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Senate Journal




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sdj-31st day
WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-NINTH LEGISLATURE

REGULAR SESSION, 2010

THIRTY-FIRST DAY

____________

Charleston, W. Va., Friday, February 12, 2010

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

Prayer was offered by the Reverend Lowell Sparks, Matewan Assembly of God, Matewan, West Virginia.
Pending the reading of the Journal of Thursday, February 11, 2010,
On motion of Senator Kessler, 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.
On motion of Senator Chafin, the Senate recessed for five minutes to permit Tasha Frazie to address the Senate on behalf of the Frasure-Singleton Student Legislative Program.
Upon expiration of the recess, the Senate reconvened and 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. 175, Relating to purchase, possession, sale and use of fireworks.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 175 (originating in the Committee on the Judiciary)--A Bill
to repeal §11-12-86 of the Code of West Virginia, 1931, as amended; to repeal §29-3-23, §29-3-24, §29-3-25 and §29-3-26 of said code; and to amend said code by adding thereto a new article, designated §29-3E-1, §29-3E-2, §29-3E-3, §29-3E-4, §29-3E-5, §29-3E-6, §29-3E-7, §29-3E-8, §29-3E- 9, §29-3E-10, §29-3E-11, §29-3E-12, §29-3E-13, §29-3E-14, §29-3E- 15, §29-3E-16, §29-3E-17 and §29-3E-18, all relating generally to revising, consolidating and codifying the laws relating to fireworks; providing definitions; regulating purchase, possession, transportation, sale and use of fireworks; providing no local government regulation over consumer fireworks; requiring certification, registration, bonding and permits; providing for civil money penalties, criminal penalties and remedies; establishing Fireworks Safety Fund and safety fee; establishing Fire Marshal Fireworks Account; establishing West Virginia State Firemen's Association Account and use of funds; prescribing powers and duties of certain state agencies; providing the Fire Marshal with rule-making and emergency rule-making powers; and requesting the Fire Marshal create and maintain an internet website.
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,
Jeffrey V. Kessler,
Chair.
The bill (Com. Sub. for S. B. No. 175), 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. 349, Requiring child care centers have written evacuation plan.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 349 (originating in the Committee on Health and Human Resources)--A Bill
to amend and reenact §49-2B-3 and §49-2B-8 of the Code of West Virginia, 1931, as amended, all relating to requiring licensed or registered child care centers to have a written plan for evacuation in the event of an emergency; providing for plan requirements; requiring plan distribution; and making it a point of investigation before a license is received.
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. 349), 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. 372, Updating language in WV Medical Practice 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,
Roman W. Prezioso, Jr.,
Chair.
At the request of Senator Helmick, as chair of the Committee on Finance, unanimous consent was granted to dispense with the second committee reference of the bill contained in the foregoing report from the Committee on Health and Human Resources.
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. 476, Creating WV Innovation and Development Act.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 476 (originating in the Committee on Economic Development)--A Bill
to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5E-3-1, §5E-3-2, §5E-3-3, §5E-3-4, §5E-3-5, §5E-3-6, §5E-3-7, §5E-3-8, §5E-3-9, §5E-3-10 and §5E-3-11; and to amend and reenact §31-15-6 of said code, all relating to the creation of an innovation and development program; providing a short title and declaration of policy; setting forth purposes; providing definitions; authorizing and directing the Economic Development Authority to propose rules to implement its provisions and provide for the effective and efficient administration of the program; authorizing the authority to provide technical and professional assistance to entrepreneurs in the state; authorizing the authority to make qualified investments and loans; authorizing recoverable revenue credits to private investors for investments in qualified investment companies pursuant to rules to be promulgated by the authority; authorizing tax credits to investors in qualified community development entities; creating a revolving fund to deposit all profits collected by the Economic Development Authority; and specifying disclosure, conflict of interest and confidentiality standards for the operation of the innovation and development program.
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,
Richard Browning,
Chair.
The bill (Com. Sub. for S. B. No. 476), under the original double committee reference, was then referred to the Committee on Finance.
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. 493, Creating Twenty-First Century Business Technologies Property Valuation Act.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 493 (originating in the Committee on Economic Development)--A Bill
to amend the Code of West Virginia, 1931, as amended, 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 and §11-6K-7; and to amend said code by adding thereto a new article, designated §11-13AA-1, §11-13AA-2, §11-13AA-3, §11-13AA-4, §11-13AA-5, §11-13AA-6, §11-13AA-7, §11-13AA-8, §11-13AA-9, §11- 13AA-10, §11-13AA-11, §11-13AA-12, §11-13AA-13, §11-13AA-14, §11- 13AA-15, §11-13AA-16, §11-13AA-17 and §11-13AA-18, all relating generally to the West Virginia Economic Development Act of 2010, consisting of the Twenty-First Century Business Technologies Property Valuation Act and, as to such act, specifying method for valuation of certain property; providing for initial determination by county assessors of whether certain property is used in a twenty-first century business technology; specifying procedure for protest and appeal of determination by county assessor; requiring the West Virginia Development Office to report to the Joint Committee on Government and Finance on the economic impact of such valuation beginning in 2014; consisting of the West Virginia Twenty-First Century Tax Credit Act and, as to such act, providing short title, setting forth purpose and legislative findings; defining terms; allowing credit and exemption from certain taxes; providing for computation of credit, application of credit and period for which credit is allowed; requiring application to claim credit; requiring that new jobs be good-paying jobs with health benefits; requiring identification of investment credit property and recomputation of credit in event of premature disposition of investment property; providing for forfeiture of unused tax credits and redetermination of credit allowed; imposing recapture tax under specified circumstances; allowing transfer of qualified investment to successors; providing rules for interpretation and construction of act; providing for tax credit review and accountability; specifying effective date; and providing severability clause.
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,
Richard Browning,
Chair.
The bill (Com. Sub. for S. B. No. 493), under the original double committee reference, was then referred to the Committee on Finance.
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. 498, Amending civil definition of "neglect".
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 498 (originating in the Committee on the Judiciary)--A Bill
to amend and reenact §9-6-1 of the Code of West Virginia, 1931, as amended, relating to amending the civil definition of "neglect" by making it congruent with the definition of "criminal neglect"; and providing a definition for "caregiver".
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
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. 514, Clarifying certain language in Controlled Substances Monitoring 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 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.
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 Bowman and Plymale:
Senate Bill No. 551--A Bill to amend and reenact §10-5-5a of the Code of West Virginia, 1931, as amended, relating to abolishing the Advisory Committee on Journalistic and Editorial Integrity.
Referred to the Committee on Government Organization.
By Senators Prezioso, Palumbo, Edgell, Foster, Kessler, Minard, Unger, Williams, Boley, Deem, Guills, Snyder, Jenkins, Plymale, Laird and Stollings:
Senate Bill No. 552--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §49-6F-1, §49-6F-2, §49-6F-3, §49-6F-4, §49-6F-5, §49- 6F-6, §49-6F-7, §49-6F-8 and §49-6F-9, all relating to establishing the Office of Child Advocacy; defining terms; providing powers and duties of the Office of Child Advocacy; providing qualifications, term of office and salary of the director; granting authority for the director to hire staff; providing the director and staff of the Office of Child Advocacy to investigate and monitor the Division of Child Protective Services and Division of Corrections; authorizing access to Child Protective Services' and certain Division of Corrections' records and information; allowing communication with children involved in Child Protective Services' investigations and in the custody of the Division of Corrections; providing for confidentiality of information; granting immunity from liability in certain circumstances; and establishing sunset provision.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Foster, White, Browning and Plymale:
Senate Bill No. 553--A Bill to amend and reenact §18-7D-6 of the Code of West Virginia, 1931, as amended, relating to the State Teachers Retirement System; and extending the time for certain members to purchase additional service credit for service in the Teachers' Defined Contribution Retirement System.
Referred to the Committee on Pensions; and then to the Committee on Finance.
By Senators Laird and Kessler:
Senate Bill No. 554--A Bill to amend and reenact §30-29-1, §30-29-2, §30-29-3 and §30-29-5 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §30-29-11, all relating to law-enforcement certification generally; expanding the responsibilities of the law-enforcement training subcommittee and renaming it the law-enforcement professional standards subcommittee; clarifying the authority to decertify law-enforcement officers; establishing a database of law- enforcement officers disciplined for certain types of misconduct; requesting the proposal of legislative rules to set standards for law-enforcement agencies to report certain types of misconduct by officers to the database; and requiring that law-enforcement agencies check the database prior to hiring an officer.
Referred to the Committee on Government Organization; and then to the Committee on the Judiciary.
By Senators Sypolt, Barnes, Browning, D. Facemire and Williams:
Senate Bill No. 555--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §47-26-1, §47-26-2, §47-26-3, §47-26-4, §47-26-5 and §47-26-6, all relating to creating the West Virginia Firearms Freedom Act; exempting firearms, a firearm accessory or ammunition manufactured and retained in West Virginia from federal regulation under the Commerce Clause of the Constitution of the United States; providing short title; legislative declarations of authority; providing definitions; prohibitions; exceptions; and marketing of firearms.
Referred to the Committee on the Judiciary.
By Senators Kessler, Snyder, Williams, Minard and Plymale:
Senate Bill No. 556--A Bill to amend and reenact §3-1-31, §3- 1-34 and §3-1-50 of the Code of West Virginia, 1931, as amended; and to amend and reenact §8-5-14 of said code, all relating to elections; hours of municipal elections and notice of changes; voting procedures; and administrative complaint procedures.
Referred to the Committee on Government Organization; and then to the Committee on the Judiciary.
By Senators Kessler, Oliverio, D. Facemire, Minard, Unger, Plymale and Foster:
Senate Bill No. 557--A Bill to amend and reenact §3-10-5 of the Code of West Virginia, 1931, as amended, relating to clarification of the procedures for vacancies in the state Legislature.
Referred to the Committee on the Judiciary.
By Senators Minard, D. Facemire and Oliverio:
Senate Bill No. 558--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §6-3A-1, §6-3A-2 and §6-3A-3, all relating to neighborhood crime watch programs; creation of the organization; purpose of the program; criminal penalties for harassing members of the program; and procedures for maintaining the anonymity of members of this group and others that report crimes.
Referred to the Committee on the Judiciary.
By Senators Unger and Kessler:
Senate Bill No. 559--A Bill to amend and reenact §17C-19-3 of the Code of West Virginia, 1931, as amended, relating to parties, procedure upon arrest in criminal cases; and providing that when a person is arrested for driving with a revoked or suspended drivers license for miscellaneous reasons, the arresting officer may issue a charge by citation in lieu of being taken immediately before a magistrate or judge if a magistrate or judge is not reasonably available.
Referred to the Committee on the Judiciary.
By Senators Foster, White, Unger and Kessler:
Senate Bill No. 560--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5-10-22k; and to amend said code by adding thereto a new section, designated §18-7A-26v, all relating to the Public Employees Retirement System and the State Teachers Retirement System; and providing for a one-time bonus of $600 for certain annuitants.
Referred to the Committee on Pensions; and then to the Committee on Finance.
By Senators Barnes, Hall and Sypolt:
Senate Bill No. 561--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §8-13C-5a, relating to establishing the method that municipalities shall calculate their business and occupation tax on gasoline distributers and dealers.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senator Bowman:
Senate Bill No. 562--A Bill to amend and reenact §5A-3-48 and §5A-3-52 of the Code of West Virginia, 1931, as amended, all relating to the control of the state's motor vehicle and aircraft fleet by the Department of Administration; allowing user fees for use of the motor vehicles and aircraft; and clarifying certain agencies are not exempt from aircraft user fees.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senator Bowman:
Senate Bill No. 563--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 Senator Bowman:
Senate Bill No. 564--A Bill to amend and reenact §30-25-4 and §30-25-7 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §30-25- 7a, all relating to requiring applicants for, and current holders of, licenses as nursing home administrators to successfully pass criminal history record checks; granting the Nursing Home Administrators Licensing Board with the authority to perform the criminal history record checks; requiring the applicants for, and current holders of, those licenses to cover the costs of performing the criminal history record checks; and providing rule-making authority.
Referred to the Committee on Health and Human Resources.
By Senator Bowman:
Senate Bill No. 565--A Bill to amend and reenact §30-1-12 of the Code of West Virginia, 1931, as amended, relating to requiring state boards of examination or registration to maintain a permanent public office space to conduct board business.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Laird, Kessler, Oliverio, Unger, White, Plymale, Stollings and Foster:
Senate Bill No. 566--A Bill to amend and reenact §62-11A-1a of the Code of West Virginia, 1931, as amended, relating to criminal procedure; and allowing certain offenders to participate in a community work program in lieu of the payment of any fines or court costs.
Referred to the Committee on the Judiciary.
By Senators Laird, White, Kessler, Green and Foster:
Senate Bill No. 567--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §20-16-1, §20-16-2, §20-16-3, §20-16-4, §20-16-5, §20-16-6, §20-16-7 and §20-16-8, all relating to responsibility and liability of nonprofit youth organizations, participants and providers in adventure or recreational activities.
Referred to the Committee on the Judiciary.
By Senator Bowman:
Senate Bill No. 568--A Bill to amend and reenact §10-5-2a of the Code of West Virginia, 1931, as amended, relating to abolishing the Distance Learning Coordinating Council.
Referred to the Committee on Government Organization.
By Senators Foster, White and Kessler:
Senate Bill No. 569--A Bill to amend and reenact §21A-5-7 of the Code of West Virginia, 1931, as amended; and to amend and reenact §21A-6-1 and §21A-6-3 of said code, all relating to permitting certain part-time employees to be eligible for unemployment compensation benefits; permitting employees who have left employment due to being victims of domestic violence, sexual assault or stalking to be eligible for unemployment compensation benefits; permitting employees who have left employment to care for disabled or ill immediate family members to be eligible for unemployment compensation benefits; and permitting employees who have left employment due to the work-related transfer or relocation of a spouse to be eligible for unemployment compensation benefits.
Referred to the Committee on Finance.
By Senators Bowman and Unger:
Senate Bill No. 570--A Bill to amend and reenact §10-1-18a of the Code of West Virginia, 1931, as amended, relating to requiring the State Library Commission and the State Depository Library Clearinghouse, in consultation with the State Office of Technology, to develop, maintain and provide public access to an electronic system which can accommodate public state documents that are born digital.
Referred to the Committee on Government Organization.
By Senator Bowman:
Senate Bill No. 571--A Bill to amend and reenact §10-1-18a of the Code of West Virginia, 1931, as amended, relating to a state agency's obligation to submit public documents to the state publications clearinghouse; and clarifying that any document created or published by a state agency in an electronic or digital format is a "public document".
Referred to the Committee on Government Organization.
By Senators Prezioso, Stollings, Foster, McCabe, Unger, Minard, Jenkins, Plymale and Kessler:
Senate Bill No. 572--A Bill to amend and reenact §5-16B-6d of the Code of West Virginia, 1931, as amended, relating to granting authority to the board of the Children's Health Insurance Program to establish eligibility criteria for coverage for children who previously had insurance under an employer-sponsored plan.
Referred to the Committee on Health and Human Resources; and then to the Committee on Finance.
The Senate proceeded to the seventh order of business.
Senate Resolution No. 21, Honoring Donald Spence for dedication to education.
On unfinished business, coming up in regular order, was reported by the Clerk.
At the request of Senator Chafin, unanimous consent being granted, the resolution was laid over one day, retaining its place on the calendar.
The Senate proceeded to the ninth order of business.
Com. Sub. for Senate Bill No. 38,
Creating WV Servicemembers Civil Relief Act.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Com. Sub. for Senate Bill No. 218, Providing for early parole eligibility for certain inmates.
On second reading, coming up in regular order, was reported by the Clerk.
At the request of Senator Kessler, unanimous consent being granted, further consideration of the bill was deferred until the conclusion of bills on today's second reading calendar.
Com. Sub. for Com. Sub. for Senate Bill No. 236, Creating Aquaculture Development Act.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Senate Bill No. 391, Relating to county board of education members' eligibility.
On second reading, coming up in regular order, was read a second time.
On motions of Senators Edgell and Plymale, the following amendments to the bill were reported by the Clerk, considered simultaneously, and adopted:
On page one, section one-a, lines one and two, by striking out the words "candidate for membership on a county board or who is a member or member-elect" and inserting in lieu thereof the word "member";
On page two, section one-a, line five, by striking out the words "or seeks to serve";
On page two, section one-a, line five, after the word "board" by inserting a period and the words "Also, a person who is a candidate for membership on a county board or who is a member-elect of a county board shall be a citizen and resident in the county in which he or she seeks to serve on the county board";
And,
On page two, section one-a, line seven, by striking out the words "or seeks to serve".
The bill (S. B. No. 391), as amended, was then ordered to engrossment and third reading.
Com. Sub. for Senate Bill No. 397, Creating single dwelling residential housing index and multiplier.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Senate Bill No. 436, Updating language relating to process of incorporation.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
The end of today's second reading calendar having been reached, the Senate returned to the consideration of
Com. Sub. for Senate Bill No. 218, Providing for early parole eligibility for certain inmates
.
On second reading, coming up in deferred order, was read a second time.
On motion of Senator Kessler, the following amendment to the bill was reported by the Clerk and adopted:
On page three, section thirteen, line twenty-two, after the word "person" by inserting a comma and the words "a felony offense involving the use of a firearm".
The bill (Com. Sub. for S. B. No. 218), as amended, was then ordered to engrossment and third reading.
The Senate proceeded to the tenth order of business.
Com. Sub. for Senate Bill No. 89, Relating to reinstating former police chiefs or deputy chiefs to previously held positions.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Com. Sub. for Senate Bill No. 354, Updating terms and reporting procedures for traffic crashes.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Senate Bill No. 382, Relating to certain oil and gas drilling geologic reports.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
The Senate proceeded to the twelfth order of business.
Remarks were made by Senators Chafin and Palumbo.
Thereafter, at the request of Senator Bowman, and by unanimous consent, the remarks by Senator Chafin were ordered printed in the Appendix to the Journal.
The Senate proceeded to the thirteenth order of business.
At the request of Senator Foster, unanimous consent being granted, it was ordered that the Journal show had Senator Foster been present in the chamber on yesterday, Thursday, February 11, 2010, he would have voted "yea" on the passage of Engrossed Senate Bill No. 350 and Engrossed Senate Bill No. 405.
At the request of Senator Chafin, and by unanimous consent, the Senate stood in observance of a moment of silence in recognition of the passing of Shearl H. Plymale, father of the Honorable Robert H. Plymale, a senator from the fifth district.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate adjourned until Monday, February 15, 2010, at 11 a.m.
____________

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