Senate Journal

WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
EIGHTIETH LEGISLATURE
REGULAR SESSION, 2011
FIFTY-EIGHTH DAY
____________

Charleston, W. Va., Thursday, March 10, 2011

The Senate met at 11 a.m.
(Senator Kessler, Acting President, in the Chair.)
Prayer was offered by Pastor Franklin D. Thomas, Living Faith Church, Marmet, West Virginia.
Pending the reading of the Journal of Wednesday, March 9, 2011,
On motion of Senator D. Facemire, the Journal was approved and the further reading thereof dispensed with.
At the request of Senator Unger, 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 David Spence, President of the Southern Regional Education Board, privileges of the floor for the day.
At the request of Senator Plymale, unanimous consent being granted, Senator Plymale addressed the Senate regarding David Spence and the Southern Regional Education Board.
The Senate proceeded to the second order of business and the introduction of guests.
The Senate then proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 234, Revising Municipal Economic Opportunity Development District Act.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 235, Revising County Economic Opportunity Development District Act.
On motion of Senator Unger, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page twenty-seven, after section twelve, by inserting a new section, designated section fourteen, to read as follows:
§7-22-14. Modification of included area; notice; hearing.
(a) General. -- The order creating an economic opportunity development district may not be amended to include additional contiguous property until after the amendment is approved by the Executive Director of the Development Office in the same manner as an application to approve the establishment of the district is acted upon under section seven of this article and the amendment is authorized by the Legislature.
(b) Limitations. -- Additional property may not be included in the district unless it is situated within the boundaries of the county and is contiguous to the then current boundaries of the district.
(c) Public hearing required. -
(1) The county commission of any county desiring to amend its order shall designate a time and place for a public hearing upon the proposal to include additional property. The notice shall meet the requirements set forth in section six of this article.
(2) At the time and place set forth in the notice, the county commission shall afford the opportunity to be heard to any owners of real property either currently included in or proposed to be added to the existing district and to any other residents of the county.
(d) Application to West Virginia Development Office. -- Following the hearing, the county commission may, by resolution, apply to the Development Office to approve inclusion of the additional property in the district.
(e) Consideration by the Executive Director of the Development Office. -- Before the Executive Director of the Development Office approves inclusion of the additional property in the district, the Development Office shall determine the amount of taxes levied by article fifteen, chapter eleven of this code that were collected by businesses located in the area the county commission proposes to add to the district in the same manner as the base amount of tax was determined when the district was first created. The State Treasurer shall also deposit one twelfth of this additional tax base amount into the General Revenue Fund each month, as provided in section twelve of this article.
(f) Legislative action required. -- After the Executive Director of the Development Office approves amending the boundaries of the district, the Legislature must amend section nine of this article to allow levy of the special district excise tax on business located in geographic area to be included in the district. After the Legislature amends said section, the county commission may then amend its order: Provided, That the order may not be effective any earlier than the first day of the calendar month that begins sixty days after the effective date of the act of the Legislature authorizing the levy on the special district excise tax on businesses located in the geographic area to be added to the boundaries of the district for which the tax is levied or a later date as set forth in the order of the county commission.
(g) Collection of special district excise tax. -- All businesses included in a district because of the boundary amendment shall on the effective date of the order, determined as provided in subsection (f) of this section, collect the special district excise tax on all sales on tangible property or services made from locations in the district on or after the effective date of the county commission's order or a later date as set forth in the order.
(h) Minor Modifications. -- Notwithstanding any provision of this article to contrary, a county commission may amend the order creating an economic opportunity development district to make, and may make, modifications to the boundaries of the economic opportunity development district without holding a public hearing or receiving approval of the Executive Director of the West Virginia Development Office or authorization by the Legislature if the modifications do not increase the total acreage of the economic opportunity development district or result in a change to the base tax revenue amount. The county commission is authorized to levy special district excise taxes on sales of tangible personal property and services made from business locations within the modified boundaries of the economic opportunity development district.;
By striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
That §7-22-3, §7-22-4, §7-22-5, §7-22-7, §7-22-10, §7-22-12, §7-22-14, §7-22-15, §7-22-17 and §7-22-20 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 235--A Bill to amend and reenact §7-22-3, §7-22-4, §7-22-5, §7-22-7, §7-22-10, §7-22-12, §7- 22-14, §7-22-15, §7-22-17 and §7-22-20 of the Code of West Virginia, 1931, as amended, all relating to revising the County Economic Opportunity Development District Act generally; defining the term "remediation"; including remediation of landfills, former coal or other mining sites, solid waste facilities or hazardous waste sites as permissible development expenditures for approved projects; changing standard by which the maximum amounts of reserves that may be established in the financing of a project are measured; reducing the amount of capital investment required for project approval; providing that the Development Office cannot approve a project involving remediation unless all development expenditures proposed within a certain time frame result in more than $25 million in capital investment in the district; changing "ordinance" to "order"; correcting language by changing "municipality" to "county"; providing that the Development Office may not approve a project involving remediation unless the county commission submits clear and convincing information that the proposed remediation expenditures to be financed with bonds or notes do not constitute more than twenty-five percent of a project's total development expenditures; allowing for minor modifications of districts without public hearing or approval by the Development Office or the Legislature under certain circumstances; and providing technical and clerical cleanup.
On motion of Senator Unger, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 235, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for S. B. No. 235) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 263, Relating to special plates for testing of vehicles operated by certain nonprofit corporations.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 295, Authorizing DHHR promulgate legislative rules.
On motion of Senator Unger, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page fourteen, section one, line two hundred forty, by striking out the words "two hundred seventy-five dollars ($275.00)" and inserting in lieu thereof "one hundred seventy-five dollars ($175.00)".
On motion of Senator Unger, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 295, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for S. B. No. 295) passed with its title.
Senator Unger moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for S. B. No. 295) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Senate Bill No. 349, Requiring bittering agent be placed in certain engine coolants and antifreezes.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Senate Bill No. 514, Authorizing legislative rule for Higher Education Policy Commission regarding authorization of degree-granting institutions.
On motion of Senator Unger, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
On page four, section two, line fifty-eight, after the word "authorized" by changing the period to a comma and inserting the following: with the following amendment:
On page 28, subsection 9.1.b, following the words "Good cause shall consist of" by inserting the words "any one or more of the following".
On motion of Senator Unger, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Senate Bill No. 514, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the Acting President declared the bill (Eng. S. B. No. 514) passed with its title.
Senator Unger moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the Acting President declared the bill (Eng. S. B. No. 514) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Senate Bill No. 538, Creating Learn and Earn Cooperative Education Program.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 14, Requesting DOH name bridge in Whitesville crossing Big Coal River, "CPL Charles 'Mitchell' Hannah Memorial Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 19, Requesting DOH name WV 3 from intersection with WV 94 to Raleigh County Line "John Protan Highway".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 30, Requesting DOH name bridge number 03-119-16.22 "PFC Willie Ray Stollings Memorial Bridge".
A message from The Clerk of the House of Delegates announced the amendment by that body, adoption as amended, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Senate Concurrent Resolution No. 43, Requesting DOH erect memorial sign on Route 60, at or near Caldwell exit in Greenbrier County, "Home of Chan Whitt Jr.".
On motion of Senator Unger, the message on the resolution was taken up for immediate consideration.
The following House of Delegates amendments to the resolution were reported by the Clerk:
On page one, by striking out everything after the title and inserting in lieu thereof the following:
Whereas, Chan Whitt Jr. resided in Caldwell, Greenbrier County, his entire life, being one of seven children, until his tragic death resulting from a motor vehicle accident in 1994; and
Whereas, Chan Whitt Jr. traveled the world over, playing in national and international billiards tournaments, including a tournament he played and won in Japan; and
Whereas, Chan Whitt Jr. was featured in several magazines and gave a billiards exhibition at The Greenbrier Hotel in White Sulphur Springs; and
Whereas, Chan Whitt Jr. was a television celebrity, appearing on ESPN, the Today Show, PM Magazine, Good Morning America, Sports World and That's Incredible; and
Whereas, Chan Whitt Jr. put the little town of Caldwell, West Virginia, on the map with his enormous talent and his many travels; and
Whereas, It is fitting to honor Chan Whitt Jr., not only for his stellar talents but for the recognition he brought to the little town of Caldwell, Greenbrier County, and the State of West Virginia; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways to have made and be placed a sign under the community of Caldwell sign on Route 60, at mile marker 165 east bound, and another sign under the community of Caldwell sign on Route 60, at mile marker 166 west bound, in Greenbrier County, stating "Home of Chan Whitt Jr."; and, be it
Further Resolved, That the Clerk of the House of Delegates is hereby directed to forward a certified copy of this resolution to the Secretary of the Department of Transportation; to Judy Steele and to Mr. Chan's father, Chan Whitt Sr.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Senate Concurrent Resolution No. 43--Requesting the Division of Highways to erect a sign under the community of Caldwell sign on Route 60, at mile marker 165 east bound, and another sign under the community of Caldwell sign on Route 60, at mile marker 166 west bound, in Greenbrier County, stating "Home of Chan Whitt Jr."
On motion of Senator Unger, the Senate concurred in the House of Delegates amendments to the resolution.
The question being on the adoption of the resolution (S. C. R. No. 43), as amended by the House of Delegates, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments
Eng. Com. Sub. for House Bill No. 2438, Bringing older contradicting language still remaining in the code into conformity with §3-2-5(b)(3) and reestablishing a definition for "independent voter".
A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 2532, Zipline Responsibility Act.
On motion of Senator Unger, the Senate refused to recede from its amendments to the bill and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses.
Whereupon, Senator Kessler (Acting President) appointed the following conferees on the part of the Senate:
Senators Laird, Wills and Hall.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced that that body had refused to concur in the Senate amendments to, and requested the Senate to recede therefrom, as to
Eng. Com. Sub. for House Bill No. 2555, Establishing the offense of operating a motor vehicle while sending, reading or receiving a text message.
On motion of Senator Unger, the Senate refused to recede from its amendments to the bill and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses.
Whereupon, Senator Kessler (Acting President) appointed the following conferees on the part of the Senate:
Senators Browning, Klempa and K. Facemyer.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 2626, Authorizing the Department of Commerce to promulgate legislative rules.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amended title, passage as amended, of
Eng. Com. Sub. for House Bill No. 2750, Adding consideration of sexual assault in issuing an order to temporarily or permanently end a parent-child relationship.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, to take effect from passage, of
Eng. House Bill No. 2971, Relating to the definition of the term "durable medical equipment".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, of
Eng. House Bill No. 2989, Creating a process by which the West Virginia Racing Commission may grant stay requests.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 3064, Finding and declaring certain claims against the state and its agencies to be moral obligations of the state.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 3205, Reducing jail sentence for successful completion of education and rehabilitation programs.
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. 83--Requesting the Joint Committee on Government and Finance to conduct an audit of the efficiency of the expenditure of public education dollars to minimize administrative expense and maximize effort on the core mission of the public schools in preparing students fully.
Referred to the Committee on Education; and then to the Committee on Rules.
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. 113--Requesting the Division of Highways to name the over 8 mile stretch of Route 3, from Foster, West Virginia to its connection with Corridor G, the "PFC Darrell Lee Cabell Memorial Highway.
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. 117--Requesting that bridge number 20-60/18-0.04 on Route 60/18 in Belle, Kanawha County, West Virginia be named the "Larry K. Conley Memorial Bridge".
Referred to the Committee on Transportation and Infrastructure.
Executive Communications
The Clerk then presented communications from His Excellency, the Governor, advising that on March 9, 2011, he had approved Enr. Senate Bill No. 507 and Enr. Committee Substitute for House Bill No. 2613.
The Senate proceeded to the fourth order of business.
Senator Prezioso, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 620 (originating in the Committee on Finance)- -A Bill expiring funds to the unappropriated surplus balance in the State Fund, General Revenue, for the fiscal year ending June 30, 2011, in the amount of $7,100,000 from the Department of Military Affairs and Public Safety - Office of the Secretary, fund 0430, fiscal year 2006, organization 0601, activity 511, and making a supplementary appropriation of public moneys out of the Treasury from the balance of moneys remaining as an unappropriated surplus balance in the State Fund, General Revenue, to the Auditor's Office - General Administration, fund 0116, fiscal year 2011, organization 1200, to the Department of Agriculture, fund 0131, fiscal year 2011, organization 1400, to the Department of Administration - Ethics Commission, fund 0223, fiscal year 2011, organization 0220, to the Department of Administration - Public Defender Services, fund 0226, fiscal year 2011, organization 0221, to the Department of Education - State Department of Education, fund 0313, fiscal year 2011, organization 0402, to the Department of Health and Human Resources - Consolidated Medical Service Fund, fund 0525, fiscal year 2011, organization 0506, to the Department of Health and Human Resources - Division of Human Services, fund 0403, fiscal year 2011, organization 0511, to the Department of Military Affairs and Public Safety - West Virginia Parole Board, fund 0440, fiscal year 2011, organization 0605, to the Department of Military Affairs and Public Safety - Division of Corrections - Correctional Units, fund 0450, fiscal year 2011, organization 0608, to the Department of Military Affairs and Public Safety - Division of Veterans' Affairs, fund 0456, fiscal year 2011, organization 0613, and to Higher Education - Higher Education Policy Commission - Administration - Control Account, fund 0589, fiscal year 2011, organization 0441, by supplementing and amending the appropriations for the fiscal year ending June 30, 2011.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
At the request of Senator Prezioso, unanimous consent being granted, the bill (S. B. No. 620) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2159, Relating to prohibiting members of the news media from being compelled to give testimony.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Corey Palumbo,
Chair.
At the request of Senator Palumbo, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2159) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Beach, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Eng. Com. Sub. for House Bill No. 2922, Establishing the felony offense of causing serious bodily injury to another person by a person who is driving under the influence of alcohol, controlled substances or other drugs.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on the Judiciary.
Respectfully submitted,
Robert D. Beach,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on the Judiciary, with amendments from the Committee on Transportation and Infrastructure pending.
Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2969, Requiring the disclosure of the number of stamps by brand name that have been purchased from a nonparticipating tobacco product manufacturer.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Corey Palumbo,
Chair.
At the request of Senator Palumbo, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2969) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 3143, Relating to penalties for causing injury or death to certain animals used by law enforcement.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Corey Palumbo,
Chair.
At the request of Senator Palumbo, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 3143) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Beach, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
House Concurrent Resolution No. 2, The "James Paul Harrison WWII Memorial Bridge".
House Concurrent Resolution No. 70, Naming the bridge on US Route 220 in the city of Keyser the "Memorial Bridge".
House Concurrent Resolution No. 74, The "Larkin Ours Memorial Bridge".
House Concurrent Resolution No. 79, The "PFC Abraham G. Sams Memorial Bridge".
House Concurrent Resolution No. 89, The "Ten Mile Creek Veteran's Memorial Bridge".
And,
House Concurrent Resolution No. 101, The "PFC Ralph Lewis Boone Memorial Bridge"
And reports the same back with the recommendation that they each be adopted.
Respectfully submitted,
Robert D. Beach,
Chair.
Senator Beach, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
House Concurrent Resolution No. 63, The "Alan B. Mollohan Gateway".
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
Robert D. Beach,
Chair.
Senator Beach, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
House Concurrent Resolution No. 78, The "Sergeant Robert Dewey Thompson Memorial Bridge".
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
Robert D. Beach,
Chair.
The Senate proceeded to the sixth order of business.
Senator Sypolt offered the following resolution:
Senate Concurrent Resolution No. 67--Requesting the Joint Committee on Government and Finance to conduct a study relating to the imposition or increase of filing fees in circuit courts.
Whereas, Fees for instituting civil actions in circuit courts are set forth in section eleven, article one, chapter fifty-nine of the West Virginia Code, 1931, as amended; and
Whereas, These fees have been set piecemeal over time, thus creating a disparity in the amounts charged; and
Whereas, The uses of such fees range from financing of projects on the county level to administrative expenses in the offices of the circuit clerks; and
Whereas, The imposition and collection of the fees is an important and essential function of the offices of the circuit clerks in that they provide needed funding on the county and state level for necessary projects; and
Whereas, The Legislature recognizes the difficulties faced by county governments in the acquisition of necessary and adequate funding to provide services to the citizens of West Virginia; and
Whereas, Reviewing the fees in total may provide a comprehensive and fair approach to setting the fees, collecting the fees and better understanding their use; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to conduct a study relating to the imposition or increase of filing fees in circuit court; and, be it
Further Resolved, That the committee is to consult with circuit clerks, the West Virginia Bar Association, Legal Aid of West Virginia and other appropriate state and county officials in its attempt to structure a fee schedule for circuit clerks that both provides adequate funding on the county level while also setting fees in a rational and fair manner for litigants; and, be it
Further Resolved, That the committee shall report to the Legislature its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations no later than January 1, 2012; and, be it
Further Resolved, That the expenses necessary to conduct the study and to prepare appropriate reports, recommendations and proposed legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
Which, under the rules, lies over one day.
Senator Hall offered the following resolution:
Senate Concurrent Resolution No. 68--Requesting the Joint Committee on Government and Finance study the cost-effectiveness of transporting West Virginia's excess animal population to other states.
Whereas, Overpopulation of domestic animals is a problem in West Virginia and creates a financial burden on the counties of the state; and
Whereas, West Virginia seeks a more cost-effective and humane system than its current one for addressing its domestic animal overpopulation within its borders; and
Whereas, Many states, particularly northeastern states, have the capacity and willingness to absorb some of West Virginia's animal overpopulation; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance study the cost-effectiveness of transporting West Virginia's excess animal population to other states; and, be it
Further Resolved, That the study conducted by the Joint Committee on Government and Finance specifically evaluate options for animal transportation including, but not limited to, use of shelter employees employed by counties of West Virginia, use of volunteers and use of transporters from potential receiving states; and, be it
Further Resolved, That the Joint Committee on Government and Finance explore the possibility of defraying the costs of the program through public or private sector grants or funding; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2012, 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 legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
Which, under the rules, lies over one day.
Senators Plymale, Jenkins and Stollings offered the following resolution:
Senate Concurrent Resolution No. 69--Requesting the Division of Highways name bridge number 50-152-32.48, in Wayne County, the "Staff Sergeant Sidney H. Blankenship Memorial Bridge".
Whereas, Sidney H. Blankenship was born June 4, 1939; and
Whereas, Staff Sergeant Sidney H. Blankenship served his country during the Vietnam War; and
Whereas, Staff Sergeant Sidney H. Blankenship was wounded during a surprise attack by a battalion of North Vietnamese Army troops on February 26, 1968; and
Whereas, Although wounded, Staff Sergeant Sidney H. Blankenship calmly organized and encouraged the troops to provide an effective defense against the enemy attack; and
Whereas, Staff Sergeant Sidney H. Blankenship was hit three times, but kept his fighting spirit by aiding in the defense of the command post; and
Whereas, After nearly four hours of rigorous fighting, the North Vietnamese Army moved back to take care of the dead and wounded; and
Whereas, For his bravery, Staff Sergeant Sidney H. Blankenship was awarded the Silver Star Medal, the third highest medal awarded, the Bronze Star and the Purple Heart; and
Whereas, Sadly, Staff Sergeant Sidney H. Blankenship passed away December 22, 2010, bring an end to a life of dedicated public service; and
Whereas, It is fitting and proper, to honor the life of Staff Sergeant Sidney H. Blankenship, for his dedicated service to his state country, by naming this bridge in his memory; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways to name bridge number 50-152-32.48, in Wayne County, the "Staff Sergeant Sidney H. Blankenship 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 "Staff Sergeant Sidney H. Blankenship 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 Staff Sergeant Sidney H. Blankenship.
Which, under the rules, lies over one day.
Senators Stollings, Unger and Browning offered the following resolution:
Senate Concurrent Resolution No. 70--Requesting the Division of Highways name bridge number 03-85-14.72, in Boone County, the "Fred York Memorial Bridge".
Whereas, Fred York was born November 10, 1930; and
Whereas, Fred York grew up in Wharton, West Virginia, and attended Van High School, where he played football and baseball; and
Whereas, Fred York attended Morris Harvey College in Charleston, West Virginia; and
Whereas, Fred York worked hard in the coal mines of southern West Virginia to support his family; and
Whereas, Fred York was a member of the local Moose Lodge and the Knights of Pythius; and
Whereas, Fred York was very involved in his community, giving his time to little league baseball and various charitable events; and
Whereas, Sadly, Fred York passed away July 17, 2006, leaving behind a host of family and friends, all of whom miss him dearly; and
Whereas, It is fitting, to honor the life of Fred York, for his dedicated service to his community, by naming this bridge in his memory; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways to name bridge number 03-85-14.72, in Boone County, the "Fred York 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 "Fred York 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 Fred York.
Which, under the rules, lies over one day.
Senators Hall, McCabe, Minard and Browning offered the following resolution:
Senate Concurrent Resolution No. 71--Requesting the Joint Committee on Government and Finance to study the impacts of cost sharing, coinsurance and specialty tier pricing for prescription medications.
Whereas, In response to increasing prescription drug costs, many health plans and prescription drug plans have increased enrollee cost-sharing amounts, instituted coinsurance, and created specialty tiers, resulting in increased medication costs for patients participating in those plans; and
Whereas, The National Conference of State Legislatures reports that between 2000 and 2009, copayments for insured workers have increased twenty-five percent for generic drugs, eighty percent for preferred drugs, fifty-nine percent for nonpreferred drugs, and forty-four percent for fourth-tier drugs or specialty tier drugs; and
Whereas, Many health plans and prescription drug plans now require individuals to pay a coinsurance or percentage of the cost of fourth-tier or specialty tier prescription medications; and
Whereas, Fourth-tier or specialty tier medications often include medications for chronic diseases, including certain types of cancer, hemophilia, multiple sclerosis, myositis, neuropathy, arthritis, human immunodeficiency virus, and other diseases and disorders; and
Whereas, Coinsurance, cost-sharing, and specialty tier pricing place significant and onerous financial burdens upon insured individuals with chronic health care issues requiring prescription medication, in many cases leading to decreased adherence or failure to take medications as prescribed, resulting in acute incidents and negative health outcomes; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is requested to study the impacts of cost sharing, coinsurance and specialty tier pricing for prescription medications; and, be it
Further Resolved, That the study shall: (1) Determine the impact of cost sharing, coinsurance and specialty tier pricing on access to prescription medications for chronic health disorders; and (2) identify and evaluate options for reducing any negative impacts of cost sharing, coinsurance and specialty tier pricing, including but not limited to statutory limitations on cost sharing obligations for prescription medications; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the Legislature on the first day of the regular session, 2012, on its findings, conclusions and recommendations, together with drafts of legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expense necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
Which, under the rules, lies over one day.
Senators Hall, Plymale, Sypolt and Browning offered the following resolution:
Senate Resolution No. 50--Requesting the U. S. Congress oppose an unwarranted effort by President Barack Obama's administration by withholding further funding for the Office of Surface Mining, Reclamation and Enforcement for the stream protection rule until such time as the agency justifies the need for new rules.
Whereas, The Office of Surface Mining, Reclamation and Enforcement (OSMRE) is considering new sweeping regulations that would cut surface mining in production and jobs in the eastern part of the country by twenty-one to thirty percent, cut underground coal mining jobs nationwide by up to fifty percent, and risk eliminating over sixty-six thousand direct and indirect jobs nationwide; and
Whereas, From 2003 to 2008 OSMRE conducted a five-year process including public hearings, the submission of thousands of public comments, and preparation of an environmental impact statement that culminated in final regulations adding significant new environmental protections regarding the placement of excess spoil and clarifying its regulations relating to stream buffer zones pursuant to the Surface Mining Control and Reclamation Act (SMCRA); and
Whereas, OSMRE's 2008 regulations were consistent with a final decision from the Fourth Circuit Court of Appeals in Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425, 442 (4th Cir. 2003), holding that it is "beyond dispute that SMCRA recognizes the possibility of placing excess spoil material in waters of the United States even though those materials do not have a beneficial purpose" and such regulations helped to significantly reduce regulatory uncertainty brought on by earlier litigation questioning the meaning of the agency's stream buffer zone rule and whether it prohibited valley fills in streams; and
Whereas, The Secretary of the Interior attempted to avoid a public rule-making process by asking a court to vacate the 2008 OSMRE stream buffer zone rule without public comment as required under the Administrative Procedure Act, but was rebuked by a federal court which ruled that the secretary may not repeal the stream buffer zone rule without going through the rule-making process, including public notice and comment (see National Parks Conservation Association v. Salazar, 620 F. Supp 2nd 3 (D.D.C. 2009); and
Whereas, OSMRE, in its own words admitted that before any public comments were even received on its proposals that it had "already decided to change the [stream buffer zone] rule following the change of Administrations on January 20, 2009" (see 75 Fed. Reg. 34,667 (June 18, 2010)) and the agency is calling the new rule the "stream protection rule" (SPR); and further that the stream protection rule is much broader in scope than the 2008 stream buffer zone rule; and
Whereas, OSMRE has failed to justify why a new "stream protection regulation" (SPR) is necessary, nor explain the problem that the agency is attempting to fix and such concerns have been echoed by the Interstate Mining Compact Commission, an organization representing state mining regulators with substantial expertise in SMCRA regulation; and
Whereas, OSMRE is inappropriately rushing to complete the rule making because the agency committed to a self-imposed deadline of February 28, 2011 to publish a proposed rule through a unilateral settlement agreement with environmental groups. In attempting to meet this artificial deadline OSMRE committed violations of the required National Environmental Policy Act process so flagrant that eight of the state cooperating agencies expressed their serious concerns about the draft environmental impact statement and objecting to its quality, completeness and accuracy, as well as calling the document "nonsensical and difficult to follow," and ultimately threatening to pull out of the process; and
Whereas, The coal mining industry is critical to the economic and social well-being of the citizens of West Virginia accounting for high wage jobs, millions of dollars instate and local taxes, and adding billions of dollars to the gross domestic product; therefore, be it
Resolved by the Senate:
That the U. S. Congress is requested to oppose an unwarranted effort by President Barack Obama's administration by withholding further funding for the Office of Surface Mining, Reclamation and Enforcement for the stream protection rule until such time as the agency justifies the need for new rules; and, be it
Further Resolved, That the Senate expresses its serious concern about the scope, the justification, and the substance of the OSMRE's stream protection rule, as well as to the procedure and process that the agency has been using to implement these regulations and calls upon the agency to immediately suspend work on the environmental impact statement and the regulation until such time as the agency:
(1) Clearly and publicly articulates why the 2008 regulation has not been implemented and provides specific details regarding each of its provisions and why the agency believes that they are insufficient;
(2) Provides scientific data and other objective information to justify each and every provision of the new proposal;
(3) Explains why the agency is contradicting its own annual state inspection reports which indicate good environmental performance and refute the need for this new regulation;
(4) Justifies why a more limited approach would not achieve the objectives of the agency; and
(5) Surveys all of the state regulatory authorities to determine whether they agree that such significant regulatory changes are necessary; and, be it
Further Resolved, That the Senate hereby calls upon the House and Senate members in our state delegation in the U. S. Congress to oppose this unwarranted effort by President Barack Obama's administration by withholding further funding for the Office of Surface Mining, Reclamation and Enforcement for the stream protection rule until such time as the agency justifies the need for new rules; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to Senator Joe Manchin, Senator Jay Rockefeller, Congressman Nick Rahall, Congressman David McKinley and Congresswoman Shelley Moore Capito.
Which, under the rules, lies over one day.
Senators Unger, Foster, Edgell, Jenkins, Plymale, Stollings, McCabe, Prezioso, Minard, Klempa, Williams, Browning and Kessler (Acting President) offered the following resolution:
Senate Resolution No. 51--Recognizing the West Virginia Directors of Senior and Community Services for receiving the 2011 National Institute of Senior Centers State Association of the Year Award (NISC).
Whereas, NISC operates as an important facet of the National Council on Aging which exists to develop programming and secure federal funding for aging programs nationwide; and
Whereas, This association is viewed as a major player in terms of senior programs and services in West Virginia; and
Whereas, There are directors in every portion of the state who give selflessly each and every day and this award is an acknowledgment of their tireless service; and
Whereas, The criteria for receiving the award includes advocacy efforts, enhancing professional senior center leadership at local state and national levels, developing resources to improve and strengthen the range and quality of programs and services in senior centers and the enhancing of senior center images; and
Whereas, The Chairman of NISC, Mr. David S. Taylor, says the West Virginia Directors of Senior and Community Services is one of the best associations in the country; therefore, be it
Resolved by the Senate:
That the Senate hereby recognizes the West Virginia Directors of Senior and Community Services for receiving the 2011 National Institute of Senior Centers State Association of the Year Award (NISC); and, be it
Further Resolved, That the Senate extends its sincere appreciation to the West Virginia Directors of Senior and Community Services for their outstanding service to the seniors of West Virginia; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the appropriate representatives of the West Virginia Directors of Senior and Community Services.
At the request of Senator Unger, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
Senators Hall, Edgell, Plymale, Stollings, Minard, Sypolt and Browning offered the following resolution:
Senate Resolution No. 52--Urging the members of the West Virginia delegation to the United States Congress to: (1) Adopt legislation prohibiting the EPA, by any means necessary, from regulating greenhouse gas emissions, including if necessary defunding EPA greenhouse gas regulatory activities; (2) impose a moratorium on promulgation of any new air quality regulation by the EPA by any means necessary, except to directly address an imminent health or environmental emergency, for a period of at least two years, including defunding EPA air quality regulatory activities; and (3) require the Obama administration to undertake a study identifying all regulatory activity that the EPA intends to undertake in furtherance of its goal of "taking action on climate change and improving air quality" and specifying the cumulative effect of all of these regulations on the economy, jobs and American economic competitiveness.
Whereas, The United States Environmental Protection Agency (EPA) has proposed or is proposing numerous new regulations, particularly in the area of air quality and regulation of greenhouse gases, that are likely to have major effects on the economy, jobs and U.S. competitiveness in worldwide markets; and
Whereas, The EPA's regulatory activity as to air quality and greenhouse gases has become known as the "train wreck" because of the numerous and overlapping requirements and because of the potentially devastating consequences this regulatory activity may have on the economy; and
Whereas, Concern is growing that, with cap-and-trade legislation having failed in Congress, the EPA is attempting to obtain the same results through the adoption of regulations; and
Whereas, EPA over-regulation is driving jobs and industry out of America; and
Whereas, Neither the EPA nor the Administration has undertaken any comprehensive study of what the cumulative effect of all of this new regulatory activity will have on the economy, jobs and competitiveness; and
Whereas, The EPA has not performed any comprehensive study of what the environmental benefits of its greenhouse regulation will be in terms of impacts on global climate; and
Whereas, State agencies are routinely required to identify the costs of their regulations and to justify those costs in light of the benefits; and
Whereas, Since the EPA has identified "taking action on climate change and improving air quality" as its first strategic goal for the 2011-15 time period, the EPA should be required to identify the specific actions it intends to take to achieve these goals and to assess the total cost of all these actions together; and
Whereas, The Legislature supports continuing improvements in the quality of the nation's air and believes that such improvements can be made in a sensible fashion without damaging the economy so long as there is a full understanding of the cost of the regulations at issue; and
Whereas, The primary goal of government at the present time must be to promote economic recovery and to foster a stable and predictable business environment that will lead to the creation of jobs; and
Whereas, Public health and welfare will suffer without significant new job creation and economic improvement, because people with good jobs are better able to take care of themselves and their families than the unemployed and because environmental improvement is only possible in a society that generates wealth; therefore, be it
Resolved by the Senate:
That the members of the West Virginia delegation to the United States Congress are urged to: (1) Adopt legislation prohibiting the EPA by any means necessary from regulating greenhouse gas emissions, including if necessary defunding EPA greenhouse gas regulatory activities; (2) impose a moratorium on promulgation of any new air quality regulation by the EPA by any means necessary, except to directly address an imminent health or environmental emergency, for a period of at least two years, including defunding EPA air quality regulatory activities; and (3) require the Obama administration to undertake a study identifying all regulatory activity that the EPA intends to undertake in furtherance of its goal of "taking action on climate change and improving air quality" and specifying the cumulative effect of all of these regulations on the economy, jobs, and American economic competitiveness; and, be it
Further Resolved, That this study should be a multiagency study drawing on the expertise both of the EPA and of agencies and departments having expertise in and responsibility for the economy and the electric system and should provide an objective cost-benefit analysis of all of the EPA's current and planned regulation together; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to members of the West Virginia Congressional Delegation and the President of the United States.
Which, under the rules, lies over one day.
On motion of Senator Unger, the Senate requested the return from the House of Delegates of
Eng. Com. Sub. for House Bill No. 2520, Relating to centers for housing young adult offenders.
Passed by the Senate on yesterday, Wednesday, March 9, 2011,,
The bill still being in the possession of the Senate,
On motion of Senator Unger, the Senate reconsidered the vote by which in adopted Senator Unger's motion that Engrossed Committee Substitute for House Bill No. 2520 take effect from passage.
The vote thereon having been reconsidered,
The question again being on the adoption of Senator Unger's motion that Engrossed Committee Substitute for House Bill No. 2520 take effect from passage.
Thereafter, at the request of Senator Unger, and by unanimous consent, his aforestated motion was withdrawn.
On motion of Senator Palumbo, the following amendment to the title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2520--A Bill to amend and reenact §25-4-6 of the Code of West Virginia, 1931, as amended, relating to assignment of youthful offenders to correctional facilities; specifying circuit court jurisdiction; modifying age criteria for eligibility for commitment to youthful offender center; and providing maximum age for center commitment.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2520), as just amended, was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2520) passed with its Senate amended title.
Senator Unger moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2520) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Petitions
Senator Barnes presented a petition from Kathy King and thirty-nine Hampshire County residents, requesting repairs to Kernschool Road in Hampshire County.
Referred to the Committee on Transportation and Infrastructure.
At the request of Senator Unger, unanimous consent being granted, the Senate returned to the fourth order of business.
Senator Prezioso, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Senate Concurrent Resolution No. 72 (originating in the Committee on Finance)--Requesting the Joint Committee on Government and Finance to study the funding of fairs and festivals in this state.
Whereas, There are over 416 fairs and festivals throughout this state which are funded in the Budget Bill; and
Whereas, Over $2.8 million from the Division of Culture and History-Lottery Education Fund is appropriated and expended on said fairs and festivals; and
Whereas, There exists a great disparity in the funding levels of said fairs and festivals; and
Whereas, There has been no justification presented to the Legislature explaining this disparity; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the funding of fairs and festivals in this state; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2012, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
At the request of Senator Prezioso, unanimous consent being granted, the resolution (S. C. R. No. 72) contained in the preceding report from the Committee on Finance was taken up for immediate consideration.
On motion of Senator Prezioso, the resolution was then referred to the Committee on Rules.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 38, Requesting Joint Committee on Government and Finance study needs, challenges and issues facing West Virginians with Alzheimer's.
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 44, Requesting Joint Committee on Government and Finance study utility services.
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 55, Requesting DOH name State Route 35 from mouth of Sweetwater Branch to Gourd Branch, in Wayne County, "Perry Brothers Memorial Highway".
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 56, Requesting DOH name State Route 35 from State Route 152 at Missouri Branch to Tank Hollow, in Wayne County, "Crum Brothers Memorial Highway".
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 62, Requesting Joint Committee on Government and Finance authorize Joint Interim Committee on Economic Development study efficient mineral development.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Economic Development; and then to the Committee on Rules.
Senate Concurrent Resolution No. 63, Requesting DOH name bridge in Mingo County "Reverend Arnold and Nell Mollette Memorial Bridge".
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Transportation and Infrastructure.
Senate Resolution No. 49, Authorizing Senate Committee on Confirmations meet and be paid for interims between regular sessions of Eightieth Legislature.
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
The Senate proceeded to the eighth order of business.
Eng. Com. Sub. for House Bill No. 2498, Relating to the practice of dentistry.
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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2498) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 2550, Interstate Compact on Educational Opportunity for Military Children.
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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2550) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 2663, Relating to public service commissioners presiding at hearings.
On third reading, coming up in regular order, with the right having been granted on yesterday, Wednesday, March 9, 2011, for further amendments to be received on third reading, was reported by the Clerk.
On motion of Senator Snyder, the Senate reconsidered its action by which on yesterday, Wednesday, March 9, 2011, it adopted the Government Organization committee amendment to the bill (shown in the Senate Journal of that day, pages 46 to 57, inclusive).
The vote thereon having been reconsidered,
The question again being on the adoption of the Government Organization committee amendment to the bill.
Thereafter, on motion of Senator Snyder, the following amendments to the Government Organization committee amendment to the bill were reported by the Clerk, considered simultaneously, and adopted:
On page fourteen, section five, subsection (a), after the word "customers" by striking out the comma and the words "sixty years of age or older,";
And,
On page fourteen, section five, subsection (a), subdivision (4), after "(SNAP)" by inserting the words "if they are sixty years of age or older".
The question now being on the adoption of the Government Organization committee to the bill, as amended, the same was put and prevailed.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2663), as just amended, was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2663) passed.
The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2663--A Bill to amend and reenact §11-13-3f of the Code of West Virginia, 1931, as amended be amended and reenacted; to amend and reenact §11-13F-1 of said code; to amend and reenact §11-24-11 of said code; to amend and reenact §24-1-3 and §24-1-4 of said code; to amend and reenact §24-2A-2 of said code; to amend said code by adding thereto a new section, designated §24-2A-5; and to amend and reenact §24-3-2, all relating to duties of the Public Service Commission; requiring at least one commissioner be present at any public hearing on a public utility; requiring the commission establish a website and toll-free telephone number for reception of public comments; adding cost of providing private water utility services to qualified low-income residents to matters that the commission must certify and deleting obsolete language.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2745, Providing that certain information provided by insurance companies to the Insurance Commissioner is confidential.
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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2745) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2745--A Bill to amend and reenact §33-4-14 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new article, designated §33-4A-1, §33-4A-2, §33-4A-3, §33-4A-4, §33-4A-5, §33-4A-6, §33-4A- 7 and §33-4A-8, all relating to the Insurance Commission generally; providing that certain information provided by insurance companies to the Insurance Commissioner is confidential; exempting such confidential information from the freedom of information disclosure requirements; providing that such confidential information is not subject to subpoena or discoverable in a private civil action; commissioner's authority to release or share documents otherwise treated as confidential in furtherance of regulatory or legal action brought as a part of the commissioner's official duties; commissioner's authority to share otherwise confidential and privileged documents, materials or information with other state, federal and international regulatory agencies; commissioner's authority to share otherwise confidential and privileged documents with state, federal and international law-enforcement authorities; stating conditions attached thereto; authorizing emergency rules and legislative rules; creating an all-payer claims database; declaring purpose of the all-payer claims database; defining terms; developing the database by the Insurance Commissioner, Secretary of Health and Human Resources and Chairperson of the Health Care Authority; providing for compliance with privacy laws; permitting fees and assessments to be assessed; authorizing penalties to be set by rule; authorizing injunctive relief; establishing special revenue account; and allowing other sanctions.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2752, Increasing the maximum age for persons applying for appointment for the police force in a Class I or Class II city from thirty-five to forty years.
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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2752) 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 House Bill No. 2757, Providing for evaluation of professional personnel in the public schools.
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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2757) passed.
The following amendment to the title of the bill, from the Committee on Education, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2757--A Bill to amend and reenact §18A-2-2, §18A-2-6, §18A-2-7, §18A-2-8a, §18A-2-12 and §18A-2-12a of the Code of West Virginia, 1931, as amended, all relating to school personnel; changing certain deadlines associated with the termination, resignation and transfer of school personnel and rehiring of probationary employees; requiring state board rules adopting a written system for the evaluation of the employment performance of personnel; requiring an emergency rule if necessary; setting forth minimum professional personnel positions to be evaluated; requiring evaluations to be on an annual basis; setting forth processes for evaluating teachers, professional support personnel and athletic coaches that depend on years of employment and whether employed in a different school with a different principal; requiring meeting after evaluation has concluded to discuss evaluation; requiring recording of names of certain employees evaluated whose performance is satisfactory; requiring record of walk-through evaluations; requiring provision of written results of evaluation; exempting any school receiving a federal School Improvement Grant from certain evaluation requirements that conflict with any conditions for receiving the grant; and clarifying written improvement plan.
Senator Unger moved that the bill take effect July 1, 2011.
On this question, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2757) takes effect July 1, 2011.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2860, Authorizing the promulgation of rules by the Governor's Committee on Crime, Delinquency and Correction.
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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2860) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2860--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §15-9-5, all relating to authorization of the promulgation of certain rules by the Governor's Committee on Crime, Delinquency and Correction regarding identification, investigation, reporting, and prosecution of suspected child abuse and neglect; convening certain meetings of advisory committee to assist in development of rules; and providing for composition of advisory committee.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2863, Providing for the costs of disability physical and/or mental examinations approved by the Consolidated Public Retirement Board under the West Virginia State Police plan.
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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2863) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 2885, Allowing a guardian or conservator to be employed or in an employment contract with a behavioral health provider.
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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2885) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 2936, Changing the date of the canvassing of votes in a primary election.
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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2936) passed.
The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2936--A Bill to amend and reenact §3-5-17 of the Code of West Virginia, 1931, as amended, relating to changing the date of the canvassing of votes in a primary election from the Friday following a primary election to the fifth day following a primary election that is not a Saturday, Sunday or legal holiday.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2946, Requiring the issuance of a lawful prescription for dispensing drug products containing chemical precursors of methamphetamine.
On third reading, coming up in regular order, was read a third time and put upon its passage.
Pending extended discussion and a point of inquiry to the Acting President with resultant response thereto,
The question being "Shall Engrossed Committee Substitute for House Bill No. 2946 pass?"
On this question, the yeas were: Beach, Edgell, D. Facemire, Fanning, Foster, Green, Jenkins, Laird, McCabe, Palumbo, Snyder, Stollings, Unger, Wells, Wills and Kessler (Acting President)--16.
The nays were: Barnes, Boley, Browning, Chafin, K. Facemyer, Hall, Klempa, Miller, Minard, Nohe, Plymale, Prezioso, Sypolt, Tucker, Williams and Yost--16.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting not having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2946) rejected on a tie vote.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
In accordance with rule number forty-four of the Rules of the Senate, Senator Miller will file a written vote explanation as to the passage of Engrossed Committee Substitute for House Bill No. 2946, which vote explanation will be printed in the Appendix to the Journal.
Eng. Com. Sub. for House Bill No. 2949, Providing definitions of "low income" for purposes of property tax relief programs.
On third reading, coming up in regular order, with the right having been granted on yesterday, Wednesday, March 9, 2011, for amendments to be received on third reading, was reported by the Clerk.
There being no amendments offered,
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2949) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2949) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 2986, Relating to forest fire seasons.
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, Beach, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--29.
The nays were: Boley, Hall and Nohe--3.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2986) passed.
The following amendment to the title of the bill, from the Committee on Natural Resources, was reported by the Clerk and adopted:
Eng. Com. Sub for House Bill No. 2986--A Bill to amend and reenact §20-3-5 of the Code of West Virginia, 1931, as amended, relating to forest fire seasons; modifying prohibited and permissible fire times and forest fire seasons; revising the procedure for obtaining a burning permit; establishing permit fees for certain entities; exempting agriculture from permit fees; setting forth fire control requirements; and establishing criminal and civil penalties.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 3034, Recognizing outstanding students who are top achievers in scholastic studies.
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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Helmick and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 3034) passed.
The following amendment to the title of the bill, from the Committee on Education, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 3034--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §18-2-38 and §18-2-39; and to amend said code by adding thereto a new section, designated §18-2E-8g, all relating to student performance and progress; requiring the state board to promulgate a rule establishing a high-quality digital learning program; specifying ten elements the program must encompass which are elements pertaining to student eligibility, student access, personalized learning, advancement, content, instruction, digital learning providers, assessment, accountability, funding and delivery; recognizing the State Board of Education's Middle School Global 21 initiative including its goals, objectives and process; recognizing that the State Board of Education is seeking state funding for the implementation of the initiative; and requiring State Board of Education to report to the Legislative Oversight Commission on Education Accountability at certain intervals on the implementation of the initiative until fully implemented; requiring the State Board of Education to establish a program to recognize certain students who are top scorers in each subject area of the statewide summative assessment known as the WESTEST2 or any successor tests, in each grade level tested; and requiring the scores on the test to be made a part of the student's permanent record.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 3075, Increasing the time period in the hold-harmless provision when distributing state aid to local health departments.
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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. H. B. No. 3075) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 3094, Requiring the Secretary of the Department of Health and Human Services to use existing department funds to develop a program to compensate employees for personal property loss.
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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 3094) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 3126, Requiring a railroad company to provide pesticide safety information.
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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 3126) passed.
The following amendment to the title of the bill, from the Committee on Transportation and Infrastructure, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 3126--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §31-2-16, relating to railroad companies providing pesticide safety information and training; requiring a railroad company to provide pesticide safety information at a central location accessible to employees of the railroad company; requiring a railroad company to make available to the public on its Internet site a description of how to obtain information regarding the railroad company's use of pesticides, including a telephone number for the company; and requiring a railroad company to provide pesticide safety training annually to its employees who work along railroad rights,of,way, in rail yards or other employees who may work in areas to which pesticides have been applied.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 3196, Establishing a program and procedure for certifying medications assistive persons in the health industry.
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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 3196) passed.
On motion of Senator Wills, the following amendment to the title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 3196--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §30-7D-1, §30-7D-2 and §30-7D-3, §30-7D-4, §30- 7D-5, §30-7D-6, §30-7D-7, §30-7D-8, §30-7D-9, §30-7D-10, §30-7D-11, §30-7D-12 and §30-7D-13, all relating to medication assistive persons in the nursing home setting; creating a pilot program; defining terms; requiring certification; designating certain facilities; stating qualifications to serve as a medication assistive person; detailing the scope of a medication assistive person's work; setting requirements for renewal of certifications; creating disciplinary authority in the West Virginia Board of Examiners for Registered Professional Nurses; creating misdemeanor offenses for certain violations; creating criminal penalties; vesting the Kanawha County circuit court with jurisdictional and power to enjoin violations; creating the medication assistive person advisory committee; ensuring nurses responsibilities are not changed; and authorizing emergency rule-making authority.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 3204, Creating the West Virginia Enterprise Resource Planning Board and Executive Committee.
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, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 3204) passed with its title.
Senator Unger moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 3204) takes effect from passage.
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, including a minority party caucus,
On motion of Senator Unger, the Senate recessed until 6 p.m. today.
At the expiration of the recess, the Senate reconvened,
Senator Kessler (Acting President) laid before the Senate the following communication:
DEPARTMENT OF MILITARY AFFAIRS
AND PUBLIC SAFETY
Charleston

March 10, 2011

The Honorable Earl Ray Tomblin
President, Senate of West Virginia
The Honorable Jeffrey V. Kessler
Acting President, Senate of West Virginia
State Capitol
Charleston, West Virginia
Senator Kessler:
This is to notify you that in accordance with the provisions of the Open Government Proceedings Act §6-9A, et seq., of the West Virginia Code, timely notice of the meeting of the Board of the West Virginia Regional Jail and Correctional Facility Authority (WVRJCFA) was filed February 4, 2011, with the Secretary of State's office for publication in the West Virginia State Register. The meeting was held March 9, 2011, at 1:30 p.m. at South Central Regional Jail, 1001 Centre Way, Charleston, WV 25309. As the duly elected Chairman of the Board of WVRJCFA, I am authorized to advise you that a quorum was ascertained and by a majority vote and in accordance with West Virginia Code §31-20, et seq., Larry Parsons was appointed, subject to the advice and consent of the Senate, as Executive Director, to serve at the will and pleasure of the Board, for a term of five years to commence on April 1, 2011.
Accordingly, I am herewith submitting the name Larry Parsons as Executive Director for the WVRJCFA for the confirmation process of the West Virginia State Senate.
Sincerely,
Joseph C. Thornton,
Chair.
Which communication was received and referred to the Committee on Confirmations and incorporated with the nominations received earlier this session; all to be considered as a special order of business for Saturday, March 12, 2011, at 11 a.m.
Without objection, the Senate returned 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. 155--Extending the Committee of Conference relating to consideration of Com. Sub. for House Bill No. 2464, Adding additional requirements to the Ethics Act.
Resolved by the Legislature of West Virginia:
That pursuant to Rule No. 3 of the Joint Rules of the Senate and House of Delegates, the Committee of Conference is hereby extended for a period of one day for the express purpose of consideration of matters of disagreement between the two houses as to Com. Sub. for House Bill No. 2464.
At the request of Senator Unger, and by unanimous consent, the message was taken up for immediate consideration and reference of the resolution to a committee dispensed with.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Executive Communications
Senator Kessler (Acting President) laid before the Senate the following communication from His Excellency, the Governor.
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON

March 10, 2011

Senate Executive Message No. 7
TO:The Honorable Members of the
West Virginia Senate
Ladies and Gentlemen:
I respectfully withdraw the following nomination for your advice and consent from Executive Message No. 4 dated March 3, 2011, by way of the nominee resigning from her appointment:
43.For Member, Kanawha Valley Community and Technical College Board of Governors, Martha Rader, Charleston, Kanawha County, for the term ending June 30, 2015.
Thank you for correcting your records.
Sincerely,
Earl Ray Tomblin,
Governor.
Which communication was received and referred to the Committee on Confirmations.
Senator Kessler (Acting President) then laid before the Senate the following communication from His Excellency, the Governor, consisting of an executive nomination for appointee:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON

March 10, 2011

Senate Executive Message No. 8
TO:The Honorable Members of the
West Virginia Senate
Ladies and Gentlemen:
I respectfully submit the following nominations for your advice and consent:
1.For Superintendent, State Police, Carl R. Smithers, South Charleston, Kanawha County, to serve at the will and pleasure of the Governor.
Notice of this appointment was previously provided to the appropriate legislative staff at the time the appointment was made.
Sincerely,
Earl Ray Tomblin,
Governor.
Which communication was received and referred to the Committee on Confirmations and incorporated with the executive nominations received earlier this session; all to be considered as a special order of business for Saturday, March 12, 2011, at 11 a.m.
The Senate proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill No. 2013, Requiring the West Virginia Enhanced 911 Council to propose Emergency Medical Dispatch procedures.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2075, Relating to acquisition of a municipal business license.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
On page two, section four, line fifteen, by striking out the words "multiple purposes" and inserting in lieu thereof the words "anything which requires a state license that is done within the corporate limits of a municipality".
The bill (Eng. Com. Sub. for H. B. No. 2075) , as amended, was then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2075) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2075) 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 House Bill No. 2248, Expanding the list of federal law-enforcement officers who are extended the authority of state and local law-enforcement officers to enforce the laws of this state.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. House Bill No. 2345, Changing the membership of the PEIA Financial Board.
On second reading, coming up in regular order, was read a second time.
On motion of Senator Plymale, the following amendment to the bill was reported by the Clerk and adopted:
On page three, section four, line twenty-two, by striking out the word "Three" and inserting in lieu thereof the word "Five".
The bill (Eng. H. B. No. 2345), as amended, was then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. H. B. No. 2345) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. H. B. No. 2345) passed.
On motion of Senator Plymale, the following amendment to the title of the bill was reported by the Clerk and adopted:
Eng. House Bill No. 2345--A Bill to amend and reenact §5-16-4 of the Code of West Virginia, 1931, as amended, relating to increasing the board membership of the Public Employees Insurance Agency Finance Board.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2362, Increasing penalties for financial exploitation of an elderly person or incapacitated adult.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 2. CRIMES AGAINST THE PERSON.

§61-2-29b. Financial exploitation of an elderly person, protected person or incapacitated adult ; penalties; definitions.

(a) Financial exploitation occurs when a person intentionally misappropriates or misuses the funds or assets of an elderly person, protected person or incapacitated adult . Any person who violates this section is guilty of larceny and shall be ordered to pay restitution.
(b) In determining the value of the money, goods, property or services referred to in subsection (a) of the section, it shall be permissible to cumulate amounts or values where such money, goods, property or services were fraudulently obtained as part of a common scheme or plan.
(c) Financial institutions and their employees, as defined by section one, article two-a, chapter thirty-one-a of this code and as permitted by section four, subsection thirteen of that article, others engaged in financially related activities as defined by section one, article eight-c, chapter thirty-one-a of this code, caregivers, relatives and other concerned persons are permitted to report suspected cases of financial exploitation to state or federal law enforcement authorities, the county prosecuting attorney and to the Department of Health and Human Resources, Adult Protective Services Division or Medicaid Fraud Division, as appropriate. Public officers and employees are required to report suspected cases of financial exploitation to the appropriate entities as stated above. The requisite agencies shall investigate or cause the investigation of the allegations.
(d) When financial exploitation is suspected and to the extent permitted by federal law, financial institutions and their employees or other business entities required by federal law or regulation to file suspicious activity reports and currency transaction reports shall also be permitted to disclose suspicious activity reports or currency transaction reports to the prosecuting attorney of any county in which the transactions underlying the suspicious activity reports or currency transaction reports occurred.
(e) Any person or entity is immune from civil liability for reporting suspected cases of financial exploitation pursuant to this section.
(f)
For the purposes of this section:
(1) "Incapacitated adult" means a person as defined by section twenty-nine of this article;
(2) "Elderly person" means a person who is sixty-five years
or older; and
(3) "Protected person" means any person who is defined as a "protected person" in subsection thirteen, section four, article one, chapter forty-four-a of this code and who is subject to the protections of chapter forty-four-a or forty-four-c of this code.
The bill (Eng. Com. Sub. for H. B. No. 2362), as amended, was then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2362) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2362) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2362-- A Bill to amend and reenact §61-2-29b of the Code of West Virginia, 1931, as amended, relating to crimes against the elderly, protected persons or incapacitated persons; financial exploitation of the elderly, protected persons and incapacitated adults for misappropriating or misusing assets; permitting the prosecutor to cumulate amounts or values when charging; permitting banking institutions and others to report suspected financial exploitation to law-enforcement authorities and other entities; permitting financial institutions to disclose suspicious activity reports or currency transaction reports to the prosecuting attorney; providing civil immunity for reporting; ordering restitution; and establishing the criminal penalty of larceny.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2368, Relating to the practice of beauty care.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto two new sections designated §30-27-8a and §30-27- 11a , all to read as follows:

ARTICLE 27. BOARD OF BARBERS AND COSMETOLOGISTS.

§30-27-8a. Barber apprentice.
(a) The board may establish an apprenticeship program to become a barber. A barber apprentice shall work at all times under the direct supervision of a licensed barber and any permit issued by the board to work as a barber apprentice does not allow a person to practice individually as a barber.
(b) An applicant for a barber apprenticeship shall present satisfactory evidence that he or she:
(1) Is at least eighteen years of age;
(2) Is of good moral character;
(3) Has a high school diploma, a GED, or has passed the "ability to benefit test" approved by the United States Department of Education;
(4) Has paid the applicable fee;
(5) Has a certificate of health from a licensed physician;
(6) Is a citizen of the United States or is eligible for employment in the United States; and
(7) Has fulfilled any other requirement specified by the board.
(c) An applicant for a sponsor of a barber apprentice shall present satisfactory evidence that he or she:
(1) Is licensed as a barber under the provisions of this article;
(2) Has paid the applicable fee; and
(3) Has fulfilled any other requirement specified by the board.
(d) The board may propose emergency rules and rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this section, including:
(1) The requirements for:
(A) The barber apprenticeship program;
(B) The barber apprentice permit; and
(C) A licensed barber to sponsor a barber apprentice;
(2) Procedures for an examination;
(3) A fee schedule; and
(4) Any other rules necessary to effectuate the provisions of this section.
§30-27-11a. Shampoo assistant .
(a) The board may establish a shampoo assistant permit. A shampoo assistant shall work at all times under the direct supervision of a licensed barber or cosmetologist and any permit issued by the board to work as a shampoo assistant does not allow a person to practice individually as a shampoo assistant.
(b) A shampoo assistant is only authorized to perform the following services:
(1) Shampooing and rinsing hair;
(2) Removing rollers or permanent rods; and
(3) Cleansing or other sink-related functions not requiring the skill of a licensee.
(c) An applicant for a shampoo assistant permit shall present satisfactory evidence that he or she:
(1) Is at least sixteen years of age;
(2) Is of good moral character;
(3) Is in high school or has a high school diploma, a GED, or has passed the "ability to benefit test" approved by the United States Department of Education;
(4) Has paid the applicable fee;
(5) Has a certificate of health from a licensed physician;
(6) Is a citizen of the United States or is eligible for employment in the United States; and
(7) Has fulfilled any other requirement specified by the board.
(d) The board may propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty- nine-a of this code, to implement the provisions of this section, including:
(1) The requirements and procedures for a shampoo assistant permit;
(2) A fee schedule; and
(3) Any other rules necessary to effectuate the provisions of this section.
The bill (Eng. Com. Sub. for H. B. No. 2368), as amended, was then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2368) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, Fanning, Foster, Green, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--29.
The nays were: K. Facemyer, Hall and Minard--3.
Absent: Chafin and Tomblin (Mr. President )--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2368) passed.
The following amendment to the title of the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2368--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §30-27-8a and §30-27-11a , relating to the Board of Barbers and Cosmetologists; authorizing the establishment of a barber apprenticeship program and shampoo assistant permit; and rule-making and emergency rule-making authority.
Senator Unger moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, Fanning, Foster, Green, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--29.
The nays were: K. Facemyer, Hall and Minard--3.
Absent: Chafin and Tomblin (Mr. President )--2.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2368) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2437, Requiring study relating to mandating the utilization of devices that case underground mining machines to shut-off when methane is detected.
On second reading, coming up in regular order, was read a second time.
The following amendments to the bill, from the Committee on Energy, Industry and Mining, were reported by the Clerk, considered simultaneously, and adopted:
On page two, line five, by striking out the word "Office" and inserting in lieu thereof the word "Board";
On page two, line eight, by striking out the word "Office" and inserting in lieu thereof the word "Board";
On page two, line nine, by striking out the word "devises" and inserting in lieu thereof the word "devices";
And,
On page two, line ten, by striking out the word "Office" and inserting in lieu thereof the word "Board".
The bill (Eng. Com. Sub. for H. B. No. 2437), as amended, was then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2437) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2437) 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 House Bill No. 2451, Relating to victim impact statements.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 11A. VICTIM PROTECTION ACT OF 1984.
§61-11A-2. Testimony of crime victim at sentencing hearing.
(a) For the purposes of this section, "victim" means a person who is a victim of a felony, or where a death occurs during commission of a misdemeanor the fiduciary of a deceased victim's estate or a member of a deceased victim's immediate family or a nonrelated person who resided with the deceased victim at the time of the crime for at least twelve months preceding the crime id such person is known to the prosecutor.
(b) Prior to the imposition of sentence upon any a defendant who has been found guilty of a felony or of a misdemeanor if death occurred as a result of the crime or has pleaded guilty or nolo contendere to any a felony, or of a misdemeanor if death occurred as a result of the crime the court shall permit the victim of the crime to appear before the court for the purpose of making an oral statement for the record if the victim notifies the court of his or her desire to make such a statement after receiving notification provided in subsection (c) of this section. If the victim fails to so notify the court, such failure shall constitute constitutes a waiver of the right to make an oral statement. In lieu of such appearance and oral statement, the victim may submit a written statement to the court or to the probation officer in charge of the case. Such probation officer shall forthwith file any such the statement delivered to his or her office with the sentencing court and the statement shall be made a part of the record at the sentencing hearing. Any such statement, whether oral or written, shall relate solely to the facts of the case and the extent of any injuries, financial losses and loss of earnings directly resulting from the crime for which the defendant is being sentenced.
(c) Within a reasonable time prior to the imposition of sentence upon such defendant, the prosecuting attorney or assistant prosecuting attorney in charge of the case shall make reasonable efforts, in writing, advise the person who was the victim of such crime or, in the case of a minor, the parent or guardian of such minor or the fiduciary of his or her estate if he or she be then deceased, of the date, time and place of the original sentencing hearing and of the victim's rights to submit a written or oral statement to the sentencing court. as hereinabove provided.
(d) The oral or written statement given or submitted by any a victim in accordance with the provisions of this section shall be is in addition to and not in lieu of the victim impact statement required by the provisions of section three of this article.

§61-11A-6. State guidelines for fair treatment of crime victims and witnesses in the criminal justice system.

(a) No later than July 1, 1984, the Attorney General shall promulgate rules and regulations in accordance with the provisions of chapter twenty-nine-a of this code, establishing guidelines for law-enforcement agencies and prosecuting attorneys' offices consistent with the purposes of this article. The Attorney General shall seek the advice of the department of public safety and department of human services West Virginia State Police and Department of Health and Human Resources in preparing such rules and regulations. In preparing such rules and regulations, the following objectives shall be considered:
(1) The arresting law-enforcement agency should ensure that victims routinely receive emergency social and medical services as soon as possible and are given information on the following:
(A) Availability of crime victim compensation, where applicable;
(B) Community-based victim treatment programs;
(C) The role of the victim in the criminal justice process including what they can expect from the system as well as what the system expects from them; and
(D) Stages in the criminal justice process of significance to a crime victim and the manner in which information about such stages can be obtained.
(2) The prosecuting attorney or his or her assistant should ensure that victims and witnesses receive information on steps that law-enforcement officers and prosecuting attorneys can take to protect victims and witnesses from intimidation.
(3) All victims and witnesses who have been scheduled to attend criminal justice proceedings should be notified by the prosecuting attorneys' offices as soon as possible of any scheduling changes which will affect their appearances.
(4) Victims, witnesses, and one member of the immediate family of those victims and witnesses and any nonrelated person who resided with the victim for at least twelve months preceding the crime should, if such persons provide the appropriate official with a current address and telephone number, receive prompt advance notification, if possible, of judicial proceedings relating to their case, from the prosecuting attorney's office, including:
(A) The arrest of an accused;
(B) The initial appearance of an accused before a judicial officer;
(C) The release of the accused pending judicial proceedings; and
(D) Proceedings in the prosecution of the accused including, but not limited to, the entry of a plea of guilty, trial, sentencing, and, where a term of imprisonment is imposed, the release of the accused from such imprisonment.
(5) The victim of a serious crime, or in the case of a minor child or a homicide, the family of the victim, shall be consulted by the prosecuting attorney in order to obtain the views of the victim or family about the disposition of any criminal case brought as a result of such crime including the views of the victim or family about:
(A) Dismissal;
(B) Release of the accused pending judicial proceedings;
(C) Plea negotiations; and
(D) Pretrial diversion program.
(6) Victims and other prosecution witnesses should if practical, be provided prior to court appearance, be provided a waiting area that is separate from all other witnesses prior to court appearances, if feasible.
(7) Law-enforcement agencies should promptly return victim's victims' property held for evidentiary purposes unless there is a compelling law-enforcement reason for retaining it.
(8) A victim or witness who so requests should be assisted by law-enforcement agencies and prosecuting attorneys in informing employers that the need for victim and witness cooperation in the prosecution of the case may necessitate absence of that victim or witness from work. A victim or witness who, as a direct result of a crime or of cooperation with law-enforcement agencies or attorneys for the government, is subjected to serious financial strain, should be assisted by the appropriate state agencies in dealing with creditors.
(b) Nothing in this section shall be construed as creating a cause of action against the State of West Virginia or any of its political subdivisions.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 12. PROBATION AND PAROLE.

§62-12-23. Notification of parole hearing; victim's right to be heard; notification of release on parole.

(a) Following the sentencing of a person who has been convicted of murder, aggravated robbery, sexual assault in the first or second degree, kidnapping, child abuse resulting in injury, child neglect resulting in injury, arson or a sexual offense against a minor, the prosecuting attorney who prosecuted the offender shall prepare a "Parole Hearing Notification Form". This form shall contain the following information:
(1) The name of the county in which the offender was prosecuted and sentenced;
(2) The name of the court in which the offender was prosecuted and sentenced;
(3) The name of the prosecuting attorney or assistant prosecuting attorney who prosecuted the offender;
(4) The name of the judge who presided over the criminal case and who sentenced the offender;
(5) The names of the law-enforcement agencies and officers who were primarily involved with the investigation of the crime for which the offender was sentenced; and
(6) The names, addresses and telephone numbers of the victims of the crime for which the offender was sentenced or the names, addresses and telephone numbers of the immediate family members of each victim of the crime including, but not limited to, each victim's spouse, father, mother, brothers, and sisters and any nonrelated person who resided with an adult victim at the time of the crime and for at least twelve months preceding the crime.
(b) The prosecuting attorney shall retain the original of the Parole Hearing Notification Form and shall provide copies of it to the circuit court which sentenced the offender, the Parole Board, the Commissioner of Corrections and to all persons whose names and addresses are listed on the "Parole Hearing Notification Form". form.
(c) At least forty-five days prior to the date of a parole hearing, the Parole Board shall notify all persons who are listed on the Parole Hearing Notification Form of the date, time and place at which a parole hearing will be held. of the hearing. Such notice shall be sent by certified mail, return receipt requested. The notice shall state that the victims of the crime have the right to submit a written statement to the Parole Board and to attend the parole hearing to be heard regarding the propriety of granting parole to the prisoner. The notice shall also state that only the victims may submit written statements and speak at the parole hearing unless a victim is deceased, is a minor or is otherwise incapacitated.
(d) The panel considering the parole shall inquire during the parole hearing as to whether the victims of the crime or their representatives, as provided in this section, are present. If so, the panel shall permit those persons to speak at the hearing regarding the propriety of granting parole for the prisoner.
(e) If the panel grants parole, it shall immediately set a date on which the prisoner will be released. Such date shall be no earlier than thirty days after the date on which parole is granted. On the date on which parole is granted, the Parole Board shall notify all persons listed on the Parole Hearing Notification Form that parole has been granted and that the prisoner will be released on a particular date the date of release. A written statement of reasons for releasing the prisoner, prepared pursuant to subdivision (4), subsection (b), section thirteen of this article, shall be provided upon request to all persons listed on the Parole Hearing Notification Form.
On motion of Senator Palumbo, the following amendment to the bill (Eng. Com. Sub. for H. B. No. 2451) was next reported by the Clerk and adopted:
By striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
That §61-11A-2 and §61-11A-6 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §62-12-23 of said code be amended and reenacted, all to read as follows: .
The bill (Eng. Com. Sub. for H. B. No. 2451), as amended, was then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2451) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2451) passed.
The following amendment, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2451--A Bill to amend and reenact §61-11A-2 and §61-11A-6 of the Code of West Virginia, 1931, as amended; and to amend and reenact §62-12-23 of said code, all relating to clarifying definition of "victim"; requiring prosecutors to make reasonable efforts to contact victims; expanding coverage of sentencing allocation to misdemeanors where death occurs; and adding persons who resided with crime victims to those who are provided notice of matters in the prosecutorial process and the right to be heard at sentencing and parole proceedings.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2505, Adding synthetic cannabinoids and hallucinogens and stimulants to the Schedule I list of controlled substances.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
On page twenty-eight, section two hundred four, after line two hundred ninety-seven, by adding a new subdivision, designated subdivision (8), to read as follows:
(8) N-benzylpiperazine, also known as BZP.
The bill (Eng. Com. Sub. for H. B. No. 2505), as amended, was then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--31.
The nays were: None.
Absent: Barnes, Chafin and Tomblin (Mr. President )--3.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2505) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2505) passed with its title.
Senator Unger moved that the bill take effect thirty days from passage.
On this question, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2505) takes effect thirty days from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2517, Allowing Correctional Industries to directly purchase workers' compensation coverage for inmates.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. House Bill No. 2521, Eliminating the requirement of serving domestic violence orders by certified mail.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §48-27-311 and §48-27-701 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
§48-27-311. Service of process.
A protective order may be served on the respondent by means of a Class I legal advertisement published notice, with the publication area being the most current known county in which the respondent resides, published in accordance with the provisions of section two, article three, chapter fifty-nine of this code if: (1) The petitioner files an affidavit with the court stating that an attempt at personal service pursuant to Rule 4 of the West Virginia Rules of Civil Procedure has been unsuccessful or evidence is adduced at the hearing for the protective order that the respondent has left the State of West Virginia; and (2) a copy of the order is mailed by certified or registered mail to the respondent at the respondent's last known residence and returned undelivered personal service by law enforcement has been unsuccessful. Simultaneously with the publication, the respondent shall be served with the protective order and the order of publication by first class mail to the most current known residence address of the respondent.
Any protective order issued by the court of this state which is served in compliance with the provisions of Rule 4(f) of the West Virginia Rules of Civil Procedure served outside the boundaries of this state shall carry the same force and effect as if it had been personally served within this state's boundaries.

§48-27-701. Service of pleadings and orders by law-enforcement officers.

Notwithstanding any other provision of this code to the contrary, all law-enforcement officers are hereby authorized to serve all pleadings and orders filed or entered pursuant to this article on Sundays and legal holidays. No law-enforcement officer shall refuse to serve any pleadings or orders entered pursuant to this article. Law enforcement shall attempt to serve all protective orders without delay: Provided, That service of process shall be attempted within seventy-two hours of law enforcement's receipt of the order to every address provided by petitioner. Any law- enforcement agency which serves pleadings or orders pursuant to this section may receive the fee authorized therefor by Rule 4 of the Rules of Practice and Procedure for Domestic Violence Civil Proceedings. If service is not made, law enforcement shall continue to attempt service on the respondent until proper service is made.
The bill (Eng. H. B. No. 2521), as amended, was then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. H. B. No. 2521) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. H. B. No. 2521) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. House Bill No. 2521--A Bill to amend and reenact §48-27- 311 and §48-27-701 of the Code of West Virginia, 1931, as amended, relating to prevention and treatment of domestic violence generally; eliminating the requirement of serving domestic violence orders by certified mail where personal service fails in order to expedite service and eliminate delays in conducting final hearings; authorizing fee to law enforcement for service of process; and clarifying that personal service must be attempted at every address for respondent provided by petitioner.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2539, Authorizing the West Virginia State Police to enter into agreements for certain forensic services with the Marshall University Forensic Science Center.
On second reading, coming up in regular order, was read a second time.
At the request of Senator Palumbo, unanimous consent being granted, the bill was advanced to third reading with the right for amendments to be considered on that reading.
Eng. Com. Sub. for House Bill No. 2542, Clarifying requirements and procedures for access to cemeteries and grave sites located on private land.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 13A. GRAVES LOCATED UPON PRIVATELY OWNED LANDS.

§37-13A-1. Access of certain persons to cemeteries and graves located on private land.

(a) Any authorized person who wishes to visit a cemetery or grave site located on privately owned land and for which no public ingress or egress is available, shall have the right to reasonable ingress or egress for the purposes described in subsection (c) of this section after providing the owner of the privately owned land with reasonable notice as defined in subsection (c) of this section.
(b) An authorized person intending to visit the cemetery or grave site for the purpose of installing a monument or grave marker pursuant subdivision (b) of this section shall give reasonable notice to the property owner which is to include a description of the monument or grave marker to be installed. As used in this article, "reasonable notice" means written notice of the date and time the authorized person intends to visit the cemetery or grave site delivered to the property owner at least ten days prior to the date of the intended visit.
(C) The right of access to cemeteries or grave sites provided in subsection (a) of this section shall be during reasonable hours and only for the purposes of:
(1) Visiting graves;
(2) Maintaining the grave site or cemetery, including the installation of a monument or a grave marker: Provided, That a property owner may deny access to the cemetery or grave site because the owner objects to the installation of the type or style of the monument or grave marker that has been described in the notice given pursuant to subsection (b), section one of this article;
(3) Burying a deceased person in a cemetery plot by those granted rights of burial to that plot; and
(4) Conducting genealogy research.
(c)(1) The access route to the cemetery or grave site may be designated by the landowner if no traditional access route is obviously visible by a view of the property. If no traditional access route is obviously visible by a view of the property, the landowner is not required to incur any expense in improving a designated access route.
(2) Unless the property owner has caused a traditional access route to the cemetery or grave site to be unusable or unavailable, the property owner is not required to make any improvements to their property to satisfy the requirement of providing reasonable ingress and egress to a cemetery or burial site pursuant to this section.
(d) A property owner who is required to permit authorized persons reasonable ingress and egress for the purpose of visiting a cemetery or grave site and who acts in good faith and in a reasonable manner pursuant to this section is not liable for any personal injury or property damage that occurs in connection with the access to the cemetery or grave site.
(e) Nothing in this section shall be construed to limit or modify the power or authority of a court in any action of law or equity to order the disinterment and removal of the remains from a cemetery and interment in a suitable location.
§37-13A-2. Definitions.
In this article:
(1) "Authorized person" means:
(A) A family member, close friend or descendant of a deceased person;
(B) A cemetery plot owner; or
(C) A person who has the written permission of a family member or descendant of a deceased person to enter the property solely for the purpose of installing monuments or grave markers or preparing the cemetery plot for burying a deceased person by those granted rights of burial to that plot; or
(D) A person engaged in genealogy research.
(2) "Governmental subdivision" means any county commission or municipality.
(3) "Reasonable ingress and egress" or "reasonable access" means access to the cemetery or grave site within ten days of the receipt of written notice of the intent to visit the cemetery or grave site. If the property owner cannot provide reasonable access to the cemetery or grave site on the desired date, the property owner shall provide reasonable alternative dates when the property owner can provide access within five days of the receipt of the initial notice.
§37-13A-5. Cause of action for injunctive relief.
(a) An authorized person denied reasonable access under the provisions of this article, including the denial of permission to use vehicular access or the denial of permission to access the cemetery or grave site to install a monument or grave marker, may institute a proceeding in the circuit court of the county in which the cemetery or grave site is located to enjoin the owner of the private lands on which the cemetery or grave site is located, or his or her agent, from denying the authorized person reasonable ingress and egress to the cemetery or grave site for the purposes set forth in this article. In granting relief, the court may set the frequency of access, hours and duration of the access.
(b) The court or the judge thereof may issue a preliminary injunction in any case pending a decision on the merits of any application filed without requiring the filing of a bond or other equivalent security.
The bill (Eng. Com. Sub. for H. B. No. 2542), as amended, was then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2542) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2542) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2542--A Bill to amend and reenact §37-13A-1, §37-13A-2 and §37-13A-5 of the Code of West Virginia, 1931, as amended, all relating to access to cemeteries and grave sites located on privately owned land generally; allowing access for the purposes of installation of monuments or grave markers; allowing access to an authorized person who has the written permission of a family member or descendant of a deceased person to enter the property solely for the purpose of installing monuments or grave markers or preparing the cemetery plot for burying a deceased person by those granted rights of burial to that plot; requiring notice and description of monuments or grave markers to be installed; permitting denial of installation by property owner; and providing injunctive relief.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2639, Authorizing miscellaneous boards and agencies to promulgate legislative rules.
On second reading, coming up in regular order, was read a second time.
At the request of Senator Williams, unanimous consent being granted, the bill was advanced to third reading with the unreported Judiciary committee amendment pending and the right for further amendments to be considered on that reading.
Eng. House Bill No. 2695, Relating to the educational broadcasting authority.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Finance, was reported by the Clerk and adopted:
On pages two through sixteen, by striking out all of section one and inserting in lieu thereof a new section one, to read as follows:
§5F-2-1. Transfer and incorporation of agencies and boards; funds.
(a) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Administration:
(1) Building Commission provided in article six, chapter five of this code;
(2) Public Employees Insurance Agency provided in article sixteen, chapter five of this code;
(3) Governor's Mansion Advisory Committee provided in article five, chapter five-a of this code;
(4) Commission on Uniform State Laws provided in article one-a, chapter twenty-nine of this code;
(5) West Virginia Public Employees Grievance Board provided in article three, chapter six-c of this code;
(6) Board of Risk and Insurance Management provided in article twelve, chapter twenty-nine of this code;
(7) Boundary Commission provided in article twenty-three, chapter twenty-nine of this code;
(8) Public Defender Services provided in article twenty-one, chapter twenty-nine of this code;
(9) Division of Personnel provided in article six, chapter twenty-nine of this code;
(10) The West Virginia Ethics Commission provided in article two, chapter six-b of this code;
(11) Consolidated Public Retirement Board provided in article ten-d, chapter five of this code; and
(12) Real Estate Division provided in article ten, chapter five-a of this code.
(b) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Commerce:
(1) Division of Labor provided in article one, chapter twenty-one of this code, which includes:
(A) Occupational Safety and Health Review Commission provided in article three-a, chapter twenty-one of this code; and
(B) Board of Manufactured Housing Construction and Safety provided in article nine, chapter twenty-one of this code;
(2) Office of Miners' Health, Safety and Training provided in article one, chapter twenty-two-a of this code. The following boards are transferred to the Office of Miners' Health, Safety and Training for purposes of administrative support and liaison with the office of the Governor:
(A) Board of Coal Mine Health and Safety and Coal Mine Safety and Technical Review Committee provided in article six, chapter twenty-two-a of this code;
(B) Board of Miner Training, Education and Certification provided in article seven, chapter twenty-two-a of this code; and
(C) Mine Inspectors' Examining Board provided in article nine, chapter twenty-two-a of this code;
(3) The West Virginia Development Office, which includes the Division of Tourism and the Tourism Commission provided in article two, chapter five-b of this code;
(4) Division of Natural Resources and Natural Resources Commission provided in article one, chapter twenty of this code;
(5) Division of Forestry provided in article one-a, chapter nineteen of this code;
(6) Geological and Economic Survey provided in article two, chapter twenty-nine of this code; and
(7) Workforce West Virginia provided in chapter twenty-one-a of this code, which includes:
(A) Division of Unemployment Compensation;
(B) Division of Employment Services Service;
(C) Division of Workforce Development; and
(D) Division of Research, Information and Analysis; and
(8) Division of Energy provided in article two-f, chapter five-b of this code;
(9) Division of Tourism Commission provided in article two-h, chapter five-b of this code.
(c) The Economic Development Authority provided in article fifteen, chapter thirty-one of this code is continued as an independent agency within the executive branch.
(d) The Water Development Authority and the Water Development Authority Board provided in article one, chapter twenty-two-c of this code is continued as an independent agency within the executive branch.
(e) The following agencies and boards, including all of the allied, advisory and affiliated entities, are transferred to the Department of Environmental Protection for purposes of administrative support and liaison with the office of the Governor:
(1) Air Quality Board provided in article two, chapter twenty-two-b of this code;
(2) Solid Waste Management Board provided in article three, chapter twenty-two-c of this code;
(3) Environmental Quality Board, or its successor board, provided in article three, chapter twenty-two-b of this code;
(4) Surface Mine Board provided in article four, chapter twenty-two-b of this code;
(5) Oil and Gas Inspectors' Examining Board provided in article seven, chapter twenty-two-c of this code;
(6) Shallow Gas Well Review Board provided in article eight, chapter twenty-two-c of this code; and
(7) Oil and Gas Conservation Commission provided in article nine, chapter twenty-two-c of this code.
(f) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Education and the Arts:
(1) Library Commission provided in article one, chapter ten of this code;
(2) Educational Broadcasting Authority provided in article five, chapter ten of this code;
(3) (2) Division of Culture and History provided in article one, chapter twenty-nine of this code;
(4) (3) Division of Rehabilitation Services provided in section two, article ten-a, chapter eighteen of this code.
(g) The Educational Broadcasting Authority provided in article five, chapter ten of this code, is part of the Department of Education and the Arts for purposes of administrative support and liaison with the office of the Governor.
(g) (h) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Health and Human Resources:
(1) Human Rights Commission provided in article eleven, chapter five of this code;
(2) Division of Human Services provided in article two, chapter nine of this code;
(3) Bureau for Public Health provided in article one, chapter sixteen of this code;
(4) Office of Emergency Medical Services and the Emergency Medical Services Advisory Council provided in article four-c, chapter sixteen of this code;
(5) Health Care Authority provided in article twenty-nine-b, chapter sixteen of this code;
(6) Commission on Mental Retardation provided in article fifteen, chapter twenty-nine of this code;
(7) Women's Commission provided in article twenty, chapter twenty-nine of this code; and
(8) The Child Support Enforcement Division provided in chapter forty-eight of this code.
(h) (i) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Military Affairs and Public Safety:
(1) Adjutant General's Department provided in article one-a, chapter fifteen of this code;
(2) Armory Board provided in article six, chapter fifteen of this code;
(3) Military Awards Board provided in article one-g, chapter fifteen of this code;
(4) West Virginia State Police provided in article two, chapter fifteen of this code;
(5) Division of Homeland Security and Emergency Management and Disaster Recovery Board provided in article five, chapter fifteen of this code and Emergency Response Commission provided in article five-a of said chapter;
(6) Sheriffs' Bureau provided in article eight, chapter fifteen of this code;
(7) Division of Justice and Community Services provided in article nine a, chapter fifteen of this code;
(8) Division of Corrections provided in chapter twenty-five of this code;
(9) Fire Commission provided in article three, chapter twenty-nine of this code;
(10) Regional Jail and Correctional Facility Authority provided in article twenty, chapter thirty-one of this code;
(11) Board of Probation and Parole provided in article twelve, chapter sixty-two of this code. and
(12) Division of Veterans' Affairs and Veterans' Council provided in article one, chapter nine-a of this code.
(i) (j) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Revenue:
(1) Tax Division provided in article one, chapter eleven of this code;
(2) Racing Commission provided in article twenty-three, chapter nineteen of this code;
(3) Lottery Commission and position of Lottery Director provided in article twenty-two, chapter twenty-nine of this code;
(4) Agency of Insurance Commissioner provided in article two, chapter thirty-three of this code;
(5) Office of West Virginia Alcohol Beverage Control Commissioner provided in article sixteen, chapter eleven of this code and article two, chapter sixty of this code;
(6) Board of Banking and Financial Institutions provided in article three, chapter thirty-one-a of this code;
(7) Lending and Credit Rate Board provided in chapter forty-seven-a of this code;
(8) Division of Banking provided in article two, chapter thirty-one-a of this code;
(9) The State Budget Office provided in article two of this chapter;
(10) The Municipal Bond Commission provided in article three, chapter thirteen of this code;
(11) The Office of Tax Appeals provided in article ten-a, chapter eleven of this code; and
(12) The State Athletic Commission provided in article five-a, chapter twenty-nine of this code.
(j) (k) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Transportation:
(1) Division of Highways provided in article two-a, chapter seventeen of this code;
(2) Parkways, Economic Development and Tourism Authority provided in article sixteen-a, chapter seventeen of this code;
(3) Division of Motor Vehicles provided in article two, chapter seventeen-a of this code;
(4) Driver's Licensing Advisory Board provided in article two, chapter seventeen-b of this code;
(5) Aeronautics Commission provided in article two-a, chapter twenty-nine of this code;
(6) State Rail Authority provided in article eighteen, chapter twenty-nine of this code; and
(7) Public Port Authority provided in article sixteen-b, chapter seventeen of this code.
(l) The Veterans' Council provided in article one, chapter nine-a of this code, including all of the allied, advisory, affiliated or related entities and funds associated with it is, incorporated in and administered as part of the Department of Veteran's Assistance.
(k) (m) Except for powers, authority and duties that have been delegated to the secretaries of the departments by the provisions of section two of this article, the position of administrator and the powers, authority and duties of each administrator and agency are not affected by the enactment of this chapter.
(l) (n) Except for powers, authority and duties that have been delegated to the secretaries of the departments by the provisions of section two of this article, the existence, powers, authority and duties of boards and the membership, terms and qualifications of members of the boards are not affected by the enactment of this chapter. All boards that are appellate bodies or are independent decision makers shall not have their appellate or independent decision-making status affected by the enactment of this chapter.
(m) (o) Any department previously transferred to and incorporated in a department by prior enactment of this section means a division of the appropriate department. Wherever reference is made to any department transferred to and incorporated in a department created in section two, article one of this chapter, the reference means a division of the appropriate department and any reference to a division of a department so transferred and incorporated means a section of the appropriate division of the department.
(n) (p) When an agency, board or commission is transferred under a bureau or agency other than a department headed by a secretary pursuant to this section, that transfer is solely for purposes of administrative support and liaison with the Office of the Governor, a department secretary or a bureau. Nothing in this section extends the powers of department secretaries under section two of this article to any person other than a department secretary and nothing limits or abridges the statutory powers and duties of statutory commissioners or officers pursuant to this code.
The bill (Eng. H. B. No. 2695), as amended, was then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--31.
The nays were: Sypolt--1.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. H. B. No. 2695) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--29.
The nays were: Barnes, Hall and Sypolt--3.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. H. B. No. 2695) passed.
The following amendment to the title of the bill, from the Committee on Finance, was reported by the Clerk and adopted:
Eng. House Bill No. 2695--A Bill to amend and reenact §5F-2-1, of the Code of West Virginia, 1931, as amended; to amend and reenact §10-5-1, §10-5-2, §10-5-3 and §10-5-4 of said code; and to amend said code by adding thereto a new section, designated §10-5-6, all relating generally to organization and authority of executive branch agencies and departments; relating to the Educational Broadcasting Authority; modifying organizational structure; declaring legislative findings; deleting outdated language; authorizing the authority and its employees to work with certain private nonprofit corporations; authorizing the use of the authority's property and facilities for fundraising purposes; authorizing the authority to solicit funds for the support of public broadcasting; requiring memoranda of understanding; and providing exemption from disclosure for names of private donors.
Senator Unger moved that the bill take effect from passage.
On this question, the yeas were: Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--29.
The nays were: Barnes, Hall and Sypolt--3.
Absent: Chafin and Tomblin (Mr. President)--2.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the Acting President declared the bill (Eng. H. B. No. 2695) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 2763, Prohibiting the Executive Director of Workforce West Virginia from billing a reimbursable employer under the unemployment compensation law for overpaid amounts of benefits paid to a claimant.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Finance, was reported by the Clerk and adopted:
On page three, section eleven, line twenty-nine, after the word "Fund" by changing the period to a colon and inserting the following proviso: Provided, That no employer shall be entitled to any payment under this subdivision unless such employer has filed all requested adequate separation information within the required time frame.
The bill (Eng. H. B. No. 2763), as amended, was then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. H. B. No. 2763) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. H. B. No. 2763) passed with its title.
Senator Unger moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the Acting President declared the bill (Eng. H. B. No. 2763) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2864, All relating to the creation of a misdemeanor crime of unlawful restraint in the first and second degree.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-14g. Unlawful restraint; penalties.
(a) Any person who, without legal authority intentionally restrains another with the intent that the other person not be allowed to leave the place of restraint and who does so by physical force or by overt or implied threat of violence or by actual physical restraint but without the intent to obtain any other concession or advantage as those terms are used in section fourteen- a of this article is guilty of a misdemeanor and upon conviction shall be confined in jail for not more than one year, fined not more than $1,000, or both.
(b) In any prosecution under this section, it is an affirmative defense that:
(1) The defendant acted reasonably and in good faith to protect the person from imminent physical danger; or
(2) The person restrained was a child less than eighteen years old and that the actor was a parent or legal guardian, or a person acting under authority granted by a parent or legal guardian of such child, or by a teacher or other school personnel acting under authority granted by section one, article five, chapter eighteen-a of this code, and that his or her sole purpose was to assume control of such child.
(c) As used in this section to "restrain" means to restrict a persons movement without his or her consent.
(d) This section shall not apply to acts done by a law enforcement officer in the lawful exercise of his or her duties.
§61-2-28. Domestic violence -- Criminal acts.
(a) Domestic battery. -- Any person who unlawfully and intentionally makes physical contact of an insulting or provoking nature with his or her family or household member or unlawfully and intentionally causes physical harm to his or her family or household member, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not more than twelve months, or fined not more than five hundred dollars, or both.
(b) Domestic assault. -- Any person who unlawfully attempts to commit a violent injury against his or her family or household member or unlawfully commits an act which places his or her family or household member in reasonable apprehension of immediately receiving a violent injury, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not more than six months, or fined not more than one hundred dollars, or both.
(c) Second offense. -- Domestic assault or domestic battery.
A person convicted of a violation of subsection (a) of this section after having been previously convicted of a violation of subsection (a) or (b) of this section, after having been convicted of a violation of subsection (b) or (c), section nine of this article or subsection (a), section fourteen-g of this article where the victim was his or her current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or who has previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of this section, or a violation of subsection (b) or (c), section nine of this article or subsection (a), section fourteen-g of this article where the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not less than sixty days nor more than one year, or fined not more than one thousand dollars, or both.
A person convicted of a violation of subsection (b) of this section after having been previously convicted of a violation of subsection (a) or (b) of this section, after having been convicted of a violation of subsection (b) or (c), section nine of this article or subsection (a), section fourteen-g of this article where the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or having previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of this section or subsection (b) or (c), section nine of this article or subsection (a), section fourteen-g of this article where the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense shall be confined in a county or regional jail for not less than thirty days nor more than six months, or fined not more than five hundred dollars, or both.
(d) Any person who has been convicted of a third or subsequent violation of the provisions of subsection (a) or (b) of this section, a third or subsequent violation of the provisions of section nine of this article or subsection (a), section fourteen-g of this article where the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or who has previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of this section or a violation of the provisions of section nine of this article or subsection (a), section fourteen-g of this article in which the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense, or any combination of convictions or diversions for these offenses, is guilty of a felony if the offense occurs within ten years of a prior conviction of any of these offenses and, upon conviction thereof, shall be confined in a state correctional facility not less than one nor more than five years or fined not more than two thousand five hundred dollars, or both.
(e) As used in this section, "family or household member" means "family or household member" as defined in 48-27-204 of this code.
(f) A person charged with a violation of this section may not also be charged with a violation of subsection (b) or (c), section nine of this article for the same act.
(g) No law-enforcement officer may be subject to any civil or criminal action for false arrest or unlawful detention for effecting an arrest pursuant to this section or pursuant to 48-27-1002 of this code.
The bill (Eng. Com. Sub. for H. B. No. 2864), as amended, was then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2864) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2864) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2864--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section designated §61-2-14g; and to amend and reenact §61-2-28 of said code, all relating to the creation of the misdemeanor offense of unlawful restraint; distinguishing the offense from that of kidnapping; defining restrain; providing for affirmative defenses; and penalties.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2888, Strengthening of protections for whistleblowers of unsafe working conditions in mines.
On second reading, coming up in regular order, was read a second time.
The following amendments to the bill, from the Committee on the Judiciary, were reported by the Clerk, considered simultaneously, and adopted:
On page two, section twelve, line five, by striking out the word "board" and inserting in lieu thereof the word "Board";
On page two, section twelve, line eight, by striking out the word "Office" and inserting in lieu thereof the word "Board";
And,
On page two, section twelve, line nine, by striking out the word "to".
The bill (Eng. Com. Sub. for H. B. No. 2888), as amended, was then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2888) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2888) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 2918, Relating to permanent business registrations.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2953, Relating to dedication of coalbed methane severance tax proceeds.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Finance was reported by the Clerk and adopted:
On page twelve, section twenty-a, line one hundred seventy-two, by striking out the word "providing" and inserting in lieu thereof the word "provides".
The bill (Eng. Com. Sub. for H. B. No. 2953), as amended, was then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2953) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2953) passed with its title.
Senator Unger moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2953) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 2993, Relating to the West Virginia Commercial Patents Incentives Tax Act.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Finance was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 13AA. COMMERCIAL PATENT INCENTIVES TAX ACT.
§11-13AA-3. Definitions.
(a) General. -- When used in this article, or in the administration of this article, terms defined in subsection (b) of this section have the meanings ascribed to them by this section, unless a different meaning is clearly required by either the context in which the term is used, or by specific definition, in this article.
(b) Terms defined. --
(1) "Agreement" means any agreement or contractual relationship entered into after the effective date of this section between a person developing patents in this state and either:
(A) A corporation established under the laws of this state that meet the requirements of section three, article twelve, chapter eighteen-b of this code; or
(B) A center for economic development and technological advancement created pursuant to section three, article twelve-a, chapter eighteen-b of this code.
(2) "Business activity" means all activities engaged in or caused to be engaged in by a person with the object of gain or economic benefit, direct or indirect. For purposes of this definition, the term "gain or economic benefit, direct or indirect" does not include income realized by any person in the form of wages, salary or income that is reported on federal form W-2.
(3) "Commercial use" means selling, licensing, leasing or otherwise making patents available to a third party for a price, fee, royalty, commission or other consideration called by whatever name. "Commercial use" also means, in the case of patents developed by the developer for the developer's own commercial use, the first use of the patents in a manufacturing or other business activity of the developer. "Commercial use" does not include any selling, licensing, leasing or otherwise making patents available to a third party when done by a broker or by any person who does not own the patent sold, licensed, leased or otherwise made available.
(4) "Commissioner" and "Tax Commissioner" are used interchangeably herein and mean the Tax Commissioner of the State of West Virginia or his or her designee.
(5) "Copyright" means a copyright that is registered with the United States Copyright Office or with a similar office of a foreign country when the foreign copyright is recognized under federal law.
(6) "Credit year" means the taxable year in which the person realizes the net profit attributable to a patent. In the case of a license or lease to use patents, "credit year" means each taxable year during the term of the license or lease to use patents.
(7) (6) "Delegate" in the phrase "or his or her delegate", when used in reference to the Tax Commissioner, means any officer or employee of the Tax Department of the Department of Revenue duly authorized by the Tax Commissioner directly, or indirectly, by one or more redelegations of authority to perform the functions mentioned or described in this article.
(7) "Development of a patent," "developing patents" or "development" means the act of inventing or discovering any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereto through significant investment of money, performance of research, or application of design or engineering expertise, which culminates in the issuance of a patent, as defined in this article.
(8) "Developer" means a person engaged in this state in developing patents for direct use in a manufacturing process or product and who has an agreement, as defined in this section, with Marshall University or West Virginia University.
(9) "Directly used in manufacturing process or product, "and "direct use in manufacturing process or product" mean the use of patents directly in those activities or operations which constitute an integral and essential part of the manufacturing processes and products, as contrasted with and distinguished from those activities or operations which are simply incidental, convenient or remote to the manufacturing activity such as those activities that are incidental. Those activities that are incidental to business activities such as bills, marketing, inventory control, order fulfillment, shipping and tracking are not considered an integral and essential part of the manufacturing process or product with reference to patents means application or incorporation of a patented process, machine, article of manufacture or composition of matter, in manufacturing operations or processes, or in manufactured products, in circumstances where United States or foreign patent laws require that the specific patent for the process, machine, article of manufacture or composition of matter be owned by the manufacturer, or purchased, leased, licensed or authorized by contract to be applied or incorporated in the manufacturing operation, processes or product, and where such lawful ownership, purchase, lease, licensure or contractual authorization is in effect.
(10) "Manufacturing" means any business activity classified as having a sector identifier, consisting of the first two digits of the six-digit North American Industry Classification System code number of thirty-one, thirty-two or thirty-three.
(11) "Mask work" means a series of related images, however fixed or encoded:
(A) Having or representing the predetermined, three-dimensional pattern of metallic, insulating or semiconductor material present or removed from the layers of a semiconductor chip product; and
(B) In which series the relation of the images to one another is that each image has the pattern of the surface of one form of the semiconductor chip product.
(12) "Net profits" means West Virginia taxable income as determined for purposes of article twenty four of this chapter, before application of this credit and after application of all credits allowable under this chapter except this credit. In the case of taxpayers that are not subject to the tax imposed by article twenty-four, "net profits" means West Virginia taxable income as determined for purposes of article twenty-one of this chapter, before application of this credit and after application of all credits allowable under this chapter except this credit. In circumstances where net profit is not solely attributable to and the exclusive result of the direct use of a patent in a manufacturing process or product in this state, the taxpayer shall determine net profit solely attributable to and the exclusive result of the direct use of a patent in a manufacturing process or product in this state, and net profit for purposes of determining the amount of credit allowable under this article shall be the net profit solely attributable to and the exclusive result of the direct use of a patent in a manufacturing process or product in this state.
(12) (13) "Owner", when used in reference to a pass-through entity, means a person who owns an equity interest in the pass- through entity.
(13) (14) "Partnership" includes a syndicate, group, pool, joint venture or other unincorporated organization through or by means of which any business, financial operation or venture is carried on, which is not a sole proprietorship, trust or estate, and which is treated as a partnership for federal income tax purposes for the taxable year.
(14) (15) "Pass-through entity" means a partnership, limited liability company, small business corporation (S corporation) or other entity treated as a partnership for federal income tax purposes for the taxable year.
(15) (16) "Patent" means a United States or foreign national patent grant or United States certificate of invention or certificate of protection under the Plant Variety Protection Office of the United States Department of Agriculture patent issued pursuant to 35 U.S.C. §101, et seq. or the Patent Cooperation Treaty done at Washington, on June 19, 1970 and is limited to plant patents, design patents and patents developed in this state for direct use in a manufacturing process or product, or both developed for use and directly used in a manufacturing process or product in this state. For purposes of this article, patents do not include copyrights, trademarks, mask works, trade secrets or any intellectual property that is not a patent.
(16) (17) "Person" includes a natural person, corporation, limited liability company or partnership. A single member liability company that is treated as a disregarded entity for federal income tax purposes is be treated as a disregarded entity for purposes of this article.
(17) (18) "Purchase" means a transaction under which title to an item is transferred for consideration, or a license or lease contract for at least three years is executed, regardless of whether title to the item is transferred at the end of the lease or license period.
(18) (19) "Taxpayer" means any person subject to the tax imposed by article twenty-three or twenty-four of this chapter or to both taxes. In the case of a sole proprietorship that is not subject to either the tax imposed by article twenty-three or twenty- four of this chapter, the term "taxpayer" means a natural person who owns a disregarded entity and who is subject to the tax imposed by article twenty-one of this chapter on his or her income from business activity in this state, or any sole proprietor who is subject to the tax imposed by article twenty-one of this chapter.
(19) (20) "Trademark" means any trademark, trade name, service mark or other identifying symbol or name that is registered with the United States Patent and Trademark Office or with a similar office of a foreign country when the foreign registration is recognized under federal law.
(20) (21) "Trade secret" means information, including a formula, pattern, compilation, program device, method, technique or process, that:
(A) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means, by other persons who can obtain economic value from its disclosure or use; and
(B) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
§11-13AA-4. Tax incentive for developing patents in this state.
(a) Allowance of credit. -- A person engaging in this state in developing plant patent, design patent or patents for direct use in a manufacturing process or product and who has an agreement, as defined in section three of this article, with Marshall University or West Virginia University is allowed a credit, when computing the person's liability for business franchise tax imposed by article twenty-three of this chapter and corporation net income tax imposed by article twenty-four of this chapter, in the amount allowed under subsection (b) of this section. When the developer is a sole proprietor or a pass-through entity, that amount of the credit remaining after first applying it against the tax liability under article twenty-three of this chapter for the taxable year is allowed when computing the tax imposed by article twenty-one of this chapter on income from the person's business activity. No credit is allowed under this article for any activity, investment, assets, or expenditures for which any of the tax credits authorized under articles thirteen-d, thirteen-e, thirteen-q, thirteen-r, thirteen-s, or thirteen-x of this chapter, has been authorized, taken or allowed. No credit is allowed under this article for any activity, investment, assets, or expenditures for which the tax credits authorized under article thirteen, chapter eighteen-b, has been, authorized, taken or allowed.
(b) Amount of credit. -- The amount of credit allowed under this section is equal to twenty percent of the royalties, license fees or other consideration received by the developer during the taxable year from the sale, lease or licensing of a patent developed in this state for direct use in a manufacturing process or product by the person in taxable years beginning on or after January 1, 2011: Provided, That the amount of credit allowed under this section is thirty percent, rather than twenty percent, when the person reinvests at least eighty percent of the amount of the credit claimed for the taxable year in depreciable property purchased for purposes of developing additional patents in this state in taxable years beginning on or after January 1, 2011, or improving upon a patent developed in this state or contributing to a stipend to retain a graduate or post-doctoral student in this state integral to the development of the patents or related technology in taxable years beginning on or after January 1, 2011, during the next taxable year of the person, and the person has an agreement, as defined in section three of this article, for the development of a patent.
(c) Rules for application of credit. -- The amount of credit computed under this section is allowed in accordance with the following rules and applied as provided in subsection (d) of this section:
(1) No credit is allowed under this section for royalties, rents, license fees or other consideration received by the developer of the patent for a patent developed outside this state, except as provided in subdivision (2) of this subsection;
(2) When the person developed the patent for direct use in a manufacturing process or product through that person's activity in this state and through that person's activity in one or more other states, the consideration received by the developer during the taxable year from the sale, lease or license of the patent developed through multistate activity of the developer is multiplied by a fraction, the numerator of which is the direct costs of developing the patent in this state and the denominator of which is the total direct costs of developing the patent. The product of this computation establishes the consideration to be used in subsection (b) of this section;
(3) If a person receives a portion of a royalty that would be eligible for a tax credit under this section because of a business association, licensing agreement or otherwise, the person may receive the tax credit allowable to the portion of royalties that person receives provided the person has an agreement, as defined in section three of this article and otherwise meets the requirements for entitlement to this credit, as set forth in subsection (a) of this section;
(4) Unused credit may be carried forward until used for a period of nine the earlier of the tax year when the credit is used up or the ninth consecutive tax year after the taxable year in which the credit allowed by this section accrues to the person the first tax year in which the taxpayer is eligible to claim the credit. When the person is an owner of a pass-through entity, credit accrues to may be taken by the owner beginning in the tax year when it accrues to credit may be taken by the pass-through entity or when the pass through entity gains entitlement to the credit;
(5) No credit is allowed under this section for consideration received by the developer for patents developed for direct use in a manufacturing process or product before the taxable year beginning January 1, 2011. For purposes of this subdivision, a patent was developed for direct use in a manufacturing process or product before January 1, 2011, if before that date it was sold, leased or licensed to a third party prior to January 1, 2011, or before that day it was reduced to practice for purely commercial purposes by the developer or a person related to the developer, as defined in subsection (b), Section 267 of the Internal Revenue Code of 1986, as amended; and as defined in section nine, article twenty-one of this chapter or section three, article twenty-four of this chapter; and
(6) No credit is allowed under this section for consideration received by the developer from a person related to the developer, as defined in subsection (b), Section 267 of the Internal Revenue Code of 1986, as amended for patents developed for direct use in a manufacturing process or product; and
(6) (7) No credit is allowed under this section beginning with the eleventh taxable year after the patent was first directly used in a manufacturing process or product.
(d) Application of credit. -- The amount of the credit computed under this section is allowed as a credit against tax as provided in this subsection, but the credit may not reduce the tax below zero.
(1) Business franchise tax.-- The amount of the allowable credit shall first be taken as a credit against the tax liability of the developer for the taxable year under article twenty-three of this chapter.
(2) Corporation net income tax. -- The amount of the allowable credit remaining, if any, after first applying the credit against the tax imposed by article twenty-three of this chapter shall then be taken as a credit when computing the liability of the developer for the taxable year under article twenty-four of this chapter.
(3) Personal income tax on business income. --
(A) When the developer is a sole proprietor, the amount of the allowable credit is taken as a credit when computing the liability of the developer for the taxable year on business income under article twenty-one of this chapter.
(B) When the developer is a pass-through entity, the amount of allowable credit remaining, if any, after first applying the credit against the tax imposed by article twenty-three of this chapter for the taxable year is allowed as a credit against the tax imposed for the taxable year on the West Virginia source income of the pass- through entity under article twenty-one of this chapter and the amount of the credit is distributed to the owners of the pass- through entity in the same manner as items of partnership income, gain loss or deduction are distributed or allocated for the taxable year.

§11-13AA-5. Tax credit for use of a patent in a manufacturing process or product in this state that was developed in this state.

(a) Allowance of credit. -- A person directly using a plant patent, design patent or patent developed in this state in a manufacturing process or product in this state is allowed a credit against the person's liability for business franchise tax imposed by article twenty-three of this chapter and corporation net income tax imposed by article twenty-four of this chapter, the amount computed under subsection (b) of this section. When the user of a patent is a sole proprietor or a pass-through entity, that amount of credit allowed against income taxes shall be against the tax imposed by article twenty-one of this chapter.
(b) Amount of credit. -- The amount of credit allowed under this section is equal to twenty percent of the net profit attributable to the patent: Provided, That the amount of credit allowed under this section is equal to thirty percent of the net profit attributable to the patent when the person claiming the credit reinvests in capital improvements to add product lines to or increase productivity in this state during the next taxable year an amount equal to at least eighty percent of the tax credit amount used for the taxable year.
(c) Rules for application of credit. -- The amount of credit computed under this section is allowed in accordance with the following rules and applied as provided in subsection (d) of this section:
(1) The credit allowed by this section is applied after all other credits allowed by this chapter have been applied against the person's business franchise tax and West Virginia income tax liabilities for the taxable year under this chapter;
(2) Unused credit may be carried forward until used for a period of nine the earlier of the tax year when the credit is used up or the ninth consecutive tax year after the taxable year in which the credit allowed by this section accrues to the person the first tax year in which the taxpayer is eligible to claim the credit. When the person is an owner of a pass-through entity, credit accrues to may be taken by the owner beginning in the tax year when it accrues to credit may be taken by the pass-through entity or when the pass through entity gains entitlement to the credit;
(3) Any credit not used within the ten-year period described in subdivision (2) of this subsection is forfeited beginning with the eleventh taxable year after the taxable year in which the credit accrued to the person first tax year in which the taxpayer is eligible to claim the credit;
(4) No credit is allowed under this section for using a patent in this state when the person began using the patent before January 1, 2011;
(5) No credit is allowed under this section for using a patent in this state for which the taxpayer is allowed credit under another article of this chapter.
(6) No credit is allowed under this section for any patent acquired from, by or between, leased from, by or between, licensed from, by or between, or otherwise authorized to be used from, by or between related persons, as defined in subsection (b), Section 267 of the Internal Revenue Code of 1986, as amended.
(7) Amounts received from, by or between related persons, as defined in subsection (b), Section 267 of the Internal Revenue Code of 1986, as amended, are disallowed when calculating net profit attributable to a patent.
(d) Application of credit. -- The amount of the credit computed under this section is allowed as a credit against tax as provided in this subsection, but the credit may not reduce the tax below zero.
(1) Business franchise tax. -- The amount of the allowable credit shall first be taken as a credit against the tax liability of the person allowed the credit for the taxable year under article twenty-three of this chapter.
(2) Corporation net income tax. -- The amount of the allowable credit remaining, if any, after first applying the credit against the tax imposed by article twenty-three of this chapter shall then be taken as a credit when computing the liability of the corporation for the taxable year under article twenty-four of this chapter.
(3) Personal income tax on business income. --
(A) When the person allowed the credit is a sole proprietor, the amount of the allowable credit is taken as a credit when computing the liability of the person allowed the credit for the taxable year on business income under article twenty-one of this chapter.
(B) When the person allowed the credit is a pass-through entity, the amount of allowable credit remaining, if any, after first applying the credit against the tax imposed by article twenty- three of this chapter for the taxable year is allowed as a credit against the tax imposed for the taxable year on the West Virginia source income of the pass-through entity under article twenty-one of this chapter and the amount of the credit is distributed to the owners of the pass-through entity in the same manner as items of partnership income, gain loss or deduction are distributed or allocated for the taxable year.
§11-13AA-7. Identification of a patent and required records.
(a) Required records. -- Every developer of a patent in this state for direct use in a manufacturing process or product and every person who uses a patent directly in a manufacturing process or product in this state who claims a credit under this article shall maintain sufficient records to establish the following facts for each item of a patent for which a credit is allowed under this article:
(1) Its identity;
(2) The amount of net profit attributable to the patent;
(3) The month and taxable year in which the patent was first used, placed in service or directly used in the person's manufacturing process or product in this state;
(4) The amount of credit taken; and
(5) The date the patent was disposed of or otherwise ceased to be directly used in the person's manufacturing process or product in this state.
(b) Enhanced deduction of credit. -- Any person who claims the enhanced credit under section four or five of this article shall maintain sufficient records to clearly establish entitlement to claim the amount of the enhanced credit. At a minimum those records shall identify:
(1) Each and every item of depreciable property purchased for purposes of claiming the enhanced credit;
(2) The date the depreciable property identified in subdivision (1) of this subsection was purchased, its cost and its estimated useful life determined using strait straight-line method of depreciation;
(3) The date the depreciable property identified in subdivision (1) of this subsection was placed in service or used in the person's business activity in this state;
(4) The date the depreciable property identified in subdivision (1) of this subsection was taken out of service or use in the person's business activity in this state and the reason why the property was taken out of service or use; and
(5) Other information that the Tax Commissioner may reasonably require by rule promulgated as provided in section eleven of this article.
(c) New jobs. -- Every person who claims a credit under this article shall also maintain sufficient records to establish the number and types of new jobs, if any created, the wages and benefits paid to employees filling the new jobs and the duration of each job.
(d) Exception. -- This section does not apply to an owner of a pass-through entity that develops or uses a patent for which a credit is allowed under this article.
§11-13AA-11. Interpretation and construction.
(a) No inference, implication or presumption of legislative construction or intent may be drawn or made by reason of the location or grouping of any particular section, provision or portion of this article; and no legal effect may be given to any descriptive matter or heading relating to any section, subsection or paragraph of this article.
(b) The provisions of this article shall be reasonably strictly construed in order to effectuate the legislative intent recited in section two of this article.
§11-13AA-12. Effective date.
The provisions of this article retroactively become effective on July January 1, 2011, and apply only to a patent developed in this state after the taxable years in tax years beginning on or after January 1, 2011, and to a patent purchased, leased or licensed for use on or after that date for direct use in the taxpayer's manufacturing process or product in this state.
The bill (Eng. H. B. No. 2993), as amended, was then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. H. B. No. 2993) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. H. B. No. 2993) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 3000, Making it lawful to hunt coyotes with a green colored light.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3004, Relating to the Greater Huntington Park and Recreation District.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3028, Expanding the responsibilities of the Maternal Mortality Review Team.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Government Organization was reported by the Clerk and adopted:
On page three, section two, line six, by striking out the words "infant deaths" and inserting in lieu thereof the word "infants".
The bill (Eng. Com. Sub. for H. B. No. 3028), as amended, was then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 3028) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 3028) 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 House Bill No. 3054, Relating to DNA data collection.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3105, Providing immunity from civil or criminal liability for first responders who use forced entry to a residence.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
On page two, section twenty-six, line four, by striking out the words "A first responder is not" and inserting in lieu thereof the words "Neither a first responder nor his or her supervisor, agency, employer or supervising entity is".
The bill (Eng. Com. Sub. for H. B. No. 3105), as amended, was then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 3105) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 3105) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 3119, Increasing the expenditure limit on public service district construction and purchase contracts.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. House Bill No. 3134, Relating to child support enforcement.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
On page five, section three hundred two, lines twenty-four and twenty-five, by striking out the words "twenty-four months but not to exceed".
The bill (Eng. H. B. No. 3134), as amended, was then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. H. B. No. 3134) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. H. B. No. 3134) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. House Bill No. 3134--A Bill to amend and reenact §48-1- 204, §48-1-244 and §48-1-302 of the Code of West Virginia, 1931, as amended; to amend and reenact §48-14-408 and §48-14-410 of said code; and to amend and reenact §48-24-106 of said code, all relating to child support enforcement; lowering the accrued interest rate; requiring employers provide information as to the issuance of a bonus to the Bureau for Child Support Enforcement; extending the time parties may agree to for payment of arrearages under a payment plan from twenty-four to sixty months; requiring certain employers to submit support withheld electronically; and making various technical corrections.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 3137, Providing for additional circumstances giving rise to "state 'on' indicators" for purposes of extended unemployment compensation.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3163, Relating to workers' compensation programs of state government entities.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Finance was reported by the Clerk and adopted:
On page seven, section twenty-one-a, line ninety-two, after the word "finance" by inserting the words "monthly and".
The bill (Eng. Com. Sub. for H. B. No. 3163), as amended, was then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 3163) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--28.
The nays were: Boley, Hall, Nohe and Sypolt--4.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 3163) passed with its title.
Senator Unger moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Beach, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--28.
The nays were: Boley, Hall, Nohe and Sypolt--4.
Absent: Chafin and Tomblin (Mr. President)--2.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 3163) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 3185, Allowing county commissions to waive or reduce impact fees and capital improvement fees of affordable housing units in their county.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §7-20-7a, to read as follows:
ARTICLE 20. FEES AND EXPENDITURES FOR COUNTY DEVELOPMENT.
§7-20-7a. Impact fees for affordable housing.
(a) The Legislature finds that:
(1) There is a lack of affordable housing in counties that impose impact fees because the cost of the fees along with the economic conditions in those counties has resulted in low and moderate income persons, persons on fixed incomes, the elderly and persons with special needs, not being able to obtain safe, decent and affordable housing;
(2) A lack of affordable housing affects the ability of a community to develop and maintain strong and stable economies, and impairs the health, stability and self-esteem of individuals and families; and
(3) Financing affordable housing particularly in high growth counties is becoming increasingly difficult.
For these reasons, it is in the public interest to encourage counties that have imposed impact fees and those considering the imposition of impact fees to fairly assess and discount impact fees so as not to limit safe, decent and affordable housing.
(b) On or before July 1, 2012, a county imposing impact fees shall enact an affordable housing component with a discount impact fees schedule, based upon the new homes value compared to the most recent annual single dwelling residential housing index created in section two-b, article one, chapter eleven of this code, to the county's impact fees ordinance. The impact fees schedule shall be updated annually to reflect the changes to the single dwelling residential housing index.
(c) The affordable housing component shall:
(1) Take into account all the different types of housing, including single family detached, single family attached, duplex, town house, apartment , condominium and manufactured home ; and
(2) Include a discount for mobile homes, as defined in section one, article one, chapter seventeen-a of this code, based upon the value set out in the National Automobile Dealers Association book.
(d) The county commission shall annually approve, by a majority vote, any increase or decrease in the impact fees schedule.
The bill (Eng. Com. Sub. for H. B. No. 3185), as amended, was then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Beach, Boley, Browning, Edgell, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler--31.
The nays were: D. Facemire--1.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 3185) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 3185) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 3185--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §7-20-7a, relating to impact fees; providing legislative findings; requiring counties to have an affordable housing component in the county's impact fees ordinance; providing requirements for the affordable housing component; and requiring a vote by the county commission to increase or decrease impact fees.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 3202, Relating to residential rental security deposits.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 6A. RESIDENTIAL RENTAL SECURITY DEPOSITS.
§37-6A-1. Definitions.
When used in this article, unless expressly stated otherwise:
(1) "Action" means recoupment, counterclaim, set off or other civil suit and any other proceeding in which rights are determined, including without limitation actions for possession, rent, unlawful detainer, unlawful entry and distress for rent.
(2) "Application fee" means any deposit of money, however denominated, which is paid by a tenant to a landlord, lessor or agent of a landlord for the purpose of being considered as a tenant for a dwelling unit.
(3) "Dwelling unit" means a structure or part of a structure that is used as a home or residence by one or more persons who maintain a household, including, but not limited to, a manufactured home.
(4) "Facility" means something that is built, constructed, installed or established to perform some particular function.
(5) "Landlord" means the owner or lessor of the dwelling unit or the building of which such dwelling unit is a part. "Landlord" also includes a managing agent of the premises who fails to disclose the name of such owner or lessor.
(6) "Managing agent" means a person authorized by the landlord to act on behalf of the landlord under a management agreement.
(7) "Notice period" means: (A) within 60 days of the termination of the tenancy; or (B) within 45 days of the occupation of the premise by a subsequent tenant, whichever time period is shorter.
(8) "Owner" means one or more persons, jointly or severally, in whom is vested:
(A) All or part of the legal title to the property, or
(B) All or part of the beneficial ownership and a right to present use and enjoyment of the premises, and the term includes a mortgagee in possession.
(9) "Person" means any individual, group of individuals, corporation, partnership, business trust, association or other legal entity, or any combination thereof.
(10) "Premises" means a dwelling unit and the structure of which it is a part and facilities and appurtenances therein and grounds, areas and facilities held out for the use of tenants generally or whose use is promised to the tenant.
(11) "Rent" means all money, other than a security deposit, a nonrefundable fee or money paid to the landlord by the tenant for damage caused by the tenant to the dwelling unit, owed or paid to the landlord under the rental agreement.
(12) "Rental agreement" means all agreements, written (including an electronic record as defined by paragraph (7), section two, article one, chapter thirty-nine-a of the code) or oral, express or implied, embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises.
(13) "Roomer" means a person occupying a dwelling unit that lacks a major bathroom or kitchen facility, in a structure where one or more major facilities are used in common by occupants of the dwelling unit and other dwelling units. Major facility in the case of a bathroom means toilet, and either a bath or shower, and in the case of a kitchen means refrigerator, stove or sink.
(14) "Security deposit" means any refundable deposit of money that is furnished by a tenant to a landlord to secure the performance of the terms and conditions of a rental agreement, or as security for damages to the leased premises. Security deposit does not include: (A) Rent; (B) a pet fee; or (C) application fee: Provided, That the parties expressly agree, in writing, that a pet fee or application fee is nonrefundable. A security deposit does not include prepaid rent.
(15) "Sublease" means the transfer by any tenant of any but not all interests created by a rental agreement.
(16) "Tenant" means a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others and shall include a roomer.
(17) "Utility" means electricity, natural gas, propane gas, water, sewer, telephone and cable television provided by a public utility or such other person providing residential utility services. If the rental agreement so provides, a landlord may use submetering equipment or energy allocation equipment, or a ratio utility billing system.
§37-6A-2. Security deposits.
(a) Upon termination of the tenancy and within the applicable notice period, any security deposit held by the landlord, minus any deductions for damages or other charges, shall be delivered to the tenant, together with a written itemization of any such damages or other charges as provided in subsection (c) of this section.
(b) Upon termination of the tenancy, any security deposit held by the landlord may be applied by the landlord only to:
(1) The payment of rent due, including the reasonable charges for late payment of rent specified in the rental agreement;
(2) The payment of the amount of damages which the landlord has suffered by reason of the tenant's noncompliance with the rental agreement, less reasonable wear and tear;
(3) The payment of unpaid utilities that were billed to and paid by the landlord, are the obligation of the tenant under the rental agreement and unpaid by the tenant;
(4) The payment of reasonable costs for the removal and storage of the tenant's personal property. The landlord may dispose of the stored personal property pursuant to the provisions of subdivisions (1) through (3), subsection (h), section three, article three-a, chapter fifty-five of this code; and
(5) To other damages or charges as provided in the rental agreement, including but not limited to, paying for the services of a third party contractor to repair damages to the property caused by the tenant.
(c) In the event that damages to the premises exceed the amount of the security deposit and require the services of a third party contractor, the landlord shall give written notice to the tenant, advising him or her of that fact, within the applicable notice period. If notice is given as prescribed in this subsection, the landlord shall have an additional fifteen day period to provide an itemization of the damages and the cost of repair.
(d) Nothing in this section shall be construed by a court of law or otherwise as entitling the tenant, upon the termination of the tenancy, to an immediate credit against the tenant's delinquent rent account in the amount of the security deposit.
(e) The holder of the landlord's interest in the premises at the time of the termination of the tenancy, regardless of how the interest is acquired or transferred, is bound by this section and shall be required to return any security deposit received by the original landlord that is duly owed to the tenant. The provisions of this subsection apply whether or not such security deposit is transferred with the landlord's interest by law or equity, and regardless of any contractual agreements between the original landlord and his or her successors in interest.
(f) If the tenant has any assignee or sublessee, the landlord shall be entitled to hold a security deposit from only one party in compliance with the provisions of this section.
(g) For the purposes of this section, the delivery to a tenant of a security deposit and/or any notice prescribed by this section, may be accomplished by either personal delivery to the tenant, or by mailing the deposit and/or notice to the tenant's last known address or forwarding address as provided by the tenant. It shall be the responsibility of the tenant to provide an accurate address to the landlord. If personal delivery is not reasonably possible and a deposit or notice mailed to the tenant at his or her last known address or forwarding address provided is returned as non- deliverable, then the landlord shall hold the deposit or notice for the period of six months, to be personally delivered to the tenant, or his or her authorized agent or attorney, at the landlord's place of business during normal business hours within seventy-two hours after a written request is received from the tenant.
§37-6A-3. Maintenance of records by landlord.
The landlord shall:
(1) Maintain and itemize records for each tenant of all deductions from security deposits provided under this article which the landlord has made by reason of a tenant's noncompliance with the rental agreement for one year after the termination of the tenancy; and
(2) Either permit a tenant or his or her authorized agent or attorney to inspect the tenant's records of deductions at any time during normal business hours within seventy-two hours of a written request, or at the landlord's option, provide a tenant or his or her authorized agent or attorney a copy of the tenant's record of deductions during normal business hours within seventy-two hours of a written request.
§37-6A-4. Prohibited provision in rental agreements.
A rental agreement may not contain a provision that the tenant agrees to waive or forego rights or remedies under this article. A provision prohibited by this section included in a rental agreement is unenforceable. If a landlord brings an action to enforce any of the prohibited provisions, the tenant may recover actual damages sustained by him or her and reasonable attorney's fees.
§37-6A-5. Landlord's noncompliance.
(a) If a landlord fails to comply with any of the provisions of this article, and such noncompliance is willful or not in good faith, the tenant is entitled to a judgment for:
(1) The amount of any unreturned security deposit; and
(2) Damages for annoyance or inconvenience resulting from the landlord's nonconformance equal to one and a half times the amount wrongfully withheld, unless the tenant owes rent to the landlord, in which case, the court shall order an amount equal to any amount awarded to the tenant pursuant to this subsection to be credited against any rent due to the landlord.
(b) Jurisdiction for any civil action brought pursuant to this article shall be in magistrate court or circuit court in the county where the residential rental premises or units are located.
(c) This section does not limit rights or remedies available to a landlord or tenant under any other law.
§37-6A-6. Application and effective date of this article.
(a) The provisions of this article shall apply to all residential rental premises or units used for dwelling purposes.
(b) The provisions of this article do not apply to agreements for the payment of security deposits entered into prior to the effective date of this article.
The bill (Eng. Com. Sub. for H. B. No. 3202), as amended, was then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 3202) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 3202) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 3202--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §37-6A-1, §37-6A-2, §37-6A-3, §37-6A-4, §37-6A-5 and §37-6A-6, all relating to residential rental security deposits; providing relevant definitions; providing for deduction from and returning of security deposits; maintaining records; prohibiting certain provisions in rental agreements; providing remedies upon landlord's noncompliance; setting forth application of article; and providing for security deposits prior to effective date of article.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 3225, Expanding the definition of harassment, intimidation or bullying.
On second reading, coming up in regular order, was read a second time.
At the request of Senator Palumbo , as chair of the Committee on the Judiciary , and by unanimous consent, the unreported Judiciary committee amendment to the bill was withdrawn.
On motion of Senator Plymale, the following amendments to the bill were reported by the Clerk, considered simultaneously, and adopted:
On page five, section three, line thirty, by striking out the word "and";
On page five, section three, line thirty-three, after the word "code", by changing the period to a semicolon and inserting the word "and";
And,
On page five, section three, after line thirty-three, by inserting a new subdivision, designated subdivision (11), to read as follows:
(11) A requirement that each county board shall input into the uniform integrated regional computer information system (commonly known as the West Virginia Education Information System) described in section twenty-six, article two of this chapter, and compile an annual report regarding the means of harassment, intimidation or bullying that have been reported to them, and the reasons therefor, if known. The West Virginia Department of Education shall compile the information and report it annually beginning July 1, 2012, to the Legislative Oversight Committee on Education Accountability.
The bill (Eng. Com. Sub. for H. B. No. 3225), as amended, was then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 3225) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Chafin and Tomblin (Mr. President)--2.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 3225) passed.
On motion of Senator Plymale, the following amendment to the title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 3225--A Bill to amend and reenact §18-2C-2 and §18-2C-3 of the Code of West Virginia, 1931, as amended, all relating to harassment, intimidation or bullying of students; expanding the definition of harassment, intimidation or bullying; expanding the areas where harassment, intimidation and bullying are prohibited to include school buses and school bus stops; requiring county board and West Virginia Department of Education policies regarding harassment, intimidation or bullying; and establishing reporting requirements.
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. 70, Budget Bill.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Eng. Com. Sub. for House Bill No. 2981, Clarifying payment for trade certifications and allowing use of tuition assistance for West Virginia National Guard members enrolled in a doctor of medicine or osteopathic medicine program.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
At the request of Senator Unger, and by unanimous consent, the Senate returned to the fourth order of business.
Senator Prezioso, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2161, Creating the Herbert Henderson Office of Minority Affairs.
And has amended same.
Now on second reading, having been read a first time and referred to the Committee on Finance on March 3, 2011;
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
Senator Plymale, from the Committee on Education, submitted the following report, which was received:
Your Committee on Education has had under consideration
Eng. House Bill No. 2164, Relating to public school support computation of local share.
And has amended same.
Eng. House Bill No. 3116, Relating to the authority of school curriculum teams and local school collaborative processes.
And has amended same.
And,
Eng. Com. Sub for House Bill No. 3171, Providing educators with the education and training necessary to ensure the safety of state schools.
And has amended same.
And reports the same back with the recommendation that they each do pass, as amended; but under the original double committee references first be referred to the Committee on Finance.
Respectfully submitted,
Robert H. Plymale,
Chair.
At the request of Senator Plymale, unanimous consent being granted, Engrossed House Bill No. 2164 and Engrossed Committee Substitute for House Bill No. 3171 contained in the preceding report from the Committee on Education were each taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee references, were then referred to the Committee on Finance, with amendments from the Education pending.
At the request of Senator Prezioso, as chair of the Committee on Finance, unanimous consent was granted to dispense with the second committee reference of Engrossed House Bill No. 3116 contained in the foregoing report from the Committee on Education.
At the request of Senator Plymale, and by unanimous consent, Engrossed House Bill No. 3116 was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Snyder, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Eng. Com. Sub. for House Bill No. 2512, Relating to pawnbrokers.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on the Judiciary.
Respectfully submitted,
Herb Snyder,
Chair.
At the request of Senator Snyder, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2512) contained in the preceding report from the Committee on Government Organization was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on the Judiciary, with an amendment from the Committee on Government Organization pending.
Senator Snyder, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Eng. Com. Sub. for House Bill No. 2513, Relating to the practice of pharmacy.
With amendments from the Committee on Health and Human Resources pending;
And has also amended same.
Now on second reading, having been read a first time and referred to the Committee on Government Organization on March 8, 2011;
And reports the same back with the recommendation that it do pass as last amended by the Committee on Government Organization.
Respectfully submitted,
Herb Snyder,
Chair.
Senator Prezioso, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2551, Relating generally to estates and trusts and their administration.
With amendments from the Committee on the Judiciary pending;
And has also amended same.
Now on second reading, having been read a first time and referred to the Committee on Finance on March 8, 2011;
And reports the same back with the recommendation that it do pass as amended by the Committee on the Judiciary to which the bill was first referred; and as last amended by the Committee on Finance.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2562, Relating to the State Athletic Commission.
With amendments from the Committee on Government Organization pending;
And has also amended same.
Now on second reading, having been read a first time and referred to the Committee on the Judiciary on March 3, 2011;
And reports the same back with the recommendation that it do pass as last amended by the Committee on the Judiciary.
Respectfully submitted,
Corey Palumbo,
Chair.
Senator Prezioso, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2693, Requiring insurance coverage for autism spectrum disorders.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
At the request of Senator Prezioso, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2693) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Prezioso, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2845, Creating a senior resident lifetime hunting, fishing and trapping license that will cost $25.
And has amended same.
Now on second reading, having been read a first time and referred to the Committee on Finance on March 3, 2011;
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
Senator Snyder, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Eng. Com. Sub. for House Bill No. 3021, Adding two new members to the Comprehensive Behavioral Health Commission.
And has amended same.
Now on second reading, having been read a first time and referred to the Committee on Government Organization on March 4, 2011;
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Herb Snyder,
Chair.
Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 3100, Permitting the sale of liquor on election day.
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,
Corey Palumbo,
Chair.
At the request of Senator Prezioso, 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 the Judiciary.
At the request of Senator Palumbo, and by unanimous consent, the bill (Eng. H. B. No. 3100) was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 3144, Creating a criminal offense and adding misdemeanor criminal penalties for picketing or disrupting funerals.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Corey Palumbo,
Chair.
At the request of Senator Palumbo, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 3144) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Snyder, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Eng. Com. Sub. for House Bill No. 3172, Including certain employees of the office of the West Virginia Alcohol Beverage Control Commissioner be included in the classified service.
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,
Herb Snyder,
Chair.
At the request of Senator Snyder, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 3172) contained in the preceding report from the Committee on Government Organization was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on Finance.
Senator Stollings, 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
House Concurrent Resolution No. 75, Urging the Governor of Florida and the Florida State Senate Legislature not to repeal Florida's prescription tracking system.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
Ron Stollings,
Chair.
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 Senator Plymale.
On motion of Senator Unger, a leave of absence for the day was granted Senator Tomblin (Mr. President).
Pending announcement of meetings of standing committees of the Senate, including the Committee on Rules,
On motion of Senator Unger, the Senate adjourned until tomorrow, Friday, March 11, 2011, at 11 a.m.
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