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sdj-34th day
WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

SEVENTY-NINTH LEGISLATURE

REGULAR SESSION, 2010

THIRTY-FOURTH DAY

____________

Charleston, W. Va., Monday, February 15, 2010

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

Prayer was offered by the Honorable John R. Unger II, a senator from the sixteenth district and Vicar, St. John Evangelical Lutheran Church, Harpers Ferry, West Virginia.
Pam Powers Moore, Sweet Song Ministries, Buckhannon, West Virginia, then proceeded in the singing of "American Tears" and "Somebody's Prayin'".
Pending the reading of the Journal of Friday, February 12, 2010,
On motion of Senator McCabe, 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.
At the request of Senator Chafin, and by unanimous consent, the provisions of rule number fifty-four of the Rules of the Senate, relating to persons entitled to the privileges of the floor, were suspended in order to grant United States military veterans privileges of the floor for the day.
On motion of Senator Chafin, the Senate recessed for five minutes to permit Henry Wang to address the Senate on behalf of the Governor's School for the Arts and Amber Ridings on behalf of the Governor's Honors Academy.
Upon expiration of the recess, the Senate reconvened and proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 8--Requesting the Division of Highways to name the bridge in Bendale on State Route 19, 0.34 mile south of the junction of County Route 19/3 and crossing the West Fork River, bridge number 21-19-22.03, as the "Lance Corporal Larry Steven Heater Memorial Bridge".
Referred to the Committee on Transportation and Infrastructure.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 15--Requesting the bridge currently named "Spring Creek Bridge" in Greenbrier County, West Virginia, crossing Spring Creek located in Renick, West Virginia, specifically bridge number 13-219-25.47, be named the "John Joseph Walkup, Jr. Bridge".
Referred to the Committee on Transportation and Infrastructure.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 28--Requesting the bridge in Bruceton Mills crossing I-68 at the Bruceton Mills exit, mile marker 23, in Preston County, West Virginia, specifically bridge number 39-73/11-0.04(2835), be named the "Trooper First Class James Thomas Brammer Memorial Bridge".
Referred to the Committee on Transportation and Infrastructure.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 30--Requesting the Division of Highways name the B&O overpass bridge number 52-7-33.52 on State Route 7 in Hundred, Wetzel County, West Virginia the "Chief Warrant Officer John Michael Hohman Memorial Bridge".
Referred to the Committee on Transportation and Infrastructure.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 35--Requesting the Division of Highways to name bridge number 51-15-8.40 on State Route 15 in Diana, Webster County, the "Dr. Mabel Nichols Bridge".
Referred to the Committee on Transportation and Infrastructure.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 37--Requesting the Route 60 bridge at the Western edge of Milton, Cabell County, West Virginia, specifically bridge number 06-60-20.49, be named the "CMS Marshall Irvin Pauley Memorial Bridge, Killed in Action, Vietnam 1966".
Referred to the Committee on Transportation and Infrastructure.
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 Minard, Yost, Snyder, White, Edgell, Boley, Chafin and Stollings:
Senate Bill No. 573--A Bill to amend and reenact §6-9-7 of the Code of West Virginia, 1931, as amended, relating to allowing audits to be published electronically with notice to the proper authorities.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
By Senators Boley, Yost, Sypolt, Wells, Barnes, Deem, Stollings, Kessler and Williams:
Senate Bill No. 574--A Bill to amend and reenact §2-2-1a of the Code of West Virginia, 1931, as amended, relating to making December 7 a special memorial day known as Pearl Harbor Day to honor all West Virginians who fought in World War II.
Referred to the Committee on Military; and then to the Committee on Government Organization.
By Senator Laird:
Senate Bill No. 575--A Bill to amend and reenact §8-10-2a and §8-10-2b of the Code of West Virginia, 1931, as amended; to amend and reenact §17B-3-3a, §17B-3-3c and §17B-3-6 of said code; and to amend and reenact §50-3-2a of said code, all relating to suspension of driving, hunting and fishing licenses for failure to pay costs, fines, forfeitures, restitutions or penalties.
Referred to the Committee on Natural Resources; and then to the Committee on the Judiciary.
By Senator Unger:
Senate Bill No. 576--A Bill to amend and reenact §16-13A-3 and §16-13A-7 of the Code of West Virginia, 1931, as amended, all relating to public service districts; providing that members serve at the will and pleasure of the governing body that appoints them; and requiring public service districts to obtain the support of the county commission for projects that require a certificate of public convenience and necessity before proceeding with the project.
Referred to the Committee on Government Organization.
By Senator Kessler:
Senate Bill No. 577--A Bill to amend and reenact §47-21-2 and §47-21-20 of the Code of West Virginia, 1931, as amended, all relating to clarifying the definition of "charitable raffle"; providing criminal and civil penalties, license suspension and revocation; and authorizing forfeiture and destruction of property provisions.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
By Senator Prezioso:
Senate Bill No. 578--A Bill to amend and reenact §24A-1-3 of the Code of West Virginia, 1931, as amended, relating to exempting motor vehicles used by the Department of Health and Human Resources from the jurisdiction of the Public Service Commission; and providing a safety and insurance exception.
Referred to the Committee on Transportation and Infrastructure; and then to the Committee on the Judiciary.
By Senators Prezioso, Chafin, Stollings and Foster:
Senate Bill No. 579--A Bill to amend and reenact §16-29G-2 of the Code of West Virginia, 1931, as amended, relating to increasing the representation on the Health Information Network Board.
Referred to the Committee on Health and Human Resources; and then to the Committee on Government Organization.
By Senators Prezioso, Stollings, Laird, Foster and Oliverio:
Senate Bill No. 580--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §11-27-38, relating to retaining nursing educators; providing up to a $3,500 tax credit for full-time nursing faculty members in the state; establishing the criteria for taking the credit; granting rule-making authority to the State Tax Commissioner; and defining terms.
Referred to the Committee on Health and Human Resources; and then to the Committee on Finance.
By Senators Prezioso, Foster and Kessler:
Senate Bill No. 581--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §16-5B-18, relating to establishing the Primary Stroke Center Hospital Designation Act; and designating hospitals as primary stroke centers.
Referred to the Committee on Health and Human Resources.
By Senators White, Chafin, Stollings and Kessler:
Senate Bill No. 582--A Bill to amend and reenact §23-4-15 of the Code of West Virginia, 1931, as amended, relating to increasing from one year to three years the time in which a dependent may apply for workers' compensation death benefits where occupational pneumoconiosis is determined to be a cause of death.
Referred to the Committee on the Judiciary.
Senators Prezioso, Jenkins, Stollings, Foster and Oliverio offered the following resolution:
Senate Concurrent Resolution No. 28--Expressing the will of the Legislature to repeal the Medicare Sustainable Growth Rate that currently governs physician payments and to support measures to permanently fix the Medicare Physician payment problem.
Whereas, West Virginia has the largest proportion of population on Medicare of any state; and
Whereas, Recent AARP polls found that nearly ninety percent of people over the age of fifty are concerned that the current Medicare physician payment formula threatens their access to care; and
Whereas, Physicians and other health professionals face an unprecedented twenty-one percent cut in Medicare payment rates March 1, 2010, with additional cuts in future years; and
Whereas, Physicians are central to the delivery of health care and Medicare's payment system should encourage quality and affordable care; and
Whereas, By repealing the Sustainable Growth Rate formula, the "Medicare Physician Payment Reform Act" would eliminate all these forecast cuts; and
Whereas, Medicare cuts will further erode seniors' access and choice of physician; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature of West Virginia is opposed to the Medicare Sustainable Growth Act which jeopardizes seniors' access to care and physicians' confidence in the government's commitment to a strong and reliable Medicare program; and, be it
Further Resolved, That the Legislature of West Virginia supports legislation to permanently repeal the Medicare Sustainable Growth Rate that currently governs Medicare physician payments; and, be it
Further Resolved, That the Legislature of West Virginia support measures to permanently fix the Medicare Physician payment problem; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to United States Senators Robert C. Byrd and John D. Rockefeller IV and Representatives Nick J. Rahall, Alan B. Mollohan and Shelley M. Capito.
Which, under the rules, lies over one day.
Senator Jenkins offered the following resolution:
Senate Concurrent Resolution No. 29--Requesting the Division of Highways name bridge number 6-60-15.00, over the CSX Railroad at Cyrus Creek Road, located on Route 60 in Cabell County, the "Glenn Holton Memorial Bridge".
Whereas, Glenn Holton, of Salt Rock, West Virginia, was born March 8, 1942, the son of William and Opal Holton; and
Whereas, Glenn Holton was a graduate of Barboursville High School where he participated in football, baseball, track and basketball; and
Whereas, Glenn Holton attended West Virginia University where he was a solid college football cocaptain, performer and leader; and
Whereas, Glenn Holton was drafted by the NFL Detroit Lions; and
Whereas, Sadly, Glenn Holton's life was cut short when he was killed in an automobile accident at the age of 36; and
Whereas, Glenn Holton is sorely missed by his family, friends, coworkers and all those who crossed his path in life; and
Whereas, It is fitting, to honor the memory of Glenn Holton, by naming bridge number 6-60-15.00, over the CSX Railroad at Cyrus Creek Road, located on Route 60 in Cabell County, the "Glenn Holton Memorial Bridge"; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways name bridge number 6-60-15.00, over the CSX Railroad at Cyrus Creek Road, located on Route 60 in Cabell County, the "Glenn Holton 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 "Glenn Holton 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 Glenn Holton.
Which, under the rules, lies over one day.
Senators Palumbo, Foster, McCabe, Wells, Stollings and Oliverio offered the following resolution:
Senate Resolution No. 22--Honoring Melquan Brown for his heroic actions and designating him as a Distinguished West Virginian.
Whereas, Melquan Brown is a 15-year-old student at Capitol High School in Charleston, West Virginia; and
Whereas, On the night of January 16, 2010, Melquan Brown was in Cottageville, Jackson County, West Virginia, when he noticed that 13-year-old Bridget Camp had fallen through the ice of a frozen creek and was submerged in the frigid water; and
Whereas, Without hesitation or regard for his own life, Melquan Brown dove into the frigid water and pulled Bridget Camp to safety; and
Whereas, Melquan Brown's selfless and courageous actions saved the life of Bridget Camp; and
Whereas, Melquan Brown embodies the traits of a true West Virginian and his heroic deed will not be forgotten; therefore, be it
Resolved by the Senate:
That the Senate hereby honors Melquan Brown for his heroic actions and designates him as a Distinguished West Virginian; and, be it
Further Resolved, That the Senate hereby expresses its appreciation to Melquan Brown for his courageous act of saving the life of a fellow West Virginian; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to Melquan Brown.
At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
Thereafter, at the request of Senator Chafin, and by unanimous consent, the remarks by Senator Palumbo regarding the adoption of Senate Resolution No. 22 were ordered printed in the Appendix to the Journal.
On motion of Senator Chafin, the Senate recessed for one minute.
Upon expiration of the recess, the Senate reconvened and resumed business under the sixth order.
Senators Boley, Jenkins, Prezioso, Chafin, Wells, McCabe, Stollings, Laird, Foster, Kessler, Oliverio and Williams offered the following resolution:
Senate Resolution No. 23--Designating February 15, 2010, as "Veterans Visibility Day".
Whereas, From the Revolutionary War, which gave America its identity as a free and democratic nation, to this moment, America's men and women have always risen to the call of duty in order to defend and preserve our freedom and help maintain freedom throughout the world; and
Whereas, Per capita, more citizens from West Virginia have served in our nation's armed forces than from any other state. We are proud of our citizens who, despite danger, have done what they must for peace and freedom; and
Whereas, Through wars, conflicts and the threat of terror, thousands of West Virginians have paid the ultimate price for freedom with their lives and thousands more have been wounded in battle; and
Whereas, The Senate is proud to honor those currently serving in harm's way in Iraq, Afghanistan and in other countries all over the world to protect democracy from the threat of terror; and
Whereas, It is always important that we honor the many brave West Virginians who have faced the enemy, been wounded and even given their lives not only for our freedom, but for freedom around the world; therefore, be it
Resolved by the Senate:
That the Senate hereby designates February 15, 2010, as "Veterans Visibility Day"; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the Division of Veterans' Affairs.
At the request of Senator Boley, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
Thereafter, at the request of Senator McCabe, and by unanimous consent, the remarks by Senator Wells regarding the adoption of Senate Resolution No. 23 were ordered printed in the Appendix to the Journal.
On motion of Senator Chafin, the Senate recessed for one minute.
Upon expiration of the recess, the Senate reconvened and resumed business under the sixth order.
Senators Boley, Jenkins, Prezioso, Chafin, Wells, McCabe, Stollings, Laird, Foster, Kessler, Oliverio and Williams offered the following resolution:
Senate Resolution No. 24--Honoring all West Virginia veterans who fought for our freedom in World War II.
Whereas, West Virginia veterans, their families, and citizens of West Virginia were significantly impacted by the attack on Pearl Harbor on December 7, 1941; and
Whereas, December 7, 1941, was a "Day of Infamy" which directly resulted in the United States entry into World War II; and
Whereas, More than 16 million Americans and 233,985 West Virginians took part in the war that lasted from December 7, 1941, to September 5, 1945, to preserve our way of life as a free people; and
Whereas, More than 485,000 World War II patriots paid the supreme sacrifice and millions more offered their services and fortunes to preserve our freedom; and
Whereas, West Virginia mothers and fathers sacrificed nearly 6,800 of their sons and daughters to the cause of World War II to insure our freedom as mountaineers; and
Whereas, The West Virginia Veterans Coalition represents members of the American Legion, Veterans of Foreign Wars, Disabled American Veterans, POW-MIA, Military Order of the Purple Heart, Vietnam Veterans of America, Marine Corps League, Pearl Harbor Survivors Association, Military Officers of America, Fleet Reserve Association, Paralyzed Veterans of America, Air Force Association, Korean War Veterans of America, Blind Veterans Association, the Retired Enlisted Association, West Virginia National Guard, West Virginia Reserves and Woman Veterans of America; therefore, be it
Resolved by the Senate:
That the Senate hereby honors all West Virginia veterans who fought for our freedom in World War II; and, be it
Further Resolved, That the Senate expresses its sincere gratitude to the West Virginia veterans of World War II; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the West Virginia Veterans Coalition.
At the request of Senator Boley, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
Thereafter, at the request of Senator White, and by unanimous consent, the remarks by Senators Kessler and Bowman regarding the adoption of Senate Resolution No. 24 were ordered printed in the Appendix to the Journal.
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 eighth order of business.
Eng. Com. Sub. for Senate Bill No. 38, Creating WV Servicemembers Civil Relief Act.
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, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Caruth and Plymale--2.
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. 38) 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. 218, Providing for early parole eligibility for certain inmates.
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: Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Prezioso, Snyder, Stollings, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--30.
The nays were: Barnes and Sypolt--2.
Absent: Caruth and Plymale--2.
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. 218) 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 Com. Sub. for Senate Bill No. 236, Creating Aquaculture Development Act.
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, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Caruth and Plymale--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 236) 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. 391, Relating to county board of education members' eligibility.
On third reading, coming up in regular order, was reported by the Clerk.
At the request of Senator Chafin, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar.
Eng. Com. Sub. for Senate Bill No. 397, Creating single dwelling residential housing index and multiplier.
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, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Caruth and Plymale--2.
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. 397) 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. 436, Updating language relating to process of incorporation.
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, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Caruth and Plymale--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 436) 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 ninth order of business.
Com. Sub. for Senate Bill No. 89, Relating to reinstating former police chiefs or deputy chiefs to previously held positions.
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. 354, Updating terms and reporting procedures for traffic crashes.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Senate Bill No. 382, Relating to certain oil and gas drilling geologic reports.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
The Senate proceeded to the tenth order of business.
Senate Bill No. 372, Updating language in WV Medical Practice Act.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Com. Sub. for Senate Bill No. 498, Amending civil definitions of "neglect" and "caregiver".
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.
On motion of Senator Chafin, leaves of absence for the day were granted Senators Caruth and Plymale.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Tuesday, February 16, 2010, at 11 a.m.
____________

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