kessler, Bowman, Laird, Guills, K. Facemyer, White, Unger, Plymale and Wells:
Senate Bill No. 435--A Bill to amend and reenact §17C-6-7 of the Code of West Virginia, 1931, as amended, relating to speed restrictions; prima facie evidence of speed by certain devices; changing Department of Public Safety to State Police in this section of said code; and applying this section to all municipalities of the state.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Williams and White:
Senate Bill No. 436--A Bill to amend and reenact §31-14-2 of the Code of West Virginia, 1931, as amended, relating to the process of incorporation; and clarifying the requirements of that process.
Referred to the Committee on the Judiciary.
By Senators McCabe, Foster, Green, Wells, Edgell, D. Facemire, Plymale, Tomblin (Mr. President), Browning, Jenkins, Unger, White, Chafin and Prezioso:
Senate Bill No. 437--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5-10E-1, §5-10E-2, §5-10E-3, §5-10E-4, §5-10E-5, §5-10E-6, §5-10E-7, §5-10E-8, §5-10E-9, §5-10E-10, §5-10E-11 and §5-10E-12; and to amend and reenact §36-8-13 of said code, all relating to establishing the West Virginia Voluntary Employee Retirement Accounts Program in the office of the State Treasurer; establishing findings; defining terms; creating program as a body corporate; providing for liberal construction; requiring compliance with federal and state law; providing for plan administration; authorizing the Treasurer to propose rules; establishing participation; requiring all federal approvals be received before operations begin; creating trust; prohibiting assignment, except for qualified domestic relations orders; authorizing investments; specifying that the corpus, assets and earnings of trust do not constitute public funds; deferring compensation from federal, state and municipal income taxes; authorizing collection of fees from accounts; creating administration account; requiring that any funds appropriated by the Legislature be reimbursed; specifying the state and the Treasurer are not liable or responsible for any debt or obligation of the program and that no debt or obligation of the state is or will be created; specifying the state and the Treasurer are not liable for losses; specifying certain information is confidential; requiring payroll information be provided to the Treasurer; and providing for the transfer of money from the Unclaimed Property Trust Fund for start-up of the program.
Referred to the Committee on Pensions; and then to the Committee on Finance.
By Senators Unger, Jenkins, Fanning, Plymale, White, Barnes, Palumbo, McCabe, D. Facemire, Laird, Foster, Edgell, Kessler and Wells:
Senate Bill No. 438--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §17C-14-15, relating to establishing the misdemeanor offenses of operating a motor vehicle while writing, reading or sending a text-based communication and using a wireless communication device to send or receive conversation; providing exceptions; providing definitions; establishing criminal penalties; and limiting enforcement of the offense of driving while using a cellular telephone.
Referred to the Committee on Transportation and Infrastructure; and then to the Committee on the Judiciary.
By Senators Helmick, McCabe, Unger and Plymale:
Senate Bill No. 439--A Bill to amend and reenact §11-10-18 of the Code of West Virginia, 1931, as amended, relating to the Tax Procedure and Administration Act; and specifying imposition of penalty of five percent of the amount of tax if the failure to file a tax return is for not more than one month.
Referred to the Committee on Finance.
By Senators Helmick, McCabe, Unger, Chafin and Plymale:
Senate Bill No. 440--A Bill to amend and reenact §11-1C-5 of the Code of West Virginia, 1931, as amended, relating to establishing the valuation of motor vehicles and motorcycles for property tax assessment purposes based on "clean load" values for motor vehicles, "clean trade-in" values for motorcycles or alternative values.
Referred to the Committee on Transportation and Infrastructure; and then to the Committee on Finance.
By Senators Helmick, McCabe, Green, Unger, Plymale, Foster, Kessler and Wells:
Senate Bill No. 441--A Bill to amend and reenact §11-13Z-1, §11-13Z-2 and §11-13Z-3 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto eight new sections, designated §11-13Z-4, §11-13Z-5, §11-13Z-6, §11-13Z-7, §11-13Z-8, §11-13Z-9, §11-13Z-10 and §11-13Z-11, all relating to the tax credit for residential solar energy systems; identifying legislative purpose; creating certain definitions; defining "solar energy system"; limiting amount of credit to a maximum of $2,000; specifying application of credit and carryforward periods; establishing burden of proof on taxpayer; requiring that written application for credit be filed with the Tax Commissioner not later than specified date; allowing a penalty of fifty percent of credit for failure to make timely application; establishing eligibility requirements for credit; disqualifying from credit taxpayer that purchases solar energy systems from related persons; providing for credit recapture and imposition of recapture tax if property disposed of in the first or succeeding tax year the system put into service; authorizing promulgation of rules; specifying credit exclusion when other credits are applied, or where federal grant or federal deduction applies, indicating nontransferability of credit; requiring Tax Commissioner to undertake a solar energy tax credit review beginning in 2013 and report results to the Governor, the President of the Senate and the Speaker of the House of Delegates; requiring taxpayers to submit confidential data for inclusion in said review and report; and terminating the solar energy tax credit in 2013.
Referred to the Committee on Finance.
By Senators Helmick and Unger:
Senate Bill No. 442--A Bill to amend and reenact §5-16D-1 of the Code of West Virginia, 1931, as amended, relating to clarifying that the Public Employees Insurance Agency Finance Board may offset annual retiree premium increases with amounts held in the trust.
Referred to the Committee on Pensions; and then to the Committee on Finance.
By Senators Kessler, Foster, Barnes, Browning, Deem, Palumbo, Williams, White, Green, Jenkins, Unger, Plymale, D. Facemire, Yost and Wells:
Senate Bill No. 443--A Bill to amend and reenact §17C-5-2 of the Code of West Virginia, 1931, as amended; and to amend and reenact §17C-5A-3a of said code, all relating to requiring persons convicted of driving under the influence of alcohol and who are on probation, paroled or on other conditional release for that offense to participate in the Motor Vehicle Alcohol Test and Lock Program; establishing conditions for participation in the program; and providing a sentencing court with the authority to set eligibility requirements for participation in the program.
Referred to the Committee on the Judiciary.
By Senators Chafin, Laird, Deem, D. Facemire and Foster:
Senate Bill No. 444--A Bill to amend and reenact §5A-1A-4 of the Code of West Virginia, 1931, as amended, relating to increasing the maximum cash award the Employee Suggestion Award Board may make; requiring the board to report to the Legislature every five years regarding effect of inflation; and allowing the Governor to make a secondary award for suggestions if the suggestion is implemented in one or more additional state agencies.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Prezioso and Kessler:
Senate Bill No. 445--A Bill to extend the time for the City Council of Fairmont, Marion County, West Virginia, to meet as a levying body for the purpose of presenting to the voters of the city an election for a municipal excess levy for purposes of providing funding for the repair and paving of streets and roadways of the City of Fairmont from March 7-28 and the third Tuesday in April until June 8, 2010.
Referred to the Committee on Government Organization.
By Senators Helmick, Kessler, Unger and Plymale:
Senate Bill No. 446--A Bill to amend and reenact §5-16-13 of the Code of West Virginia, 1931, as amended, relating to clarifying that surviving spouses and dependents of deceased public employees may only participate in major medical group plans.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Helmick, Kessler, McCabe, Unger and Plymale:
Senate Bill No. 447--A Bill to amend and reenact §5-16-22 of the Code of West Virginia, 1931, as amended, relating to the West Virginia Public Employees Insurance Agency; and providing that nonstate retired employees who have worked for their last nonstate employer for less than five years are responsible for their entire premium cost for coverage.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Helmick, McCabe, Minard, Unger and Plymale:
Senate Bill No. 448--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §14-1-37, relating to collecting debts through the United States Treasury Offset Program; authorizing the State Auditor to enter into agreements with the United States Treasury's Financial Management Service; specifying reduction and offset of payments for collection of debt; authorizing rules; specifying cost-effective actions to aggressively collect; and authorizing interagency agreements.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Helmick, Kessler, Minard, Unger and Plymale:
Senate Bill No. 449--A Bill to amend and reenact §5-16-17 of the Code of West Virginia, 1931, as amended, relating to the West Virginia Public Employees Insurance Act; and when employees may enroll without limitations of preexisting conditions.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Helmick, Minard and Unger:
Senate Bill No. 450--A Bill to amend and reenact §5-16-22 of the Code of West Virginia, 1931, as amended, relating to exempting certain employers and employees from the requirements of the insurance provisions of chapter thirty-three of this code.
Referred to the Committee on Banking and Insurance; and then to the Committee on Finance.
At the request of Senator Fanning, unanimous consent being granted, Senator Fanning offered the following resolution from the floor:
Senate Resolution No. 12--
Designating February 2, 2010, as "Crime Victims Day at the Legislature".
Whereas, The West Virginia Crime Victims Compensation Fund is celebrating "Crime Victims Day at the Legislature" by providing all of the crime victim agencies and individuals who serve victims of crime an opportunity to educate the members of the Legislature and the public about the many services available to assist victims of crime and their families throughout our State; and
Whereas, The many agencies and individuals serving victims of crime and their families in West Virginia strive to foster the healing of victims and their families through treatment for their many needs including, but not limited to, advocacy for and on behalf of victims and their families, medical treatment and mental health counseling, compensation and restitution; and
Whereas, The many organizations and individuals who provide assistance to victims of crime and families make valuable contributions to those who have been affected by crime in our State; and
Whereas, West Virginia is proud of the accomplishments and achievements of the many organizations and individuals who serve the needs of victims of crime and appreciate their many
contributions to our communities; and
Whereas, There are also many victims or family members present on this special day to foster understanding by the public of the effects of victimization; therefore, be it
Resolved by the Senate:
That the Senate hereby designates February 2, 2010, as "Crime Victims Day at the Legislature"; and, be it
Further Resolved, That the Senate expresses its appreciation to the many organizations which serve victims of crime and their families throughout our State and for the dedication of those individuals who serve these organizations; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the appropriate official with the West Virginia Crime Victims Compensation Fund, Cheryle M. Hall, Clerk of the Court.

At the request of Senator Fanning, 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, at the request of Senator Chafin, and by unanimous consent, returned to the second order of business and the introduction of guests.
The Senate then proceeded to the eighth order of business.
Eng. Com. Sub. for Senate Bill No. 215, Creating offense of assaulting volunteer firefighters and emergency medical service employees.
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: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 215) passed.
On motion of Senator Kessler, the following amendment to the title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for Senate Bill No. 215--A Bill to amend and reenact §61-2-10b of the Code of West Virginia, 1931, as amended, relating to expanding certain crimes against governmental representatives and health care providers to include emergency service personnel; and defining certain terms.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 339, Correcting invalid code reference related to voter registration list.
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: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 339) 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. 388, Specifying number of members on municipal planning commissions.
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: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 388) passed.
On motion of Senator Bowman, the following amendment to the title of the bill was reported by the Clerk and adopted:
Eng. Senate Bill No. 388--A Bill to amend and reenact §8A-2-3 of the Code of West Virginia, 1931, as amended; and to amend and reenact §8A-8-3 of said code, all relating to municipal planning commissions and municipal boards of zoning appeals; and specifying the number of members by municipal classifications.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Wednesday, February 3, 2010, at 11 a.m.
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