From the Well | February 7, 2024

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86th West Virginia Legislature

State Capitol

February 7, 2024

West Virginia News Headlines

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BAR AND RESTAURANT PERMITS: The House Government Organization Committee passed legislation to authorize a bar or restaurant’s private outdoor designated area (PODA) to simultaneously host multiple qualified permit holders.

PHYSICAL THERAPISTS: The House Government Organization Committee passed legislation that changes the makeup of the Board of Physical Therapy.

SUBSTANCE USE DISORDER: The House Committee on Prevention and Treatment of Substance Abuse passed two bills involving recovery from substance use.

CLARIFIED LANGUAGE: The House Judiciary Committee passed legislation to clarify phrases used in the section regarding controlled substances.

DEPUTY BENEFITS: House and Senate Committees passed separate bills that address benefits and other aspects of the retirement system for sheriff’s deputies.

BURGLARY LANGUAGE: The Senate Judiciary Committee passed legislation to restore language that was dropped when the Legislature amended the burglary statute during a previous session.

To modify the state auditing practices of the volunteer and part-volunteer fire departments

The bill eliminates the audit duty of the Legislative Auditor and places the responsibility with the state Auditor. There is a second reference to House Finance Committee.

Audits are to be conducted once every five years. Both the fire chief and treasurer are required to sign any sworn statements submitted to the state. The State Treasurer is authorized to withhold funding if those requirements are not met.

A pilot project of 10 departments selected by the state Auditor is to be established to evaluate the fire departments’ implementation of the State Auditor’s Checkbook accounting system.

Authorizing a private outdoor designated area to simultaneously host multiple qualified permit holders

Counsel said current law requires a bar or restaurant to cease using their PODA for the duration of the fair or festival when a bar’s or restaurant’s PODA overlaps with a fair or festival. The bar or restaurant can still serve alcoholic beverages in their facility.

The bill allows that fair or festival to be a part of the PODA.

The House Government Organization Committee removed the shared-liability language and provided for liability limited to the bar’s or restaurant’s own actions.

Delegate Carl Martin of Upshur County spoke against the bill, saying it will cause some problems when more than one alcohol licensee is in the same space.

Relating to adding an athletic trainer to the Board of Physical Therapy

To prohibit the distribution of smoking devices as part of a harm reduction program

HB4961

To create the Substance Abuse Recovery Tax Credit

House Bill 4667 prohibits the distribution of smoking devices as part of harm-reduction programs. The Committee amended the bill to define a smoking device according to Office of Health Facility Licensure & Certification.

House Bill 4961 creates a tax credit for employers who hire individuals who have participated in and completed a drug-court program. Members debated whether the bill gives an unfair advantage in hiring to those with criminal drug histories over other equally qualified applicants without such histories.

Supporters argued it would help address barriers to employment for those in recovery and help reduce recidivism.

Delegate Marty Gearheart of Mercer County raised concerns that it could disadvantage other applicants who don’t have a history of drug use.

The Committee voted to report the bill to the floor with a recommendation to pass it, but it first referred it to the Committee on Finance for review.

Relating to Uniform Controlled Substances Act 

The bill amends the code to provide clarifying phrases used in the section regarding controlled substances. Specifically, it defines what the term “engaged in the use of a controlled substance with another person” means. It also defines what “seek medical assistance” means.

Counsel explained that it defines “engaged in the illegal use of a controlled substance with another person” as meaning being in the physical presence of a person engaged in using an illegal controlled substance.

The amendment aimed to clarify the language in subsection B of the bill. Specifically, it sought to:

1.   Strike line 14 of the bill to remove the phrase “as used in this section” to make clear that definitions apply only to subsection B, not the entire section.

2.  Strike lines 17-18 of the bill to remove the phrase “or knowingly facilitating illegal drug abuse by the other person so engaged.” The sponsor argued that could capture people who were not physically present and did not have knowledge of the overdose.

3.  Reform the amendment to include striking line 14 in addition to lines 17-18 for greater clarity and that the definitions apply only to subsection B.

Deputy Sheriff Retirement System Act

HB5267

Relating to the Deputy Sheriff Retirement System

The Senate Pensions Committee adopted Senate Bill 609. The House Finance Committee adopted House Bill 5267, a companion measure.

SB609 and HB5267 make the following changes:

The surviving spouse of a DSRS member who dies due to injury, illness or disease resulting from occupational risks or hazards, including injury, illness or disease resulting from an occupational risk or hazard while engaged in the performance of his or her duties as a deputy sheriff would receive benefits in equal monthly installments in an amount equal to the greater of:

1.   Two-thirds of the annual compensation received by the deceased member during the last 12 full months of contributory service (currently preceding twelve-month period);

2.  “If the member dies after meeting early or normal retirement age requirements, the monthly amount which the spouse would have received had the member retired the day before his or her death and then died.” The provision is effective if the retirant elected a 100% joint and survivor annuity with the spouse as the joint annuitant.

According to Committee Counsels, the provisions allow the surviving spouse’s retirement benefit to be calculated on a full 12 months rather than pro-rated.

In any case where a member who has been a contributing member for at least 10 years dies prior to retirement from any cause as specified in law (duties pertaining to service) and not due to “vicious habits, intemperance, or willful misconduct on his or her part,” the CPRB will pay equal monthly payments annually to the surviving spouse during his or her lifetime, a sum equal to the greater of:

·    One-half of the annual compensation received by the deceased member during the last 12 full months of contributory service; or

·    “If the member dies after meeting early or normal retirement age requirements, the monthly amount which the spouse would have received had the member retired the day before his or her death and then died.” The provision is effective if the retirant elected a 100 percent joint and survivor annuity with the spouse as the joint annuitant.

Any member who retired under early retirement and is subsequently re-employed in covered employment and who again retires shall have his or her retirement annuity recalculated as if he or she were retiring at an age calculated by adding his or her original early retirement age to the number of years and months during which he or she was re-employed and contributing to the plan. In the event the artificially determined age, as determined in accordance with the preceding sentence, exceeds 60, the board shall not make any reduction for early retirement.

The Committee also approved similar bills relating to the Municipal Police Officers and Firefighters Retirement System, Emergency Medical Services Retirement System, and Natural Resources Police Officers Retirement System.

According to House Finance Counsel, the Consolidated Public Employment Retirement Board (CPRB) recommended the bills for passage. The purpose of the bills, according to Counsel, is to codify existing CPRB practice so all retirement system have similar provisions through eliminating conflicting provisions of code.

House Finance Counsel also explained the measures, if adopted as Committee Substitutes, included non-substantive, technical changes.

Bills have second references to the respective Senate and House Finance Committees.

Clarifying definition of burglary offense

The restored language clarifies the property has to belong to “another.”

Counsel explained that even if a person holds title to the property and he or she is banned by court order from the property, such as in a divorce action, that would be the property of another and fall under the burglary statute.

Senator Mark Hunt of Kanawha County asked about a landlord entering a property. Counsel said a person’s lease gives him or her tenancy. If the landlord broke in and committed burglary, it would fall under the statute because it would involve the property of another.

35th Day: February 13, 2024 — Last day to introduce bills in the House. House Rule 91a does not apply to originating or supplementary appropriation bills, and does not apply to Senate or House resolutions or concurrent resolutions

41st Day: February 19, 2024 — Last day to introduce bills in the Senate. Senate Rule 14 does not apply to originating or supplementary appropriation bills and does not apply to Senate or House resolutions or concurrent resolutions

47th Day: February 25, 2024 — Bills due out of committees in house of origin to ensure three full days for readings

50th Day: February 28, 2024 — Last day to consider bill on third reading in house of origin; does not include budget or supplementary appropriation bills

60th Day: March 9, 2024 — Adjournment at midnight