The Legislature concluded their business for the 60-day 2015 Regular Session at the stroke of midnight on Saturday, March 14th. The Legislature began their extended session to address the state’s budget on Monday, March 16th and concluded their work today.
For the record, 1,607 bills were introduced this session. Legislation was completed on a total of 261 bills (roughly 16% of the bills introduced) including - 135 Senate bills and 126 House bills. The Regular Session ended with 115 casualties that survived “crossover day” by passing the initial chamber in which they were introduced but ultimately did not pass both chambers. Ten percent of the completed legislation was either an appropriations or rules bill. For a complete listing of legislation passed this session, click here.
The OMEGA/WVWA team worked very hard this session to promote bills to help not only our industry but the entire business community of the state. The new leadership at the Legislature promoted a very transparent and professional operation that encouraged common sense legislation to improve our state. It was a refreshing change of pace from historically being on the defensive side of the lawmaking process for the majority of a session to actually playing offense with many seats at the table on a number of important pieces of legislation. There was a broad coalition behind a comprehensive number of bills aimed at improving the legal and business environments of West Virginia.
Similar to last year, our industry came under attack from members of the Eastern Panhandle delegation in the Senate with their attempt to exempt gasoline from the Unfair Trade Practices Act. There was also a late push during the session to increase the cigarette tax by a $1.00 through an amendment in the Legalizing and Regulating the Sale and Use of Fireworks bill.
We successfully protected our industry and in the process gained more supporters through our testimonies and our educational efforts. We continue to grow stronger and gain further support through each legislative session.
A success for us this session was SR 35 - Recognizing Robert Sincavich, Chairman of American Wholesale Marketers Association. Not only was this well-deserved for Rob, but it also showed the importance of our industry to West Virginia and to the entire United States.
WVWA Key Successes
Defeating $1 Tax Increase on Cigarettes & No New Taxes on Industry
There were no new taxes passed affecting our industry this session. As previously mentioned, there was a late push during the session to place a $1.00 per pack tax increase on cigarettes through a committee amendment in the Legalizing and Regulating the Sale and Use of Fireworks bill (HB 2646). Initially this amendment would have forced the $1.00 tax immediately in the first year, however; an additional amendment provided a two-year phase in of $.50 per year. We felt this was still unacceptable and pushed for a three-year phase in. Jan Vineyard worked very hard with Senate and House leadership to oppose this legislation. The tax increase would have provided funding for a veteran’s home in Beckley, a drug rehabilitation and treatment center in Charleston and the remaining funds would have gone into the state’s General Fund. Also placed in this bill was an amendment to lift smoking restrictions at the state’s casinos and race tracks. The bill ultimately passed the Senate but the tax increase did not make it through the House. There were nearly a dozen additional bills introduced through the session that would have increased the taxes on tobacco and alcohol products. We worked hard to make sure these bills did not gain momentum or gain consideration by major committees.
In addition to this legislation there were nearly a dozen other bills introduced (SB 98, SB 522, HB 2029, etc.) through the session that would have increased the taxes on tobacco and alcohol products. We worked hard to make sure these bills did not gain momentum or receive consideration by major committees.
Since 2002, 47 states, Washington DC and several U.S. territories have increased their cigarette tax rates more than 110 times. West Virginia’s cigarette tax has not been increased since 2003. The tax issue will definitely be one that will be the focus of next year’s session and we’ll be proactive
This year, Senators Snyder and Blair were again the lead sponsors and advocates for the bill that would have exempted gasoline from the Unfair Trade Practices Act. The bill passed through the Senate Transportation and Infrastructure Committee without much opposition due to both Senators lobbying the committee, of which neither is a member, to advance the bill. The bill then was advanced to the Senate Judiciary Committee. Senator Trump, chair of the Judiciary Committee, held the bill off his committee’s agenda until very late in the session. Once the bill was considered by the committee, Senator Carmichael made an amendment to the bill that would have eliminated all mandatory mark ups on all products, not just gasoline. Ultimately, the bill was defeated by a vote of seven for and eight against.
Those that voted for the bill were Chairman Trump (R - Morgan), Senator Carmichael (R - Jackson), Senator Snyder (D - Jefferson), Senator Romano (D - Harrison), Senator Karnes (R - Upshur), Senator Leonhardt (R - Monongalia) and Senator Maynard (R - Wayne). Those that voted against the bill were Senator Ferns (R - Ohio), Senator Kirkendoll (D - Logan), Senator Nohe (R - Wood), Senator D. Hall (R - Wyoming), Senator Palumbo (D - Kanawha), Senator Williams (D - Taylor), Senator Gaunch (R - Kanawha) and Senator Miller (D - Greenbrier). Senators Beach (D - Monongalia) and Woelfel (D - Cabell) were absent and did not vote.
Thanks again to all members who contacted their legislators in opposition to this bill and especially a big thank you goes out to Michael Graney with One Stop and Brian Waugh with Little General Store who testified in front of the Judiciary Committee and dedicated hours and hours of hard work on this issue. We have been notified that this use will once again be put in a study for interims. Senator Blair and the Government Organization Committee will most likely be the body of the study.
Other Industry Specific Legislation Passed
SB 60 - Requiring food handler examinations and cards. This bill allows a food handlers permit that would be permissible in all counties that require one but does not create any new requirements for obtaining a permit that don’t already exist. We worked hard early in the process to assure this bill would not impact the training that your local health department has already approved. The intention of the bill was solely to allow a permit given in one county to be accepted in another county. In fact, the House added the following to the legislation: The Bureau for Public Health shall develop minimum guidelines for training programs for individuals seeking a food handler permit or card that may be adopted by local county health departments. In lieu of state guidelines a local health department may use training courses developed by the American National Standards Institute or other nationally recognized entities for food safety training. It was introduced for a senator who has a food service that travels to fairs and festivals throughout the state.
SB 273 - Relating to brewer, resident brewer and brewpub licensing and operations. This bill clarifies licensing and operational requirements for brewers, resident brewers and brewpubs by: (1) permitting licensed brewers and resident brewers to conduct nonintoxicating beer sampling on their brewery premises within the State of West Virginia; (2) permitting a resident brewer to conduct growler sales for off-premises consumption from its brewery premises within the current resident brewer license for no additional expense, as is similarly permitted for distilleries, mini-distilleries, wineries and farm wineries (W. Va. Code §60-4-3); (3) having a sliding scale of licensure fees based on production volume and sales; (4) requiring production volume and sales reports to the commissioner; and (5) terminating the bond requirement for a brewpub license since the license may be suspended or revoked for failure to pay taxes. It does allow for the sale of growers at retail.
SB 574 - Relating to liquor sales by distilleries and mini-distilleries. This bill allows the sale of liquor product which is produced by the distillery or mini-distillery at an onsite “tasting room” and reduces the tax from 10% to 2% of product sold as such with a maximum tax of $15,000 per year. This bill also increases the volume in which a mini-distillery can produce from 20,000 to 50,000 gallons of product annually.
Legal Reform – Session Highlight
A significant number of tort reform legislation was passed this session in a bipartisan manner. This legislation was long overdue and greatly needed to improve the business and legal climate in our state. Major legislation that passed which will help foster in the greatly needed reforms are the open and obvious, joint and several and deliberate intent bills. Other legal reform legislation that passed that will also help negate burdensome litigation to individuals and the business community includes a revised Uniform Arbitration Act, creating an Asbestos Bankruptcy Trust Claims Transparency Act, placing caps on plaintiff punitive damages and limiting “front pay” in employment cases.
SB 6 - Relating to medical professional liability. This bill intends to control the increase in cost of liability insurance and maintain access to affordable health care services for West Virginians. It provides a mechanism to increase the limitation on civil damages in medical malpractice cases to account for inflation by linking increases to the Consumer Price Index (CPI). It also requires appellate courts to review de novo certain decisions made by circuit court judges; adds provisions limiting the admissibility and use of certain information; and requires adjustment of verdicts for past medical expenses.
SB 13 - Reinstating open and obvious doctrine for permises liability. This bill permanently reinstates the open and obvious doctrine for premises liability law, which has been the law of West Virginia for more than one hundred years, and overrules the decision of the Supreme Court of Appeals of West Virginia in the case of Hersh v. E-T Enterprises, Limited Partnership, 232 W.Va. 305, (November 12, 2013). The bill provides that a possessor of real property owes no duty of care to protect against dangers that are obvious, reasonably apparent, or as well known. This will help negate “jackpot justice” lawsuits from hurting among others, our small business owners, especially retailers. Senator Nohe of Wood County and Delegate Waxman were lead sponsors of this legislation.
General Business Successes
SB 12 - Relating to payment of separated employee’s outstanding wages. This bill relates to when final payment of wages to an employee is due. It defines that the payment is to be made the next scheduled pay period while providing exception for bonuses and fringe benefits. The bill also reduces amount of liquidated damages available for violation and providing an instance when liquidated damages are not available.
SB 318 - Relating to payment of wages by employers. This bill amends the current Wage Payment and Collection Act relating to the number of required pay periods in a month, requiring employers to pay employees at least twice every month instead of once every two weeks.
SB 323 - Relating to municipal home rule. This bill extends municipal home rule to all Class I, Class II, and Class III municipalities, and allows participation of Class IV municipalities. Last year the Legislature expanded the Home Rule Pilot Program from four to twenty cities. Participating cities have used the program to address abandoned homes, implement sales taxes and other fees. If a city has plans to implement new taxes they must lower their B&O taxes accordingly to their proposed increase. Home Rule cities would have to submit a plan for approval to the Home Rule Board, which would oversee the program, and once approved the cities would not have to gain permission for each change they do under the program. We made sure that this legislation would not allow municipalities to increase any fuel taxes. The pilot program began in 2007 and terminates in 2019.
SB 361 - Eliminating prevailing hourly wage requirement for construction of public improvements. The bill, in its original form, would have completely eliminated the prevailing wage law. The amendments to the original bill transfer the responsibility of calculating rates from the Department of Labor to WorkForce West Virginia and would exempt prevailing wages from public improvement projects that would cost under $500,000.
HB 2217 - Relating to qualifications of the Commission of Labor. This bill removed language stating that the commissioner of labor is to be identified with the labor interests of the State and replaced with requiring that the commissioner be identified with having knowledge and experience in employee issues and interests including employee-employer relations in this State.
HB 2233 - Requiring that legislative rules be reviewed five years after initial approval by the Legislative Rule-Making Review Committee and the Legislative Auditor’s Office. This bill requires that legislative rules be reviewed five years after initial approval by the Legislative Rule-Making Review Committee and the Legislative Auditor’s Office and to provide rule-making authority by that committee and auditor.
HB 2878 - Creating a one-step electronic business portal in West Virginia. This bill requires the Secretary of State to create a single electronic business portal that individuals and businesses can use to complete and file forms, pay taxes and fees and learn about the requirements for doing business in West Virginia. It also requires the Secretary of State to develop a call center to answer questions.