Journal of the House

First Regular Session, 93rd General Assembly

FIFTY-NINTH DAY, Wednesday, April 20, 2005

The House met pursuant to adjournment.

            Speaker Jetton in the Chair.

            Prayer by Reverend James Earl Jackson.

              Heavenly Father, we come into Your presence with thanksgiving; we make a joyful sound to You with songs of admiration throughout the day!

              We do not forget Your wonderful actions done on our behalf: When we were burdened with worries, You comforted us and made us feel secure. In times of trouble, You were there, picking us up when life knocked us down.

              You, LORD God, are our fortress, that mighty rock where we are safe.

              Today, we ask that You fill us with the true knowledge of Your will in all wisdom and spiritual insight, that we might conduct ourselves in a manner You find worthy, to please You in all things, being effective in every good work and increasing in that same true knowledge that only originates from You.

              Grace be with us all.

              In the name of Your Son we pray. Amen.

            The Pledge of Allegiance to the flag was recited.

            The Speaker appointed the following to act as Honorary Pages for the Day, to serve without compensation: Preston Dever Stevenson, Curtis Andrew Keal, Jordan Witcig, Joshua Witcig, Jonah Witcig, Cassie Ireland, Kaci Silvey and Dusty Taylor.

            The Journal of the fifty-eighth day was approved as printed.

SPECIAL RECOGNITION

            Dr. Frank Nickell of Cape Girardeau was introduced by Representative Cooper (158) and recognized as an Outstanding Missourian.

            Dr. John Keiser of Springfield was introduced by Representative Wright (137) and recognized as an Outstanding Missourian.

            Miss Teen Missouri, Rachel Woolard of Naylor, was introduced by Representative Dethrow.

            Miss Woolard addressed the House.

            The University of Missouri-Kansas City Kangaroo Basketball Team was introduced by Representative Hughes and recognized for their performance in the 2004-2005 season.

            The West Plains High School Boys and Girls Cross Country Teams were introduced by Representative Franz and recognized for attaining the 2004 Class 3-A State Championships.

            The Clopton Lady Hawks Basketball Team was introduced by Representative Witte and recognized for attaining the 2004 Class 2-A State Basketball Championship.

            Speaker Pro Tem Bearden assumed the Chair.

HOUSE COURTESY RESOLUTIONS OFFERED AND ISSUED

            House Resolution No. 2349

                        through

            House Resolution No. 2357 - Representative Whorton

            House Resolution No. 2358 - Representative Nance

            House Resolution No. 2359 - Representative Roark

            House Resolution No. 2360 - Representative Lager

            House Resolution No. 2361 - Representative Sander

PERFECTION OF HOUSE BILL

            HCS HB 697, relating to motor vehicle emissions, was taken up by Representative Lembke.

            Representative Portwood offered House Amendment No. 1.

House Amendment No. 1

AMEND House Committee Substitute for House Bill No. 697, Page 9, Section B, Lines 1 and 2, by deleting all of said lines and inserting in lieu thereof the following:

              “Section B. The provisions of sections 1, 307.366, 643.315, and 643.335 of section A shall terminate January 1, 2006.”; and

              Further amend said bill by amending the title, enacting clause, and intersectional references accordingly.

            Representative Portwood moved that House Amendment No. 1 be adopted.

            Which motion was defeated by the following vote:

            Representative Byrd assumed the Chair.

            Representative Hobbs offered House Amendment No. 2.

House Amendment No. 2

AMEND House Committee Substitute for House Bill No. 697, Page 2, Section 307.366, Lines 17 through 19, by deleting all of said lines and inserting in lieu thereof the following:

              “(1) Motor vehicles with a manufacturer’s gross vehicle weight rating in excess of eight thousand five hundred pounds;

              (2) Motor vehicles within the first four years of the specific model year for such motor vehicle;”; and

              Further amend said section by renumbering the subsection accordingly; and

              Further amend said section and page, Line 41, by removing the opening bracket “[“ and on Line 44, by removing the closing bracket “]”; and 

              Further amend said bill by amending the title, enacting clause, and intersectional references accordingly.

            Representative Selby offered House Amendment No. 1 to House Amendment No. 2.

House Amendment No. 1

to

House Amendment No. 2

AMEND House Amendment No. 2 to House Committee Substitute for House Bill No. 697, Page 1, Line 5, by deleting the word “four” and inserting in lieu thereof the following:

              “ten”; and

              Further amend said bill by amending the title, enacting clause, and intersectional references accordingly.

            HCS HB 697, with House Amendment No. 1 to House Amendment No. 2 and House Amendment No. 2, pending, was laid over.

            On motion of Representative Dempsey, the House recessed until 2:00 p.m.

AFTERNOON SESSION

            The hour of recess having expired, the House was called to order by Speaker Jetton.

HOUSE COURTESY RESOLUTIONS OFFERED AND ISSUED

            House Resolution No. 2362 - Representative Deeken

            House Resolution No. 2363 - Representatives Guest and Jolly

            House Resolution No. 2364 - Representative Fraser

            House Resolution No. 2365 - Representative Wells

            House Resolution No. 2366

                        through

            House Resolution No. 2379 - Representative LeVota

            House Resolution No. 2380 - Representative Lipke

PERFECTION OF HOUSE BILLS

            HCS HB 863, relating to tax incentives for economic development, was taken up by Representative Wasson.

            Representative Wasson offered House Amendment No. 1.

House Amendment No. 1

AMEND House Committee Substitute for House Bill No. 863, Section 99.1082, Page 1, Line 4, by deleting the words “economic activity” and inserting in lieu thereof the words "local sales tax revenue”; and

              Further amend said page, Line 5, by deleting the words “taxes”; and

              Further amend said bill, Section 99.1086, Page 7, Line 21, by inserting immediately after the word “area” the following:

              “. The department of economic development shall have the discretion to exempt smaller projects from this requirement”; and

              Further amend said bill by amending the title, enacting clause, and intersectional references accordingly.

            On motion of Representative Wasson, House Amendment No. 1 was adopted.

            Representative Witte offered House Amendment No. 2.

House Amendment No. 2

AMEND House Committee Substitute for House Bill No. 863, Section 99.1082, Page 4, Line 85, by deleting the word “one” and inserting in lieu thereof the words “ten thousand”; and 

              Further amend said line, by inserting after the semi-colon “;” the word “or”; and

              Further amend said line, by inserting after all of said line the following:

              “(d) At least two hundred fifty thousand dollars for a project area within a city having a population of one to nine thousand nine hundred and ninety nine inhabitants.”; and

              Further amend said bill by amending the title, enacting clause, and intersectional references accordingly.

            On motion of Representative Witte, House Amendment No. 2 was adopted.

            On motion of Representative Wasson, HCS HB 863, as amended, was adopted.

            On motion of Representative Wasson, HCS HB 863, as amended, was ordered perfected and printed.

            HCS HB 866, relating to insurance fraud, was taken up by Representative Wilson (130).

            Representative Shoemyer offered House Amendment No. 1.

House Amendment No. 1

AMEND House Committee Substitute for House Bill No. 866, Section 375.146, Page 2, Line 6, by inserting after the first occurrence of the word, “to” the following word, “twice”; and

              Further amend said bill by amending the title, enacting clause, and intersectional references accordingly.

            Representative Lipke offered House Substitute Amendment No. 1 for House Amendment No. 1.

House Substitute Amendment No. 1

for

House Amendment No. 1

AMEND House Committee Substitute for House Bill No. 866, Section 375.146, Page 1, Line 5, by deleting after the word, “court” the word, “shall” and inserting in lieu thereof the word, “may”; and

              Further amend said section, Page 2, Line 6, by inserting after the first occurrence of the word, “to” the following word, “twice”; and

              Further amend said bill by amending the title, enacting clause, and intersectional references accordingly.

            On motion of Representative Lipke, House Substitute Amendment No. 1 for House Amendment No. 1 was adopted.

            Representative Zweifel offered House Amendment No. 2.

            Representative Stevenson raised a point of order that House Amendment No. 2 is drafted as a substitute and goes beyond the scope of the underlying bill.

            The Chair ruled the point of order well taken.

            On motion of Representative Wilson (130), HCS HB 866, as amended, was adopted.

            On motion of Representative Wilson (130), HCS HB 866, as amended, was ordered perfected and printed.

            HCS HB 498, relating to auto theft, was taken up by Representative Kratky.

            Representative Wasson assumed the Chair.

            On motion of Representative Kratky, HCS HB 498 was adopted.

            On motion of Representative Kratky, HCS HB 498 was ordered perfected and printed.

            HCS HB 640, relating to unsolicited commercial e-mail, was taken up by Representative Pearce.

            Speaker Pro Tem Bearden resumed the Chair.

            Representative Wildberger offered House Amendment No. 1.

            Representative Roark raised a point of order that House Amendment No. 1 goes beyond the scope of the title of the bill.

            The Chair ruled the point of order well taken.

            On motion of Representative Pearce, HCS HB 640 was adopted.

            On motion of Representative Pearce, HCS HB 640 was ordered perfected and printed.

            HB 291, relating to state water patrol funding, was taken up by Representative Cooper (155).

            Representative Wasson resumed the Chair.

            Representative Cooper (155) offered House Amendment No. 1.

House Amendment No. 1

AMEND House Bill No. 291, Section 306.185, Page 4, Line 6, by deleting the word “personal” and inserting in lieu thereof the word “personnel”; and

              Further amend said bill by amending the title, enacting clause, and intersectional references accordingly.

            On motion of Representative Cooper (155), House Amendment No. 1 was adopted.

            HB 291, as amended, was laid over.

            HB 116, relating to rights of persons with service dogs, was taken up by Representative Deeken.

            Speaker Pro Tem Bearden resumed the Chair.

            Representative Cunningham (86) offered House Amendment No. 1.

            Representative Myers raised a point of order that House Amendment No. 1 goes beyond the scope of the bill.

            The Chair ruled the point of order well taken.

            Representative Fraser offered House Amendment No. 2.

            Representative Myers raised a point of order that House Amendment No. 2 goes beyond the scope of the bill.

            The Chair ruled the point of order well taken.

            Representative Behnen assumed the Chair.

            Speaker Pro Tem Bearden resumed the Chair.

            On motion of Representative Deeken, HB 116 was ordered perfected and printed.

            HB 832, relating to restrictive covenants, was taken up by Representative Sanders Brooks.

            On motion of Representative Sanders Brooks, HB 832 was ordered perfected and printed.

            HB 196, relating to statute of limitations for arson, was taken up by Representative Wildberger.

            Representative Wildberger offered House Amendment No. 1.

House Amendment No. 1

AMEND House Bill No. 196, Page 2, Section 556.036, Line 40, by inserting after said line the following:

              “569.040. 1. A person commits the crime of arson in the first degree when he knowingly damages a building or inhabitable structure, and when any person is then present or in near proximity thereto, by starting a fire or causing an explosion and thereby recklessly places such person in danger of death or serious physical injury[.], or

              2. A person commits the crime of arson in the first degree when he commits or attempts to commit a felony, and in the perpetration or attempted perpetration of such felony, damages a building or inhabitable structure, and when any person is then present or in near proximity thereto, by causing a fire or an explosion and thereby places such person in danger of death or serious physical injury.

              [2.] 3. Arson in the first degree is a class B felony unless a person has suffered serious physical injury or has died as a result of the fire or explosion set by the defendant in which case arson in the first degree is a class A felony.

              569.050. 1. A person commits the crime of arson in the second degree when he knowingly damages a building or inhabitable structure by starting a fire or causing an explosion[.], or

              2. A person commits the crime of arson in the second degree when he commits or attempts to commit a felony, and in the perpetration or attempted perpetration of such felony, damages a building or inhabitable structure by causing a fire or an explosion.

              [2.] 3. A person does not commit a crime under subsection 1 of this section if:

              (1) No person other than himself has a possessory, proprietary or security interest in the damaged building, or if other persons have those interests, all of them consented to his conduct; and

              (2) His sole purpose was to destroy or damage the building for a lawful and proper purpose.

              [3.] 4. The defendant shall have the burden of injecting the issue under subsection 2 of this section.

              [4.] 5. Arson in the second degree is a class C felony unless a person has suffered serious physical injury or has died as a result of the fire or explosion set by the defendant in which case arson in the second degree is a class B felony.”; and

              Further amend said bill by amending the title, enacting clause, and intersectional references accordingly.

            On motion of Representative Wildberger, House Amendment No. 1 was adopted.

            On motion of Representative Wildberger, HB 196, as amended, was ordered perfected and printed.

THIRD READING OF HOUSE BILL

            HCS HB 209, relating to business license tax, was taken up by Representative Cooper (120).

            On motion of Representative Cooper (120), HCS HB 209 was read the third time and passed by the following vote:

            Speaker Pro Tem Bearden declared the bill passed.

            On motion of Representative Goodman, the House recessed until 8:30 p.m.

EVENING SESSION

            The hour of recess having expired, the House was called to order by Speaker Pro Tem Bearden.

HOUSE COURTESY RESOLUTIONS OFFERED AND ISSUED

            House Resolution No. 2381 - Representative Brown (50)

            House Resolution No. 2382 - Representative Robb

PERFECTION OF HOUSE BILL

            HCS HB 824, relating to air contamination regulations, was taken up by Representative Hobbs.

            Representative Hobbs offered House Amendment No. 1.

House Amendment No. 1

AMEND House Committee Substitute for House Bill No. 824, Sections 444.765 and 444.766, by deleting all of said sections and inserting in lieu of the following:

              “444.765. Wherever used or referred to in sections 444.760 to 444.790, unless a different meaning clearly appears from the context, the following terms mean:

              (1) "Affected land", the pit area or area from which overburden shall have been removed, or upon which overburden has been deposited after September 28, 1971. When mining is conducted underground, affected land means any excavation or removal of overburden required to create access to mine openings, except that areas of disturbance encompassed by the actual underground openings for air shafts, portals, adits and haul roads in addition to disturbances within fifty feet of any openings for haul roads, portals or adits shall not be considered affected land. Sites which exceed the excluded areas by more than one acre for underground mining operations shall obtain a permit for the total extent of affected lands with no exclusions as required under sections 444.760 to 444.790;

              (2) "Beneficiation", the dressing or processing of minerals for the purpose of regulating the size of the desired product, removing unwanted constituents, and improving the quality or purity of a desired product;

              (3) "Commercial purpose", the purpose of extracting minerals for their value in sales to other persons or for incorporation into a product;

              (4) "Commission", the land reclamation commission in the department of natural resources;

              (5) "Construction", construction, erection, alteration, maintenance, or repair of any facility including but not limited to any building, structure, highway, road, bridge, viaduct, water or sewer line, pipeline or utility line, and demolition, excavation, land clearance, and moving of minerals or fill dirt in connection therewith;

              [(3)] (6) "Director", the staff director of the land reclamation commission;

              (7) "Excavation", any operation in which earth, minerals, or other material in or on the ground is moved, removed, or otherwise displaced for purposes of construction at the site of excavation, by means of any tools, equipment, or explosives and includes, but is not limited to, backfilling, grading, trenching, digging, ditching, drilling, well-drilling, auguring, boring, tunneling, scraping, cable or pipe plowing, plowing-in, pulling-in, ripping, driving, demolition of structures, and the use of high-velocity air to disintegrate and suction to remove earth and other materials. For purposes of this section, excavation or removal of overburden for purposes of mining for a commercial purpose or for purposes of reclamation of land subjected to surface mining is not included in this definition. Neither shall excavations of sand and gravel by political subdivisions using their own personnel and equipment or private individuals for personal use be included in this definition;

              (8) "Fill dirt", material removed from its natural location through mining or construction activity, which is a mixture of unconsolidated earthy material, which may include some minerals, and which is used to fill, raise, or level the surface of the ground at the site of disposition, which may be at the site it was removed or on other property, and which is not processed to extract mineral components of the mixture. Backfill material for use in completing reclamation is not included in this definition;

              (9) "Land improvement", work performed by or for a public or private owner or lessor of real property for purposes of improving the suitability of the property for construction at an undetermined future date, where specific plans for construction do not currently exist;

              [(4)] (10) "Mineral", a constituent of the earth in a solid state which, when extracted from the earth, is usable in its natural form or is capable of conversion into a usable form as a chemical, an energy source, or raw material for manufacturing or construction material. For the purposes of this section, this definition includes barite, tar sands, and oil shales, but does not include iron, lead, zinc, gold, silver, coal, surface or subsurface water, fill dirt, natural oil or gas together with other chemicals recovered therewith;

              (11) "Mining", the removal of overburden and extraction of underlying minerals or the extraction of minerals from exposed natural deposits for a commercial purpose, as defined by this section;

              [(5)] (12) "Operator", any person, firm or corporation engaged in and controlling a surface mining operation;

              [(6)] (13) "Overburden", all of the earth and other materials which lie above natural deposits of minerals; and also means such earth and other materials disturbed from their natural state in the process of surface mining other than what is defined in subdivision [(4)] (10) of this section;

              [(7)] (14) "Peak", a projecting point of overburden created in the surface mining process;

              [(8)] (15) "Pit", the place where minerals are being or have been mined by surface mining;

              (16) "Public entity", the state or any officer, official, authority, board, or commission of the state and any county, city, or other political subdivision of the state, or any institution supported in whole or in part by public funds;

              [(9)] (17) "Refuse", all waste material directly connected with the cleaning and preparation of substance mined by surface mining;

              [(10)] (18) "Ridge", a lengthened elevation of overburden created in the surface mining process;

              [(11)] (19) "Site" or "mining site", any location or group of associated locations where minerals are being surface mined by the same operator;

              [(12)] (20) "Surface mining", the mining of minerals for commercial purposes by removing the overburden lying above natural deposits thereof, and mining directly from the natural deposits thereby exposed, and shall include mining of exposed natural deposits of such minerals over which no overburden lies and, after August 28, 1990, the surface effects of underground mining operations for such minerals. For purposes of the provisions of sections 444.760 to 444.790, surface mining shall not include excavations to move minerals or fill dirt within the confines of the real property where excavation occurs or to remove minerals or fill dirt from the real property in preparation for construction at the site of excavation. No excavation of fill dirt shall be deemed surface mining regardless of the site of disposition or whether construction occurs at the site of excavation.

              444.766. No provision of sections 447.760 to 444.790 shall apply to the excavation of minerals or fill dirt for the purposes of construction or land improvement as unrelated to the mining of minerals for a commercial purpose or reclamation of land subsequent to the surface mining of minerals.

              1. No permit is required under sections 444.760 to 444.790 for the purpose of moving minerals or fill dirt within the confines of real property where excavation occurs, or for purposes of removing minerals or fill dirt from the real property as provided in this section.

              (1). Excavations for construction pursuant to engineering plans and specifications prepared by an architect, professional engineer, or landscape architect licensed pursuant to chapter 327, RSMo, or any excavation for construction performed under a written contract that requires excavation of minerals or fill dirt and establishes dates for completion of work and specifies the terms of payment for work, shall be presumed to be for the purposes of construction and shall not require a permit for surface mining.

              (2). Excavations for purposes of land improvement where minerals removed from the site are excess minerals that cannot be used on-site for any practical purpose and at no time are subjected to crushing, screening, or other means of benefication with the exception of removal of tree limbs and stumps, shall be presumed to be for the purposes of land improvement and shall not require a permit for surface mining, provided that:

              (a) The site has not been designated as a surface mine by the federal Mine Safety and Health Administration;

              (b) Minerals from the property are not used for commercial purposes on a frequent or on-going basis; and

              (c) A pit, peak, or ridge does not persist at the site as inconsistent with the purposes of land improvement.

              (3). Permits shall not be required for the excavation of fill dirt, regardless of the site of disposition or whether construction occurs at the site of excavation.

              2. (1) If the director or his or her designee determines that a surface mining permit is required for real property which is purported to be for purposes of construction or land improvement not requiring a surface mining permit under this section, such determination shall be sent in writing to the owner of the property by certified mail stating the reasons for such determination. Upon request of the person receiving the letter, an informal conference shall be scheduled with the director within fifteen calendar days to discuss the determination. Following the informal conference, the director shall issue a written determination regarding his or her findings of fact no later than thirty calendar days after the date of the conference. If the director agrees that a surface mining permit is required and the person disagrees with that decision, the person may make a written request for a hearing before the commission at its next regular meeting. Such written request shall be filed within thirty calendar days after receipt of the director's written determination, except when the thirtieth day would be later than the date of the next regularly scheduled commission meeting, the written request shall be filed at least seven days prior to the commission meeting unless the director and the person filing the request mutually agree to place the matter on the commission's agenda for a later meeting. The commission shall issue a written determination as to whether a surface mining permit is required under this state's law within thirty calendar days after the hearing. The written determination may be appealed as provided under this chapter.

              (2) Until a final written determination has been issued under the process established under subdivision (1) of this subsection, the person receiving a letter stating the reasons a mining permit is required may continue activity at the site in dispute. The commission may stay the director’s determination. If the final written determination is that a permit is required, all fees otherwise provided by statute or rules of the commission shall apply. If the determination is that no permit is required, no permit fees shall be required by the director or the commission.

              (3) The process set out in this subsection for determining whether a mining permit is required shall not be subject to the hearing requirements of section 444.789."; and

              Further amend said bill by amending the title, enacting clause, and intersectional references accordingly.

            On motion of Representative Hobbs, House Amendment No. 1 was adopted.

            On motion of Representative Hobbs, HCS HB 824, as amended, was adopted.

            On motion of Representative Hobbs, HCS HB 824, as amended, was ordered perfected and printed.

THIRD READING OF HOUSE BILLS

            HCS HB 525, relating to ethics, was taken up by Representative May.

            On motion of Representative May, HCS HB 525 was read the third time and passed by the following vote:

            Speaker Pro Tem Bearden declared the bill passed.

            HB 530, relating to American Sign Language, was taken up by Representative Moore.

            On motion of Representative Moore, HB 530 was read the third time and passed by the following vote:

            Speaker Pro Tem Bearden declared the bill passed.

            HB 320, relating to lapse of school districts, was taken up by Representative Muschany.

            On motion of Representative Muschany, HB 320 was read the third time and passed by the following vote:

            Speaker Pro Tem Bearden declared the bill passed.

            HCS HB 440, relating to university governing boards, was taken up by Representative Pratt.

            On motion of Representative Pratt, HCS HB 440 was read the third time and passed by the following vote:

            Speaker Pro Tem Bearden declared the bill passed.

            HCS HB 286, relating to the Emancipation Day Commission, was taken up by Representative Bland.

            On motion of Representative Bland, HCS HB 286 was read the third time and passed by the following vote:

            Speaker Pro Tem Bearden declared the bill passed.

            HB 417, relating to uninsured motorists, was taken up by Representative Yates.

            On motion of Representative Yates, HB 417 was read the third time and passed by the following vote: