The OMEGA 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.
Legal Reform
A significant number of tort reform and business friendly 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 passed which will help foster in the greatly needed reforms includes:
- “Open & Obvious" doctrine for property liability
- Property owners liability for trespasser's harm
- "Comparative Fault" liability for degree of fault
- Punitive damages in civil actions
- Revised Uniform Arbitration Act
- Clarifying damages in employment claims(front & back pay)
- Clarifying "Deliberate Intent" law
- Relating to medical professional liability
- Requiring Justices & Judges to be elected non-partisan
- Creating "one-stop" shop for small businesses
- Payment of separated employee's outstanding wages
- Payment of wages by employers time frame
- Changing calculation of "Prevailing Wage"
(A more detailed summary with links to each bill is included later in the this legislative summary)
OMEGA Key Successes
Amending Aboveground Storage Tank Act of 2014 (SB 423)
We worked extremely hard with a coalition of industry stakeholders, the leadership of the Department of Environmental Protection, as well as members and staff in both chambers of the Legislature to pass the much needed reform of the 2014 AST Act. Key elements to this legislation are:
- Focuses on aboveground storage tanks in critical zones that would most likely impact drinking water in the event of an incident or containment failure.
- Requires registration of ALL tanks and allows the DEP to maintain a comprehensive inventory of tank location and contents.
- Expands protection by having not only a critical zone of concern but also a zone of peripheral concern to further protect water sources.
- Provides tank owners two options: comply with AST Act or amend standards by the Secretary of the DEP into existing permits or plans, thus if the tank is regulated under SPCC, GPP, Stormwater permit or under NFPA 30 and NFPA 30A, etc., those will be your allowed regulations with the modification to prove tank integrity and secondary containment.
Elements specific to our industry:
- A tank has to be in place 365 days before it becomes a regulated tank – this should get rid of ALL of our field/temporary tanks. This is a major win for us and the DEP estimates that this will take approximately 10,000 tanks out of the regulations completely including the registration fee of $40.
- We were able to eliminate petroleum from the definition of a Level 1 tank. So none of our tanks, unless over 50,000 gallons, will be considered. Again – another major win for our industry!
- Tanks considered Level 2, have less stringent regulations than Level 1.
- If a tank owner can supply the DEP documentation to show they are governed under another set of regulations, the DEP will deem that that regulation covers your tanks and you will not have further regulation under the AST law. This will include no additional fees as well.
- Level 2 tank owners will be able to do their own inspections. Owners can certify the inspections.
- The definition for the “first point of isolation” was changed to: “value, pump, dispenser or other device or equipment on or nearest to the tank where the flow of fluids into or out of the tank is shut off manually or where it automatically shuts off in the event of a pipe or tank failure.” This should help our bulk plant members.
Keep in mind that rules will need to be developed. OMEGA will work closely with other industry stakeholders and the DEP on these rules. We will advise members of these developed rules as we go along.
Defeating Exemption of Gasoline from Unfair Trade Practices Act (SB 123)
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.
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. 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 in minimizing the negative impact to our industry.
SB 417 – Removing certain tax discounts from motor fuel excise tax. This bill would have eliminated the three fourths of one percent discount currently allowed to permissive suppliers and suppliers to licensed distributors which we commonly refer to as the “RACK” tax. The allowance that we’ve had since 2004 amounts to roughly $1.5 million a year. We clearly expressed our opposition to this bill upon its introduction and quickly garnered assurances from Senator Mike Hall, Chairman of the Senate Finance committee, that he would not bring this bill up for consideration by his committee.
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 170 - Authorizing Bureau of Commerce promulgate legislative rules. This rule bill contains the fee increase relating to weights and measures calibration fees (Originally SB 158). This rule provides a modest raise in the fees. The current fees have been in place since 2005. Due to the substantial costs involved in maintaining the Lab’s aging physical plant, replacing aging equipment and staffing, the Division of Labor requested the modest fee increase.
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.
HB 2008 - Auditing the Division of Highways.This bill requires the Division of Highways perform a performance and efficiency audit in their respective regions later this year.
HB 2625 - Continuing the current hazardous waste management fee.This bill continues the current hazardous waste management fee until 2020.
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.
Legal Reform – Session Highlight
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.
HB 2002 - Predicating actions for damages upon principles of comparative fault.Better known as the “joint and several” bill, it provides the fairest way for juries to allocate liability among the parties based on the percentage of their fault. Liability for tortious action should be based on fault above all else and this bill provides for that. West Virginia was an outlier among bordering states as the current judicial system allows for a joint distribution of liability among all defendants in a suit regardless of their share of fault. This way unfairly penalized individuals and small businesses who may have had very little responsibility for damages or injury by forcing them to pay for liability that does not belong to them. This legislation provides for “several” instead of “joint” liability so a defendant is only responsible for the compensatory damage allocated to them in direct proportion of their percentage of fault. Delegate Wagner and Senators Gaunch and Carmichael were lead sponsors of this legislation.
HB 2011 - Relating to disbursements from the Worker’s Compensation Fund where an injury is self-inflicted or intentionally caused by the employer. This bill isbetter known as the “deliberate intent” bill. As currently defined, deliberate intent damages the state’s business climate and the passage of this bill will be significant step in negating that negative business climate and bring West Virginia’s workplace liability law in line with most other states. The bill imposes a narrower and more stringent requirement upon deliberate intent litigation, and overrules case law from the West Virginia Supreme Court of Appeals, McComas v. ACF Industries, that currently stands for the proposition that an employer may not use lack of actual knowledge as a defense to a deliberate intent action when the employer willfully ignores an unsafe working condition or safety regulation requirement to prevent actual knowledge from occurring. Passage of this bill will help relieve some litigation burdens on our business and industrial communities. Delegate Hanshaw and Senator Gaunch were lead sponsors of this legislation.
SB 37 - Creating Revised Uniform Arbitration Act.This bill revises West Virginia’s Arbitration Act which currently provides no significant guidance to parties engaged in the process of arbitrating disputes. Creating uniform arbitration is an efficient and cost effective way of resolving disputes. The bill provides uniform rules, terms and processes for arbitration that are in line with eighteen other states that adopted uniform arbitration rules. Senator Palumbo was the lead sponsor of this legislation.
SB 315 - Relating to civil actions filed under Consumer Protection Act.This bill amends legislation relating to civil actions filed under the Consumer Protection Act; provides a statement of legislative intent that courts be guided by federal court and agency interpretations of similar federal statutes; clarifies who may bring private cause of action; establishes requirement of out-of-pocket loss proximately caused by alleged violation in actions for damages; and provides right to demand a jury trial.
SB 344 - Relating to duty to mitigate damages in employment claims. This bill was also known as the “front and back pay” bill. It provides framework for adequate and reasonable compensation to those persons who have been subjected to an unlawful employment action, but ensures that compensation does not far exceed the goal of making a wronged employee whole. West Virginia was the sole outlier that allowed a flat front pay award with no caps and in turn put West Virginia’s employers at an unfair competitive disadvantage. The rationale for limits of front pay, like back pay, is that it should make a plaintiff whole, but not give the employee a windfall to relieve them from having to work again. Senator Trump was the lead sponsor of this legislation.
SB 411 - Creating Asbestos Bankruptcy Trust Claims Transparency Act and Asbestos and Silica Claims Priorities Act.This bill creates the Asbestos Bankruptcy Trust Claims Transparency Act and Asbestos and Silica Claims Priorities Act which establishes procedures for the handling of asbestos and silica litigation and enhances the ability of the judicial system to manage such litigation while enhancing the solvency of those trusts. Senator Takubo was the lead sponsor of this legislation.
SB 421 - Relating to punitive damages in civil actions.This bill clarifies when punitive damages may be awarded in civil actions, and limits the amount of punitive damages that may be awarded to four times compensatory damages or $500,000, whichever is greater. Senator Trump was the lead sponsor of this legislation.
SB 578 - Relating to occupational disease claims. This bill relates to authorization of compromise and settlement of occupational disease claims; permitting final settlement of medical benefits for non-orthopedic occupational disease claims; and requiring claimant be represented by legal counsel in these claims.
HB 2010 - Requiring the election of justices of the West Virginia Supreme Court of Appeals, circuit court judges, family court judges and magistrates be nonpartisan and by division.This bill provides for the nonpartisan election of judges and requires that elections of justices to the Supreme Court of Appeals, circuit court judges, family court judges and magistrates be nonpartisan and by division. This bill was one piece of legal reform legislation that received the strongest bipartisan support. The bill passed the Senate by an overwhelming 33-1 vote and the House by a 90-9 vote. Delegate Kessinger and Senator Trump were lead sponsors of this legislation.
HB 2726 - Clarifying choice of laws issues in product’s liability actions.This bill provides that public policy of this state is, in determining the law applicable to a product liability claim brought by a nonresident of this state against the manufacturer or distributor of a prescription drug or other product, all liability claims at issue shall be governed solely by the product liability law of the place of injury.
Thanks to OMEGA Members
For those of you who got involved in the process, attended our Legislative Day, made phone calls or sent letters to your delegates and senators, we would like to thank you on behalf of our industry. Your voice does make a difference!
Congratulations
Senate President Bill Cole,House Speaker Tim Armstead,
Governor Earl Ray Tomblinand Members of the 82nd Legislature!
The 2015 Legislative Session will go down in history as one of the most impactful in recent memory for the passage of meaningful and holistic legal reform measures and initiatives to keep state government fiscally responsible.
Thank you for a truly productive legislative session!
Representing:
