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Senate Journal


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sdj-29th day
WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-NINTH LEGISLATURE

REGULAR SESSION, 2009

TWENTY-NINTH DAY

____________

Charleston, W. Va., Wednesday, March 11, 2009

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.
The Honorable Jack Yost, a senator from the first district, accompanied by the Honorable Donna J. Boley, a senator from the third district, proceeded in administering the presidential oath of office to Abraham Lincoln, as portrayed by James Dague of Wheeling, West Virginia. President Lincoln then delivered his Gettysburg Address and his Springfield Farewell Address to the Senate.
Thereafter, at the request of Senator Edgell, and by unanimous consent, the presidential oath of office administered by Senator Yost was ordered printed in the Appendix to the Journal.
Pending the reading of the Journal of Tuesday, March 10, 2009,
On motion of Senator Green, 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 Clerk presented a communication from the Court of Claims, submitting its Crime Victims Compensation Fund report as required by chapter fourteen, article two-a, section twenty-one of the code of West Virginia.
Which report was received and filed with the Clerk.
Senator Tomblin (Mr. President) presented a communication from the Court of Claims, submitting its annual report, in accordance with chapter fourteen, article two, section twenty-five of the code of West Virginia.
Which report was received and filed with the Clerk.
Senator Tomblin (Mr. President) presented a communication from the Joint Committee on Government and Finance, submitting its annual interim studies report as required by chapter four, article three, section three of the code of West Virginia.
Which report was received and filed with the Clerk.
The Senate proceeded to the fourth order of business.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 344, Authorizing mental hygiene commissioners sign readmission orders.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Jeffrey V. Kessler,
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. 424, Converting financial institution to state-chartered bank.
Senate Bill No. 431, Providing in-state medical providers notice of small group health benefit plan.
Senate Bill No. 452, Relating to Public Employees Insurance Agency underwriting nonstate employer groups.
And,
Senate Bill No. 489, Allowing Board of Banking and Financial Institutions receive travel expense compensation.
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 Finance.
Respectfully submitted,
Joseph M. Minard,
Chair.
The bills, under the original double committee references, were 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. 443, Exempting Insurance Commissioner's civil investigation records from subpoena.
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,
Joseph M. Minard,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on the Judiciary.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 445, Removing conservation supervisors' election certification requirements.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 456, Creating Reduced Cigarette Ignition Propensity Standard and Fire Prevention 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,
Jeffrey V. Kessler,
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 and joint resolution were introduced, read by their titles, and referred to the appropriate committees:
By Senators Bowman and Unger:
Senate Bill No. 535--A Bill to amend and reenact §60-2-16 of the Code of West Virginia, 1931, as amended, relating to allowing counties with contiguous borders with other states where the closing time for bars is earlier than the closing time set by the Alcohol Beverage Control Commission to set a closing time at an hour no later than that of the contiguous state.
Referred to the Committee on Government Organization.
By Senators McCabe, Foster, Wells, Palumbo, Plymale and Stollings:
Senate Bill No. 536--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §18B-3F-1, §18B-3F-2, §18B-3F-3, §18B-3F-4, §18B-3F-5, §18B-3F-6, §18B-3F-7, §18B-3F-8, §18B-3F-9 and §18B-3F-10, all relating to reorganization and consolidation of community and technical colleges; setting forth the powers and duties of the West Virginia Council for Community and Technical College Education; providing definitions; legislative findings; setting forth the development of a strategic reorganization plan; establishing an administrative planning committee; setting forth membership of the committee, terms of offices, powers and duties; appointing of an institutional president and other officers; identifying transfer of assets and liabilities, operating budgets, orders, policies and procedures; setting forth employee benefits; and notification requirements of certain employees of retention or termination by certain date under certain circumstances.
Referred to the Committee on Education; and then to the Committee on Finance.
By Senators Minard and McCabe:
Senate Bill No. 537--A Bill to repeal §23-5-17 and §23-5-18 of the Code of West Virginia, 1931, as amended; to amend and reenact §23-2-1d of said code; to amend and reenact §23-2A-1 of said code; to amend and reenact §23-2C-8 and §23-2C-21 of said code; to amend and reenact §23-4-6b of said code; to amend said code by adding thereto a new section, designated §23-4-8d; to amend and reenact §23-5-1 and §23-5-3 of said code; and to amend and reenact §33-2-22 of said code, all relating to workers' compensation; eliminating obsolete sunset provisions; redefining the responsibility of prime contractors to injured employees of their subcontractors; clarifying subrogation rights with respect to employees injured by third parties; providing for a unitary decision-making process in claims involving the Uninsured Employers Fund; extending the scope of permissible remedies to include those in the general insurance code; permitting the recovery of administrative costs in certain actions; eliminating mandatory allocation in hearing loss claims; authorizing the adoption of exempt legislative rules; providing that claims for medical benefits in occupational pneumoconiosis claims may be made at any time; clarifying that a sixty-day period applies to various protests; extending the jurisdiction of the office of judges to hear certain protests; mandating conditional payments in certain instances; and authorizing the Insurance Commissioner to compromise and settle claims for moneys due the Old Fund and Uninsured Employers Fund.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Wells, Foster, Plymale, Barnes, Green, Sypolt, Kessler, Jenkins, Palumbo, D. Facemire, Unger and White:
Senate Bill No. 538--A Bill to amend and reenact §11-21-22 and §11-21-22b of the Code of West Virginia, 1931, as amended, all relating to personal income tax; and authorizing a refundable tax credit based on federal poverty guidelines.
Referred to the Committee on Finance.
By Senator Caruth:
Senate Bill No. 539--A Bill to amend and reenact §22-3-17 of the Code of West Virginia, 1931, as amended, relating to requiring the Department of Environmental Protection to use its authority under the Water Pollution Control Act to enforce surface mining- related water pollution violations of effluent limits and water quality.
Referred to the Committee on Energy, Industry and Mining; and then to the Committee on the Judiciary.
By Senators Helmick and McCabe:
Senate Bill No. 540--A Bill to amend and reenact §11-6I-3 and §11-6I-5 of the Code of West Virginia, 1931, as amended; to amend and reenact §11-10-5e of said code; to amend said code by adding thereto a new section, designated §11-10-25; to amend and reenact §11-13Q-22 of said code; to amend and reenact §11-15-3c of said code; to amend said code by adding thereto a new section, designated §11-15-9m; to amend and reenact §11-21-21, §11-21-22, §11-21-23 and §11-21-24 of said code; to amend and reenact §11-24- 3a and §11-24-4b of said code; and to amend and reenact §21A-6-1c of said code, all relating to taxation; specifying authority of the Tax Commissioner to designate Tax Division documents that may be sent by personal service, United States postal service, regular mail, certified mail or registered mail or other means; specifying statutory burden of proof and presumption against tax exemptions; specifying inflation adjustment for certain economic opportunity tax credit entitlement requirements; specifying exclusion of sales and use of certain motor vehicles and certain trailers and classes of vehicle and vehicular apparatus from state consumers sales and use tax on certain vehicles; specifying exclusion of sales and use of certain motor vehicles and certain trailers and classes of vehicle and vehicular apparatus from municipal and local consumers sales and service tax and use tax, or special downtown redevelopment district excise tax, or special district excise tax and other sales taxes; authorizing discretionary designation of per se exemptions from the consumers sales and service tax and use tax by the Tax Commissioner; specifying a technical correction; correcting the reference to the licensing provision from chapter eleven of said code to chapter seventeen-a of said code; specifying exclusion of federal alternative minimum income taxpayers from eligibility for property tax payment deferment and assessor's denial of deferment; disqualifying persons who pay the federal alternative minimum income tax in specified years from qualification for the senior citizens' tax credit under article twenty-one, chapter eleven of said code; disqualifying persons who pay the federal alternative minimum income tax in specified years from qualification for the low-income family tax credit; disqualifying persons who pay the federal alternative minimum income tax in specified years from qualification for the refundable tax credit for real property taxes paid in excess of four percent of income; specifying that senior citizen property tax relief credit is not authorized for tax years beginning on or after January 1, 2009; defining terms; specifying treatment of certain income and deduction items for certain regulated investment companies and real estate investment companies; authorizing state income tax withholding from the individual's payment of unemployment compensation; and specifying effective dates.
Referred to the Committee on Finance.
By Senators Caruth, Chafin, Fanning, Guills and D. Facemire:
Senate Bill No. 541--A Bill to amend and reenact §17-16A-26 of the Code of West Virginia, 1931, as amended, relating to an annual legislative audit of the Parkways Authority; and requiring the Parkways Authority to provide certain information.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Caruth, Chafin, Fanning and Guills:
Senate Bill No. 542--A Bill to amend and reenact §17-16A-18 of the Code of West Virginia, 1931, as amended, relating to terminating tolls on the West Virginia Turnpike no later than 2020.
Referred to the Committee on Transportation and Infrastructure; and then to the Committee on Finance.
By Senators Caruth, Chafin and Fanning:
Senate Bill No. 543--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §17-16A-11a, relating to prohibiting the West Virginia Parkways Authority from issuing any additional revenue bonds.
Referred to the Committee on Transportation and Infrastructure; and then to the Committee on Finance.
By Senators Caruth, Chafin, Fanning and Guills:
Senate Bill No. 544--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §17-16A-22a, relating to requiring the West Virginia Parkways Authority to pay all indebtedness on schedule without extending or renewing the debt.
Referred to the Committee on Transportation and Infrastructure; and then to the Committee on Finance.
By Senators White, Laird, Kessler, Jenkins, D. Facemire and Unger:
Senate Bill No. 545--A Bill to amend and reenact §23-4-1 of the Code of West Virginia, 1931, as amended, relating to providing a rebuttable presumption that a volunteer firefighter has developed a pulmonary disease or sustained a cardiovascular injury for workers' compensation benefits provided certain conditions of employment have been met; eliminating the rebuttable presumption that cardiovascular disease is a compensable injury for firefighters; and changing the six-month time frame for certain firefighter injuries to six weeks.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senators Green, Stollings and D. Facemire:
Senate Bill No. 546--A Bill making a supplementary appropriation of Lottery Net Profits from any balance of moneys remaining as an unappropriated balance in Lottery Net Profits to the Department of Education and the Arts - Division of Culture and History - Lottery Education Fund, fund 3534, fiscal year 2009, organization 0432, by supplementing and amending the appropriations for the fiscal year ending June 30, 2009.
Referred to the Committee on Rules.
By Senators Foster, D. Facemire and Wells:
Senate Bill No. 547--A Bill to amend and reenact §30-5-14 of the Code of West Virginia, 1931, as amended, relating to the registration and the permits for operation of pharmacies; and forbidding the sale of tobacco products in licensed pharmacies.
Referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.
By Senator Bowman:
Senate Bill No. 548--A Bill to amend and reenact §5A-8-15 of the Code of West Virginia, 1931, as amended, relating to merging the functions of the Records Management and Preservation Advisory Committee with the Records Management and Preservation Board.
Referred to the Committee on Government Organization.
By Senators McCabe, Caruth, Bowman, Kessler, Foster, Jenkins, Stollings, Plymale, Palumbo, Unger, White and Wells:
Senate Bill No. 549--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5B-2H-1, §5B-2H-2, §5B-2H-3, §5B-2H-4, §5B-2H-5, §5B- 2H-6, §5B-2H-7, §5B-2H-8, §5B-2H-9, §5B-2H-10 and §5B-2H-11, all relating to the Creative Communities Development Pilot Program; pronouncing legislative finding and intent; creating the Creative Communities Development Fund; establishing the Creative Communities Development Board; providing requirements for applications for the use of matching funds from the Creative Communities Development Fund; providing for review of applications by the West Virginia Development Office; establishing that the Creative Communities Development Board shall have the authority to approve matching grants from Creative Communities Development Fund; establishing matching requirements from applicants; establishing eligible expenditures; defining parameters of agreement between West Virginia Development Office and a community for use of grant funds; providing for a review and audit of expenditures by West Virginia Development Office; and providing for review of Creative Communities Development Pilot Program.
Referred to the Committee on Economic Development; and then to the Committee on Finance.
By Senators Prezioso and Plymale:
Senate Bill No. 550--A Bill to amend and reenact §18-7A-38 of the Code of West Virginia, 1931, as amended, relating to teachers' retirement; and providing that retired teachers who teach college- level courses on a noncontract basis may not be limited to fewer hours of employment than eighteen credit hours a semester.
Referred to the Committee on Education; and then to the Committee on Finance.
By Senators Green and Bowman:
Senate Bill No. 551--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5-30-1, §5-30-2, §5-30-3, §5-30-4 and §5-30-5, all relating to establishment of the Athletic Trainers Registration Act; providing for registration of athletic trainers with the Secretary of State; defining "athletic training" and "athletic trainer"; establishing the Secretary of State as agent for service of process purposes; authorizing the Secretary of State to issue subpoenas and subpoenas ducem tecum; prohibiting the advertisement or representation as an athletic trainer unless registered; providing registration and renewal requirements; providing for denial, revocation, suspension or refusal to renew registration or renewal; and allowing the Secretary of State to establish registration and renewal fees
Referred to the Committee on Government Organization.
By Senators Minard and Kessler:
Senate Bill No. 552--A Bill to repeal §33-15D-1, §33-15D-2, §33-15D-3, §33-15D-4, §33-15D-5, §33-15D-6, §33-15D-7, §33-15D-8, §33-15D-9, §33-15D-10 and §33-15D-11 of the Code of West Virginia, 1931, as amended; to amend and reenact §33-16F-1, §33-16F-2, §33- 16F-3, §33-16F-4, §33-16F-5, §33-16F-6, §33-16F-7 and §33-16F-8 of said code; and to amend said code by adding thereto two new sections, designated §33-16F-9 and §33-16F-10, all relating to health insurance; requiring the Insurance Commissioner to invite carriers and other entities to submit proposals for affordable health insurance plans; defining terms; specifying that plans do not create an entitlement; establishing eligibility and standards for such plans; providing for evaluation of the plans and reports to the Legislature; providing for continuation of existing limited benefit plans; and authorizing emergency legislative rules.
Referred to the Committee on Banking and Insurance.
By Senators Laird, Sypolt and Stollings:
Senate Joint Resolution No. 13--Proposing an amendment to the Constitution of the State of West Virginia, amending section three, article IX thereof, relating to allowing citizens to vote upon extending the terms for the office of sheriff to three consecutive four-year terms; eliminating the provision that if a sheriff serves any portion of a term, it counts as one of the terms toward the term limit; providing that no person serving in his or her second consecutive term as sheriff upon the ratification of this section in 2010 shall be eligible to serve a third consecutive term beginning in the year 2011; numbering and designating such proposed amendment; and providing a summarized statement of the purpose of such proposed amendment.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
Senators Caruth, Barnes, K. Facemyer, Hall, McCabe, Sypolt, Guills, Kessler, Boley, Foster, Stollings, D. Facemire and Unger offered the following resolution:
Senate Concurrent Resolution No. 22--Requesting the Joint Committee on Government and Finance study the feasibility of a statewide database background check system.
Whereas, There exists a need for government and private employers to have the ability and access to background investigation checks on applicants for employment; and
Whereas, There are statutes in West Virginia that now provide for background investigation checks on applicants for employment at racetracks and such procedures should be available to state, county and municipal government as well as the private sector; and
Whereas, The Criminal Identification Bureau of the West Virginia State Police has a database that may be accessed by the 55 counties of the state and private sector employers in the counties; and
Whereas, Developing the means for state, county and municipal government as well as private employers to request background investigation checks on applicants for employment in this time of needed security is in the best interest of the citizens of the state and could be readily established in the office of the circuit clerk of each county; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the feasibility of a statewide database background check system; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2010, 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.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 21, Requesting Joint Committee on Government and Finance study reclassifying counties.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Government Organization; and then to the Committee on Rules.
Senate Resolution No. 23, Commemorating life of Thomas A. Colley.
On unfinished business, coming up in regular order, was reported by the Clerk.
At the request of Senator Caruth, unanimous consent being granted, the resolution was laid over one day, retaining its place on the calendar.
The Senate proceeded to the eighth order of business.
Eng. Senate Bill No. 66, Relating to school employees' donated personal leave days.
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, 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)--33.
The nays were: None.
Absent: Chafin--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 66) passed.
The following amendment to the title of the bill, from the Committee on Education, was reported by the Clerk and adopted:
Eng. Senate Bill No. 66--A Bill to amend and reenact §18A-4-10f of the Code of West Virginia, 1931, as amended, relating to leave donation program; eligibility for receiving the donated leave; purpose for which the leave was transferred; and return of personal leave days which were donated from one school employee to another.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 306, Increasing pipeline companies' special license fees to Public Service Commission.
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, 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)--33.
The nays were: None.
Absent: Chafin--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 306) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 370, Relating to community corrections program fees.
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, 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)--33.
The nays were: None.
Absent: Chafin--1.
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. 370) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate proceeded to the tenth order of business.
Com. Sub. for Senate Bill No. 238, Relating to unlawful discriminatory practices generally.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Com. Sub. for Senate Bill No. 318, Expanding Division of Protective Services' law-enforcement authority over state property under certain circumstances.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Com. Sub. for Senate Bill No. 375, Relating to Office of Coalfield Community Development master land use plans.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
The Senate proceeded to the eleventh order of business and the introduction of guests.
The Senate then proceeded to the twelfth order of business.
Remarks were made by Senators Plymale, Oliverio and Caruth.
Thereafter, at the request of Senator Kessler, and by unanimous consent, the remarks by Senators Plymale and Oliverio were ordered printed in the Appendix to the Journal.
At the request of Senator Guills, unanimous consent being granted, the remarks by Senator Caruth were ordered printed in the Appendix to the Journal.
On motion of Senator Edgell, a leave of absence for the day was granted Senator Chafin.
Pending announcement of meetings of standing committees of the Senate, including a majority party caucus,
On motion of Senator Edgell, the Senate adjourned until tomorrow, Thursday, March 12, 2009, at 11 a.m.
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