South Carolina Senate Journal June 7, 2001 - South Carolina Legislature Online

South Carolina General Assembly
114th Session, 2001-2002
Journal of the Senate

Printed Page 2680 . . . . . Thursday, June 7, 2001

Thursday, June 7, 2001
(Statewide Session)

~~Indicates Matter Stricken~~
Indicates New Matter

The Senate assembled at 11:00 A.M., the hour to which it stood adjourned, and was called to order by the PRESIDENT.

A quorum being present, the proceedings were opened with a devotion by the Chaplain as follows:

Beloved, St. Paul wrote to the Romans, Chapter 14:12:

"Yes, each of us will give an account of himself to God."
Let us pray.

Our Father, we have come to the time when we must deal with You.

As this session winds down, we lay before Your bar our record of stewardship. We beseech Your mercy and not Your justice.

We pray for each other!

We look forward to the time when we shall face other challenges.

We remember that we prayed at the beginning of the Session:

"Thy Kingdom come! Thy Will be done!"

So let it be!
Amen.

CORRECTION TO THE JOURNAL

The following was inadvertently omitted from the Journal of Wednesday, June 6, 2001:

HOUSE BILL RETURNED

The following House Bill was read the third time and ordered returned to the House with amendments:

H. 3272 (Word version) -- Reps. Neilson, Jennings, Cato, Riser, Altman, Askins, Bales, Barfield, Barrett, Bingham, J. Brown, Chellis, Coates, Davenport, Delleney, Easterday, Edge, Emory, Freeman, Gilham, Gourdine, Harrison, Harvin, Hayes, J. Hines, Hosey, Littlejohn, Lloyd, Lucas, McCraw, McGee, J.M. Neal, Owens, Phillips, Scarborough, Scott, F.N. Smith, J.R. Smith, Stuart, Taylor, Vaughn, Webb, Weeks, White, Witherspoon and Simrill: A BILL TO AMEND CHAPTER 3, TITLE 56, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO MOTOR VEHICLE REGISTRATION AND LICENSING, BY ADDING ARTICLE 87 SO AS TO PROVIDE FOR THE ISSUANCE OF NASCAR SPECIAL LICENSE PLATES, AND

Printed Page 2681 . . . . . Thursday, June 7, 2001

PROVIDE FOR THE DISTRIBUTION OF FEES COLLECTED FOR THESE SPECIAL LICENSE PLATES.

On motion of Senator FAIR, with unanimous consent

The PRESIDENT called for Petitions, Memorials, Presentments of Grand Juries and such like papers.

MESSAGE FROM THE GOVERNOR

The following appointments were transmitted by the Honorable James H. Hodges:

Local Appointments

Reappointment, Charleston Naval Facilities Redevelopment Authority, with term to commence April 24, 2001, and to expire April 24, 2005

North Charleston

Eugene R. Ott, 1224 Park Place North, North Charleston, S.C. 29406

Initial Appointment, Richland County Magistrate, with term to commence April 30, 1999, and to expire April 30, 2003

Philip F. Newsom, 9890 Windsor Lake Blvd., Columbia, S.C. 29302

Initial Appointment, Spartanburg County Magistrate, with term to commence April 30, 1999, and to expire April 30, 2003

Nancy Collins Atkins, 4661 Cannons Campground Road, Spartanburg, S.C. 29307

Initial Appointment, Spartanburg County Magistrate, with term to commence April 30, 1999, and to expire April 30, 2003

F. Douglas Caton, 400 Connecticut Ave., Spartanburg, S.C. 29302

Initial Appointment, Spartanburg County Magistrate, with term to commence April 30, 1999, and to expire April 30, 2003

John Marshall Rollins, Jr., Post Office Box 56, Campobello, S.C. 29322

MESSAGE FROM THE GOVERNOR
STATE OF SOUTH CAROLINA
OFFICE OF THE GOVERNOR

June 6, 2001
Mr. President and Members of the Senate:

Printed Page 2682 . . . . . Thursday, June 7, 2001

I respectfully request withdrawal from your consideration the appointment listed below:

Withdrawal of Statewide Appointment

Initial Appointment, State Ethics Commission, with term commencing June 30, 2001 and expiring June 30, 2006:

Mr. John Samuel West, 1 Riverwood Dr., Moncks Corner, S.C. 29461

Respectfully,
James H. Hodges

Appointment Withdrawn

On motion of Senator McCONNELL, the Senate acceded to the Governor's request and the Clerk was directed to return the appointment to the Governor.

Point of Quorum

At 11:06 A.M., Senator DRUMMOND made the point that a quorum was not present. It was ascertained that a quorum was not present.

Call of the Senate

Senator DRUMMOND moved that a Call of the Senate be made. The following Senators answered the Call:

Alexander                 Anderson                  Bauer
Courson                   Drummond                  Elliott
Fair                      Ford                      Giese
Glover                    Gregory                   Grooms
Hawkins                   Hayes                     Holland
Hutto                     Jackson                   Land
Leatherman                Leventis                  Martin
Matthews                  McConnell                 McGill
Mescher                   Moore                     O'Dell
Passailaigue              Patterson                 Peeler
Pinckney                  Rankin                    Ravenel
Reese                     Richardson                Ritchie
Ryberg                    Saleeby                   Setzler
Short                     Smith, J. Verne           Thomas
Verdin                    Waldrep                   Wilson

A quorum being present, the Senate resumed.

Printed Page 2683 . . . . . Thursday, June 7, 2001

Motion Adopted

On motion of Senator DRUMMOND, with unanimous consent, Senators LEATHERMAN, PEELER and SETZLER were granted leave to attend a meeting of the Committee of Conference on H. 3687, the General Appropriation Bill, and be counted in any quorum calls.

Recorded Presence

Senator BRANTON recorded his presence subsequent to the Call of the Senate.

INTRODUCTION OF BILLS AND RESOLUTIONS

The following were introduced:

S. 747 (Word version) -- Senator Peeler: A SENATE RESOLUTION TO COMMEND MR. TOMMY MARTIN OF GAFFNEY FOR HIS OUTSTANDING CONTRIBUTION TO THE LIFE AND TIMES OF THE PEOPLE OF GAFFNEY AND CHEROKEE COUNTY IN FOUNDING THE CHEROKEE CHRONICLE, TO CONGRATULATE MR. MARTIN, THE CHEROKEE CHRONICLE, AND ITS TALENTED EMPLOYEES FOR TEN SUCCESSFUL YEARS OF REPORTING THE LOCAL NEWS, AND TO WISH THEM INCREASING SUCCESS IN ALL OF THEIR FUTURE ENDEAVORS.
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The Senate Resolution was adopted.

S. 748 (Word version) -- Senator J. Verne Smith: A SENATE RESOLUTION TO HONOR AND EXTEND THE SINCERE CONGRATULATIONS OF THE MEMBERS OF THE SOUTH CAROLINA SENATE TO ONE OF THE PALMETTO STATE'S MOST PROMINENT AND RESPECTED LEADERS, M. LEE POWELL III OF GREENVILLE, SOUTH CAROLINA, UPON BEING NAMED THE 2000 RECIPIENT OF THE AMERICAN CONCRETE PAVEMENT ASSOCIATION'S HARTMANN-HIRSCHMAN AWARD.
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The Senate Resolution was adopted.

S. 749 (Word version) -- Senator Hawkins: A CONCURRENT RESOLUTION DESIGNATING FOOTHILLS BBQ JAMBOREE AND ITS BBQ COOKOFF CONTEST IN SPARTANBURG COUNTY AS "THE

Printed Page 2684 . . . . . Thursday, June 7, 2001

KANSAS CITY BARBEQUE SOCIETY (KCBS) STATE OF SOUTH CAROLINA CHAMPIONSHIP BARBEQUE".
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Introduced and referred to the General Committee.

S. 749--Recalled and Adopted

S. 749 (Word version) -- Senator Hawkins: A CONCURRENT RESOLUTION DESIGNATING FOOTHILLS BBQ JAMBOREE AND ITS BBQ COOKOFF CONTEST IN SPARTANBURG COUNTY AS "THE KANSAS CITY BARBEQUE SOCIETY (KCBS) STATE OF SOUTH CAROLINA CHAMPIONSHIP BARBEQUE".

Senator HAWKINS asked unanimous consent to make a motion to recall the Concurrent Resolution from the General Committee.

There was no objection.

The Concurrent Resolution was recalled, adopted, ordered sent to the House.

S. 750 (Word version) -- Senators Wilson and Thomas: A JOINT RESOLUTION TO ESTABLISH A PILOT PROGRAM UNDER WHICH PARTICIPATING LOCAL SCHOOL DISTRICTS PLACE ALL STUDENTS WHO ARE ON SHORT-TERM OUT-OF-SCHOOL SUSPENSION IN ALTERNATIVE LEARNING PROGRAMS.
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Read the first time and referred to the Committee on Education.

S. 751 (Word version) -- Senators Wilson, Thomas, Gregory and Hayes: A BILL TO AMEND SECTION 8-11-83, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PAYROLL DEDUCTION FOR MEMBERSHIP DUES OF VARIOUS ASSOCIATIONS OF ACTIVE AND RETIRED STATE EMPLOYEES AND THE RULES AND CONDITIONS APPLICABLE FOR ORGANIZATIONS ACCORDED THIS TREATMENT, SO AS TO ALLOW SUCH DEDUCTIONS FOR MEMBERS.
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Read the first time and referred to the Committee on Finance.

S. 752 (Word version) -- Senators Leatherman, Richardson, Reese, Alexander, Branton, McGill, Wilson and Gregory: A BILL TO AMEND SECTION 15-3-640, CODE OF LAWS OF SOUTH CAROLINA,

Printed Page 2685 . . . . . Thursday, June 7, 2001

1976, RELATING TO LEGAL ACTIONS BASED UPON A DEFECTIVE OR UNSAFE CONDITION OF AN IMPROVEMENT TO REAL PROPERTY, SO AS TO ESTABLISH AN OUTSIDE LIMITATION OF SIX YEARS AFTER SUBSTANTIAL COMPLETION OF THE IMPROVEMENT FOR BRINGING THE ACTION.
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Read the first time and referred to the Committee on Judiciary.

S. 753 (Word version) -- Senator Fair: A BILL TO AMEND SECTION 44-7-110, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE CITATION TO ARTICLE 3, CHAPTER 7, TITLE 44, ENTITLED "STATE CERTIFICATION OF NEED AND HEALTH FACILITY LICENSURE ACT", SO AS TO REVISE THE ARTICLE NAME; TO AMEND SECTION 44-7-120, AS AMENDED, RELATING TO THE PURPOSE OF THIS ARTICLE, SO AS TO REVISE THE PURPOSE TO INCLUDE CARRYING OUT THE STATE'S HEALTH PLANNING EFFORT AND TO DELETE THE PROVISION RELATING TO DEVELOPING PROCEDURES FOR THE APPLICATION AND REVIEW PROCESS FOR CERTIFICATES OF NEED; TO AMEND SECTION 44-7-130, AS AMENDED, RELATING TO DEFINITIONS USED IN THIS ARTICLE, SO AS TO REVISE CERTAIN DEFINITIONS AND TO DELETE OTHERS; TO AMEND SECTION 44-7-150, AS AMENDED, RELATING TO DUTIES OF THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL IN CARRYING OUT THE PURPOSES OF THIS ARTICLE, SO AS TO INCLUDE DATA COLLECTION; TO AMEND SECTION 44-7-160, AS AMENDED, RELATING TO CIRCUMSTANCES UNDER WHICH A CERTIFICATE OF NEED IS REQUIRED, SO AS TO REVISE THESE CIRCUMSTANCES; TO AMEND SECTION 44-7-170, AS AMENDED, RELATING TO EXEMPTIONS FROM THE ARTICLE, SO AS TO REVISE THE EXEMPTIONS; TO AMEND SECTION 44-7-180, AS AMENDED, RELATING TO THE HEALTH PLANNING COMMITTEE AND THE STATE HEALTH PLAN, SO AS TO REVISE THE CONTENTS OF THE PLAN AND TO REQUIRE THAT THE DEPARTMENT BE NOTIFIED WHEN A PERSON PROPOSES TO OFFER HEALTH SERVICES FOR WHICH UTILIZATION DATA ARE MAINTAINED IN THE STATE HEALTH PLAN; TO AMEND SECTION 44-7-190 RELATING TO PROJECT REVIEW CRITERIA FOR USE IN DETERMINING THE

Printed Page 2686 . . . . . Thursday, June 7, 2001

NEED FOR HEALTH CARE FACILITIES, BEDS, SERVICES, AND EQUIPMENT, SO AS TO SPECIFICALLY DEFINE THE EQUIPMENT REQUIRING USE OF THIS CRITERIA IN DETERMINING THE NEED FOR THE EQUIPMENT; TO AMEND SECTION 44-7-200, AS AMENDED, RELATING TO THE CERTIFICATE OF NEED APPLICATION, SO AS TO MAKE TECHNICAL CORRECTIONS; TO AMEND SECTION 44-7-210, AS AMENDED, RELATING TO PROCEDURES FOR COMPLETION OF CERTIFICATE OF NEED APPLICATIONS AND FOR APPEALS OF STAFF DECISIONS, SO AS TO CLARIFY THESE PROCEDURES TO REVISE THE DATE INDICATING WHEN CERTAIN METHADONE TREATMENT FACILITIES DO NOT HAVE TO OBTAIN A CERTIFICATE OF NEED; TO AMEND SECTION 44-7-220, AS AMENDED, RELATING TO JUDICIAL REVIEW OF A FINAL BOARD DECISION, SO AS TO MAKE A TECHNICAL CORRECTION; TO AMEND SECTION 44-7-230, AS AMENDED, RELATING TO LIMITATIONS ON A CERTIFICATE OF NEED, SO AS TO PROVIDE PENALTIES WHEN IMPLEMENTATION OF A PROJECT OR THE OPERATION OF A FACILITY IS NOT IN ACCORDANCE WITH CERTAIN REQUIREMENTS; TO AMEND SECTION 44-69-75, AS AMENDED, RELATING TO HOME HEALTH AGENCIES REQUIRING A CERTIFICATE OF NEED, SO AS TO DELETE THE PROVISION EXEMPTING HOME HEALTH AGENCIES FROM THE CERTIFICATE OF NEED IF THE AGENCY PROVIDED HOME HEALTH SERVICES BEFORE JULY 1, 1980; TO REQUIRE THE DEPARTMENT TO CONDUCT A STUDY BEFORE JULY 1, 2003, OF OTHER STATES THAT HAVE REPEALED THEIR CERTIFICATE OF NEED PROGRAMS; AND TO REPEAL SECTION 44-7-185 RELATING TO A TASK FORCE TO STUDY OPEN HEART SURGERY AND THERAPEUTIC CARDIAC CATHETERIZATION SERVICES AND SECTION 44-7-240 RELATING TO FACILITIES CONSTRUCTION PROGRAM.
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Read the first time and referred to the Committee on Medical Affairs.

S. 754 (Word version) -- Senator Branton: A BILL TO AMEND SECTIONS 23-3-400, 23-3-430, 23-3-440, 23-3-460, 23-3-480, 23-3-490, ALL AS AMENDED, AND SECTIONS 23-3-510, 23-3-520, AND 23-3-530 OF THE CODE OF LAWS OF SOUTH CAROLINA, 1976, ALL

Printed Page 2687 . . . . . Thursday, June 7, 2001

RELATING, AMONG OTHER THINGS, TO THE SEX OFFENDER REGISTRY, REQUIREMENTS AND PROCEDURES FOR REGISTRATION, AND RELEASE OF INFORMATION FROM THE REGISTRY, SO AS TO CHANGE THE REGISTRY TO A SEX AND VIOLENT MENTALLY ILL OFFENDER REGISTRY, TO REQUIRE OFFENDERS FOUND GUILTY BUT MENTALLY ILL OR NOT GUILTY BY REASON OF INSANITY FOR COMMISSION OF VIOLENT CRIME WHO ARE COMMITTED TO THE DEPARTMENT OF MENTAL HEALTH TO REGISTER UPON RELEASE AND TO APPLY THE PROVISIONS OF ARTICLE 7, CHAPTER 3, TITLE 23, SEX OFFENDER REGISTRY" TO THESE VIOLENT MENTALLY ILL OFFENDERS; AND TO CHANGE THE TITLE OF ARTICLE 7, CHAPTER 3, TITLE 23 TO "SEX AND VIOLENT MENTALLY ILL OFFENDER REGISTRY".
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Read the first time and referred to the Committee on Judiciary.

S. 755 (Word version) -- Senator Wilson: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 16-13-135 SO AS TO PROVIDE FOR THE OFFENSES OF AND PENALTIES FOR DISTRIBUTION OF A THEFT DETECTION SHIELDING DEVICE, UNLAWFUL POSSESSION OF A THEFT DETECTION SHIELDING DEVICE, UNLAWFUL POSSESSION OF A THEFT DETECTION DEVICE DEACTIVATOR OR REMOVER, UNLAWFUL DISTRIBUTION OF A THEFT DEVICE DEACTIVATOR OR REMOVER, UNLAWFUL DEACTIVATION OR REMOVAL OF A THEFT DETECTION DEVICE, AND TO ALLOW AN OWNER, OPERATOR, OR EMPLOYEE OF A MERCANTILE ESTABLISHMENT TO DETAIN A PERSON WHO UNLAWFULLY ACTIVATES A THEFT DETECTION DEVICE UNDER CERTAIN CIRCUMSTANCES; TO AMEND SECTION 16-13-105, RELATING TO DEFINITIONS RELATING TO THE CRIME OF SHOPLIFTING, SO AS TO PROVIDE A DEFINITION FOR "CRIMINAL EPISODE", "THEFT DETECTION DEVICE", AND "UNIVERSAL PRODUCT CODE"; TO AMEND SECTION 16-13-110, AS AMENDED, RELATING TO SHOPLIFTING, SO AS TO REVISE THE CIRCUMSTANCES FOR WHICH A PERSON IS GUILTY OF SHOPLIFTING TO INCLUDE ALTERING, TRANSFERRING, OR REMOVING A UNIVERSAL PRODUCT CODE AFFIXED TO ANY MERCHANDISE, AND POSSESSING, USING, UTTERING, MAKING, ALTERING, COUNTERFEITING,

Printed Page 2688 . . . . . Thursday, June 7, 2001

OR REPRODUCING A UNIVERSAL PRODUCT CODE LABEL WITH THE INTENT TO CHEAT OR DEFRAUD A RETAILER, TO PROVIDE THAT A PERSON COMMITS A FELONY IF THE MERCHANDISE HE SHOPLIFTS COMES FROM THREE MERCANTILE ESTABLISHMENTS DURING A CRIMINAL EPISODE, OR IF HE POSSESSES AT LEAST FIFTEEN FRAUDULENT RETAIL SALES RECEIPTS, UNIVERSAL PRODUCT CODE LABELS, OR A DEVICE WITH INTENT TO MANUFACTURE FRAUDULENT RETAIL SALES RECEIPTS OR UNIVERSAL PRODUCT CODE LABELS UNDER CERTAIN CIRCUMSTANCES, AND TO PROVIDE THAT A PERSON COMMITS A MISDEMEANOR IF HE USES, UTTERS, TRANSFERS, MAKES, COUNTERFEITS, OR REPRODUCES A UNIVERSAL PRODUCT CODE LABEL UNDER CERTAIN CIRCUMSTANCES.
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Read the first time and referred to the Committee on Judiciary.

S. 756 (Word version) -- Senators Wilson and Hayes: A BILL TO AMEND SECTION 56-3-3710, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE ISSUANCE OF SPECIAL LICENSE PLATES WITH COLLEGE OR UNIVERSITY EMBLEMS, SO AS TO PROVIDE FOR THE ISSUANCE OF SPECIAL LICENSE PLATES THAT CONTAIN THE EMBLEMS OF THE UNITED STATES' SERVICE ACADEMIES.
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Read the first time and referred to the Committee on Transportation.

H. 3993 (Word version) -- Reps. Wilkins, Harrell, J.R. Smith and Kelley: A BILL TO AMEND SECTION 4-12-30, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO QUALIFICATIONS OF CERTAIN INDUCEMENT LEASE AGREEMENTS IN CONNECTION WITH PROPERTY QUALIFYING FOR A FEE IN LIEU OF PROPERTY TAXES, SO AS TO PROVIDE GUIDELINES FOR THE QUALIFICATION OF A SPONSOR AND SPONSOR AFFILIATE FOR THE FOUR PERCENT FEE AND TO PROVIDE FOR THE TIME PERIODS FOR EXECUTION OF THE MILLAGE RATE AGREEMENT AND FOR COMPUTATION OF THE APPLICABLE CUMULATIVE PROPERTY TAX MILLAGE, AND TO PROVIDE FOR ALTERNATIVE DETERMINATION OF THE MILLAGE RATE; TO AMEND SECTION 4-29-10, AS AMENDED,

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RELATING TO DEFINITIONS FOR PURPOSES OF INDUSTRIAL DEVELOPMENT PROJECTS REQUIRING A FEE IN LIEU OF PROPERTY TAXES, SO AS TO DEFINE CERTAIN TYPES OF INVESTORS; TO AMEND SECTION 4-29-67, AS AMENDED, RELATING TO INDUSTRIAL DEVELOPMENT PROJECTS REQUIRING A FEE IN LIEU OF PROPERTY TAXES, SO AS TO PROVIDE FOR INVESTORS AND INVESTOR AFFILIATES, TO PROVIDE GUIDELINES FOR THEIR QUALIFICATION FOR THE FOUR PERCENT FEE, TO PROVIDE FOR TIME PERIODS FOR EXECUTING THE MILLAGE RATE AGREEMENT AND FOR COMPUTATION OF THE APPLICABLE CUMULATIVE PROPERTY TAX MILLAGE, TO PROVIDE FOR ALTERNATIVE DETERMINATION OF THE MILLAGE RATE, AND TO MAKE NUMEROUS TECHNICAL CHANGES; AND TO AMEND SECTION 12-44-50, RELATING TO THE ESTABLISHMENT OF THE MILLAGE RATE FOR PURPOSES OF DETERMINING THE FEE PURSUANT TO THE FEE IN LIEU OF TAX SIMPLIFICATION ACT, SO AS TO PROVIDE FOR GUIDELINES FOR INVESTORS AND INVESTOR AFFILIATES AND THEIR QUALIFICATION FOR THE FOUR PERCENT FEE, TO PROVIDE FOR TIME PERIODS FOR EXECUTING THE MILLAGE RATE AGREEMENT AND FOR COMPUTATION OF THE APPLICABLE CUMULATIVE PROPERTY TAX MILLAGE, TO PROVIDE FOR ALTERNATIVE DETERMINATION OF THE MILLAGE RATE, AND TO MAKE NUMEROUS TECHNICAL CHANGES.

Read the first time and referred to the Committee on Finance.

H. 4078 (Word version) -- Reps. Tripp and Cooper: A CONCURRENT RESOLUTION TO REQUEST THE DEPARTMENT OF TRANSPORTATION TO NAME THE PORTION OF UNITED STATES HIGHWAY 25 IN GREENVILLE COUNTY THAT RUNS SOUTHWARD BETWEEN THE TOWN LIMITS OF WARE PLACE AND THE GREENVILLE-LAURENS COUNTY LINE, THE "CHARLES AIKEN HIGHWAY", AND TO INSTALL APPROPRIATE MARKERS OR SIGNS CONTAINING THE WORDS "CHARLES AIKEN HIGHWAY".

The Concurrent Resolution was adopted, ordered returned to the House.

H. 4263 (Word version) -- Rep. Knotts: A CONCURRENT RESOLUTION TO CONGRATULATE AND COMMEND JOEL EDWARD (EDDIE)

Printed Page 2690 . . . . . Thursday, June 7, 2001

TURNER OF GASTON, THE LEXINGTON COUNTY FIRE CHIEF FOR THE SOUTH CONGAREE AND GASTON STATIONS, FOR THE EXCELLENT JOB HE HAS DONE DURING HIS TENURE AS THE PRESIDENT OF THE SOUTH CAROLINA STATE FIREMEN'S ASSOCIATION AND TO WISH HIM ALL THE BEST IN FUTURE SERVICE-RELATED ENDEAVORS.

The Concurrent Resolution was adopted, ordered returned to the House.

H. 4269 (Word version) -- Reps. Freeman and Lucas: A CONCURRENT RESOLUTION TO RECOGNIZE AND COMMEND MRS. DANNELLA V. HILLIAN OF CHESTERFIELD COUNTY FOR HER MANY YEARS OF UNSELFISH PUBLIC SERVICE AND HER CONTRIBUTIONS TO THE 4-H YOUTH AND HOME ECONOMICS PROGRAMS AND TO WISH HER EVERY HAPPINESS AND GOOD FORTUNE IN HER RETIREMENT.

The Concurrent Resolution was adopted, ordered returned to the House.

H. 4270 (Word version) -- Reps. Haskins and Townsend: A CONCURRENT RESOLUTION TO REQUEST THE DEPARTMENT OF EDUCATION TO NOTIFY SCHOOL DISTRICTS WHEN FEDERAL FUNDING IS AVAILABLE UNDER THE CHILDREN'S INTERNET PROTECTION ACT AND TO URGE SCHOOL DISTRICTS TO APPLY FOR FUNDING THAT WILL BE AVAILABLE UNDER THE CHILDREN'S INTERNET PROTECTION ACT TO IMPLEMENT INTERNET SAFETY POLICY.

The Concurrent Resolution was adopted, ordered returned to the House.

H. 4275 (Word version) -- Reps. Freeman and Lucas: A CONCURRENT RESOLUTION TO RECOGNIZE MR. SAMUEL D. BASS, JR., OF CHESTERFIELD COUNTY FOR HIS MANY YEARS OF UNSELFISH PUBLIC SERVICE AND HIS CONTRIBUTIONS TO THE 4-H YOUTH AND AGRICULTURE PROGRAMS AND TO WISH HIM EVERY HAPPINESS AND GOOD FORTUNE IN HIS RETIREMENT.

The Concurrent Resolution was adopted, ordered returned to the House.

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H. 4280 (Word version) -- Reps. White, Cooper, Martin, Thompson and Townsend: A CONCURRENT RESOLUTION TO CONGRATULATE KEVIN L. BRYANT OF ANDERSON, THE OUTGOING CHAIRMAN OF THE ANDERSON COUNTY REPUBLICAN PARTY, FOR HIS DISTINGUISHED PUBLIC SERVICE IN BUILDING THE REPUBLICAN PARTY IN ANDERSON COUNTY.

The Concurrent Resolution was adopted, ordered returned to the House.

H. 4281 (Word version) -- Reps. Miller and Snow: A CONCURRENT RESOLUTION TO RECOGNIZE MR. SAMUEL B. HUDSON, SR., FOR HIS OUTSTANDING CONTRIBUTIONS AND MANY YEARS OF DEVOTED PUBLIC SERVICE AND TO HONOR HIM ON THE OCCASION OF HIS EIGHTIETH BIRTHDAY, JUNE 11, 2001.

The Concurrent Resolution was adopted, ordered returned to the House.

H. 4282 (Word version) -- Reps. Wilkins and Harrison: A CONCURRENT RESOLUTION TO EXPRESS THE SINCERE GRATITUDE OF THE MEMBERS OF THE GENERAL ASSEMBLY TO SUSAN "SUE" OLSON MCNAMEE FOR HER YEARS OF DEDICATED SERVICE TO THE SOUTH CAROLINA GENERAL ASSEMBLY, AS COUNSEL TO THE HOUSE JUDICIARY COMMITTEE AND AS STAFF ATTORNEY WITH THE LEGISLATIVE COUNCIL, AND TO WISH HER GODSPEED AND BEST WISHES IN ALL HER FUTURE ENDEAVORS AS SHE JOINS HER HUSBAND, JIM, IN MARYLAND.

The Concurrent Resolution was adopted, returned to the House.

H. 4289 (Word version) -- Rep. Chellis: A CONCURRENT RESOLUTION TO COMMEND AND CONGRATULATE COLONEL GERALD MUSSELMAN OF DORCHESTER COUNTY FOR HIS SERVICE AND COMMITMENT TO THE UNITED STATES AIR FORCE FROM 1964 TO 1986 AND WISH HIM MUCH HAPPINESS AND GOOD FORTUNE UPON HIS RETIREMENT FROM THE DORCHESTER COUNTY VETERANS AFFAIRS OFFICE.

The Concurrent Resolution was adopted, ordered returned to the House.

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Message from the House

Columbia, S.C., June 6, 2001

Mr. President and Senators:

The House respectfully informs your Honorable Body that it has adopted the Report of the Committee of Conference on:
H. 3288 (Word version) -- Reps. Cato, Edge and White: A BILL TO AMEND CHAPTER 29, TITLE 40, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE BUSINESS OF MANUFACTURED HOUSING, SO AS TO CONFORM THE CHAPTER TO THE STATUTORY ORGANIZATIONAL FRAMEWORK OF CHAPTER 1, TITLE 40 FOR BOARDS UNDER THE ADMINISTRATION OF THE DEPARTMENT OF LABOR, LICENSING AND REGULATION AND TO FURTHER PROVIDE FOR THE LICENSURE AND REGULATION OF THE SOUTH CAROLINA MANUFACTURED HOUSING BOARD.
Very respectfully,
Speaker of the House

Received as information.

H. 3288--REPORT OF THE
COMMITTEE OF CONFERENCE ADOPTED

H. 3288 (Word version) -- Reps. Cato, Edge and White: A BILL TO AMEND CHAPTER 29, TITLE 40, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE BUSINESS OF MANUFACTURED HOUSING, SO AS TO CONFORM THE CHAPTER TO THE STATUTORY ORGANIZATIONAL FRAMEWORK OF CHAPTER 1, TITLE 40 FOR BOARDS UNDER THE ADMINISTRATION OF THE DEPARTMENT OF LABOR, LICENSING AND REGULATION AND TO FURTHER PROVIDE FOR THE LICENSURE AND REGULATION OF THE SOUTH CAROLINA MANUFACTURED HOUSING BOARD.

On motion of Senator ALEXANDER, with unanimous consent, the Report of the Committee of Conference was taken up for immediate consideration.

Senator ALEXANDER spoke on the report.

On motion of Senator ALEXANDER, the Report of the Committee of Conference to H. 3288 was adopted as follows:

Printed Page 2693 . . . . . Thursday, June 7, 2001

H. 3288--Conference Report

The General Assembly, Columbia, S.C., June 5, 2001

The COMMITTEE OF CONFERENCE, to whom was referred:

Beg leave to report that they have duly and carefully considered the same and recommend:

That the same do pass with the following amendment:

Amend the bill, as and if amended, by striking all after the enacting words and inserting:

/ SECTION 1. Chapter 29, Title 40 of the 1976 Code is amended to read:

"CHAPTER 29

Uniform Standards Code for Manufactured Housing

~~Section 40-29-10.~~ ~~This chapter may be cited as the "Uniform Standards Code for Manufactured Housing Act".~~

~~Section 40-29-20.~~ ~~(1) "Authorized official" means a person acting on behalf of a manufactured home retail dealer.~~

~~(2) "Board" means the South Carolina Manufactured Housing Board.~~

~~(3) "Construction and Safety Standards Act" means Federal Manufactured Housing Construction and Safety Standards Act of 1974.~~

~~(4) "Consumer" means a person who in good faith purchases a manufactured home for purposes other than resale.~~

(5) "Defect" includes a defect in the performance, construction, components, or material of a manufactured home that renders the home or any part of it not fit for the ordinary use for which it was intended.

~~(6) [Deleted.]~~

(7) "Established place of business" means the office, building, or display area where the exercise of the ordinary and regular functions of the business are conducted for the purpose of carrying on the business of the owner and where books, records, files, inventory, and equipment necessary to properly conduct the business are maintained.

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~~(8) "Imminent safety hazard" means a hazard that presents an imminent and unreasonable risk of death or severe personal injury.~~

(9) "Manufactured home" means a structure, transportable in one or more sections, which, in the traveling mode, is eight body feet or more in width, or forty body feet or more in length, or, when erected on site, is three hundred twenty or more square feet, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air conditioning, and electrical systems contained in it.

(10) "Manufactured home contractor" means a person or entity, other than an employee of a licensed manufactured home retail dealer or person performing a function which the person is licensed to perform, who for valuable consideration engages in the installation, modification, alteration, or repair to the structural, mechanical, or electrical systems of a manufactured home.

(11) "Manufactured home installer" means a person or entity, other than an employee of a licensed manufactured home retail dealer or person performing a function which the person is licensed to perform, who for valuable consideration installs manufactured housing.

~~(12) "Manufactured home manufacturer" means a person, resident or nonresident, who designs, constructs, or produces manufactured homes.~~

(13) "Manufactured home repairer" means a person or entity, other than an employee of a licensed manufactured home retail dealer or person performing a function which the person is licensed to perform, who for valuable consideration modifies, alters, or repairs the structural, mechanical, or electrical systems of a manufactured home.

(14) "Manufactured home retail dealer" means a person engaged in the business of buying, selling, offering for sale, or dealing in manufactured homes or offering for display manufactured homes for sale in South Carolina. A person who buys, sells, or deals in five or more manufactured homes in any twelve-month period, or who offers or displays for sale five or more manufactured homes in a twelve-month period is considered a manufactured home retail dealer. "Selling" and "sale" include lease-purchase transactions. "Manufactured home retail dealer" does not include banks and finance companies that acquire manufactured homes as an incident to their regular business.

~~(15) "Manufactured home retail salesman" means a person who is an employee or otherwise acts as an agent or representative of a manufactured home retail dealer and holds himself out as promoting,~~

Printed Page 2695 . . . . . Thursday, June 7, 2001

~~offering for sale, or selling the manufactured home retail dealer's goods or services.~~

(16) "Manufacturer's representative" means a person who is an employee or otherwise acts as an agent or representative of a manufactured home manufacturer for the purpose of promoting, offering for sale, or selling the manufacturer's goods or services.

~~(17) "Person" means an individual, natural person, firm, partnership, association, corporation, legal representative, or other recognized legal entity.~~

~~(18) "Secretary" means the Secretary of Housing and Urban Development (HUD).~~

(19) "Setup" means the installation operations performed at the occupancy site which render a manufactured home fit for habitation. Such operations include, but are not limited to, positioning, blocking, leveling, supporting, tying down, connecting utility systems, and assembling multiple or expandable units.

(20) "Standard" means the appropriate standards adopted by the State of South Carolina and established by the Department of Housing and Urban Development pursuant to the Federal Manufactured Housing Construction and Safety Standards Act of 1974 for single family manufactured homes.

(21) "State Administrative Agency (SAA)" means the agency of the State which has been approved to carry out the state plan and to enforce the National Manufactured Housing Construction and Safety Standards Act within South Carolina.

Section 40-29-30. There is created the Manufactured Housing Board. It is composed of ten members who are residents of South Carolina appointed by the Governor for terms of four years and until their successors are appointed and qualify. Terms of the members are limited to two consecutive four-year terms, except for the manufactured housing manufacturer. The board shall include a manufactured home retail dealer owner, a representative of the fire and casualty insurance business, a full-time employee of a fire department, a manufactured home manufacturer, a representative of the banking and finance business, a registered professional engineer, a licensed manufactured home contractor, installer, or repairer, one member from the general public who must not be associated with any of the other industries represented on the board other than as a minority stockholder, a member from the general public who currently resides in a manufactured home, and a manufactured home retail salesman. The

Printed Page 2696 . . . . . Thursday, June 7, 2001

~~State Fire Marshal shall serve on the board as a consultant and as an ex officio member without vote.~~

Each member of the board shall receive the usual per diem, mileage, and subsistence as provided by law for members of boards, commissions, and committees for days on which they are transacting official business to be paid from monies appropriated from the general fund of the State for these purposes.

The board shall meet on a regular basis. The board shall provide notice to interested members of the public of its scheduled and special meetings. It may hold special meetings other than regularly scheduled meetings, at the call of the chairman.

~~No member of the board may participate in any proceeding before the board involving his licensed business.~~

~~A majority of the board may petition the Governor to remove and replace a member of the board for cause that includes, but is not limited to:~~

~~(1) the request of that board member to be replaced;~~

~~(2) failure of that board member to participate regularly at meetings called by the chairman;~~

~~(3) action that, in the judgment of the board, hinders the performance of the board in its duties to carry out the purpose of this chapter.~~

Section 40-29-40. Manufactured homes, and their integral parts, because of the manner of their construction, assembly, and use and that of their systems, components and appliances, including, but not limited to, heating, plumbing, and electrical systems, like other finished products having concealed vital parts, may present hazards to the life and safety of persons and to the safety of property unless properly manufactured. In the sale of manufactured homes, there is also the possibility of defects not readily ascertainable when inspected by purchasers. It is the policy and purpose of this State to provide protection to the public against those possible hazards and for that purpose to forbid the manufacture and sale of new manufactured homes which are not so constructed as to provide safety and protection to their owners and users and further to provide that the business practices of the industry are fair and orderly among the members of the industry with due regard to the ultimate consumers in this important area of human shelter.

~~Unless clearly indicated otherwise, this chapter applies to manufactured homes and mobile homes.~~

~~Section 40-29-50. The board shall:~~

Printed Page 2697 . . . . . Thursday, June 7, 2001

(1) annually elect by majority vote a chairman and vice-chairman from its membership. Not more than one individual associated with the manufactured housing industry may hold the position of chairman or vice-chairman at the same time;

~~(2) establish by regulation classifications of licenses and qualifications and examinations necessary for licensure under this chapter;~~

~~(3) issue licenses, and suspend or revoke for cause a license;~~

~~(4) establish, by regulation, the manner in which each consumer is notified of:~~

~~(a) warranties according to this chapter;~~

~~(b) the existence of the board and procedures for the filing of complaints;~~

~~(5) invoke fines or adjust surety bonding or other approved security requirements for cause in accordance with this chapter;~~

~~(6) receive and resolve complaints from buyers of manufactured homes;~~

~~(7) conduct hearings regarding any violations of this chapter or regulations;~~

(8) adopt regulations relating to the construction, repair, modification, installation, tie-down, hookup, and sale of all manufactured homes, which regulations must be uniform throughout the state and enforced by inspectors for the board to insure minimum standards of safety within the state and its political subdivisions. Ordinances of a political subdivision, relating to installation or sale of manufactured homes may not be inconsistent with a regulation or standard adopted pursuant to this chapter;

~~(9) adopt regulations and standards necessary to carry out the provisions of this chapter;~~

~~(10) adopt by regulation the standards contained in the Construction and Safety Standards Act;~~

(11) adopt by regulation the manufactured home procedural and enforcement regulations 24 C.F.R. 3282, as amended, promulgated by the Department of Housing and Urban Development pursuant to the Construction and Safety Standards Act;

(12) enter into cooperative agreements with federal agencies relating to manufactured housing and accept and use federal grants, matching funds, or other financial assistance to further the purposes of this chapter;

~~(13) adopt regulations for the conducting of hearings and the presentation of views, consistent with the regulations promulgated by~~

Printed Page 2698 . . . . . Thursday, June 7, 2001

~~the Department of Housing and Urban Development, 24 C.F.R. 3282.151 through 3282.156, as amended; and~~

~~(14) prepare, administer and grade examinations for licensure under the classifications sought by the applicant and collect fees.~~

~~Section 40-29-60. Former Section 40-29-60 was entitled: Division of General Services to assist in enforcement; powers and duties of Division.~~

Section 40-29-70. No person may sell or offer for sale a manufactured home manufactured after June 15, 1976, unless its components, systems, and appliances meet the criteria of compliance with the Construction and Safety Standards Act and have been properly certified by the Department of Housing and Urban Development.

Section 40-29-80. A manufactured home unit bearing a label or seal indicating compliance with Section 40-29-70 is acceptable as meeting the requirements of this chapter throughout the State without further inspection fees except for final setup installation inspection fees not exceeding ten dollars and zoning and utility connection inspection fees. No setup installation regulation or standard may be enforced unless it meets the requirements of the Construction and Safety Standards Act. A copy of a setup regulation or standard other than the Federal Regulations and Standards must be registered with the board.

~~Section 40-29-85.~~ (A) The State Energy Office shall design, produce, and provide to the Office of Manufactured Housing labels to be distributed to manufactured home manufacturers who shall place a permanent label on each manufactured home that has not been previously occupied, that is to be placed for sale in South Carolina, and that meets or exceeds the energy efficiency levels provided for in Section 12-36-2110(B). By affixing this label, the manufactured home manufacturer certifies that the manufactured home meets or exceeds the energy efficiency levels shown in Section 12-36-2110(B).

(B) If a manufactured home which has not been occupied previously and that is to be placed for sale in South Carolina meets the energy efficiency levels specified in Section 12-36-2110(B), the manufacturer shall affix to the kitchen counter a notice stating that the home meets the energy efficiency levels. Only the consumer may remove the notice. The notice must be designed by the Office of Manufactured Housing, in consultation with the State Energy Office. Notices must be produced by the State Energy Office and provided to the Office of Manufactured Housing for distribution to manufactured home manufacturers.

Printed Page 2699 . . . . . Thursday, June 7, 2001

Section 40-29-90. The board, as the state administrative agency, shall establish a monitoring inspection fee in an amount established by the secretary. The fee must be paid by the manufacturer to the secretary or his agent who shall distribute the fees collected from all manufactured home manufacturers among the approved and conditionally approved states by the secretary and based on the number of manufactured homes whose first location after leaving the manufacturing plant is on the premises of a distributor, dealer, or purchaser in that state and extent of participation of the state in the joint monitoring team program established under the Construction and Safety Standards Act.

In municipalities and counties where building, construction, or tax permits are issued no supplier of electricity in this State may connect electrical power to any manufactured homes after April 1, 1972, unless the owner of the manufactured home presents to the supplier of electricity a permit which may be part of a building, construction, or tax permit from an authorized officer of a municipality or county where the manufactured home is located that the manufactured home meets the requirements. A sworn affidavit or other proof from the owner of the manufactured home that it bears the label or seal or compliance number of an approved independent third-party testing and inspecting agent or of a foreign state granted reciprocity or a HUD manufactured home label is sufficient evidence of compliance for the municipal or county official to issue the electrical permit.

~~The governing body of a municipality or county of this State shall designate an officer to issue the permit.~~

This section does not apply to a manufactured home if it has been connected to electricity before April 1, 1972. An affidavit of the owner of the manufactured home that it has been connected before that date is satisfactory evidence for the officer of the municipality or county to issue the certificate.

~~Section 40-29-100.~~ (A) No person may engage in the business of selling, wholesale or retail, as a manufactured home retail dealer, manufactured home retail salesman, manufactured home manufacturer, or manufacturer's representative in this State without being licensed by the board. No manufactured home contractor may install, modify, alter, or repair the structural, mechanical, or electrical systems of a manufactured home without being licensed by the board. No manufactured home installer may install manufactured housing without being licensed by the board. No manufactured home repairer may modify, alter, or repair the structural, mechanical, or electrical systems

Printed Page 2700 . . . . . Thursday, June 7, 2001

of a manufactured home without being licensed by the board. The license must authorize the holder to engage in the business permitted by the license. All license applications must be accompanied by the required fee and corporate surety bond or other security in the form as prescribed by the board.

(B) All licenses must be granted or refused within thirty days after proper and complete application. All licenses expire June thirtieth of each year following the date of issue, unless sooner revoked or suspended; however, the licenses of manufactured home contractors, installers, and repairers expire December thirty-first of each year following the date of issue, unless sooner revoked or suspended. An applicant for licensing shall:

~~(1) demonstrate financial responsibility as required by regulations of the board;~~

~~(2) not have engaged illegally in the licensed classification;~~

~~(3) demonstrate familiarity with the regulations adopted by the board concerning the classification for which application is made;~~

(4) if a corporation, have complied with the laws of South Carolina regarding qualification for doing business in this State or have been incorporated in South Carolina and have and maintain a registered agent and a registered office in this State;

~~(5) if an individual or partnership, have maintained a residence or street address in South Carolina for at least thirty days before the date of application;~~

~~(6) submit proof of registration with the South Carolina Department of Revenue and submit a current tax identification number;~~

~~(7) where applicable, pass an examination administered by the board in the license classification for which application is made;~~

~~(8) where applicable, complete training as prescribed by the board.~~

~~(C) Fees for licenses must be set in accordance with regulations promulgated by the board.~~

(D) Licenses are not required for a licensed real estate salesman or broker who negotiates for sale or sells a manufactured home for an individual who is the owner of not more than two manufactured homes.

(E) A license must be issued in only one person's name who may be the individual owner, stockholder, copartner, manufactured home retail salesman or other representative of a manufactured home manufacturer, manufactured home retail dealer, or other entity required to be licensed. It is the duty of a manufactured home retail dealer and manufactured home manufacturer to conspicuously display the licenses in the established place of business. Manufactured home retail salesmen,

Printed Page 2701 . . . . . Thursday, June 7, 2001

manufactured home contractors, installers, and repairers, and manufacturer's representatives are required to carry their licenses on their persons at all times when they are doing business in this State, and they must be shown upon request.

~~(F) The board shall prescribe the form of license and each license must have printed on it the seal of its office.~~

(G) The board may deny a license to an applicant who submits an application meeting the requirements of this chapter if the applicant has been convicted in a court of competent jurisdiction of a felony or an offense involving moral turpitude. Further, the board may deny a license to an applicant who previously had been found by the board to be in violation of Section 40-29-150.

~~Section 40-29-110.~~ (A) No manufactured home salesman may be issued a license for the first time until he has passed with a satisfactory score, an examination prepared, graded, and administered by the board. The examination, where applicable, must determine the applicant's:

~~(1) general business knowledge;~~

~~(2) technical knowledge and familiarity with the prescribed standards;~~

~~(3) general knowledge of the statutes and regulations of this State relating to the advertising, sale, and financing of manufactured homes.~~

(B) No license may be issued to a manufactured home dealer unless the board is satisfied that the authorized official, stockholder, copartner, or manufactured home salesman authorized to sell by authority of the dealer license has passed successfully the appropriate examination.

~~(C) If a license lapses over six months, in order to be relicensed the applicant is required to be examined or reexamined before issuance of the license sought.~~

~~(D) Fees for examinations must be established by regulations promulgated by the board.~~

~~(E) No manufactured home contractor, installer, or repairer may be issued a license until the person or representative of the entity successfully completes any training prescribed by the board.~~

~~Section 40-29-120.~~ (A) At the time of making application, all licensees for a manufactured housing license shall furnish a corporate surety bond or other security in the form prescribed by the board for the license term outlined in Section 40-29-100, in the following amounts:

~~(1) for a manufactured home manufacturer, seventy-five thousand dollars for each location;~~

~~(2) for a manufactured home retail dealer, fifteen thousand dollars for each location;~~

Printed Page 2702 . . . . . Thursday, June 7, 2001

~~(3) for a manufactured home retail salesman, ten thousand dollars;~~

~~(4) for a manufactured home contractor, installer, or repairer, five thousand dollars.~~

(B)(1) The surety bond or other approved security must be made payable to the board and claims may be initiated only through the complaint process provided by the board. Claims are limited to the reasons stated in this section and are for actual damages and do not include attorney fees or punitive damages incurred by the consumer as a result of the complaint.

(2) At the beginning of each subsequent renewal license period, a continuation certificate or proof of surety bond coverage or other approved security through the renewal license period must be delivered to the board with proper renewal application and fee.

(3) The board, upon a finding of a violation by a licensee, may further require the licensee to increase the amount of a surety bond or other approved security. An increase must be proportioned to the seriousness of the offense or the repeat nature of the licensee's violations, but the total amount may not exceed an additional seventy-five thousand dollars for manufacturers, fifty thousand dollars for dealers, twenty thousand dollars for salespersons, and ten thousand dollars for manufactured home contractors, installers, and repairers. The board, after one year, may reduce an increased surety bond or other approved security when satisfied that violations have been cured by appropriate corrective action and that the licensee is otherwise in good standing. The bonds cannot be reduced below amounts provided in this section.

(4) The surety bond or other approved security may not be released by the board until all claims and complaints against the licensee have been finally resolved or until seven years after the licensee has ceased doing business in South Carolina, whichever period is later.

(5) All liability on a surety bond or other approved security is applicable to the surety bond or other security in effect as of the date of the occurrence which gave rise to the liability. In the event that the total claims against a surety bond or other form of approved security exceed the coverage amount of the surety bond or other approved security, the proceeds of the surety bond or other approved security may be distributed pro rata to the claimants.

~~(6) The board may file claims against a licensee's surety bond or other approved security and indemnify a consumer for losses to the limit of the surety bond or other approved security for damages~~

Printed Page 2703 . . . . . Thursday, June 7, 2001

resulting from the licensee's violation of this chapter or regulations promulgated by its authority or from fraud, misrepresentation, making of false promises, or the refusal, failure, or inability to transfer good and sufficient legal title.

~~Section 40-29-130.~~ (A) If repair work is required on the consumer's home and the manufacturer, dealer, or manufactured home contractor, installer, or repairer is unavailable to perform the repairs or has not performed within the guidelines issued by the board, the board, through its staff, shall direct the consumer to obtain at least three bids for performance of the work. The requirement of three bids may be waived by the board if conditions require a waiver. The board shall select the low bidder to perform the repair work. The requirement of selecting the low bidder may be waived only if it is clear that the work cannot properly be performed at the bid level. Payment from the surety bond or other approved security must be authorized by the board only after the work is completed, inspected, and approved.

(B) If reimbursement to a consumer for repairs, parts, or other work is requested in a complaint, the division, with the approval of the board, shall determine the reasonable value of the repairs, part, or work. The consumer may not be reimbursed from the surety bond or other approved security in an amount more than the reasonable value of the repairs, part, or work.

(C) If a licensee does not conduct business after issuance of his license and the posting of the applicable surety bond or other approved security, the board, upon receipt of satisfactory evidence that no business was conducted, and upon surrender of the license, may release the licensee's surety bond or other approved security.

~~Section 40-29-140. Losses to which security is applicable.~~

Each surety bond or other approved security issued for a manufactured home manufacturer, a manufactured home retail dealer, a salesperson, or a manufacturer's representative must be indemnity for a loss sustained by a consumer as a result of:

~~(1) a violation of a provision of this chapter or regulation of the board;~~

~~(2) a violation of the written warranty or to fulfill warranty obligations as outlined in Section 40-29-170;~~

~~(3) fraud in the execution or performance of a contract;~~

~~(4) a misrepresentation in reference to the sale of a manufactured home;~~

~~(5) refusal, failure, or inability to transfer good and sufficient legal title to the consumer;~~

Printed Page 2704 . . . . . Thursday, June 7, 2001

~~(6) a misappropriation of funds belonging to the consumer;~~

~~(7) an alteration to deceive the consumer as to the manufacture or construction of the product;~~

~~(8) a false and fraudulent representation or deceitful practice in selling, financing, or representing a product or service.~~

~~Section 40-29-150. The board may suspend for a determinate period or revoke a license issued to a licensee or authorized official under the provisions of this chapter for:~~

~~(1) false, misleading, or deceptive advertising;~~

~~(2) knowingly contracting or performing a service beyond the scope of the license;~~

~~(3) misrepresentation of a material fact by the applicant in obtaining a license;~~

~~(4) misrepresentation or omission of a material fact in a manufactured home transaction;~~

~~(5) failure to comply with the warranty requirements of this chapter or regulations of the board pursuant to those requirements;~~

~~(6) failure by a manufacturer or dealer to transfer good and sufficient title to the purchaser of a manufactured home;~~

~~(7) conviction of a licensee in a court of competent jurisdiction of a felony or an offense involving moral turpitude;~~

~~(8) failing to have an established place of business;~~

~~(9) wilfully defrauding a retail buyer, to the buyer's damage through misrepresentation or misappropriation of funds belonging to the buyer;~~

~~(10) employment of fraudulent devices, methods, or practices in connection with compliance with the requirements of this chapter;~~

~~(11) having used unfair methods of competition or unfair deceptive acts or practices;~~

~~(12) knowingly advertising or selling a used manufactured home as a new manufactured home;~~

~~(13) failing to obtain a license before doing business in this State;~~

(14) having knowingly failed or refused to account for or to pay over monies or other valuables belonging to others which have come into the licensee's possession arising out of the sale of manufactured homes;

~~(15) failing to appear before the board upon due notice, or to follow directives of the board;~~

~~(16) failing to comply with adopted state or federal standards in the manufacture, sale, installation, repair, modification, or delivery of manufactured housing;~~

Printed Page 2705 . . . . . Thursday, June 7, 2001

~~(17) employing unlicensed manufacturer's representatives or retail salesmen or knowingly contracting with an unlicensed manufactured home contractor, installer, or repairer;~~

~~(18) knowingly purchasing a manufactured home from an unlicensed manufacturer or knowingly selling or offering a manufactured home to an unlicensed manufactured home dealer;~~

~~(19) knowingly purchasing a manufactured home from unlicensed manufacturer's representatives.~~

Section 40-29-160. A person engaging in or offering to engage in any activity for which a license is required by this chapter without having first obtained the requisite license is subject to an administrative penalty. The person must be issued a citation directing him to appear before an agent of the board appointed to act as the administrative hearing officer. An administrative penalty not to exceed five hundred dollars for each violation may be imposed. The person to whom a citation has been issued may forfeit appearance by payment of the imposed administrative penalty.

~~Upon appearance, if it is determined that an administrative penalty must be imposed, the person cited may appeal the decision to the board. The request for appeal must be in writing.~~

A licensee who violates a provision of this chapter or regulation in regard to consumer complaints shall upon citation by the board appear before an agent of the board appointed to act as administrative hearing officer for a hearing which may result in the imposition of the following administrative penalties:

~~(1) for a first offense, a fine of not more than five hundred dollars or a license suspension of not more than thirty days, or both;~~

~~(2) for a second offense, a fine of not more than one thousand dollars or suspension of not more than sixty days, or both;~~

~~(3) for a third offense, a fine of not more two thousand dollars or a license suspension of not more than ninety days, or both.~~

The licensee must be given at least thirty days' notice of the time and place of the hearing and of the charges. A person aggrieved by a ruling of the administrative hearing officer may appeal to the board within fifteen days after the ruling. The request for appeal must be in writing. The board shall state in writing its findings and determinations after the appeal and its decision in the matter. Appeals from the decision of the board are to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1.

~~A licensee who violates any other provisions of this chapter or regulations promulgated by its authority or accumulates three or more~~

Printed Page 2706 . . . . . Thursday, June 7, 2001

~~consumer complaints or violations which have not been corrected within the prescribed time upon citation of the board shall appear before the board for a hearing which may result in:~~

~~(1) a fine of not more than two thousand five hundred dollars or license suspension or revocation for not more than one year;~~

(2) increase in surety bonding or other approved security requirements. The licensee must be given at least thirty days' notice of the time and place of the hearing and of the charges. A person aggrieved by a ruling of the board may appeal to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1.

~~Section 40-29-170.~~ (A) Each manufactured home manufacturer and manufactured home retail dealer of manufactured homes shall warrant each new manufactured home sold in the State in accordance with the warranty requirements prescribed by this section for at least twelve months from the date of delivery or installation of the manufactured home to the consumer. The warranty requirements for each manufactured home manufacturer and manufactured home retail dealer of manufactured homes are as follows:

~~(1) The manufacturer warrants that:~~

(a) all structural elements, plumbing systems, heating, cooling, and fuel burning systems, electrical systems, and any other components included are manufactured and installed free from substantial defect in material and workmanship;

~~(b) the manufactured home complies with this chapter and regulations promulgated under this chapter;~~

(c) all appliances and equipment installed in the manufactured home must be free from defects in material and workmanship for one year, unless a valid warranty from the manufacturer or dealer of the appliances and equipment is furnished warranting against defects in materials and workmanship to the consumer for at least one year from date of delivery;

(d) appropriate corrective action must be taken within a reasonable period of time after the warranty violation has been communicated to the manufactured home manufacturer by the division or by the consumer;

~~(e) the warranty may not be voided as long as the installation of the manufactured home conforms to the standards adopted in this chapter;~~

~~(f) repair work performed under the one-year warranty is warranted for at least ninety days or until the end of the original one-year warranty, whichever is later.~~

Printed Page 2707 . . . . . Thursday, June 7, 2001

~~(2) The manufactured home retail dealer warrants that:~~

(a) all changes, additions, or alterations made to the manufactured home by the manufactured home retail dealer are free from defects in materials and workmanship and do not bring the manufactured home out of compliance with the standards; and that all appliances and equipment installed by the manufactured home retail dealer are free from defects in materials and workmanship unless a valid written warranty from the manufacturer or dealer of the appliances and equipment is furnished to the consumer warranting against a defect in materials or workmanship for a period of time customary in the industry for a warranty for the particular appliance or equipment;

~~(b) appropriate corrective action must be taken within a reasonable time after the warranty violation has been communicated to the manufactured home retail dealer by the division or by the consumer;~~

(c) repair work on changes, additions, or alterations authorized by the manufactured home manufacturer must be warranted for at least ninety days or until the end of the original one-year warranty, whichever is later;

(d) the setup operations performed by the dealer on the manufactured home must be performed in compliance with applicable federal or state law; regulations or standards for the installation of manufactured homes and during the course of setup and transportation of the manufactured home by the manufactured home retail dealer, substantial defects do not occur;

(e) alterations or modifications made by a manufactured home retail dealer without authorization of the manufactured home manufacturer relieve the manufactured home manufacturer of warranty responsibility as to the items altered or modified and any damage resulting from the alteration or modification.

~~(B) A manufactured home contractor, installer, or repairer shall warrant his work for a period of twelve months from completion of the work as follows:~~

~~(1) the contractor warrants that:~~

(a) all installations are performed in accordance with applicable state or federal law, regulations, or standards for the installation of manufactured homes and that his performance will not cause substantial defects in the home;

~~(b) all modifications, alterations, or repairs are performed in compliance with applicable state or federal law, regulations, or~~

Printed Page 2708 . . . . . Thursday, June 7, 2001

~~standards and that his performance will not cause substantial defects in the home;~~

~~(2) the installer warrants that:~~

~~(a) installation is performed in compliance with applicable state or federal law, regulations, or standards for the installation of manufactured homes;~~

~~(b) his performance will not cause substantial defects in the home;~~

~~(3) the repairer warrants that:~~

~~(a) all modifications, alterations, and repairs are performed in compliance with applicable state or federal law, regulations, or standards for the modification or repair of manufactured homes;~~

~~(b) his performance will not cause a substantial defect in the home.~~

Section 40-29-180. A substantial defect must be remedied within thirty days of receipt of the written notification of the warranty claim, unless the claim is unreasonable or bona fide reasons exist for not remedying the defect within the thirty-day period. Defects which constitute an imminent safety hazard to life and health must be remedied within five working days of receipt of the written notification of the warranty claim. An imminent safety hazard to life and health includes, but is not limited to:

~~(1) inadequate heating in freezing weather;~~

~~(2) failure of sanitary facilities;~~

~~(3) electrical shock;~~

~~(4) leaking gas; or~~

~~(5) major structural failure.~~

~~The board may suspend this five-day time period in the event of widespread defects or damage resulting from adverse weather conditions or other natural catastrophes.~~

Section 40-29-190. If the new manufactured home is moved from the initial installation site during the term of the warranty period, the new home warranty does not apply to a defect or damage caused by the move. Conspicuous notice of this section must be given to the customer at the time of the sale.

Section 40-29-200. The board may carry out the responsibilities as the state administrative agency for South Carolina of the Construction and Safety Standards Act. The manufactured home retail dealer, the manufactured home representative, and the manufactured home retail salesman do not enforce the federal act, to ensure no conflict of interest.

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~~Section~~ 40-29-210. The board shall oversee the handling of manufactured home consumer complaints that may be due to electrical, mechanical, or structural defects or nonconformances to the Construction and Safety Standards Act, standards and regulations. As part of this responsibility, the manufactured home manufacturers must be inspected and monitored for compliance with federal manufactured home standards and regulations. In the conduct of its responsibilities under this section, the board shall recognize the need for life safety requirements as a part of its general oversight function and shall receive advice in the life safety area from the State Fire Marshal to insure that fire prevention is a part of the overall program under the terms of this chapter.

Section 40-29-220. The board, by its authorized representatives, may enter, at reasonable times, a factory, warehouse, or establishment, in which manufactured homes are manufactured, stored, or held for sale for the purpose of ascertaining whether the requirements of the Construction and Safety Standard Act and the regulations of the board have been and are being met.

Section 40-29-230. Each manufacturer, distributor, and dealer of manufactured homes shall establish and maintain records, make reports, and provide information as the SAA administrator or the secretary may require to determine whether the manufacturer, distributor, or dealer has acted or is acting in compliance with this chapter or the Construction and Safety Standards Act and upon request of a person appointed by the administrator or the secretary shall permit the person to inspect appropriate books, papers, records, and documents relevant to determining whether the manufacturer, distributor, or dealer has acted or is acting in compliance with this chapter.

~~Section 40-29-240.~~ (A) A person who violates any of the following provisions relating to manufactured homes or regulations promulgated by the board is liable for a civil penalty not to exceed one thousand dollars for each violation. Each violation constitutes a separate violation with respect to each manufactured home, except that the maximum penalty may not exceed one million dollars for a related series of violations occurring within one year from the date of the first violation. No person may:

(1) manufacture for sale, lease, sell, offer for sale or lease, or introduce or deliver, or import into the State a manufactured home which is manufactured on or after the effective date of an applicable Construction and Safety Standards Act which does not comply with the standard;

Printed Page 2710 . . . . . Thursday, June 7, 2001

(2) fail or refuse to permit access to or copying records, or fail to make reports or provide information; or fail or refuse to permit entry or inspection as required by Sections 40-29-220 and 40-29-230;

~~(3) fail to furnish notification of a defect as required by 42 U.S.C. 5414;~~

(4) fail to issue a certification required by 42 U.S.C. 5415 or issue a certification to the effect that a manufactured home conforms to all applicable Construction and Safety Standards, if the person in the exercise of due care has reason to know that the certification is false or misleading in a material respect;

(5) fail to establish and maintain records, make reports, and provide information as the board reasonably may require to enable it to determine whether there is compliance with the Construction and Safety Standards Act; or fail to permit, upon request of a person duly authorized by the board, inspection of appropriate books, papers, records, and documents relative to determining whether a manufacturer, distributor, or dealer has acted or is acting in compliance with this chapter or with the Construction and Safety Standards Act;

~~(6) issue a certification pursuant to 42 U.S.C. 5403(a) if the person in the exercise of due care has reason to know that the certification is false or misleading in a material respect.~~

~~(7) fail to properly and prominently display the energy efficiency label required by Section 40-29-85.~~

~~(B) Subsection (A)(1) does not apply to the sale or the offer for sale of a manufactured home after the first purchase of it in good faith for purposes other than resale.~~

(C) Subsection (A)(1) does not apply to a person who establishes that he did not have reason to know in the exercise of due care that a manufactured home is not in conformity with applicable Construction and Safety Standards Act, or a person who, before the first purchase, holds a certificate by the manufacturer or importer of a manufactured home to the effect that the manufactured home conforms to all applicable construction and safety standards, unless the person knows that the manufactured home does not so conform.

~~Section 40-29-250.~~ A person or officer, director, or agent of a corporation who wilfully or knowingly violates any of the provisions enumerated in state law, in any manner which threatens the health or safety of a purchaser is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars or imprisoned for not more than one year, or both.

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~~Section 40-29-260.~~ The board may conduct hearings and presentations of views consistent with regulations adopted by the United States Department of Housing and Urban Development and adopt regulations necessary to carry out this function.

~~Section 40-29-270.~~ ~~All penalties or fees collected under the provisions of this chapter must be deposited in the general fund of the State.~~

Section 40-29-5. Unless otherwise provided for in this chapter, Article 1, Chapter 1 of Title 40 applies to the regulation of manufactured home manufacturers, manufactured home retail dealers, manufactured home sales persons, and manufactured home contractors, installers, and repairers. If there is a conflict between this chapter and Article 1, Chapter 1 of Title 40, the provisions of this chapter control.

Section 40-29-10. (A) There is created the South Carolina Manufactured Housing Board. It is composed of ten members who must be residents of South Carolina appointed by the Governor in accordance with Section 40-1-45 for terms of four years and until their successors are appointed and qualify. The board shall include a manufactured home retail dealer owner, a representative of the fire and casualty insurance industry, a full-time employee of a fire department, a manufactured home manufacturer, a representative of the banking and finance industry, a registered professional engineer, a licensed manufactured home contractor, installer, or repairer, one member from the general public who must not be associated with any of the other industries represented on the board other than as a minority stockholder, a member from the general public who currently resides in a manufactured home, and a manufactured home retail salesman. The state fire marshal shall serve on the board as a consultant and as an ex officio member without a vote. An individual, group, or association may nominate board members from the general public.

(B) The board shall annually elect by majority vote a chairman and vice-chairman from its membership. Not more than one individual associated with the manufactured housing industry may hold the position of chairman or vice-chairman at the same time.

(C) The board shall meet on a regular basis. The board shall provide notice to interested members of the public of its scheduled and special meetings. A member of the board may not participate in any proceeding before the board involving his licensed business.

(D) The board shall:

(1) invoke fines or adjust surety bonding or other approved security requirements for cause in accordance with this chapter;

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(2) receive and resolve complaints from buyers of manufactured homes;

(3) adopt regulations relating to the construction, repair, modification, installation, tie down, and sale of all manufactured homes, which regulations must be uniform throughout the State and enforced by inspectors for the board;

(4) adopt by regulation the standards contained in the Construction and Safety Standards Act;

(5) adopt by regulation the manufactured home procedural and enforcement regulations of 24 C.F.R. 3282, as amended, promulgated by the Department of Housing and Urban Development pursuant to the Construction and Safety Standards Act;

(6) enter into cooperative agreements with federal agencies relating to manufactured housing and accept and use federal grants, matching funds, or other financial assistance to further the purposes of this chapter;

(7) adopt regulations for conducting hearings and the presentation of views, consistent with the regulations promulgated by the Department of Housing and Urban Development, 24 C.F.R. 3282.151 through 3282.156, as amended;

(8) provide for examinations for licensure under the classifications sought by the applicant and establish and collect fees;

(9) prescribe the form of license which must have the seal of the office printed on the license; and

(10) adopt a schedule of fees in regulation.

Section 40-29-20. Unless clearly indicated otherwise, as used in this chapter:

(1) 'Authorized official' means a person acting on behalf of a manufactured home retail dealer.

(2) 'Board' means the South Carolina Manufactured Housing Board.

(3) 'Construction and Safety Standards Act' means the Federal Manufactured Housing Construction and Safety Standards Act of 1974, as amended.

(4) 'Consumer' means a person who in good faith purchases a manufactured home or mobile home for purposes other than resale.

(5) 'Defect' includes a defect in the performance, construction, components, or material of a manufactured home that renders the home or any part of it not fit for the ordinary use for which it was intended.

(6) 'Established place of business' means the office, building, or display area where the exercise of the ordinary and regular functions of

Printed Page 2713 . . . . . Thursday, June 7, 2001

the business are conducted for the purpose of carrying on the business of the owner and where books, records, files, inventory, and equipment necessary to properly conduct the business are maintained.

(7) 'Imminent safety hazard' means a hazard that presents an imminent and unreasonable risk of death or severe personal injury.

(8) 'Install/installed' means the operations performed at the occupancy site which render a manufactured home fit for habitation. These operations include, but are not limited to, positioning, blocking, leveling, supporting, tying down, connecting utility systems, and assembling multiple or expandable units.

(9) 'Manufactured home' means a structure, transportable in one or more sections which, in the traveling mode, is eight body feet or more in width or forty body feet or more in length or when erected on site is three hundred twenty or more square feet and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities and includes the plumbing, heating, air conditioning, and electrical systems contained in it.

(10) 'Manufactured home contractor' means a person or entity, other than an employee of a licensed manufactured home retail dealer or a person licensed by the board or licensed by the South Carolina Contractor's Licensing Board to perform a particular function, who for valuable consideration engages in the installation, modification, alteration, or repair to the structural, mechanical, or electrical systems of a manufactured home.

(11) 'Manufactured home installer' means a person or entity, other than an employee of a licensed manufactured home retail dealer or a person licensed by the board or licensed by the South Carolina Contractor's Licensing Board to perform a particular function, who for valuable consideration installs manufactured housing.

(12) 'Manufactured home repairer' means a person or entity, other than an employee of a licensed manufactured home retail dealer or a person licensed by the board or licensed by the South Carolina Contractor's Licensing Board to perform a particular function, who for valuable consideration modifies, alters, or repairs the structural, mechanical, or electrical systems of a manufactured home.

(13) 'Manufactured home retail dealer' means a person engaged in the business of buying, selling, offering for sale, or dealing in manufactured homes or offering for display manufactured homes for sale in South Carolina. A person who buys, sells, or deals in three or more manufactured homes in any twelve-month period or who offers or

Printed Page 2714 . . . . . Thursday, June 7, 2001

displays for sale three or more manufactured homes in a twelve-month period is considered a manufactured home retail dealer. 'Selling' and 'sale' include lease-purchase transactions. 'Manufactured home retail dealer' does not include banks and finance companies that acquire manufactured homes as an incident to their regular business, if no more than four homes are acquired in any twelve-month period for sale, exchange, or transfer or if more than four are acquired, the sale, exchange, or transfer of these homes is conducted in accordance with Section 40-29-200(H).

(14) 'Manufactured home manufacturer' means a person, resident or nonresident, who designs, constructs, or produces manufactured homes.

(15) 'Manufactured home retail salesman' means a person who is an employee or otherwise acts as an agent or representative of a manufactured home retail dealer and holds himself out as promoting, offering for sale, or selling the manufactured home retail dealer's goods or services.

(16) 'Person' means an individual, natural person, firm, partnership, association, corporation, legal representative, or other recognized legal entity.

(17) 'Secretary' means the Secretary of Housing and Urban Development (HUD).

(18) 'Standard' means the appropriate standards adopted by the State of South Carolina and established by the Department of Housing and Urban Development pursuant to the Federal Manufactured Housing Construction and Safety Standards.

(19) 'State Administrative Agency (SAA)' means the agency of the State which has been approved to carry out the state plan and to enforce the National Manufactured Housing Construction and Safety Standards Act within South Carolina.

Section 40-29-30. (A) No person may engage in the business of selling, wholesale or retail, as a manufactured home retail dealer, manufactured home retail salesman, or manufactured home manufacturer in this State without being licensed by the board. No manufactured home contractor may install, modify, alter, or repair the structural, mechanical, or electrical systems of a manufactured home without holding a license issued or recognized by the board. No manufactured home installer may install manufactured housing without being licensed by the board. No manufactured home repairer may modify, alter, or repair the structural, mechanical, or electrical systems of a manufactured home without holding a license issued or recognized by the board. The license must authorize the holder to engage in the

Printed Page 2715 . . . . . Thursday, June 7, 2001

business permitted by the license. All license applications must be accompanied by the required fee and corporate surety bond or other security in the form as prescribed by the board.

(B) A person engaging in or offering to engage in any activity for which a license is required by this chapter without having first obtained the requisite license is subject to an administrative penalty. The person must be issued a citation directing him to appear before an agent of the board appointed to act as the administrative hearing officer. An administrative penalty not to exceed five hundred dollars for each violation may be imposed. The person to whom a citation has been issued may forfeit appearance by payment of the imposed administrative penalty. Upon appearance, if it is determined that an administrative penalty must be imposed, the person cited may appeal the decision to the board. The request for appeal must be served in writing within fifteen days after the ruling.

Section 40-29-40. The Department of Labor, Licensing and Regulation shall provide all administrative, fiscal, investigative, inspectional, clerical, secretarial, and license renewal operations and activities of the board in accordance with Section 40-1-50.

Section 40-29-50. The Department of Labor, Licensing and Regulation shall investigate complaints and violations of this chapter as provided for in Section 40-1-80.

Section 40-29-60. (A) A licensee who violates a provision of this chapter or regulation pertaining to warranty requirements, deposits, or recision of contracts shall appear upon citation by the board before an agent of the board appointed to act as administrative hearing officer for a hearing. Upon the finding of a violation, the hearing officer:

(1) may for a first offense, impose a fine of not more than five hundred dollars or suspend the license for not more than thirty days, or both;

(2) may for a second offense, impose a fine of not more than one thousand dollars or suspend the license for not more than sixty days, or both;

(3) may for a third offense, impose a fine of not more than two thousand dollars or suspend the license for not more than ninety days, or both;

(4) shall for a fourth or subsequent offense, present the violation to the board for disciplinary action pursuant to this chapter.

(B) The licensee must be given at least thirty days' notice of the time and place of the hearing and of the charges. A person aggrieved by a ruling of the administrative hearing officer may appeal to the

Printed Page 2716 . . . . . Thursday, June 7, 2001

board within fifteen days after the ruling. The request for appeal must be in writing. The board shall state in writing its findings and determinations in its decision in the matter on appeal.

Appeals from the decision of the board may be made to an administrative law judge pursuant to the Administrative Procedures Act.

(C) A licensee who violates any provision of this chapter or regulations promulgated by its authority or accumulates three or more warranty or contract violations which have not been corrected within the prescribed time upon citation of the board shall appear before the board for a hearing. The licensee must be given at least thirty days' notice of the time and place of the hearing and of the charges. A person aggrieved by a ruling of the board may appeal to an administrative law judge pursuant to the Administrative Procedures Act. Upon the finding of such a violation, the board may:

(1) impose a fine of not more than two thousand five hundred dollars or suspend or revoke the license or any combination thereof;

(2) order an increase in surety bonding or other approved security requirements.

(D) The board may conduct hearings and presentations of views consistent with regulations adopted by the United States Department of Housing and Urban Development and adopt regulations necessary to carry out this function.

Section 40-29-70. In addition to other remedies provided for in this chapter or Chapter 1, the board in accordance with Section 40-1-100 may issue a cease and desist order or may petition an administrative law judge for a temporary restraining order or other equitable relief to enjoin a violation of this chapter.

Section 40-29-80. (A) The board may suspend for a determinate period, revoke, or restrict a license issued to a licensee or authorized official under the provisions of this chapter for:

(1) false, misleading, or deceptive advertising;

(2) knowingly contracting or performing a service beyond the scope of the license;

(3) misrepresentation or omission of a material fact by the applicant in obtaining a license;

(4) misrepresentation or omission of a material fact in a manufactured home transaction;

(5) failure to comply with the warranty requirements of this chapter or regulations of the board pursuant to those requirements;

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(6) failure by a manufacturer or dealer to transfer good and sufficient title to the purchaser of a manufactured home;

(7) failing to have an established place of business;

(8) wilfully defrauding a retail buyer, to the buyer's damage through misrepresentation or misappropriation of funds belonging to the buyer;

(9) employment of fraudulent devices, methods, or practices in connection with compliance with the requirements of this chapter;

(10) having used unfair methods of competition or deceptive acts or practices;

(11) knowingly advertising or selling a used manufactured home as a new manufactured home;

(12) failing to obtain a license before doing business in this State;

(13) having knowingly failed or refused to account for or to pay funds or other valuables belonging to others which have come into the licensee's possession arising out of the sale of manufactured homes;

(14) failing to appear before the board upon due notice or to follow directives of the board;

(15) failing to comply with adopted state or federal standards in the manufacture, sale, installation, repair, modification, or delivery of manufactured housing;

(16) employing unlicensed retail salesmen or persons barred from participating in a business licensed by the board or knowingly contracting with an unlicensed manufactured home contractor, installer, or repairer;

(17) knowingly purchasing a manufactured home from an unlicensed manufacturer or knowingly selling or offering a manufactured home to an unlicensed manufactured home dealer;

(18) conviction of a felony within the prior seven years or other crime of moral turpitude.

(B) Any licensee whose license has been suspended or revoked, or any person who has applied for a license but whose application has been denied, is barred from participating in any manner in a business licensed by the board until that person has obtained a license or the person's license has been restored.

(C) No business licensed by the board may permit or allow a person identified in subsection (B) to participate in any manner in the business licensed by the board.

(D) Violations of this section are subject to the sanctions provided for in Section 40-29-60(C).

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Section 40-29-90. The board has jurisdiction over the actions of licensees and former licensees as provided for in Section 40-1-115.

Section 40-29-100. In addition to the sanctions the board may impose against a person pursuant to Section 40-29-110, the board may take disciplinary action as provided for in Section 40-1-120.

Section 40-29-110. As provided for in Section 40-1-130, the board may deny licensure to an applicant based on the same grounds for which the board may take disciplinary action against a licensee.

Section 40-29-120. A license may be denied based on a person's prior criminal record as provided for in Section 40-1-140.

Section 40-29-130. A licensee under investigation for a violation of this chapter or a regulation promulgated under this chapter may voluntarily surrender the license in accordance with Section 40-1-150.

Section 40-29-140. A person aggrieved by a final action of the board may seek review of the decision in accordance with Section 40-1-160

Section 40-29-150. A person found in violation of this chapter or regulations promulgated under this chapter may be required by the board to pay costs associated with the investigation and prosecution of the case in accordance with Section 40-1-170.

Section 40-29-160. All costs and fines imposed pursuant to this chapter must be paid in accordance with and are subject to the collection and enforcement provisions of Section 40-1-180.

Section 40-29-170. Investigations conducted under the provisions of this chapter are confidential and all communications are privileged as provided for in Section 40-1-190. However, upon completion of the investigation, the findings of the board are subject to disclosure in accordance with the Freedom of Information Act.

Section 40-29-180. A person who knowingly violates the provisions of this chapter or regulations promulgated thereunder and thereby threatens or injures the health or safety of a consumer is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars or imprisoned for not more than two years, or both.

Section 40-29-190. (A) A person who violates any of the following provisions relating to manufactured homes or regulations promulgated by the board is liable for a civil penalty not to exceed one thousand dollars for each violation. Each violation constitutes a separate violation with respect to each manufactured home, except that the maximum penalty may not exceed one million dollars for a related series of violations occurring within one year from the date of the first violation. No person may:

Printed Page 2719 . . . . . Thursday, June 7, 2001

(1) manufacture for sale, lease, sell, offer for sale or lease, or introduce or deliver, or import into the State a manufactured home which is manufactured on or after the effective date of the Construction and Safety Standards Act which does not comply with the standard;

(2) fail or refuse to permit access to or copying records, or fail to make reports or provide information or fail or refuse to permit entry or inspection as required by Sections 40-29-320 and 40-29-330;

(3) fail to furnish notification of a defect as required by 42 U.S.C. 5414;

(4) fail to issue a certification required by 42 U.S.C. 5415 or issue a certification to the effect that a manufactured home conforms to all applicable construction and safety standards if the person in the exercise of due care has reason to know that the certification is false or misleading in a material respect;

(6) issue a certification pursuant to 42 U.S.C. 5403(a) if the person in the exercise of due care has reason to know that the certification is false or misleading in a material respect;

(7) fail to properly and prominently display the energy efficiency label required by Section 40-29-360.

(B) Subsection (A)(1) does not apply to:

(1) the sale or the offer for sale of a manufactured home after its first purchase in good faith for purposes other than resale.

(2) a person who establishes that he did not have reason to know in the exercise of due care that a manufactured home is not in conformity with the Construction and Safety Standards Act or a person who, before the first purchase, holds a certificate by the manufacturer or importer of a manufactured home to the effect that the manufactured home conforms to all applicable construction and safety standards, unless the person knows that the manufactured home does not so conform.

Section 40-29-200. (A) All licenses expire June thirtieth of each even-numbered year following the date of issue, unless sooner revoked or suspended.

Printed Page 2720 . . . . . Thursday, June 7, 2001

(B) An applicant for licensure shall:

(1) demonstrate financial responsibility as required by regulations of the board;

(2) not have engaged illegally in the licensed classification;

(3) demonstrate familiarity with the regulations adopted by the board concerning the classification for which application is made;

(5) submit proof of registration with the Department of Revenue and submit a current tax identification number;

(6) where applicable, pass an examination administered by the board or its designated test provider in the license classification for which application is made;

(7) where applicable, complete training as prescribed by the board.

(C) A license is not required for a licensed real estate salesman or licensed real estate broker who negotiates for sale or sells a manufactured home for an individual who is the owner of not more than two manufactured homes.

(D) A license must be issued in only one person's name who may be the individual owner, stockholder, copartner, manufactured home retail salesman or other representative of a manufactured home manufacturer, manufactured home retail dealer, or other entity required to be licensed. It is the duty of a manufactured home retail dealer and manufactured home manufacturer to conspicuously display the licenses in the established place of business. Manufactured home retail salesmen and manufactured home contractors, installers, and repairers are required to carry their licenses on their persons at all times when they are doing business in this State, and they must be shown upon request.

(E) The board may deny a license to an applicant who submits an application meeting the requirements of this chapter if the applicant has been convicted in a court of competent jurisdiction of a felony within the prior seven years or an offense involving moral turpitude.

(F) No person may be issued a license as a manufactured home retail dealer unless the person can show proof satisfactory to the board of two years' experience in the manufactured home industry or other relevant experience acceptable to the board.

(G) Notwithstanding any other provision of law, the board may not grant reciprocity or issue a license to an applicant:

Printed Page 2721 . . . . . Thursday, June 7, 2001

(1) whose license in another state is currently restricted in any way, including probationary or other conditions, or was surrendered in lieu of disciplinary action or was revoked;

(2) who has disciplinary action pending against him in another state; or

(3) who is currently under sentence, including probation or parole, for a felony, crime of moral turpitude, or other criminal violation related to any aspect of the business of manufactured housing.

(H) A holder of a lien on a manufactured home who sells, exchanges, or transfers by lease-purchase a repossessed manufactured home subject to the lien is not subject to the provisions of this chapter if the sale, exchange, or transfer is through a licensed manufactured home retail dealer who has entered into a contract with the lienholder for the sale, exchange, or transfer of the home. The contract between the lienholder and the manufactured home retail dealer must be in a form adopted by the board.

Section 40-29-210. (A) As a condition of licensure, an applicant shall submit to an examination which must be conducted by the board or its designated test provider. The applicant must receive a passing grade on the examination, in accordance with a cut-score determination established by the department. An applicant who fails an examination may reapply.

(B) The department or test provider is authorized to collect and retain reasonable examination fees, to be promulgated in regulation. An applicant for an examination to be conducted by a test provider shall pay the fee directly to the test provider.

(C) No license may be issued to a manufactured home dealer unless the board is satisfied that the authorized official, stockholder, copartner, or manufactured home salesman authorized to sell by authority of the dealer license has passed the appropriate examination.

(D) No manufactured home retail dealer or salesperson, contractor, installer or repairer may be issued a license until the person or representative of the entity successfully completes any training prescribed by the board.

Section 40-29-220. If a license lapses or is inactive for more than six months, in order to be relicensed, the applicant must meet all requirements for a new license. The applicant may be exempt from any required training if evidence of prior training can be provided.

Section 40-29-230. (A) At the time of making application, all applicants for a manufactured housing license shall furnish a corporate

Printed Page 2722 . . . . . Thursday, June 7, 2001

surety bond or other security in the form prescribed by the board for the license term in the following amounts:

(1) for a manufactured home manufacturer, seventy-five thousand dollars for each location;

(2) for a manufactured home retail dealer, thirty thousand dollars for each location;

(3) for a manufactured home retail salesman, fifteen thousand dollars;

(4) for a manufactured home contractor, installer, or repairer, five thousand dollars.

(B)(1) The surety bond or other approved security must be made payable to the board and claims may be initiated only through the complaint process provided by the board. Claims are limited to the reasons stated in this section and are for actual damages and do not include attorney's fees or punitive damages incurred by the consumer as a result of the complaint.

(2) At the beginning of each subsequent license renewal period, a continuation certificate or proof of surety bond coverage or other approved security through the license renewal period must be delivered to the board with the application and fee.

(4) The surety bond or other approved security may not be released by the board until all claims and complaints against the licensee have been finally resolved or until three years after the licensee has ceased doing business in South Carolina, whichever period is later.

Printed Page 2723 . . . . . Thursday, June 7, 2001

exceed the coverage amount of the surety bond or other approved security, the proceeds of the surety bond or other approved security may be distributed pro rata to the claimants.

(6) The board may file claims against a licensee's surety bond or other approved security and indemnify a consumer for losses to the limit of the surety bond or other approved security for damages resulting from the licensee's violation of this chapter or regulations promulgated by its authority or from fraud, misrepresentation, making of false promises, or the refusal, failure, or inability to transfer good and sufficient legal title.

Section 40-29-240. (A) If repair work is required on the consumer's home and the manufacturer, dealer, or manufactured home contractor, installer, or repairer is unavailable to perform the repairs or has not performed within the guidelines issued by the board, the board, through its staff, shall direct the consumer to obtain at least three bids for performance of the work. The board shall select a bidder to perform the repair work. Payment from the surety bond or other approved security must be authorized by the board only after an affidavit releasing the manufacturer or dealer from further obligation for repair or replacement of the items for which work was conducted, is signed and delivered to the board office by the consumer.

(B) If reimbursement to a consumer for repairs, parts, or other work is requested in a complaint, the department, with the approval of the board, shall determine the reasonable value of the repairs, parts, or work. The consumer may not be reimbursed from the surety bond or other approved security in an amount more than the reasonable value of the repairs, parts, or work.

(C) If a licensee does not conduct business after issuance of his license and the posting of the applicable surety bond or other approved security, the board, upon receipt of satisfactory evidence that no business was conducted and upon surrender of the license, may release the licensee's surety bond or other approved security.

Section 40-29-250. Each surety bond or other approved security issued for a manufactured home manufacturer, a manufactured home retail dealer, or a salesperson must be indemnity for a loss sustained by a consumer as a result of:

(1) a violation of a provision of this chapter or a regulation of the board;

(2) a violation of the written warranty or failure to fulfill warranty obligations as outlined in this chapter;

(3) fraud in the execution or performance of a contract;

Printed Page 2724 . . . . . Thursday, June 7, 2001

(4) a misrepresentation in reference to the sale of a manufactured home;

(5) refusal, failure, or inability to transfer good and sufficient legal title to the consumer;

(6) a misappropriation of funds belonging to the consumer;

(7) an alteration to deceive the consumer as to the manufacture or construction of the product;

(8) a false and fraudulent representation or deceitful practice in selling, financing, or representing a product or service.

Section 40-29-260. (A) A manufactured home manufacturer warrants the following on each new manufactured home sold in the State for one year from the date of completion of installation of the manufactured home for the consumer:

(1) all structural elements, plumbing systems, heating, cooling, and fuel burning systems, electrical systems, and any other components included are manufactured and installed free from defect in material and workmanship;

(2) the manufactured home complies with this chapter and regulations promulgated under this chapter;

(3) all appliances and equipment installed in the manufactured home must be free from defects in material and workmanship for one year, unless a valid warranty from the manufacturer or dealer of the appliances and equipment is furnished warranting against defects in materials and workmanship to the consumer for at least one year from date of delivery;

(4) appropriate corrective action must be taken within a reasonable period of time after the warranty violation has been communicated to the manufactured home manufacturer by the department or by the consumer;

(5) the warranty may not be voided as long as the installation of the manufactured home conforms to the standards adopted in this chapter;

(6) repair work performed under the one-year warranty is warranted for at least ninety days or until the end of the original one-year warranty, whichever is later.

(B) A manufactured home retail dealer warrants the following on each new manufactured home sold in the State for one year from the date of completion of installation of the manufactured home for the consumer:

(1) all changes, additions, or alterations made to the manufactured home by the manufactured home retail dealer are free

Printed Page 2725 . . . . . Thursday, June 7, 2001

from defects in materials and workmanship and do not bring the manufactured home out of compliance with the standards and that all appliances and equipment installed by the manufactured home retail dealer are free from defects in materials and workmanship unless a valid written warranty from the manufacturer or dealer of the appliances and equipment is furnished to the consumer warranting against a defect in materials or workmanship for a period of time customary in the industry for a warranty for the particular appliance or equipment;

(2) appropriate corrective action must be taken within a reasonable time after the warranty violation has been communicated to the manufactured home retail dealer by the department or by the consumer;

(3) repair work on changes, additions, or alterations authorized by the manufactured home manufacturer must be warranted for at least ninety days or until the end of the original one-year warranty, whichever is later;

(4) installation performed by the dealer of the manufactured home must be performed in compliance with applicable federal or state law regulations or standards for the installation of manufactured homes and during the course of installation and transportation of the manufactured home by the manufactured home retail dealer, defects do not occur;

(5) alterations or modifications made by a manufactured home retail dealer without authorization of the manufactured home manufacturer relieve the manufactured home manufacturer of warranty responsibility as to the items altered or modified and any damage resulting from the alteration or modification.

(1) all installations are performed in accordance with applicable state or federal law, regulations, or standards for the installation of manufactured homes;

(2) all modifications, alterations, or repairs are performed in compliance with applicable state or federal law, regulations, or standards;

(3) his performance will not cause defects in the home.

(D) For twelve months after completion of the work a manufactured home installer warrants that:

Printed Page 2726 . . . . . Thursday, June 7, 2001

(1) all installations are performed in compliance with applicable state or federal law, regulations, or standards for the installation of manufactured homes;

(2) his performance will not cause defects in the home.

(E) For at least ninety days after completion of the work a manufactured home repairer warrants that:

(1) all modifications, alterations, and repairs are performed in compliance with applicable state or federal law, regulations, or standards for the modification or repair of manufactured homes;

(2) his performance will not cause defects in the home.

(F) Appropriate corrective action must be taken within a reasonable period of time after the warranty violation has been communicated to the manufactured home manufacturer, retail dealer, contractor, installer, or repairer by the department or by the consumer.

Section 40-29-270. A defect must be remedied within thirty days of receipt of the written notification of the warranty claim, unless additional time is granted by the board. Defects which constitute an imminent safety hazard to life and health must be remedied within five working days of receipt of the written notification of the warranty claim. An imminent safety hazard to life and health includes, but is not limited to:

(1) inadequate heating in freezing weather;

(2) failure of sanitary facilities;

(3) electrical shock;

(4) leaking gas; or

(5) major structural failure.

The board may suspend this five-day time period in the event of widespread defects or damage resulting from adverse weather conditions or other natural catastrophes.

Section 40-29-280. If the new manufactured home is moved from the initial installation site during the term of the warranty period, the new home warranty does not apply to a defect or damage caused by the move. Conspicuous notice of this section must be given to the customer at the time of the sale.

Section 40-29-290. The board may carry out the responsibilities of the Construction and Safety Standards Act as the state administrative agency for South Carolina.

Section 40-29-300. The board shall oversee the handling of manufactured home consumer complaints that may be due to electrical, mechanical, or structural defects or nonconformances to the Construction and Safety Standards Act standards and regulations. As

Printed Page 2727 . . . . . Thursday, June 7, 2001

part of this responsibility, the manufactured home manufacturers must be inspected and monitored for compliance with federal manufactured home standards and regulations. In conducting its responsibilities under this section, the board shall recognize the need for life safety requirements as a part of its general oversight function and shall receive advice in the life safety area from the state fire marshal to ensure that fire prevention is a part of the overall program under the terms of this chapter.

Section 40-29-310. The board, by its authorized representatives, may enter, at reasonable times, a factory, warehouse, or establishment in which manufactured homes are manufactured, stored, or held for sale for the purpose of ascertaining whether the requirements of the Construction and Safety Standards Act and the regulations of the board have been and are being met.

Section 40-29-320. Each manufacturer, distributor, and dealer of manufactured homes shall establish and maintain records, make reports, and provide information as the SAA administrator or the secretary may require to determine whether the manufacturer, distributor, or dealer has acted or is acting in compliance with this chapter or the Construction and Safety Standards Act and upon request of a person appointed by the administrator or the secretary shall permit the person to inspect appropriate books, papers, records, and documents relevant to determining whether the manufacturer, distributor, or dealer has acted or is acting in compliance with this chapter. Purchase agreements used by retail dealers for the sale of new or used manufactured homes must be standard and in a form prescribed by the board.

Section 40-29-330. Manufactured homes, and their integral parts, because of the manner of their construction, assembly, and use and that of their systems, components and appliances, including, but not limited to, heating, plumbing, and electrical systems, like other finished products having concealed vital parts, may present hazards to the life and safety of persons and to the safety of property unless properly manufactured. In the sale of manufactured homes, there is also the possibility of defects not readily ascertainable when inspected by purchasers. It is the policy and purpose of this State to provide protection to the public against those possible hazards and for that purpose to forbid the manufacture and sale of new manufactured homes which are not constructed so as to provide safety and protection to their owners and users and further to require that the business practices of the industry are fair and orderly.

Printed Page 2728 . . . . . Thursday, June 7, 2001

Section 40-29-340. No person may sell or offer for sale a manufactured home manufactured after June 15, 1976, unless its components, systems, and appliances meet the criteria of compliance with the Construction and Safety Standards Act and have been properly certified by the Department of Housing and Urban Development.

Section 40-29-350. A manufactured home unit bearing a label issued by the Department of Housing and Urban Development is acceptable as meeting the requirements of this chapter throughout the State. Municipalities and counties may establish a fee for inspection of installation not to exceed one hundred dollars. Installation must be in accordance with the manufacturer's installation manual or the regulations established by this chapter. No installation regulation or standard may be enforced except those adopted by the board in conformity with the Construction and Safety Standards Act or adopted by a local authority to comply with the provisions of federal law for flood plain management.

Section 40-29-360. (A) The State Energy Office must produce energy efficiency labels and notices and provide these labels and notices to manufactured housing manufacturers upon request. The notices must state: 'Notice. An energy efficient home will reduce the overall cost of home ownership. South Carolina law encourages citizens to purchase energy efficient manufactured homes by providing a tax incentive for the purchase of such a home. This home qualifies for an energy efficiency sales tax incentive. Buyers of energy efficient manufactured homes can save money not only on taxes, but should also have lower monthly utility bills than less efficient homes.'

(B) Energy efficiency labels must be permanently affixed to the electrical panel and the notices must be affixed to the inside of the window closest to the front door. Energy efficiency labels and notices must be affixed by the manufacturer only on new homes and only at the place and time of production or manufacture. By affixing an energy efficiency label and notice, the manufacturer certifies that the manufactured home meets or exceeds the energy requirements provided for in Section 12-36-2110(B). Only the consumer may remove the notice.

Section 40-29-370. In municipalities and counties where electrical inspections are provided, proof of inspection of electrical service from the meter base to the main panel of the home must be obtained by the homeowner and submitted to the supplier of electricity before an electrical connection may occur.

Printed Page 2729 . . . . . Thursday, June 7, 2001

Section 40-29-380. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this chapter is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this chapter, the General Assembly hereby declaring that it would have passed this chapter, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective."

SECTION 2. This act takes effect upon approval by the Governor./

Amend title to conform.

/s/Thomas C. Alexander            /s/Olin R. Phillips
/s/Chauncey K. Gregory            /s/Tracy Russell Edge
/s/Glenn G. Reese                 /s/James Gresham Barrett
On Part of the Senate.            On Part of the House.

H. 3288--ENROLLED FOR RATIFICATION

The Report of the Committee of Conference having been adopted by both Houses, ordered that the title be changed to that of an Act, and the Act enrolled for Ratification.

H. 3288 (Word version) -- Reps. Cato, Edge and White: A BILL TO AMEND CHAPTER 29, TITLE 40, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE BUSINESS OF MANUFACTURED HOUSING, SO AS TO CONFORM THE CHAPTER TO THE STATUTORY ORGANIZATIONAL FRAMEWORK OF CHAPTER 1, TITLE 40 FOR BOARDS UNDER
THE ADMINISTRATION OF THE DEPARTMENT OF LABOR, LICENSING AND REGULATION AND TO FURTHER PROVIDE FOR THE LICENSURE AND REGULATION OF THE SOUTH CAROLINA MANUFACTURED HOUSING BOARD.

A message was sent to the House accordingly.

Message from the House

Columbia, S.C., June 6, 2001

Mr. President and Senators:

The House respectfully informs your Honorable Body that it concurs in the amendments proposed by the Senate to:

Printed Page 2730 . . . . . Thursday, June 7, 2001

H. 3379 (Word version) -- Rep. J. Brown: A JOINT RESOLUTION TO ESTABLISH THE NEWBORN EYE SCREENING TASK FORCE TO STUDY AND MAKE RECOMMENDATIONS CONCERNING SCREENING NEWBORN CHILDREN FOR CERTAIN OCULAR DISEASES AND ABNORMALITIES.
and has ordered the Bill Enrolled for Ratification.
Very respectfully,
Speaker of the House

Received as information.

Message from the House

Columbia, S.C., June 6, 2001

Mr. President and Senators:

The House respectfully informs your Honorable Body that it concurs in the amendments proposed by the Senate to:
H. 4015 (Word version) -- Reps. Breeland, Whipper, Harrell, Weeks, Limehouse, Allison, Bowers, R. Brown, Dantzler, Emory, Gourdine, J. Hines, M. Hines, Hosey, Law, Lloyd, Mack, Meacham-Richardson, Miller, J.M. Neal, Rivers, Scarborough, Snow and Stuart: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 1-1-693 SO AS TO DESIGNATE PORGY AND BESS AS THE OFFICIAL OPERA OF THIS STATE AND TO PROVIDE THAT COPYRIGHTED OR PROPRIETARY MATERIAL FROM PORGY AND BESS MAY NOT BE USED WITHOUT THE PERMISSION OF THE OWNERS OF THAT MATERIAL.
and has ordered the Bill Enrolled for Ratification.
Very respectfully,
Speaker of the House

Received as information.

Privilege of the Chamber

On motion of Senator THOMAS, with unanimous consent, the Privilege of the Chamber, to that area behind the rail, was extended to Mrs. Hattie Waymyers, dedicated and innovative Gressette Building Canteen Manager, upon the occasion of her retirement.

Mrs. Waymyers was presented S. 736, a Senate Resolution, on behalf of the Senate, which read as follows:

Whereas, Ms. Hattie Waymyers will soon be ending her duties in the Gressette canteen, but she will not soon be forgotten thanks to her hard

Printed Page 2731 . . . . . Thursday, June 7, 2001

work and good cheer, which helped all who entered the Gressette canteen make it through the day; and

Whereas, Ms. Hattie Waymyers is a native of Charleston County, and she is the proud and loving mother of her son, James Antonio (Tony) Waymyers; and

Whereas, Ms. Hattie has been providing meals, snacks, and smiles to all as manager of the Gressette canteen since August 5, 1988, and she will be greatly missed by those who have enjoyed her good food and friendly service for so many years; and

Whereas, she is a warm and personable lady who never meets a stranger. The respect in which Ms. Hattie is held is evidenced by her service as vice president and secretary of the South Carolina Federation of the Blind. She is also the recipient of the Archie D. Croft Award from the American Council for the Blind and the Donald Capps Award from the National Federation of the Blind of South Carolina; and

Whereas, the members of the Senate wish to express their deepest appreciation to Ms. Hattie for all her efforts to make the Gressette canteen one of the best in state government. The members of the Senate also hope that she finds happiness in her future endeavors and want her to know that she will always hold a special place in the hearts of her family, friends, and co-workers at the Gressette Building and throughout the State Capitol Complex. Now, therefore,

Be it resolved by the Senate:

That the members of the Senate, by this resolution, express their sincere gratitude to Ms. Hattie Waymyers for her dedicated and outstanding service as the Gressette Building Canteen Manager and wish her and her family many years of health and happiness on the occasion of her retirement.

Be it further resolved that a copy of this resolution be forwarded to Ms. Hattie Waymyers.

RECESS

At 11:27 A.M., on motion of Senator PEELER, the Senate receded from business not to exceed 5 minutes.

At 11:37 A.M., the Senate resumed.

READ THE SECOND TIME

The following Bill, having been read the second time, was ordered placed on the third reading Calendar:

S. 746 (Word version) -- Senators Wilson, Bauer, Courson, Patterson: A BILL TO ESTABLISH SINGLE MEMBER ELECTION DISTRICTS AND

Printed Page 2732 . . . . . Thursday, June 7, 2001

ONE AT-LARGE DISTRICT FROM WHICH TRUSTEES OF RICHLAND-LEXINGTON SCHOOL DISTRICT 5 ARE ELECTED.

By prior motion of Senator WILSON, with unanimous consent

CONSIDERATION INTERRUPTED

S. 559 (Word version) -- Finance Committee: A BILL TO AMEND SECTION 12-36-90, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE DEFINITION OF "GROSS PROCEEDS OF SALES" FOR PURPOSES OF THE SOUTH CAROLINA SALES TAX ACT, SO AS TO PROVIDE THAT GROSS PROCEEDS OF SALES DO NOT INCLUDE INTEREST, FEES, OR CHARGES IMPOSED ON A CUSTOMER FOR LATE PAYMENT OF A BILL FOR ELECTRICITY OR NATURAL GAS, OR BOTH, WHETHER OR NOT SALES TAX IS REQUIRED TO BE PAID ON THE UNDERLYING BILL.

The House returned the Bill with amendments.

Senator PASSAILAIGUE spoke on the Bill.

Objection

At 11:40 A.M., with Senator PASSAILAIGUE retaining the floor, Senator GROOMS asked unanimous consent to make a motion to carry over the Bill for forty-five minutes.

Senator RANKIN objected.

Objection

Senator RANKIN asked unanimous consent to take up S. 187 for immediate consideration.

Senator MARTIN spoke on the motion.

Senator MARTIN objected.

Parliamentary Inquiry

Senator HAWKINS made a Parliamentary Inquiry as to whether the Senate was still in the Morning Hour.

The PRESIDENT stated that the Senate was still in the Morning Hour.

Senator PASSAILAIGUE spoke on S. 559.

Printed Page 2733 . . . . . Thursday, June 7, 2001

Objection

At 11:44 A.M., with Senator PASSAILAIGUE retaining the floor, Senator GROOMS asked unanimous consent to make a motion to carry over the Bill for forty-five minutes.

Senator HUTTO objected.

Senator PASSAILAIGUE spoke on S. 559.

RECALLED

H. 4097 (Word version) -- Reps. Scarborough, Owens, G.M. Smith, J. Young, Sinclair, D.C. Smith, Talley, Bingham, Weeks, Snow, Haskins, Coates, Allen, Bales, Perry, Rivers, Thompson, White, Bowers, Breeland, R. Brown, Freeman, Harrell, Leach, Limehouse and Merrill: A BILL TO AMEND SECTIONS 2-17-10 AND 8-13-1300, BOTH AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING, RESPECTIVELY, TO DEFINITIONS CONCERNING LOBBYISTS AND LOBBYING AND CAMPAIGN PRACTICES, BOTH SO AS TO REVISE THE DEFINITION OF "LEGISLATIVE CAUCUS" TO INCLUDE A CAUCUS BASED ON DURATION OF SERVICE IN THE GENERAL ASSEMBLY.

With Senator PASSAILAIGUE retaining the floor on S. 559, Senator FORD asked unanimous consent to make a motion to recall the Bill from the Committee on Judiciary.

There was no objection.

The Bill was recalled and ordered placed on the Calendar.

Message from the House

Columbia, S.C., June 7, 2001

Mr. President and Senators:

The House respectfully informs your Honorable Body that it refuses to concur in the amendments proposed by the Senate to:

S. 394 (Word version) -- Judiciary Committee: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 20-7-135, SO AS TO PROVIDE THAT COURT-APPOINTED GUARDIANS AD LITEM IN CUSTODY

Printed Page 2734 . . . . . Thursday, June 7, 2001

CASES MUST MAKE CERTAIN DISCLOSURES UPON THEIR APPOINTMENT.
Very respectfully,
Speaker of the House

Received as information.

S. 394--CONFERENCE COMMITTEE APPOINTED

S. 394 (Word version) -- Judiciary Committee: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 20-7-135, SO AS TO PROVIDE THAT COURT-APPOINTED GUARDIANS AD LITEM IN CUSTODY CASES MUST MAKE CERTAIN DISCLOSURES UPON THEIR APPOINTMENT.

On motion of Senator LEVENTIS, the Senate insisted upon its amendments to S. 394 and asked for a Committee of Conference.

Whereupon, Senators HAYES, MARTIN and LEVENTIS were appointed to the Committee of Conference on the part of the Senate and
a message was sent to the House accordingly.

Message from the House

Columbia, S.C., June 7, 2001

Mr. President and Senators:

The House respectfully informs your Honorable Body that it has appointed Reps. J. Smith, D.M. Smith and Easterday to the Committee of Conference on the part of the House on:
S. 394 (Word version) -- Judiciary Committee: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 20-7-135, SO AS TO PROVIDE THAT COURT-APPOINTED GUARDIANS AD LITEM IN CUSTODY CASES MUST MAKE CERTAIN DISCLOSURES UPON THEIR APPOINTMENT.
Very respectfully,
Speaker of the House

Received as information.

HOUSE CONCURRENCE

S. 749 (Word version) -- Senator Hawkins: A CONCURRENT RESOLUTION DESIGNATING FOOTHILLS BBQ JAMBOREE AND ITS BBQ COOKOFF CONTEST IN SPARTANBURG COUNTY AS "THE

Printed Page 2735 . . . . . Thursday, June 7, 2001

KANSAS CITY BARBEQUE SOCIETY (KCBS) STATE OF SOUTH CAROLINA CHAMPIONSHIP BARBEQUE".

Returned with concurrence.

Received as information.

ACTING PRESIDENT PRESIDES

At 12:00 Noon, Senator MARTIN assumed the Chair.

Senator PASSAILAIGUE spoke on S. 559.

Point of Quorum

At 12:40 P.M., Senator PATTERSON made the point that a quorum was not present. It was ascertained that a quorum was not present.

Call of the Senate

Senator PATTERSON moved that a Call of the Senate be made. The following Senators answered the Call:

Alexander                 Anderson                  Bauer
Branton                   Courson                   Drummond
Elliott                   Fair                      Ford
Giese                     Glover                    Gregory
Grooms                    Hawkins                   Hayes
Holland                   Hutto                     Jackson
Land                      Leatherman                Leventis
Martin                    Matthews                  McConnell
McGill                    Mescher                   Moore
O'Dell                    Passailaigue              Patterson
Peeler                    Pinckney                  Rankin
Ravenel                   Reese                     Richardson
Ritchie                   Ryberg                    Saleeby
Setzler                   Short                     Smith, J. Verne
Thomas                    Verdin                    Waldrep
Wilson

A quorum being present, the Senate resumed.

Senator PASSAILAIGUE spoke on S. 559.

ACTING PRESIDENT PRESIDES

At 12:50 P.M., Senator ALEXANDER assumed the Chair.

Printed Page 2736 . . . . . Thursday, June 7, 2001

Senator PASSAILAIGUE spoke on S. 559.

With Senator PASSAILAIGUE retaining the floor on S. 559, Senator THOMAS asked unanimous consent to make a motion to take up H. 3974 for immediate consideration.

There was no objection.

Message from the House

Columbia, S.C., June 7, 2001

Mr. President and Senators:

The House respectfully informs your Honorable Body that it insists upon the amendments proposed by the House to:
H. 3974 (Word version) -- Rep. Cato: A BILL TO AMEND SECTION 37-17-10, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO REGULATION OF PERSONS WHO SELL PRESCRIPTION DRUG DISCOUNT CARDS, SO AS TO PROVIDE THAT SUCH PERSONS MUST REGISTER AND REPORT TO THE DEPARTMENT OF CONSUMER AFFAIRS, RATHER THAN TO THE DEPARTMENT OF INSURANCE; TO AMEND SECTION 38-5-80, AS AMENDED, RELATING TO REQUIREMENTS TO OBTAIN A LICENSE TO CONDUCT INSURANCE BUSINESS IN THIS STATE, SO AS TO CLARIFY WHAT BOOKS AND RECORDS OF AN INSURER MUST BE MAINTAINED IN THIS STATE.(ABBREVIATED TITLE)
asks for a Committee of Conference, and has appointed Reps. Cato, Bales and Tripp to the committee on the part of the House.
Very respectfully,
Speaker of the House

Received as information.

H. 3974--RECONSIDERED NONCONCURRENCE
CONCURRENCE WITH THE HOUSE AMENDMENTS
ENROLLED FOR RATIFICATION

H. 3974 (Word version) -- Rep. Cato: A BILL TO AMEND SECTION 37-17-10, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO REGULATION OF PERSONS WHO SELL PRESCRIPTION DRUG DISCOUNT CARDS, SO AS TO PROVIDE THAT SUCH PERSONS MUST REGISTER AND REPORT TO THE DEPARTMENT OF CONSUMER AFFAIRS, RATHER THAN TO THE DEPARTMENT OF INSURANCE; TO AMEND SECTION 38-5-80, AS AMENDED,

Printed Page 2737 . . . . . Thursday, June 7, 2001

RELATING TO REQUIREMENTS TO OBTAIN A LICENSE TO CONDUCT INSURANCE BUSINESS IN THIS STATE. (ABBREVIATED TITLE)

Senator THOMAS asked unanimous consent to take the Bill up for immediate consideration.

There was no objection.

Having voted on the prevailing side, Senator THOMAS asked unanimous consent to make a motion to reconsider the vote whereby the Senate nonconcurred in the House amendments.

There was no objection.

On motion of Senator THOMAS, with unanimous consent, the Senate concurred in the House amendments and a message was sent to the House accordingly. Ordered that the title be changed to that of an Act and the Act enrolled for Ratification.

HOUSE AMENDMENTS AMENDED
RETURNED TO THE HOUSE WITH AMENDMENTS

S. 187 (Word version) -- Senators Rankin, Short and Hutto: A BILL TO AMEND SECTION 56-5-6410, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE USE OF A CHILD PASSENGER RESTRAINT SYSTEM IN A MOTOR VEHICLE THAT TRANSPORTS A CHILD UNDER SIX YEARS OF AGE, SO AS TO PROVIDE THAT A CHILD FOUR YEARS OF AGE OR MORE WHO CANNOT SIT WITH THEIR BACKS STRAIGHT AGAINST THE VEHICLE SEAT BACK CUSHION WITH KNEES BENT OVER A VEHICLE'S SEAT EDGE MUST BE SECURED BY A BELT-POSITIONING BOOSTER SEAT PRESCRIBED BY THE NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION.

The House returned the Bill with amendments.

With Senator PASSAILAIGUE retaining the floor on S. 559, Senator RANKIN asked unanimous consent to make a motion to take up S. 187 for immediate consideration.

There was no objection.

The Senate proceeded to a consideration of the Bill, the question being concurrence with the House amendments.

Printed Page 2738 . . . . . Thursday, June 7, 2001

Senators McCONNELL and RANKIN proposed the following amendment (JUD0187.10), which was adopted:

Amend the bill, as and if amended, by striking all after the enacting words and inserting therein the following:

/ SECTION 1. Section 56-5-6410 of the 1976 Code is further amended to read:

"Section 56-5-6410. Every driver of a motor vehicle (passenger car, pickup truck, van, or recreational vehicle) ~~registered in this State or primarily~~ operated on the highways and streets of this State when transporting a child ~~under six~~ five years of age or younger upon the public streets and highways of the State ~~shall~~ must provide an appropriate child passenger restraint system and ~~shall~~ must secure the child as follows:

(1) ~~Any~~ A child ~~three years of age or less~~ from birth up to one year of age or who weighs less than twenty pounds must be properly secured in a rear-facing child ~~restraint system~~ safety seat which meets the standards prescribed by the National Highway Traffic Safety Administration.

(2) ~~Any~~ A child ~~four or five years of age~~ who is at least one year of age but less than six years of age and who weighs at least twenty pounds but less than forty pounds must be secured ~~by a~~ in a forward-facing child safety ~~belt~~ seat provided in the motor vehicle ~~unless properly secured in a child restraint system~~ which meets the standards prescribed by the National Highway Traffic Safety Administration.

(3) A child who is at least one year of age but less than six years of age and who weighs at least forty pounds but not more than eighty pounds must be secured by a belt-positioning booster seat. The belt-positioning booster seat must be used with both lap and shoulder belts. A booster seat must not be used with a lap belt alone.

(4) If a child is at least one year of age but less than six years of age and weighs more than eighty pounds, the child may be restrained in an adult safety belt. If a child less than six years of age can sit with his back straight against the vehicle seat back cushion, with his knees bent over the vehicle's seat edge without slouching, the child may be seated in the regular back seat and secured by an adult safety belt.

(5) A child who is less than six years of age must not occupy a front passenger seat of a motor vehicle. This restriction does not apply if the motor vehicle does not have rear passenger seats or if all rear passenger seats are occupied by other children less than six years of age.

Any child restraint system of a type sufficient to meet the physical standards prescribed by the National Highway Traffic Safety

Printed Page 2739 . . . . . Thursday, June 7, 2001

Administration at the time of its manufacture is sufficient to meet the requirements of this article."

SECTION 2. Section 56-5-6520 of the 1976 Code is amended to read:

"Section 56-5-6520. The driver and every occupant of a motor vehicle, when it is being operated on the public streets and highways of this State, ~~shall~~ must wear a fastened safety belt which complies with all provisions of federal law for ~~their~~ its use. The driver is charged with the responsibility of requiring each occupant ~~over six and under~~ seventeen years of age or younger to wear a safety belt or be secured in a child restraint system as provided in Article 47 of this chapter. However, a driver is not responsible for an occupant seventeen years of age or younger who has a driver's license, special restricted license, or beginner's permit and who is not wearing a seat belt; such occupant is in violation of this article and must be fined in accordance with Section 56-5-640."

SECTION 3. The 1976 Code is amended by adding:

"Section 56-5-6525. The Department of Public Safety or any other law enforcement agency must not use a 'Click It or Ticket' campaign or a similar endeavor of systematic checkpoints or roadblocks as a law enforcement tool where the principal purpose is to detect and issue a ticket to a violator of the provisions of this article on either a primary or secondary basis."

SECTION 4. Section 56-5-6530 of the 1976 Code is amended by adding an appropriately numbered item at the end to read:

"( ) a driver or occupants in a vehicle not originally equipped with safety belts."

SECTION 5. Section 56-5-6540 of the 1976 Code is amended to read:

"Section 56-5-6540. (A) A person ~~violating~~ who violates the provisions of this article, upon conviction, must be fined not more than ~~ten~~ twenty-five dollars, all or part of which may be suspended. No court costs, assessments, or surcharges may be assessed against the person convicted. No person may be fined more than ~~twenty~~ fifty dollars for any one incident of one or more violations of the provisions of this article. No custodial arrest for a violation of this article may be made, except upon a warrant issued for failure to appear in court when summoned or for failure to pay an imposed fine. A conviction for violation of this article does not constitute a criminal offense. Notwithstanding Section 56-1-640, a conviction for a violation of this article must not be included in the offender's motor vehicle records

Printed Page 2740 . . . . . Thursday, June 7, 2001

maintained by the Department of Public Safety or in the criminal records maintained by SLED.

(B) A law enforcement officer ~~may~~ must not stop a driver for a violation of this article in the absence of another violation of the motor vehicle laws except as follows:

(1) when the officer has probable cause for a violation of this article based on his clear and unobstructed view of a driver seventeen years of age or younger or an occupant of the motor vehicle seventeen years of age or younger who is not wearing a safety belt or is not secured in a child restraint system as required by Article 47; or

(2) when the stop is made in conjunction with a driver's license check or registration check conducted at a checkpoint established to stop all drivers on a certain road for a period of time.

(C) A citation for a violation of this article, except for a citation issued pursuant to a stop made under subsection (B)(1), must not be issued without citing the violation that initially caused the officer to effect the enforcement stop.

(D) A citation issued pursuant to a stop made under subsection (B)(1) may be issued without citing any other violation.

~~(C)~~(E) A violation of this article does not constitute negligence per se or contributory negligence, and is not admissible as evidence in a civil action.

(F) No vehicle, driver, or occupant in a vehicle may be searched solely because of a violation of this article or a stop made under subsection (B)(1)."

SECTION 6. This act takes effect July 1, 2001, and applies to all offenses committed on or after that date. /

Renumber sections to conform.

Amend title to conform.

Senator RANKIN explained the amendment.

The amendment was adopted.

There being no further amendments, the Bill was amended and ordered returned to the House with amendments.

Printed Page 2741 . . . . . Thursday, June 7, 2001

MINORITY REPORT WITHDRAWN
COMMITTEE AMENDMENT ADOPTED
READ THE THIRD TIME, RETURNED TO THE HOUSE

H. 3777 (Word version) -- Rep. Robinson: A BILL TO AMEND SECTIONS OF TITLE 12, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE ENTERPRISE ZONE ACT, THE ECONOMIC DEVELOPMENT AUTHORITY, POLITICAL SUBDIVISIONS, TELECOMMUNICATIONS, AND OTHER SECTIONS OF TITLE 12; AND TO AMEND SECTION 4-37-30, AS AMENDED, RELATING TO SALES AND USE TAXES OR TOLLS AS REVENUE FOR TRANSPORTATION FACILITIES; AND TO AMEND ACT 588 OF 1994, RELATING TO THE CHEROKEE COUNTY SCHOOL DISTRICT 1 SCHOOL BOND-PROPERTY TAX RELIEF ACT AND ACT 441 OF 2000, RELATING TO THE CHESTERFIELD COUNTY SCHOOL DISTRICT SCHOOL BOND-PROPERTY TAX RELIEF ACT; TO MAKE CERTAIN SUBSTANTIVE AND TECHNICAL CHANGES. (ABBREVIATED TITLE)

With Senator PASSAILAIGUE retaining the floor on S. 559, Senator RANKIN asked unanimous consent to make a motion to take up H. 3777 for immediate consideration.

There was no objection.

The Senate proceeded to a consideration of the Bill, the question being the adoption of the amendment proposed by the Committee on Finance.

On motion of Senator REESE, with unanimous consent, the Minority Report was withdrawn.

The Committee on Finance proposed the following amendment (DKA\4482MM01), which was adopted:

Amend the bill, as and if amended, by striking all after the enacting words and inserting:

/ SECTION 1. Chapter 10, Title 12 of the 1976 Code is amended by adding:

Printed Page 2742 . . . . . Thursday, June 7, 2001

the council to claim as a credit against withholding five hundred dollars a year for the retraining of a production or technology employee if retraining is necessary for the qualifying business to remain competitive or to introduce new technologies. In addition to the yearly limits, the retraining credit claimed against withholding may not exceed two thousand dollars over five consecutive years for each retrained production or technology employee.

(B) A qualifying business is eligible to claim as a retraining credit against withholding the lower amount of the following:

(1) the retraining credit for the applicable withholding period as determined by subsection (A); or

(2) withholding paid to the State for the applicable withholding period.

(C) All retraining must be approved by a technical college under the jurisdiction of the State Board for Technical and Comprehensive Education. A qualifying business must submit a retraining program for approval by the appropriate technical college. The approving technical college may provide the retraining itself, subject to the retraining program, or contract with other training entities to provide the required retraining.

(D) Travel and lodging expenses and wages for retraining participants are not reimbursable.

(E) The qualifying business must match on a dollar-for-dollar basis the amount claimed as a credit against withholding for retraining. When applicable, the total amount of retraining credits and matching funds must be paid to the technical college that provides the training. All training costs, including costs in excess of the retraining credits and matching funds, are the responsibility of the business.

(F) A qualifying business claiming retraining credits pursuant to this section is subject to the reporting and audit requirements in Section 12-10-80(A).

(G) A qualifying business may not claim retraining credit for training provided to the following production or technology employees:

(a) temporary or contract employees; and

(b) employees who are subject to a revitalization agreement, including a preliminary revitalization agreement."

SECTION 2. Section 12-2-25 of the 1976 Code is amended to read:

"Section 12-2-25. (A) As used in this title and unless otherwise required by the context:

(1) 'partnership' includes a limited liability company taxed for South Carolina income tax purposes as a partnership.;

Printed Page 2743 . . . . . Thursday, June 7, 2001

(2) 'partner' includes ~~any~~ a member of a limited liability company taxed for South Carolina income tax purposes as a partnership.;

(3) 'corporation' includes a limited liability company or professional or other association taxed for South Carolina income tax purposes as a corporation.; and

(4) 'shareholder' includes ~~any~~ a member of a limited liability company taxed for South Carolina income tax purposes as a corporation.

(B) Single-member limited liability companies which are not taxed for South Carolina income tax purposes as a corporation, and grantor trusts, to the extent they are grantor trusts, will be ignored for all South Carolina tax purposes. For South Carolina tax purposes:

(1) a single-member limited liability company, which is not taxed for South Carolina income tax purposes as a corporation, is not regarded as an entity separate from its owner;

(2) a 'qualified subchapter 'S' subsidiary', as defined in Section 1361(b)(3)(B) of the Internal Revenue Code, is not regarded as an entity separate from the 'S' corporation that owns the stock of the qualified subchapter 'S' subsidiary; and

(3) a grantor trust, to the extent that it is a grantor trust, is not regarded as an entity separate from its grantor.

SECTION 3. Section 12-6-40 of the 1976 Code, as last amended by Section 7, Part II, Act 387 of 2000, is further amended to read:

"Section 12-6-40. (A)(1) 'Internal Revenue Code' means the Internal Revenue Code of 1986 as amended through December 31, ~~1999~~ 2000, and includes the effective date provisions contained ~~therein~~ in it.

(2)(a) For purposes of this title, 'Internal Revenue Code' is deemed to contain all changes necessary for the State to administer its provisions. Unless a different meaning is required:

( i) 'Secretary', 'Secretary of the Treasury', or 'Commissioner' means the Director of the Department of Revenue.

( ii) 'Internal Revenue Service' means the department.

(iii) 'Return' means the appropriate state return.

( iv) 'Income' includes the modifications required by Article 9 of this chapter and allocation and apportionment as provided in Article 17 of this chapter.

Printed Page 2744 . . . . . Thursday, June 7, 2001

Other terms in the Internal Revenue Code must be given the meanings necessary to effectuate this item.

(b) For purposes of Internal Revenue Code Sections 67 (Two Percent Floor on Miscellaneous Itemized Deductions), 71 (Alimony and Separate Maintenance Payments), 85 (Unemployment Compensation), 165 (Losses), 170 (Charitable Contributions), 213 (Medical and Dental Expenses), 219 (Retirement Savings), 469 (Passive Activity Losses and Credits Limited), and 631 (Gain or Loss in the Case of Timber, Coal, or Domestic Iron Ore), 'Adjusted Gross Income' for South Carolina income tax purposes means a taxpayer's adjusted gross income for federal income tax purposes without regard to the adjustments required by Article 9 and Article 17 of this chapter.

(c) For a taxpayer utilizing the provisions of Internal Revenue Code Section 1341 (Computation of Tax where Taxpayer Restores Substantial Amount Held under Claim of Right) for South Carolina tax purposes the phrase 'taxes imposed by this chapter' means taxes imposed by Chapter 6 of this title.

(d) The terms defined in Internal Revenue Code Sections 7701, 7702, and 7703 have the same meaning for South Carolina income tax purposes, unless a different meaning is clearly required.

(B) All elections made for federal income tax purposes in connection with Internal Revenue Code Sections adopted by this State automatically apply for South Carolina income tax purposes unless otherwise provided. A taxpayer may not make an election solely for South Carolina income tax purposes except for elections not applicable for federal purposes, including filing a combined or composite return as provided in Sections 12-6-5020 and 12-6-5030, respectively.

~~(C)~~ For purposes of Internal Revenue Code Sections 67 (Two Percent Floor on Miscellaneous Itemized Deductions), 71 (Alimony and Separate Maintenance Payments), 85 (Unemployment Compensation), 165 (Losses), 170 (Charitable Contributions), 213 (Medical and Dental Expenses), 219 (Retirement Savings), 469 (Passive Activity Losses and Credits Limited), and 631 (Gain or Loss in the Case of Timber, Coal, or Domestic Iron Ore), "Adjusted Gross Income" for South Carolina income tax purposes means a taxpayer's adjusted gross income for federal income tax purposes without regard to the adjustments required by Article 9 and Article 17 of this chapter.

~~(D)~~ ~~For a taxpayer utilizing the provisions of Internal Revenue Code Section 1341 (Computation of Tax where Taxpayer Restores Substantial Amount Held under Claim of Right) for South Carolina tax~~

Printed Page 2745 . . . . . Thursday, June 7, 2001

~~purposes the phrase "taxes imposed by this chapter" means taxes imposed by Chapter 6 of this title.~~

~~(E)~~ ~~The terms defined in Internal Revenue Code Sections 7701, 7702, and 7703 have the same meaning for South Carolina income tax purposes, unless a different meaning is clearly required.~~

~~(F)~~(C) If a taxpayer complies with the provisions of Internal Revenue Code Section 367 (Foreign Corporations), it is not necessary for the taxpayer to obtain the approval of the department. The taxpayer shall attach a copy of the approval received from the Internal Revenue Service to its next South Carolina income tax return."

SECTION 4. Section 12-6-50(11) of the 1976 Code is amended to read:

"(11) Sections 861 through 908, 912, ~~and~~ 931 through 940, and 944 through 989 relating to the taxation of foreign income;"

SECTION 5. Section 12-6-2210(A) of the 1976 Code is amended to read:

"(A) If the entire business of a taxpayer is transacted or conducted within this State, the income tax as provided in this chapter is measured by the entire net income of the taxpayer for the taxable year. The entire business of the taxpayer is transacted ~~and~~ or conducted within the State if the taxpayer is not subject to a net income tax or a franchise tax measured by net income in another state, the District of Columbia, a territory or possession of the United States, or a foreign country, or and would not be subject to a net income tax in another ~~such~~ taxing jurisdiction if the other taxing jurisdiction adopted the net income tax laws of this State."

SECTION 6. Section 12-6-3330(C)(2) of the 1976 Code is amended to read:

"(2) The term 'South Carolina earned income' means income ~~which~~ that is earned income within the meaning of Internal Revenue Code Section 911(d)(2) or 401(c)(2)~~(C) which~~ and is taxable in this State, except that:

(a) it does not include an amount:

( i) received from a retirement plan or an annuity;

( ii) paid or distributed from an individual retirement plan as defined in Internal Revenue Code Section 7701(a)(37);

(iii) received as deferred compensation; or

( iv) received for services performed by an individual employed by his spouse within the meaning of Internal Revenue Code Section 3121(b)(3)~~(A)~~(B) ~~as amended through December 31, 1987~~; and

Printed Page 2746 . . . . . Thursday, June 7, 2001

(b) Internal Revenue Code Section 911(d)(2)(B) must be applied without regard to the phrase 'not in excess of thirty percent of his share of net profits of such trade or business'."

SECTION 7. Section 12-6-3410(J)(1) and (4) are amended to read:

"(1) 'Corporate headquarters' means the facility or portion of a facility where corporate staff employees are physically employed, and where the majority of the company's financial, personnel, legal, planning, information technology, or other headquarters related functions are handled either on a regional or national basis. A corporate headquarters must be a regional corporate headquarters or a national corporate headquarters as defined below:

(a) National corporate headquarters must be the sole corporate headquarters in the nation and handle headquarters related functions on a national basis. A national headquarters shall be deemed to handle headquarters related functions on a national basis from this State if the corporation has a facility in this State from which the corporation engages in interstate commerce by providing goods or services for customers outside of this State in return for compensation.

(b) Regional corporate headquarters must be the sole corporate headquarters within the region and must handle headquarters related functions on a regional basis. For purposes of this section, 'region' or 'regional' means a geographic area comprised of either:

( i) at least five states, including this State, or

(ii) two or more states, including this State, if the entire business operations of the corporation are performed within fewer than five states.

(4) 'Headquarters related functions and services' are those functions involving financial, personnel, administrative, legal, planning, information technology, or similar business functions."

SECTION 8. Section 12-6-3500 of the 1976 Code is amended to read:

Printed Page 2747 . . . . . Thursday, June 7, 2001

require the documentation it determines necessary to verify the amount of income tax paid the other state on the contributions. Regardless of the tax rates applicable on the contributions in the other state, the total of the credit allowed may not exceed an amount determined by multiplying the contributions taxed in each year by the marginal South Carolina individual income tax rate for that year."

SECTION 9. Section 12-6-3520 of the 1976 Code is amended to read:

"Section 12-6-3520. (A) There ~~shall be~~ is allowed as a tax credit against the income tax liability of a taxpayer an amount equal to fifty percent of the costs incurred by the taxpayer for habitat management or construction and maintenance of improvements on real property that are made to land as described in Section 50-15-55(A) and which ~~meets~~ meet the requirements of regulations promulgated by the Department of Natural Resources pursuant to Section 50-15-55(A). For purposes of this section, 'costs incurred' means those monies spent or revenue foregone for habitat management or construction and maintenance, but does not include revenue foregone as increases in land values or speculative costs related to development.

(B) All costs must be incurred on land that has been designated as a certified management area for endangered species enumerated in Section 50-15-40 or for nongame and wildlife species determined to be in need management under Section 50-15-30.

(C) The tax credit allowed by this section must be claimed in the year that ~~such~~ the costs, as provided in subsection (B), are incurred ~~as provided for in subsection (B)~~. ~~The~~ This credit ~~established by this section~~ taken in one year may not exceed fifty percent of the taxpayer's income tax liability due pursuant to Section 12-6-510 or 12-6-530 for that year. If the amount of the credit exceeds the taxpayer's income tax liability for that taxable year, the taxpayer may carry forward ~~any~~ the excess for up to ten years.

(D) If ~~during any taxable year~~ the landowner voluntarily chooses to leave the agreement made concerning the certified areas during any taxable year after taking the tax credit, then the taxpayer's tax liability for the current taxable year must be increased by the full amount of any credit claimed in ~~prior~~ previous years with respect to the property.

Printed Page 2748 . . . . . Thursday, June 7, 2001

credit against taxes. Any credit generated by an 'S' corporation must first be used against any tax liability of the 'S' corporation under Section 12-6-530. Any remaining credit passes through to the shareholders of the 'S' corporation.

(2) The amount of the credit allowed a shareholder, member, or partner~~, or owner of a limited liability company~~ pursuant to this section is equal to the shareholder's percentage of stock ownership, the member's interest in the limited liability company, or the partner's interest in the partnership, for the taxable year, multiplied by the amount of the credit ~~that the taxpayer would have been entitled to if it were taxed as a corporation~~ earned by the entity. Credit earned by an 'S' corporation owing corporate level income tax must be used first at the entity level. Only the remaining credit passes through to the shareholders of the 'S' corporation.

(3) For purposes of this subsection, 'limited liability company' means a limited liability company taxed like a partnership."

SECTION 10. Section 12-10-30 of the 1976 Code, as last amended by Act 399 of 2000, is further amended to read:

"Section 12-10-30. As used in this chapter:

(1) 'Council' means the ~~Advisory~~ Coordinating Council for Economic Development.

(2) 'Department' means the South Carolina Department of Revenue.

(3) 'Employee' means an employee of the qualifying business who works full time ~~within the enterprise zone~~ at the project.

(4) 'Gross wages' means wages subject to withholding.

(5) 'Job development credit' means the amount a qualifying business may claim as a credit against employee withholding pursuant to Sections 12-10-80 and 12-10-81 and a revitalization agreement.

(6) 'New job' means a job created or reinstated as defined in Section 12-6-3360(M)(3).

(7) 'Qualifying business' means a business that meets the requirements of Section 12-10-50 and other applicable requirements of this chapter ~~and, where required pursuant to Section 12-10-50, enters into a revitalization agreement with the council to undertake a project pursuant to the provisions of this chapter~~.

(8) 'Project' means an investment for one or more purposes pursuant to this chapter needed for a qualifying business to locate, remain, or expand in this State and otherwise fulfill the requirements of this chapter.

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(9) 'Preliminary revitalization agreement' means the application by the qualifying business for benefits pursuant to Section 12-10-80 or 12-10-81 if the council approves the application and agrees in writing at the time of approval to allow the approved application to serve as the preliminary revitalization agreement. The date of the preliminary revitalization agreement is the date of the council approval.

(10) 'Revitalization agreement' means an executed agreement entered into between the council and a qualifying business that describes the project and the negotiated terms and conditions for a business to qualify for a job development credit pursuant to Section 12-10-80 or 12-10-81.

(11) 'Qualifying expenditures' means those expenditures that meet the requirements of Section 12-10-80(C) or 12-10-81(D).

(12) 'Withholding' means employee withholding pursuant to Chapter 8 of this title.

(13) 'Technology employee' means an employee ~~whose job qualifies for jobs tax credit pursuant to~~ at a technology intensive facility as defined in Section 12-6-3360(M)(14) who is directly engaged in technology intensive activities at that facility.

(14) 'Production employee' means an employee directly engaged in manufacturing or processing at a manufacturing or processing facility as defined in Section 12-6-3360(M).

(15) 'Retraining agreement' means an agreement entered into between a business and the council in which a qualifying business is entitled to retraining credit pursuant to Section 12-10-95.

(16) 'Retraining credit' means the amount that a business may claim as a credit against withholding pursuant to Section 12-10-95 and the retraining agreement.

(17) 'Technology intensive activities' means the design, development, and introduction of new products or innovative manufacturing processes, or both, through the systematic application of scientific and technical knowledge at a technology intensive facility as defined in Section 12-6-3360(M)."

SECTION 11. Section 12-10-50 of the 1976 Code, as last amended by Act 399 of 2000, is further amended to read:

"Section 12-10-50. (A) To qualify for the benefits provided in this chapter, a business must be located within this State and must:

(1) be engaged primarily in a business of the type identified in Section 12-6-3360;

(2) provide a benefits package, including health care, to ~~full-time~~ employees at the project;

Printed Page 2750 . . . . . Thursday, June 7, 2001

(3) enter into a revitalization agreement that is approved by the council and that describes a minimum job requirement and minimum capital investment requirement for the project as provided in Section 12-10-90~~, except that a revitalization agreement is not required for a qualifying business with respect to Section 12-10-80(D)~~; and

(4) have negotiated incentives that council has determined are appropriate for the project, and the council shall certify that:

(a) the total benefits of the project exceed the costs to the public; and

(b) the business otherwise fulfills the requirements of this chapter.

(B) To qualify for benefits pursuant to Section 12-10-95, a business must:

(1) be engaged in manufacturing or processing operations or technology intensive activities at a manufacturing, processing, or technology intensive facility as defined in Section 12-6-3360(M);

(2) provide a benefits package, including health care, to employees being retrained; and

(3) enter into a retraining agreement with the council."

SECTION 12. Section 12-10-80 of the 1976 Code, as last amended by Act 399 of 2000, is further amended to read:

"Section 12-10-80. (A) A business that qualifies pursuant to Section 12-10-50(A) and has certified to the council that the business has met the minimum job requirement and minimum capital investment provided for in the revitalization agreement may claim job development credits as determined by this section.

(1) A business may claim job development credits against its withholding on its quarterly state withholding tax return for the amount of job development credits allowable pursuant to this section.

(2) A business that is current with respect to its withholding tax and other tax due and owing the State and that has maintained its minimum employment and investment levels identified in the revitalization agreement may claim the credit on a quarterly basis beginning with the first quarter after the council's certification to the department that the minimum employment and capital investment levels were met for the entire quarter. If a qualifying business is not current as to all taxes due and owing to the State as of the date of the return on which the credit would be claimed, without regard to extensions, the business is barred from claiming the credit that would otherwise be allowed for that quarter.

Printed Page 2751 . . . . . Thursday, June 7, 2001

(3) A qualifying business may ~~receive~~ claim its initial job development credit only after the council has certified to the department that the qualifying business has met the required minimum employment and capital investment levels.

(4) To be eligible to apply to the council to claim a job development credit, a qualifying business shall create at least ten new, full-time jobs, as defined in Section 12-6-3360(M), at the project described in the revitalization agreement within five years of the effective date of the agreement.

(5) A qualifying business is eligible to claim a job development credit pursuant to the revitalization agreement for not more than fifteen years.

(6) To the extent any return of an overpayment of withholding that results from claiming job development credits is not used as permitted by subsection (C) or ~~(D)~~ by Section 12-10-95, it must be treated as misappropriated employee withholding.

(7) ~~Except as provided in subsection (D),~~ Job development credits may not be claimed for purposes of this section with regard to an employee whose job was created in this State before the taxable year of the qualifying business in which it enters into a preliminary revitalization agreement.

(8) If a qualifying business claims job development credits pursuant to this section, it shall make its payroll books and records available for inspection by the council and the department at the times the council and the department request. Each qualifying business claiming job development credits pursuant to this section shall file with the council and the department the information and documentation requested by the council or department respecting employee withholding, the job development credit, and the use of any overpayment of withholding resulting from the claiming of a job development credit according to the revitalization agreement.

(9) Each qualifying business claiming in excess of ten thousand dollars in a calendar year must furnish an audited report prepared by an independent certified public accountant that itemizes the sources and uses of the funds. The audited report must be filed with the council and the department no later than June thirtieth following the calendar year in which the job development credits are claimed, except when a qualifying business obtains the written approval by the council for an extension of that date. Extensions may be granted only for good cause shown. The department shall impose a penalty pursuant to Section

Printed Page 2752 . . . . . Thursday, June 7, 2001

12-54-210 for all reports filed after June thirtieth or the approved extension date, whichever is later.

(10) Each qualifying business claiming ten thousand dollars or less in any calendar year must furnish a report prepared by the company that itemizes the sources and uses of the funds. This report must be filed with the council and the department no later than June thirtieth following the calendar year in which the job development credits are claimed, except when a qualifying business obtains the written approval by the council for an extension of that date. Extensions may be granted only for good cause shown. The department shall impose a penalty pursuant to Section 12-54-210 for all reports filed after June thirtieth or the approved extension date, whichever is later.

(11) An employer may not claim an amount that results in an employee's receiving a smaller amount of wages on either a weekly or on an annual basis than the employee would receive otherwise in the absence of this chapter.

(B)(1) The maximum job development credit a qualifying business may claim for new employees is limited to the lesser of withholding tax paid to the State on a quarterly basis or the sum of the following amounts:

(a) two percent of the gross wages of each new employee who earns ~~6.74 dollars~~ $6.95 or more an hour but less than ~~8.99 dollars~~ $9.27 an hour;

(b) three percent of the gross wages of each new employee who earns ~~8.99 dollars~~ 9.27 or more an hour but less than ~~11.23 dollars~~ $11.58 an hour;

(c) four percent of the gross wages of each new employee who earns ~~11.23 dollars~~ $11.58 or more an hour but less than ~~16.85 dollars~~ $17.38 an hour; and

(d) five percent of the gross wages of each new employee who earns ~~16.85 dollars~~ $17.38 or more an hour.

(2) The hourly gross wage figures in item (1) must be adjusted annually by an inflation factor determined by the State Budget and Control Board. The amount that may be claimed by a qualifying business is limited by subsection (C) and the revitalization agreement. The council may approve a waiver of ninety-five percent of the limits pursuant to subsection (C) for qualifying businesses making a significant capital investment as defined in Section 4-12-30(D)(4) or Section 4-29-67(D)(4).

Printed Page 2753 . . . . . Thursday, June 7, 2001

(C) To claim a job development credit, the qualifying business must incur qualified expenditures at the project or for utility or transportation improvements that serve the project. To be qualified, the expenditures must be:

(1) incurred during the term of the revitalization agreement, including a preliminary revitalization agreement, or within sixty days before ~~the execution of a revitalization agreement, including a preliminary revitalization agreement~~ council's receipt of an application for benefits pursuant to this section;

(2) authorized by the revitalization agreement; and

(3) used for any of the following purposes:

(a) training costs and facilities;

(b) acquiring and improving real estate whether constructed or acquired by purchase, or in cases approved by the council, acquired by lease or otherwise;

(c) improvements to both public and private utility systems including water, sewer, electricity, natural gas, and telecommunications;

(d) fixed transportation facilities including highway, rail, water, and air;

(e) construction or improvements of real property and fixtures constructed or improved primarily for the purpose of complying with local, state, or federal environmental laws or regulations;

(f) employee relocation expenses associated with new or expanded technology intensive facilities as defined in Section 12-6-3360(M)(14);

(g) financing the costs of a purpose described in items (a) through (f).

(D)(1) The amount of job development credits a qualifying business may claim for its use for qualifying expenditures is limited according to the designation of the county as defined in Section 12-6-3360(B) as follows:

~~(1)~~(a) one hundred percent of the maximum job development credits may be claimed by businesses located in counties designated as 'least developed';

~~(2)~~(b) eighty-five percent of the maximum job development credits may be claimed by businesses located in counties designated as 'underdeveloped';

~~(3)~~(c) seventy percent of the maximum job development credits may be claimed by businesses located in counties designated as 'moderately developed'; or

Printed Page 2754 . . . . . Thursday, June 7, 2001

~~(4)~~(d) fifty-five percent of the maximum job development credits may be claimed by businesses located in counties designated as 'developed'.

(2) The amount that may be claimed as a job development credit by a qualifying business is limited by this subsection and by the revitalization agreement. The council may approve a waiver of ninety-five percent of the limits provided in item (1) for a qualifying business making a significant capital investment as defined in Section 4-12-30(D)(4), 4-29-67(D)(4), or 12-44-30(8).

(3) The county designation of the county in which the project is located at the time the qualifying business enters into a preliminary revitalization agreement with the council remains in effect for the entire period of the revitalization agreement, except as to additional jobs created pursuant to an amendment to a revitalization agreement entered into before June 1, 1997, as provided in Section 12-10-60. In that case the county designation on the date of the amendment remains in effect for the remaining period of the revitalization agreement as to any additional jobs created after the effective date of the amendment. This item does not apply to a business whose application for job development fees or credits pursuant to Section 12-10-81 has been approved by council before the effective date of this act.

(E) The council shall certify to the department the maximum job development credit for each qualifying business. After receiving certification, the department shall remit an amount equal to the difference between the maximum job development credit and the job development credit actually claimed to the State Rural Infrastructure Fund as defined and provided in Section 12-10-85.

(D)Subject to the conditions in this section, a qualifying business in this State may negotiate with the council to claim a job development credit for retraining according to the procedure in subsection (A) in an amount equal to five hundred dollars a year for each production and technology employee being retrained, where this retraining is necessary for the qualifying business to remain competitive or to introduce new technologies. This retraining must be approved and performed by the appropriate technical college under the jurisdiction of the State Board for Technical and Comprehensive Education. The technical college may provide the retraining program delivery directly or contract with other training entities to accomplish the required training outcomes. In addition to the yearly limits, the amount claimed as a job development credit for retraining may not exceed two thousand dollars over five years for each production employee being retrained. Additionally, the

Printed Page 2755 . . . . . Thursday, June 7, 2001

qualifying business must match on a dollar-for-dollar basis the amount claimed as a job development credit for retraining. The total amount claimed as job development credits for retraining and all of the matching funds of the qualifying business must be paid to the technical college that provides the training to defray the cost of the training program. Training cost in excess of the job development credits for retraining and matching funds is the responsibility of the qualifying business based on negotiations with the technical college.

~~(E)~~(F) Any job development credit of a qualifying business permanently lapses upon expiration or termination of the revitalization agreement. If an employee is terminated, the qualifying business immediately must cease to claim job development credits as to that employee.

~~(F)~~ The statute of limitations provided by Section 12-54-85 is suspended until the end of the five-year period described in item (4) of subsection (A) with respect to state withholding taxes pursuant to this section for a business subject to this section.

(G) For purposes of the job development credit allowed by this section, an employee is a person whose job was created in this State.

(H) Job development credits may not be claimed by a governmental employer who employs persons at a closed or realigned military installation as defined in Section 12-10-88(E)."

SECTION 13. Section 12-10-81 of the 1976 Code, as last amended by Act 399 of 2000, is further amended to read:

"Section 12-10-81. (A) A business may claim a job development credit as determined by this section if the:

(1) council approves the use of this section for the business;

(2) business qualifies pursuant to Section 12-10-50; and

Printed Page 2756 . . . . . Thursday, June 7, 2001

additional three hundred fifty million dollars and makes substantial progress toward satisfying the goal before the end of the initial five-year period. A business that represents to the council its intent to qualify pursuant to this section and is approved by the council may put job development fees computed pursuant to this section into an escrow account until the date the business ~~satisfies~~ certifies to the council that the business has satisfied the capital and job requirements of this section.

(B)(1) A business qualifying pursuant to this section may claim its job development credit against its withholding on its quarterly state withholding tax return for the amount of job development credit allowable pursuant to this section for not more than fifteen years. Job development credits allowed pursuant to subsection (C)(1)(a) through (d) of this section apply only to withholding on jobs created pursuant to a revitalization agreement adopted pursuant to this section and to the amounts withheld on wages and salaries on those jobs.

(2) A business that is current with respect to its withholding tax as well as any other tax due and owing the State and that has maintained its minimum employment and investment levels identified in the revitalization agreement may claim the credit on a quarterly basis beginning with the quarter subsequent to the council's certification to the department that the minimum employment and capital investment levels have been met for the entire quarter. If a qualifying business is not current as to all taxes due and owing to the State as of the date of the return on which the credit would be claimed, without regard to extensions, the business is barred from claiming the credit that would otherwise be allowed for that quarter.

(3) To be eligible to apply to the council to claim a job development credit pursuant to this section, a qualifying business must create at least ten new, full-time jobs as defined in Section 12-6-3360(M) at the project or projects described in the revitalization agreement.

(4) To the extent a return of an overpayment of withholding that results from claiming job development credits is not used as permitted by subsection (D), it must be treated as misappropriated employee withholding.

(5) Job development credits may not be claimed for purposes of this section with regard to an employee whose job was created in this State before the taxable year the qualifying business enters into a preliminary revitalization agreement.

Printed Page 2757 . . . . . Thursday, June 7, 2001

(6) If a qualifying business claims job development credits pursuant to this section, it must make its payroll books and records available for inspection by the council and the department at the times the council and the department request. Each qualifying business claiming job development credits pursuant to this section must file with the council and the department the information and documentation they request respecting employee withholding, the job development credit, and the use of overpayment of withholding resulting from the claiming of a job development credit according to the revitalization agreement.

(7) Each qualifying business must furnish an audited report prepared by an independent certified public accountant that itemizes the sources and uses of the funds. The audited report must be filed with the council and the department no later than June thirtieth following the calendar year in which the job development credits are claimed, except when a qualifying business obtains written approval of council for an extension of that date. Extensions may be granted for good cause shown. The department shall impose a penalty pursuant to Section 12-54-210 for all reports filed after June thirtieth or the approved extension date, whichever is later.

(8) An employer may not claim an amount that results in an employee's receiving a smaller amount of wages on either a weekly or on an annual basis than the employee would otherwise receive in the absence of this chapter.

(C)(1) The maximum job development credit a qualifying business may claim for new employees is determined by the sum of the following amounts:

(a) two percent of the gross wages of each new employee who earns ~~$6.74~~ $6.95 or more an hour but less than ~~$8.99~~ $9.27 an hour;

(b) three percent of the gross wages of each new employee who earns ~~$8.99~~ $9.27 or more an hour but less than ~~$11.23~~ $11.58 an hour;

(c) four percent of the gross wages of each new employee who earns ~~$11.23~~ $11.58 or more an hour but less than ~~$16.85~~ $17.38 an hour;

(d) five percent of the gross wages of each new employee who earns ~~$16.85~~ $17.38 or more an hour; and

(e) the increase in the state sales and use tax of the business from the year of the effective date of its revitalization agreement pursuant to this section and subsequent years, over its state sales and use tax for the first of the three years preceding the effective date of this revitalization agreement.

Printed Page 2758 . . . . . Thursday, June 7, 2001

(2) The hourly base wages in item (1) must be adjusted annually by the inflation factor determined by the State Budget and Control Board. The amount that may be claimed by a qualifying business is limited by subsection (E) and the negotiated terms of the revitalization agreement. The business may proceed by using either the job development fee escrow procedure available pursuant to revitalization agreements with effective dates before 1997, or the job development credit, or a combination of the two. For a business qualifying pursuant to this section, the council also may approve or waive sections of a revitalization agreement and the council's rules as needed, in the council's discretion, to assist the business.

(D) To claim a job development credit, the qualifying business must incur expenditures at the project or for utility or transportation improvements that serve the project. To be qualified, the expenditures must be:

(1) incurred during the term of the revitalization agreement, including a preliminary revitalization agreement, or within sixty days before council's receipt of an application for benefits pursuant to this section;

(2) authorized by the revitalization agreement; and

(3) used to reimburse the business for:

(a) training costs and facilities;

(b) acquiring and improving real estate whether constructed or acquired by purchase, or in cases approved by the council, acquired by lease or otherwise;

(c) improvements to both public and private utility systems including water, sewer, electricity, natural gas, and telecommunication;

(d) fixed transportation facilities including highway, rail, water, and air; or

(e) construction or improvements of real property and fixtures constructed or improved primarily for the purpose of complying with local, state, or federal environmental laws or regulations.

(E)(1) For purposes of subsection (C)(1)(a) through (d), the amount of job development credits a qualifying business may claim for its use for qualifying expenditures is limited according to the designation of the county as defined in Section 12-6-3360(B) as follows:

(a) one hundred percent of the maximum job development credits may be claimed by businesses located in counties designated as 'least developed';

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(b) eighty-five percent of the maximum job development credits may be claimed by businesses located in counties designated as 'underdeveloped';

(c) seventy percent of the maximum job development credits may be claimed by businesses located in counties designated as 'moderately developed'; or

(d) fifty-five percent of the maximum job development credits may be claimed by businesses located in counties designated as 'developed'.

(2) For purposes of this subsection, the county designation of the county in which the project is located at the time the qualifying business enters into a preliminary revitalization agreement with the council remains in effect for the entire period of the revitalization agreement.

(3) The amount claimed by a qualifying business is limited by this subsection and the terms of the revitalization agreements. The business may use either the job development escrow procedure pursuant to revitalization agreements with effective dates before 1997 or the job development credit, or a combination of the two. For a business qualifying pursuant to this section, the council also may approve or waive sections of a revitalization agreement and rules of the council, in the council's discretion, to assist the business.

(4) The council shall certify to the department the maximum job development credit for each qualifying business. After receiving certification, the department shall remit an amount equal to the difference between the maximum job development credit and the job development credit actually claimed to the State Rural Infrastructure Fund as defined and provided in Section 12-10-85.

(F) A job development credit of a qualifying business permanently lapses upon expiration or termination of the revitalization agreement. If an employee is terminated, the qualifying business immediately must cease to claim job development credits as to that employee.

(G) The statute of limitations provided by Section 12-54-85 is suspended until the end of the five-year or seven-year period described in item (3) of subsection (A) with respect to state withholding taxes pursuant to this section for a business subject to this section.

~~(H)~~ For purposes of the job development credit allowed by this section, an employee is a person whose job was created in this State."

SECTION 14. Section 12-13-20 of the 1976 Code is amended to read:

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"Section 12-13-20. The term 'net income', as used in this chapter, means taxable income as determined for a regular corporation in Chapter 7 6 of this title after deducting all earnings accrued, paid, credited, or set aside for the benefit of holders of savings or investment accounts, any additions to reserves which are required by law, regulation, or direction of appropriate supervisory agencies, and a bad debt deduction. The bad debt deduction allowable for South Carolina income tax purposes is the amount determined under the Internal Revenue Code ~~and the applicable regulations as amended through December 31, 1986~~ as defined in Section 12-6-40. No deductions from income are allowed for any additions to undivided profits or surplus accounts other than herein required, and for the purposes of this chapter, a state-organized association is allowed the same deductions for bad debt reserves as those allowed to federally organized associations. Associations shall maintain the bad debt reserves allowed as a deduction pursuant to this section in accordance with the provisions of the Internal Revenue Code ~~as amended through December 31, 1986,~~ as defined in Section 12-6-40 and shall keep a permanent record. These provisions are controlling notwithstanding any other provision of law."

SECTION 15. Section 12-13-60 of the 1976 Code is amended to read:

"Section 12-13-60. For the purpose of administration, enforcement, collection, liens, penalties, and ~~other~~ similar provisions, all of the provisions of Chapter 7 6 of this title that ~~may be~~ are appropriate or applicable are adopted and made a part of this chapter, including the ~~requirement to make declarations~~ requirements of declaration and payment of estimated tax ~~and make estimated tax payments~~."

SECTION 16. Section 12-20-90 of the 1976 Code is amended to read:

"Section 12-20-90. The amount of the license fee required by Section 12-20-50 for a bank holding company, insurance holding company system, and savings and loan holding company must be measured by the capital stock and paid-in surplus of the holding company exclusive of the capital stock and paid-in surplus of a bank, insurer, or savings and loan association that is a subsidiary of the holding company. For the purposes of this section, 'bank', 'bank holding company', and 'subsidiary' of a bank holding company have the same definitions as in Section 34-24-20; 'insurer', 'insurance holding company system', and a 'subsidiary' of an insurance holding company system have the same definitions as in Section 38-21-10; and savings and loan 'association',

Printed Page 2761 . . . . . Thursday, June 7, 2001

'savings and loan holding company', and a 'subsidiary' of a savings and loan company have the same definitions as in Section 34-28-300."

SECTION 17. Section 12-20-110 of the 1976 Code is amended to read:

"Section 12-20-110. The provisions of this chapter do not apply to any:

(1) nonprofit corporation organized ~~under Article 1 of~~ pursuant to Chapter 31 ~~or 33~~ of Title 33 and exempt from income taxes pursuant to Section 501 of the Internal Revenue Code of 1986;

(2) volunteer fire department and rescue squad;

(3) cooperative organized ~~under Chapter 45 or 47 of~~ pursuant to Title 33;

(4) bank, building and loan association, or credit union doing a strictly mutual business;

(5) insurance company or association including ~~any~~ a fraternal, beneficial, or mutual protection insurance company; or

(6) foreign corporation whose entire income is ~~not included in~~ excluded from gross income for federal income tax purposes due to ~~any~~ a treaty obligation of the United States; or

(7) homeowners' association within the meaning of Internal Revenue Code Section 528(c)(1)."

SECTION 18. Section 12-28-1135(A) of the 1976 Code is amended to read:

"(A) Each person who ~~engages in the business of selling taxable motor fuel at wholesale or retail or storing or distributing~~ purchases taxable motor fuel for resale within this State from a licensed terminal supplier first shall obtain a fuel vendor license which is operative for all locations controlled or operated by that licensee in this State or in any other state from which the person removes fuel for delivery and use in South Carolina."

SECTION 19. A. Section 12-28-1730(E) of the 1976 Code is amended to read:

"(E) The department may impose a civil penalty against every terminal operator who wilfully fails to meet shipping paper issuance requirements under Sections 12-28-920, 12-28-1500, and 12-28-1575 or files a return without the supporting schedules as required by the department pursuant to Sections 12-28-1330 and 12-28-1340. The civil penalty imposed on the terminal operator is the same as the civil penalty imposed under subsection (B)."

B. Section 12-28-1730 of the 1976 Code is amended by adding:

Printed Page 2762 . . . . . Thursday, June 7, 2001

"(H) If a person liable for the tax files a return without providing all information required by the department, there is added to the tax the amount provided in Section 12-54-43(C)(1)."

SECTION 20. Section 12-36-90(2)(h) of the 1976 Code is amended to read:

"(h) the sales price, not including sales tax, of property on sales which are actually charged off as bad debts or uncollectible accounts for state income tax purposes. A taxpayer who pays the tax on the unpaid balance of an account which has been found to be worthless and is actually charged off for state income tax purposes may take ~~credit for the tax paid~~ a deduction for the sales price charged off as a bad debt or uncollectible account on a return filed pursuant to this chapter, except that if an amount charged off is later paid in whole or in part to the taxpayer, the amount paid must be included in the first return filed after the collection and the tax paid. The deduction allowed by this provision must be taken within one year of the month the amount was determined to be a bad debt or uncollectible account."

SECTION 21. Section 12-36-130 of the 1976 Code, as last amended by Section 2, Act 283 of 2000, is further amended by adding a paragraph at the end to read:

"The term 'sales price' as defined in this section, also does not include the sales price, not including tax, of property on sales which are actually charged off as bad debts or uncollectible accounts for state income tax purposes. A taxpayer who pays the tax on the unpaid balance of an account which has been found to be worthless and is actually charged off for state income tax purposes may take a deduction for the sales price charged of as a bad debt or uncollectible account on a return filed pursuant to this chapter, except that if an amount charged off is later paid in whole or in part to the taxpayer, the amount paid must be included in the first return filed after the collection and the tax paid. The deduction allowed by this paragraph must be taken within one year of the month the amount was determined to be a bad debt or uncollectible account."

SECTION 22. Section 12-36-910(B)(3) of the 1976 Code is amended to read:

Printed Page 2763 . . . . . Thursday, June 7, 2001

Telecommunications Sourcing Act as provided in Title 4 of the United States Code. The term 'charges for mobile telecommunications services' is defined for purposes of this section the same as it is defined in the Mobile Telecommunications Sourcing Act. All other definitions and provisions of the Mobile Telecommunications Sourcing Act as provided in Title 4 of the United States Code are adopted;"

SECTION 23. Section 12-36-910(B) of the 1976 Code is amended by adding:

"(5) gross proceeds accruing or proceeding from the sale or recharge at retail or prepaid wireless calling arrangements.

(a) 'Prepaid wireless calling arrangements' means communication services that:

( i) are used exclusively to purchase wireless telecommunications;

( ii) are purchased in advance;

(iii) allow the purchaser to originate telephone calls by using an access number, authorization code, or other means entered manually or electronically; and

( iv) are sold in units or dollars which decline with use in a known amount.

(b) All charges for prepaid wireless calling arrangements must be sourced to the:

( i) location in this State where the over-the-counter sale took place;

( ii) shipping address if the sale did not take place at the seller's location and an item is shipped; or

(iii) either the billing address or location associated with the mobile telephone number if the sale did not take place at the seller's location and no item is shipped."

SECTION 24. Section 12-36-940 of the 1976 Code is amended to read:

"Section 12-36-940. (A) ~~Every~~ Each retailer may add to the sales price as a result of the five percent state sales tax:

(1) no amount on sales of ten cents or less;

(2) one cent on sales of eleven ~~cents and over, but not in excess of~~ through twenty cents;

(3) two cents on sales of twenty-one ~~cents and over, but not in excess of~~ through forty cents;

(4) three cents on sales of forty-one ~~cents and over, but not in excess of~~ through sixty cents;

Printed Page 2764 . . . . . Thursday, June 7, 2001

(5) four cents on sales of sixty-one ~~cents and over, but not in excess of~~ through eighty cents;

(6) five cents on sales of eighty-one cents ~~and over, but not in excess of~~ through one dollar;

(7) one cent additional for each twenty cents or major fraction ~~thereon in excess~~ of it over of one dollar.

(B) The inability, impracticability, refusal, or failure to add these amounts to the sales price and collect them from the purchaser does not relieve the taxpayer from the tax levied by this article.

(C) For purposes of the state sales tax on accommodations and applicable combined state sales and local tax for counties imposing a local sales tax collected by the department on their behalf, retailers may add to the sales price an amount equal to the total state and local sales tax rate times the sales price. The amount added to the sales price may not be less than the amount added pursuant to subsection (A). In calculating the tax due, retailers may round a fraction of more than one-half of a cent to the next whole cent and a fraction of a cent of one-half or less must be eliminated. The inability, impracticability, refusal, or failure to add the tax to the sales price as allowed by this subsection and collect them from the purchaser does not relieve the taxpayer of his responsibility to pay tax."

SECTION 25. Section 12-36-1310(B)(3) of the 1976 Code is amended to read:

"(3) gross proceeds accruing or proceeding from the charges for the ways or means for the transmission of the voice or messages, including the charges for use of equipment furnished by the seller or supplier of the ways or means for the transmission of the voice or messages. Charges for mobile telecommunications services subject to the tax under this item must be sourced in accordance with the Mobile Telecommunications Sourcing Act as provided in Title 4 of the United States Code. The term 'charges for mobile telecommunications services' is defined for purposes of this section the same as it is defined in the Mobile Telecommunications Sourcing Act. All other definitions and provisions of the Mobile Telecommunications Sourcing Act as provided in Title 4 of the United States Code are adopted;"

SECTION 26. Section 12-37-220(C) of the 1976 Code is amended to read:

Printed Page 2765 . . . . . Thursday, June 7, 2001

the existing facilities and existing number of jobs. The partial exemption applies for the purchaser for five years if the purchaser otherwise meets the exemption requirements."

SECTION 27. Section 12-54-43 of the 1976 Code, as last amended by Act 399 of 2000, is further amended by adding an appropriately lettered subsection to read:

"( ) A failure to deposit or pay taxes deducted and withheld pursuant to Article 5 of Chapter 8 subjects the withholding agent to a penalty of not less than ten dollars nor more than one thousand dollars. The penalty imposed by this item applies to failure to comply with the provisions of Section 12-54-250."

SECTION 28. Section 12-54-44(C) of the 1976 Code is amended to read:

"(C) A failure to deposit or pay taxes deducted and withheld pursuant to Article 5 of Chapter 8 subjects the withholding agent to a penalty of not less than ten dollars nor more than one thousand dollars. The penalty imposed by this item applies to failure to comply with the provisions of Section 12-54-250. Reserved "

SECTION 29. Chapter 54, Title 12 of the 1976 Code is amended by adding:

"Section 12-54-195. (A) As used in this section, 'responsible person' includes any officer, partner, or employee of the taxpayer who has a duty to pay to the department the sales tax due by the taxpayer or use tax required or authorized to be collected by the retailer pursuant to Chapter 36 of this title.

(B) If a retailer adds and collects the sales tax as permitted by Section 12-36-940, or collects the use tax from the purchaser as required by Section 12-36-1350, but the retailer fails to remit the tax collected to the department, then any responsible person may be held liable, individually and personally, for a penalty equal to one hundred percent of the tax collected but not remitted to the department. The tax is not collectible from the retailer to the extent the penalty imposed by this subsection is collected from a responsible person."

SECTION 30. Section 12-54-85 of the 1976 Code, as last amended by Act 399 of 2000, is further amended by adding an appropriately numbered subsection at the end to read:

"( )(1) An individual taxpayer is 'financially disabled' if he is unable to manage his financial affairs by reason of a medically determinable physical or mental impairment that is expected to result in death or that has lasted or is expected to last for a continuous period of not less than twelve months. An individual taxpayer does not have that impairment

Printed Page 2766 . . . . . Thursday, June 7, 2001

for this purpose unless proof of the existence of the impairment is provided to the department in the form and manner the department requests.

(2) The running of the period of limitation provided in subsection (F) is suspended during a period an individual taxpayer is considered financially disabled.

(3) An individual taxpayer may not be treated as financially disabled during a period that his spouse or another person is authorized lawfully to act on his behalf in financial matters."

SECTION 31. Section 12-54-85(F) of the 1976 Code is amended to read:

"(F)(1) Except as provided in subsection (D) ~~above~~, claims for credit or refund must be filed within three years of from the time the ~~timely filed~~ return~~, including extensions,~~ was filed, or two years from the date ~~of payment~~ the tax was paid, whichever is later. If no return was filed, a claim for credit or refund must be filed within two years from the date ~~of payment~~ the tax was paid. A credit or refund may not be made after the expiration of the period of limitation prescribed in this item for the filing of a claim for credit or refund, unless the claim for credit or refund is filed by the taxpayer or determined to be due by the department within that period.

(2) If the claim was filed by the taxpayer during the three-year period prescribed in item (1), the amount of the credit or refund may not exceed the portion of the tax paid within the period, immediately preceding the filing of the claim, equal to three years plus the period of any extension of time for filing the return.

(3) If the claim was not filed within the three-year period, the amount of the credit or refund may not exceed the portion of the tax paid during the two years immediately preceding the filing of the claim.

(4) If no claim was filed, the credit or refund may not exceed the amount which would be allowable under item (2) or (3), as the case may be, as if a claim were filed on the date the credit or refund is allowed.

(5) For the purposes of this subsection:

(a) A return filed before the last day prescribed for the filing is considered as filed on the last day. Payment of any portion of the tax made before the last day prescribed for the payment of the tax is considered made on the last day. The last day prescribed for filing the return or paying the tax must be determined without regard to any extension of time.

Printed Page 2767 . . . . . Thursday, June 7, 2001

(b) Any tax actually withheld at the source in respect of the recipient of income, is considered to have been paid by the recipient on the last day prescribed for filing his return for the taxable year, determined without regard to any extension of time for filing the return, with respect to which the taxpayer would be allowed a credit for the amount withheld.

(c) Any amount paid as estimated income tax for any taxable year is considered to have been paid on the last day prescribed for filing the return for the taxable year, determined without regard to any extension of time for filing the return.

(6) In the case of an individual, the running of the period specified in this subsection is suspended for a period of the individual's life during which he is financially disabled. For purposes of this item, an individual is financially disabled if he is unable to manage his financial affairs by reason of a medically determinable physical or mental impairment that is not expected to result in death or which has lasted or is expected to last for a continuous period of not less than twelve months. An individual must not be treated as financially disabled for a period during which his spouse or another person is authorized to act on his behalf in financial matters. An individual must not be considered financially disabled unless the following statements are submitted as part of the claim for credit or refund:

(a) a written statement signed by a physician qualified to make the determination that provides the:

( i) name and a brief description of the physical or mental impairment;

( ii) physician's medical opinion that the physical or mental impairment prevented the taxpayer from managing his financial affairs;

(iii) physician's medical opinion that the taxpayer's physical or mental impairment resulted in, or is expected to result in, death, or that it has lasted, or is expected to last, for a continuous period of not less than twelve months; and

( iv) specific time period during which the taxpayer was prevented by the physical or mental impairment from managing his financial affairs, to the best of the physician's knowledge; and

(b) a written statement by the taxpayer or the person signing the claim for credit or refund that the person, including the taxpayer's spouse, was not authorized to act on his behalf in financial matters for the period during which he was unable to manage his own financial affairs. Alternatively, if a person was authorized to act on the taxpayer's behalf in financial matters during part of that period of

Printed Page 2768 . . . . . Thursday, June 7, 2001

disability, the statement must contain the beginning and ending dates of the period of time the person was authorized; and

The department, in its discretion, may adopt a determination made by the Internal Revenue Service with respect to an individual, and may follow rules issued by the Internal Revenue Service or Department of Treasury with regard to interpreting Internal Revenue Code section 6511(h)."

SECTION 32. Section 12-54-200 of the 1976 Code is amended to read:

"Section 12-54-200. ~~(a)~~(A) The department, at its discretion, after notification as provided in ~~subsection (b) of~~ this section, may require ~~any~~ a person subject to provisions of law administered by the department, ~~not including Section 12-35-330,~~ to post a cash or surety bond, deposit and maintain taxes due including associated penalties and interest in a separate account in a bank or other financial institution in this State, or both, if the person fails to file a timely return or pay ~~any~~ a tax for as many as two tax filing periods in a twelve-month period.

(B) The amount of the bond must be determined by the department and may not be greater than three times the estimated average liability each filing period of the person required to file the return. A cash bond must be held by the State Treasurer, without interest, as surety conditioned upon prompt payment of all taxes, penalties, and interest imposed by law upon the person.

(C) If a person is required to maintain a separate account, he must give the name of the financial institution, the account number, and other information the department requires. Taxes, penalties, and interest due must be withdrawn from the account by preprinted, consecutively numbered checks signed by a properly authorized officer, partner, manager, employee, or member of the taxpayer and made payable to the department. Monies deposited in the account may not be commingled with other funds. The department, at its discretion, may apply Section 12-54-250, if the amount due from the taxpayer is twenty thousand dollars or more.

(D) When ~~any~~ a person required to post a bond or maintain a separate account, or both, complies with all requirements of law and regulations for a period of twenty-four consecutive months, the department shall return the bond and cancel the bonding and separate account requirements.

~~(b)~~(E) The department ~~shall~~ may serve the notice required by ~~subsection (b) of~~ this section by ~~certified~~ mail, or by delivery by an

Printed Page 2769 . . . . . Thursday, June 7, 2001

authorized agent of the department ~~delivering the notice~~ to the person in hand or by ~~leaving the notice~~ at the person's last or usual place of abode or at his place of business or employment. For corporations, partnerships, or trusts, the notice may be delivered by ~~certified~~ mail, or by delivery by an authorized agent ~~for~~ of the department ~~delivering the notice~~ to an officer, partner, or trustee in hand, or ~~by leaving the notice~~ at the officer's, partner's, or trustee's last or usual place of abode or at his place of business or employment.

(F) A person who fails to comply with this section is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars or imprisoned not more than thirty days, or both. Offenses under this section are triable in magistrate's court. These penalties are in addition to other penalties provided by law."

SECTION 33. Section 12-54-227(A)(2) of the 1976 Code is amended to read:

"(2) For purposes of this section, 'delinquent tax claim' means a tax liability that is due and owing for a period longer than six months and for which the taxpayer has been given at least three notices requesting payment and for any subsequent tax debts issued, one notice of which ~~has been sent by certified or registered mail. The notice sent by certified or registered mail must include~~ includes a statement that the taxpayer's delinquency may be referred to a collection agency ~~in the taxpayer's home state~~."

SECTION 34. Section 12-54-240(B)(6) of the 1976 Code is amended to read:

"(6) disclosure of a deficiency assessment to a probate court or to an attorney conducting a closing, the filing of a tax lien for uncollected taxes, and the issuance of a notice of levy;"

SECTION 35. Section 12-56-120 of the 1976 Code is amended to read:

"Section 12-56-120. The department is and Internal Revenue Service are exempt from the notice and appeal procedures of this chapter. The sole and exclusive appeal ~~procedures~~ procedure for the setoff of ~~any~~ a debt owed to the department is governed by the provisions of Chapter 60 of Title 12 ~~which provides the sole and exclusive remedy for these procedures~~. The appeal procedure in connection with a liability to the Internal Revenue Service is governed by Title 26 of the United States Code."

SECTION 36. Section 12-58-185(A) of the 1976 Code is amended to read:

Printed Page 2770 . . . . . Thursday, June 7, 2001

"(A) The department, in its discretion, may accept installment payment for amounts due for a period not to exceed one year from the date the payment was due originally. Interest accrues during the installment period, pursuant to Section 12-54-25. In addition, the department may extend the time for payment of an amount due it ~~for a period not to exceed eighteen months from the date fixed for the payment and, in exceptional cases, for a further period not to exceed twelve months~~. An extension ~~under~~ pursuant to this section may be granted only ~~where~~ if it is shown to the satisfaction of the department that the payment of the amount due it upon the date originally fixed for the payment will result in undue hardship to the taxpayer."

SECTION 37. Section 12-60-90(C) of the 1976 Code is amended to read:

"(C) Taxpayers may be represented during the administrative tax process by:

(1) the same individuals who ~~can~~ may represent them in administrative tax proceedings with the Internal Revenue Service pursuant to Section 10.3 (a), (b), and (c), Section 10.7 (a), ~~(1)~~ (c)(i) through ~~(4) and (7)~~ (c)(vi), and (c)(viii), and Section 10.7 ~~(b)~~ (d) and ~~(c)~~ (e) of United States Treasury Department Circular No. 230; and

(2) a real estate appraiser who is registered, licensed, or certified pursuant to Chapter 60 of Title 40 during the administrative tax process in a matter limited to questions concerning the valuation of real property."

SECTION 38. Section 4-37-30(A)(15) of the 1976 Code, as amended by Act 368 of 2000, is further amended to read:

"(15) The revenues of the tax collected in each county pursuant to this section must be remitted to the State Treasurer and credited to a fund separate and distinct from the general fund of the State. After deducting the amount of refunds made and costs to the Department of Revenue of administering the tax, not to exceed one percent of the revenues, the State Treasurer shall distribute the revenues and all interest earned on the revenues while on deposit with him quarterly to the county in which the tax is imposed and these revenues and interest earnings must be used only for the purpose stated in the imposition ordinance. The State Treasurer may correct ~~misallocation~~ misallocations ~~costs or refunds~~ by adjusting later distributions, but these adjustments must be made in the same fiscal year as the ~~misallocation~~ misallocations. However, allocations made as a result of city or county code errors must be corrected prospectively."

Printed Page 2771 . . . . . Thursday, June 7, 2001

SECTION 39. A. Section 6(A) of Act 588 of 1994 is amended to read:

"(A) The revenues of the tax collected in the county under this act must be remitted to the State Treasurer and credited to a fund separate and distinct from the general fund of the State. After deducting the amount of refunds made and costs to the Department of Revenue and Taxation of administering the tax, not to exceed one percent of the revenues, the State Treasurer shall distribute the revenues quarterly to the county treasurer who holds the debt service funds established for payment of principal and interest on the bonds to which the tax is applicable. The State Treasurer may correct ~~misallocation~~ misallocations ~~costs or refunds~~ by adjusting subsequent distributions, but these adjustments must be made in the same fiscal year as the misallocation. However, allocations made as a result of city or county code errors must be corrected prospectively."

B. Section 6 of Act 588 of 1994, as last amended by Act 458 of 1998, is further amended by adding at the end:

"(D) Annually, in the month of June, funds collected by the Department of Revenue from the Cherokee County School District 1 School Bond-Property Tax Relief Act which are not identified as to the governmental unit due the tax after reasonable effort by the department to determine the source of collection must be transferred to the State Treasurer's Office. The State Treasurer shall distribute these funds to the county treasurer in the county area in which the tax is imposed and the revenues must be used only for the purposes stated in the imposition resolution. The State Treasurer shall calculate this supplemental distribution on a proportional basis based on the current fiscal year's county area revenue collections."

SECTION 40. A. Section 7A of Act 441 of 2000 is amended to read:

"(A) The revenues of the tax collected in the county under this act must be remitted to the State Treasurer and credited to a fund separate and distinct from the general fund of the State. After deducting the amount of refunds made and costs to the department of administering the tax, not to exceed one percent of the revenues, the State Treasurer shall distribute the revenues quarterly to the county treasurer, who shall hold the debt service funds for payment of principal and interest on the bonds to which the tax is applicable. The State Treasurer may correct ~~misallocation costs or refunds~~ misallocations by adjusting subsequent distributions, but these adjustments must be made in the same fiscal

Printed Page 2772 . . . . . Thursday, June 7, 2001

year as the misallocation. However, allocations made as a result of city or county code errors must be corrected prospectively."

B. Section 7 of Act 441 of 2000 is amended by adding at the end:

"(D) Annually, in the month of June, funds collected by the Department of Revenue from the Chesterfield County School District School Bond-Property Tax Relief Act which are not identified as to the governmental unit due the tax after reasonable effort by the department to determine the source of collection must be transferred to the State Treasurer's Office. The State Treasurer shall distribute these funds to the county treasurer in the county area in which the tax is imposed and the revenues must be used only for the purposes stated in the imposition resolution. The State Treasurer shall calculate this supplemental distribution on a proportional basis based on the current fiscal year's county area revenue collections."

SECTION 41. Section 12-4-580(D)(1) is amended to read:

"(1) 'governmental entity' means the State and any state agency, board, committee, department, ~~department,~~ private or public institution of higher learning; all political subdivisions of the State; and all federal agencies, boards, and departments. 'Political subdivision' includes the Municipal Association of South Carolina and the South Carolina Association of Counties when these organizations submit claims on behalf of their members."

SECTION 42. Chapter 56, Title 12 of the 1976 Code is amended by adding:

"Section 12-56-68. Debts imposed by a court or as a direct consequence of a final court order are not subject to the procedures in Sections 12-56-63 and 12-56-65."

SECTION 43. Chapter 43, Title 12, of the 1976 Code is amended by adding:

"Section 12-43-285. (A) The governing body of a political subdivision levying a property tax billed by the county auditor must certify in writing to the county auditor that the millage rate levied is in compliance with laws limiting the millage rate imposed by that political subdivision.

(B) If a millage rate is in excess of that authorized by law, the county treasurer must either issue refunds or transfer the total amount in excess of that authorized by law, upon collection, to a separate, segregated fund, which must be credited to taxpayers in the following year. An entity submitting a millage rate in excess of that authorized by law must pay the costs of implementing this subsection or a pro rata

Printed Page 2773 . . . . . Thursday, June 7, 2001

share of the costs if more than one entity submits the excessive millage rate."

SECTION 44. Section 4-1-170 of the 1976 Code is amended to read:

"Section 4-1-170. (A) By written agreement, counties may develop jointly an industrial or business park with other counties within the geographical boundaries of one or more of the member counties as provided in Section 13 of Article VIII of the Constitution of this State. The written agreement entered into by the participating counties must include provisions which:

(1) address sharing expenses of the park;

(2) specify by percentage the revenue to be allocated to each county;

(3) specify the manner in which revenue must be distributed to each of the taxing entities within each of the participating counties.

(B) For the purpose of bonded indebtedness limitation and for the purpose of computing the index of taxpaying ability pursuant to Section 59-20-20(3), allocation of the assessed value of property within the park to the participating counties and to each of the taxing entities within the participating counties must be identical to the allocation of revenue received and retained by each of the counties and by each of the taxing entities within the participating counties. Misallocations may be corrected by adjusting later distributions, but these adjustments must be made in the same fiscal year as the misallocations. Provided, however, that the computation of bonded indebtedness limitation is subject to the requirements of Section 4-29-68(E).

(C) If the industrial or business park encompasses all or a portion of a municipality, the counties must obtain the consent of the municipality prior to the creation of the multi-county industrial park."

SECTION 45. Section 12-51-90(B) of the 1976 Code, as last amended by Act 334 of 2000, is further amended to read:

"(B) The lump sum amount of interest is due on the whole amount of the delinquent tax sale based on the month during the redemption period the property is redeemed and that rate relates back to the beginning of the redemption period according to the following schedule:

Month of Redemption Period Amount of Interest Imposed

Property Redeemed

First three months three percent of the bid amount

Months four, five, and six six percent of the bid amount

Months seven, eight, and nine nine percent of the bid amount

Last three months twelve percent of the bid amount

Printed Page 2774 . . . . . Thursday, June 7, 2001

However, in every redemption, the amount of interest due must not exceed the amount of the bid on the property submitted on behalf of the forfeited land commission pursuant to Section 12-51-55."

SECTION 46. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.

SECTION 47. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed these sections, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

SECTION 48. Section 33-44-211(c) of the 1976 Code, as last amended by Act 395 of 2000, is further amended to read:

"(c) The first annual report must be delivered to the Secretary of State between January first and April first of the year following the calendar year in which a limited liability company was organized or a foreign company was authorized to transact business. Subsequent annual reports must be delivered to the Secretary of State on or before the fifteenth day of the ~~third~~ fourth month following the close of the taxable year."

SECTION 49. A. Section 12-36-2620(2) of the 1976 Code is amended to read:

"(2) a one percent tax, which must be credited as provided in Section 59-21-1010(B). The one percent tax specified in this item does not apply to the issuance of certificates of title or other proof of ownership to an individual eighty-five years of age or older titling or registering a motor vehicle, motorcycle, boat, motor, or airplane for his own

Printed Page 2775 . . . . . Thursday, June 7, 2001

personal use, if at the time of sale, the individual requests the one percent exclusion from tax and provides the retailer with proof of age."

B. Section 12-36-2630(2) of the 1976 Code is amended to read:

"(2) a one percent tax, which must be credited as provided in Section 59-21-1010(B). The one percent tax specified in this item (2) does not apply to sales to an individual eighty-five years of age or older purchasing tangible personal property for his own personal use, if at the time of sale, the individual requests the one percent exclusion from tax and provides the retailer with proof of age; and"

C. Section 12-36-2640 of the 1976 Code is amended to read:

"(2) a one percent tax which must be credited as provided in Section 59-21-1010(B). The one percent tax specified in this item does not apply to the issuance of certificates of title or other proof of ownership to an individual eighty-five years of age or older titling or registering a motor vehicle, motorcycle, boat, motor, or airplane for his own personal use, if at the time of sale, the individual requests the one percent exclusion from tax and provides the retailer with proof of age."

D. Article 25, Chapter 36, Title 12 of the 1976 Code is amended by adding:

"Section 12-36-2646. (A) Retailers shall post a sign at each entrance or each cash register which advises individuals eighty-five years of age or older of the one percent exclusion from tax available under Sections 12-36-2620, 12-36-2630, and 12-36-2640.

(B) A retailer who fails to post the required signs is subject to a penalty of up to one hundred dollars for each month or portion of the month the sign or signs are not posted. Continued failure to post the signs after a written warning from the Department of Revenue may result in revocation of the retailer's retail license in accordance with Section 12-54-90. Failure to post the signs does not give rise to a cause of action by an individual eighty-five years of age or older who failed to request the exclusion and provide proof of age at the time of sale.

SECTION 50. SECTIONS 1, 7, 10, 11, 12, and 13 of this act take effect July 1, 2001. SECTIONS 22, 23, 24, 25, and 26 take effect on the first day of the second month following approval by the Governor. The remaining SECTIONS of this act take effect upon approval by the Governor, and SECTIONS 2, 3, 4, 5, 6, 8, 9, 14, and 15 apply to taxable years beginning after December 31, 2000, SECTION 31 applies to tax periods beginning after December 31, 1997, and SECTION 43 applies to property tax years beginning after December 31, 1999. Notwithstanding the general effective date provided in this act,

Printed Page 2776 . . . . . Thursday, June 7, 2001

subsections A, B, and C of SECTION 49 take effect July 1, 2001. Subsection D of SECTION 49 takes effect August 15, 2001. /

Renumber sections to conform.

Amend title to conform.

Senator ALEXANDER explained the committee amendment.

The committee amendment was adopted.

Amendment No. 1

Senator ALEXANDER proposed the following Amendment No. 1 (DKA\4517MM01), which was adopted:

Amend the bill, as and if amended, by adding appropriately numbered SECTIONS to read:

/ SECTION __. Section 12-6-3530(B) and (C) of the 1976 Code, as added by Act 314 of 2000, is amended to read:

"(B) The total amount of credits allowed pursuant to this section may not exceed in the aggregate five million dollars for all taxpayers and all ~~taxable~~ calendar years and one million dollars for all taxpayers in one ~~taxable~~ calendar year.

(C) A single community development corporation or community development financial institution may not receive more than twenty-five percent of the total tax credits authorized pursuant to this section in any one ~~taxable~~ calendar year."

SECTION __. Article 7, Chapter 21, Title 12 of the 1976 Code is amended by adding:

"Section 12-21-1035. (A) Beer brewed on a permitted premises pursuant to Article 17, Chapter 4 of Title 61, must be taxed based on the number of gallons of beer produced on the permitted premises and must be taxed at the same rate of taxation for beer provided in Section 12-21-1020. The permittee shall maintain adequate records as determined by the department to ensure the collection of this tax.

(B) The taxes imposed by the provisions of this section, except as otherwise provided, are due and payable in monthly installments on or before the twentieth day of the month following the month in which the tax accrues.

(C) On or before the twentieth day of each month, a person on whom the taxes in this section are imposed shall file with the department, on a form designed by it, a true and correct statement showing the total gallons produced and any other information the department may require.

Printed Page 2777 . . . . . Thursday, June 7, 2001

(D) At the time of making a monthly report, the person shall compute the taxes due and pay to the department the amount of taxes shown to be due. A return is considered to be timely filed if the return is mailed and has a postmark dated on or before the date the return is required by law to be filed."

SECTION __. Section 61-4-1730 of the 1976 Code, as added by Act 415 of 1996, is amended to read:

"Section 61-4-1730. Beer brewed on a permitted premises ~~under~~ pursuant to this article must be taxed as provided in ~~Article 7 of Chapter 21 of Title 12~~ Section 12-21-1035. The permittee ~~must~~ shall maintain adequate records as determined by the department to ensure the collection of this tax."

SECTION __. Section 61-4-520(8) of the 1976 Code, as added by Act 445 of 1996, is amended to read:

"(8) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business. The department ~~must~~ shall determine which newspapers meet the requirements of this section based on available circulation figures. However, if a newspaper is published in the county and historically has been the newspaper where the advertisements are published, the advertisements published in that newspaper meet the requirements of this section. The notice must:

(a) be in the legal notices section of the newspaper or an equivalent section if the newspaper has no legal notices section;

(b) be in large type, covering a space of one column wide and at least two inches deep; and

An applicant for a beer or wine permit and an alcoholic liquor license may use the same advertisement for both if the advertisement is approved by the department."

SECTION __. Section 61-6-1820 of the 1976 Code, as added by Act 415 of 1996, is amended to read:

"(4) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, municipality, or community in which the applicant proposes to engage in business. The department ~~must~~ shall determine which newspapers meet the requirements of this section based on available circulation figures. However, if a newspaper is published in the county and historically has been the newspaper where

Printed Page 2778 . . . . . Thursday, June 7, 2001

the advertisements are published, the advertisements published in that newspaper meet the requirements of this section. The notice must:

(a) be in the legal notices section of the newspaper or an equivalent section if the newspaper has no legal notices section;

(b) be in large type, covering a space of one column wide and at least two inches deep; and

An applicant for a beer or wine permit and an alcoholic liquor license may use the same advertisement for both if it is approved by the department."

SECTION __. Section 12-21-1080 is repealed. /

Renumber sections to conform.

Amend title to conform.

Senator ALEXANDER explained the amendment.

The amendment was adopted.

Amendment No. 2

Senator McGILL proposed the following Amendment No. 2 (DKA\ 4523MM01`), which was adopted:

Amend the bill, as and if amended, by deleting Section 12-43-285, as contained in SECTION 43, in its entirety and inserting:

/ "Section 12-43-285. (A) The governing body of a political subdivision on whose behalf a property tax is billed by the county auditor shall certify in writing to the county auditor that the millage rate levied is in compliance with laws limiting the millage rate imposed by that political subdivision.

(B) If a millage rate is in excess of that authorized by law, the county treasurer shall either issue refunds or transfer the total amount in excess of that authorized by law, upon collection, to a separate, segregated fund, which must be credited to taxpayers in the following year as instructed by the governing body of the political subdivision on whose behalf the millage was levied. An entity submitting a millage rate in excess of that authorized by law shall pay the costs of implementing this subsection or a pro rata share of the costs if more than one entity submits an excessive millage rate." /

Renumber sections to conform.

Amend title to conform.

Printed Page 2779 . . . . . Thursday, June 7, 2001

Senator McGILL explained the amendment.

The amendment was adopted.

Amendment No. 3

Senator ALEXANDER proposed the following Amendment No. 3 (DKA\4525MM01), which was adopted:

Amend the bill, as and if amended, by adding an appropriately numbered SECTION to read:

/ SECTION __. A. Section 12-43-225 of the 1976 Code, as added by Act 346 of 2000, is amended to read:

"Section 12-43-225. (A) For subdivision lots in a ~~conditional or final~~ plat ~~filed~~ recorded on or after ~~2000~~ January 1, 2001, and notwithstanding the provisions of Section 12-43-224 , a subdivision lot discount is allowed in the valuation of the platted lots only as provided in subsection (B) of this section, and this discounted value applies for five property tax years or until the lot is sold, or a certificate of occupancy is issued for the improvement on the lot, or the improvement is occupied, whichever of them elapses or occurs first. When the discount allowed by this section no longer applies, the lots must be individually valued as provided by law.

(B) To be eligible for a subdivision lot discount, the ~~final or conditional~~ recorded plat ~~filed~~ must contain at least ten building lots. The owner ~~must~~ shall apply for the discount by means of a written application to the assessor on or before May first of the year for which the discount is claimed. The value of each platted building lot is calculated:

(1) by dividing the total number of platted building lots into the value of the entire parcel as undeveloped real property; and

(2) as provided in Section 12-43-224 and the difference between the two calculations determined.

The value of a lot as determined under Section 12-43-224 is reduced as follows:

For lots in plats ~~filed~~ recorded in 2001, the value is reduced by thirty percent of the difference.

For lots in plats ~~filed~~ recorded in 2002, the value is reduced by sixty percent.

For lots in plats ~~filed~~ recorded after 2002, the value is reduced by one hundred percent of the difference.

(C) If a lot allowed the discount provided by this section is sold to the holder of a residential homebuilder's license or general contractor's

Printed Page 2780 . . . . . Thursday, June 7, 2001

license, the discount continues through the first tax year which ends twelve months from the date of sale if the purchaser files a written application for the discount with the county assessor by ~~March~~ May first of the year for which the applicant is claiming the discount." /

Renumber sections to conform.

Amend title to conform.

Senator ALEXANDER explained the amendment.

The amendment was adopted.

Amendment No. 4A

Senator ALEXANDER proposed the following Amendment No. 4A (DKA\4514MM01), which was adopted:

Amend the bill, as and if amended, by adding an appropriately numbered SECTION to read:

/ SECTION__. A. Section 4-12-30(D)(4)(a) of the 1976 Code, as last amended by Act 399 of 2000, is further amended to read:

"(4)(a) The assessment ratio may not be lower than four percent:

(i) in the case of a business which is investing at least two hundred million dollars, which, when added to the previous investments, results in a total investment of at least four hundred million dollars, and which is creating at least two hundred new full-time jobs at the site qualifying for the fee;

(ii) in the case of a business which is investing at least four hundred million dollars and which is creating at least two hundred new full-time jobs at a site qualifying for the fee; or

(iii) in the case of investments totaling at least four hundred million dollars, in a county classified as either least developed or underdeveloped, by a limited liability company and/or one or more of the members or equity holders where a member or equity holder is creating, at a site qualifying for the fee, at least one hundred new full-time jobs with an average annual salary of at least forty thousand dollars within four years of the date of execution of the millage rate agreement; or

(iv) in the case of a sponsor and a sponsor affiliate, who together are investing at least four hundred million dollars and creating at least two hundred new full time jobs at the site qualifying for the fee and:

a. the investment by the sponsor affiliate is considered necessary and suitable for the operation of the sponsor facility;

Printed Page 2781 . . . . . Thursday, June 7, 2001

b. the sponsor affiliate is located contiguous to the sponsor project;

c. one hundred percent of the output of the sponsor affiliate is provided to the sponsor for the project; and

d. the sponsor affiliate is not considered a supplier of manufactured parts or of any value added output of the sponsor."

B. Section 4-12-30(G) of the 1976 Code, as last amended by Act 399 of 2000, is further amended to read:

"(G)(1) The county and the sponsor may enter into an agreement to establish the millage rate, a millage rate agreement, for purposes of calculating payments under subsection (D)(2)(a), and the first five years under subsection (D)(2)(b). This millage rate agreement ~~must~~ may be executed ~~on the date of the inducement agreement or~~ at any time ~~thereafter~~ up to and including, but not later than, the date of the initial lease agreement. This millage rate agreement may be a separate agreement or may be made a part of either the inducement agreement or the initial lease agreement.

(2) The millage rate established pursuant to subsection (G)(1) must ~~cannot~~ be ~~lower than the~~ a cumulative property tax millage rate legally levied by or on behalf of all taxing entities within which the subject property is to be located ~~which is the cumulative rate~~ that is applicable during the period beginning on the thirtieth day of June preceding the calendar year in which the millage rate agreement is executed and ending on the date the initial lease agreement is executed. If no a millage rate agreement is not executed on or before the date of the initial lease agreement, the millage rate is ~~deemed~~ considered to be the cumulative property tax millage rate applicable on the thirtieth day of June preceding the calendar year in which the initial lease agreement is executed by the parties.

(3) For purposes of determining the cumulative property tax millage rate ~~under~~ pursuant to subsection (G)(2), the millage rate assessed by a municipality ~~must~~ may not be included in the computation ~~even if the subject property was located in the jurisdiction of the taxing entity as of June thirtieth preceding the calendar year in which the millage rate agreement is executed,~~ if, pursuant to agreement on the part of the taxing entity at the time of execution of the millage rate agreement, the taxing entity de-annexes the subject property before execution of the initial lease."

C. Section 4-29-10(3) of the 1976 Code, as last amended by Act 151 of 1997, is further amended to read:

Printed Page 2782 . . . . . Thursday, June 7, 2001

"(3) 'Project' means any land and any buildings and other improvements on the land including, without limiting the generality of the foregoing, water, sewage treatment and disposal facilities, air pollution control facilities, and all other machinery, apparatus, equipment, office facilities, and furnishings which are considered necessary, suitable, or useful by the following investors or any combination of them:

(a) any enterprise for the manufacturing, processing, or assembling of any agricultural or manufactured products;

(b) any commercial enterprise engaged in storing, warehousing, distributing, transporting, or selling products of agriculture, mining, or industry, or engaged in providing laundry services to hospitals, to convalescent homes, or to medical treatment facilities of any type, public or private, within or outside of the issuing county or incorporated municipality and within or outside of the State;

(c) any enterprise for research in connection with any of the foregoing or for the purpose of developing new products or new processes or improving existing products or processes;

(d) any enterprise engaged in commercial business including, but not limited to, wholesale, retail, or other mercantile establishments; residential and mixed use developments of two thousand five hundred acres or more; office buildings; computer centers; tourism, sports, and recreational facilities; convention and trade show facilities; and public lodging and restaurant facilities if the primary purpose is to provide service in connection with another facility qualifying under this subitem; and

(e) any enlargement, improvement, or expansion of any existing facility in subitems (a), (b), (c), and (d) of this item.

The term 'project' does not include facilities for an enterprise primarily engaged in the sale or distribution to the public of electricity, gas, or telephone services. A project may be located in one or more counties or incorporated municipalities. The term 'project' also includes any structure, building, machinery, system, land, interest in land, water right, or other property necessary or desirable to provide facilities to be owned and operated by any person, firm, or corporation for the purpose of providing drinking water, water, or wastewater treatment services or facilities to any public body, agency, political subdivision, or special purpose district. This definition is for purposes of industrial revenue bonds only."

D. Section 4-29-10 of the 1976 Code, as last amended by Act 151 of 1997, is further amended by adding at the end:

Printed Page 2783 . . . . . Thursday, June 7, 2001

"(9) 'Investor' means one or more entities that sign the inducement agreement with the county and also includes an investor affiliate unless the context clearly indicates otherwise.

(10) 'Investor affiliate' means an entity that joins with, or is an affiliate of, an investor and that participates in the investment in, or financing of, a project.

(11) 'Business' means a single entity or two or more entities if they meet the qualifications of Section 4-12-30."

E. Section 4-29-67 of the 1976 Code as last amended by Act 279 of 2000, is further to read:

"Section 4-29-67. (A) Notwithstanding the provisions of Section 4-29-60, in the case of a financing agreement in the form of one or more lease agreements for a project qualifying ~~under~~ pursuant to subsection (B), the county and the investor may enter into an inducement agreement ~~which~~ that provides for payment of a fee in lieu of taxes ~~(fee)~~ as provided in this section. ~~All~~ A ~~references~~ reference in this section to a lease agreement ~~shall be deemed also to refer~~ is considered a reference also to a lease purchase agreement.

(B) ~~In order for~~ For property to qualify for the fee as provided in subsection (D)(2):

(1) Title to the property must be held by the county or, in the case of a project located in an industrial development park as defined in Section 4-1-170, title may be held by more than one county, provided each county is a member of the industrial development park. ~~Any real~~ Real property transferred to the county must include a legal description and plat of the property.

(2) The investment must be a project ~~which~~ that is located in a single county or an industrial development park as defined in Section 4-1-170. A project located on a contiguous tract of land in more than one county, but not in ~~such~~ an industrial development park, may qualify for the fee ~~provided~~ if:

(a) the counties agree on the terms of the fee and the distribution of the fee payment;

(b) the minimum millage rate ~~cannot be~~ is not lower than the millage rate applicable to the county in which the greatest amount of investment occurs; and

(3) The minimum level of investment must be at least forty-five million dollars and must be invested within the time period provided in subsection (C).

Printed Page 2784 . . . . . Thursday, June 7, 2001

(4)(a) Except as provided in subsections (B)(4)(b) and (D)(4)(a), the investment must be made by a single entity. For purposes of this section, (i) any partnership or other association which properly files its South Carolina income tax returns as a partnership for South Carolina income tax purposes will be treated as a single entity and as a partnership, and (ii) any corporation or other association which properly files its South Carolina income tax returns as a corporation for South Carolina income tax purposes will be treated as a single entity and as a corporation. A corporation and a partnership, which partnership is a "controlled partnership" of the corporation, as provided under Section 707(b)(1) of the Internal Revenue Code as defined in Chapter 6 of Title 12, as of the date of the execution of the inducement agreement, and both of which will construct their projects on the same site qualifying for the fee, must be treated as a single entity for purposes of this subsection and subsections (B)(3) and (D)(4). Investment may be made by a business or a combination of businesses, except that each business must invest at least five million dollars at the project.

(b)(i) ~~The members of the same controlled group of corporations can qualify for the fee if the combined investment in the county by the members meets the minimum investment requirements.~~ The county and the ~~members~~ investors and investor affiliates who are part of the inducement agreement may agree that ~~any~~ investments by other ~~members of the controlled group~~ investor affiliates within the time periods provided in subsection (C)(1) and (2) ~~shall~~ qualify for the payment regardless of whether or not the ~~member~~ investor affiliate was part of the inducement agreement~~; provided, however, in order~~. to To qualify for the fee, ~~such other members of the controlled group~~ investor affiliates must be ~~specifically~~ approved specifically by the county and must agree to be bound by agreements with the county relating to the fee; ~~provided, however, such controlled group members~~ except that investor affiliates need not be bound by agreements, or portions of agreements, to the extent ~~such~~ those agreements do not affect the county~~; provided,~~. ~~further, that with the consent of the county, such members will not be~~ Investor affiliates are not bound by agreements or portions of agreements which do affect the county., if the affected county consents not to bind them. Except as otherwise provided in subsection (B)(2), the investments ~~under~~ pursuant to this subsection (B)(4)(b) ~~must be within the same county or industrial park~~ at the same project. ~~Any controlled group member which is claiming the fee must invest at least ten million dollars in the county or industrial park.~~

Printed Page 2785 . . . . . Thursday, June 7, 2001

(ii) The Department of Revenue must be notified in writing of all ~~members~~ investors and investor affiliates ~~which~~ that have investments subject to the fee ~~before or~~ within thirty days after the execution of the lease agreement covering the investment by the ~~member~~ investor or investor affiliate. The Department of Revenue may extend the thirty-day period upon written request. Failure to meet this notice requirement ~~will~~ does not affect adversely ~~affect~~ the fee, but a penalty of up to ten thousand dollars a month or portion of a month with the total penalty not to exceed one hundred twenty thousand dollars may be assessed by the Department of Revenue for late notification ~~for up to ten thousand dollars a month or portion of a month with the total penalty not to exceed one hundred twenty thousand dollars~~. ~~Members of the controlled group must provide the information considered necessary by the Department of Revenue to ensure that the investors are part of a controlled group.~~

(iii) If, at any time, the controlled group or any former member (who has left the controlled group) no longer has the minimum forty-five million dollars of investment (without regard to depreciation), that group or former member no longer holding the minimum amount of investment as provided in subsection (B)(3) (without regard to depreciation) will investment at the project falls below forty-five million dollars, the investor and investor affiliate no longer qualify for the fee.

(iv) For purposes of this section, 'controlled group' or 'controlled group of corporations' shall have the meaning provided under Section 1563(a) of the Internal Revenue Code as defined in Chapter 6 of Title 12 as of the date of the execution of the inducement agreement (without regard to amendments or replacements thereof), without regard to subsections (a)(4) and (b) of Section 1563 If, at any time, a business no longer has a minimum investment of five million dollars at the project, without regard to depreciation, the investor or investor affiliate no longer qualifies for the fee.

(C)(1) From the end of the property tax year in which the investor and the county execute an inducement agreement, the investor has seven years in which to enter into an initial lease agreement with the county.

Printed Page 2786 . . . . . Thursday, June 7, 2001

of the five-year period for an extension of time, up to two years, to complete the project. ~~If the~~ The ~~county~~ county's ~~agrees~~ agreement to grant the extension~~, the county~~ must ~~do so~~ be in writing, and a copy must be delivered to the Department of Revenue within thirty days of the date the extension was granted. ~~The extension may not exceed two years in which to complete the project.~~

(b) ~~There is no~~ An extension ~~allowed for~~ of the five-year period in which to meet the minimum level of investment is not allowed. If the minimum level of investment is not met within five years, all property ~~under~~ covered by the lease agreement or agreements reverts retroactively to the payments required by Section 4-29-60. The difference between the fee actually paid by the investor and the payment ~~which is~~ due ~~under~~ pursuant to Section 4-29-60 is subject to interest, as provided in Section 12-54-25~~(D)~~.

(c) Unless property qualifies as replacement property ~~under~~ pursuant to a contract provision enacted pursuant to subsection (F)(2), ~~any~~ property placed in service after the five-year period, or seven years in the case of a project which has received an extension, is not part of the fee agreement ~~under~~ pursuant to subsection (D)(2) and is subject to the payments required by Section 4-29-60 if the county has title to:

(i) the property,; or

(ii) to property taxes, as provided in Chapter 37 of Title 12, if the investor has title to the property.

(d) For purposes of ~~those~~ businesses qualifying ~~under~~ pursuant to Section 4-29-67(D)(4), the five-year period referred to in this subsection is eight years and the seven-year period is ten years.

(3) The annual fee provided by subsection (D)(2) is available for no more than twenty years. For projects ~~which are~~ completed and placed in service during a period of more than one year, each year's investment may be subject to the fee in subsection (D)(2) for twenty years to a maximum total of twenty-seven years for the fee for a single project which has been granted an extension. For those businesses qualifying ~~under~~ pursuant to subsection (D)(4), the annual fee is available for no more than thirty years and for those projects placed in service in more than one year, the annual fee is available for a maximum of thirty-seven years.

(4) ~~Annually, during~~ During the time period allowed to meet the minimum investment level, the investor annually must ~~provide~~ inform ~~the total amount invested to~~ the appropriate county official of the total amount invested.

Printed Page 2787 . . . . . Thursday, June 7, 2001

(D) The inducement agreement must provide for fee payments, to the extent applicable, as follows:

(1)(a) ~~Any property,~~ If title ~~to which is~~ of property is transferred to the county, ~~will be~~ the property is subject~~, before being placed in service,~~ to an annual fee payment as provided in Section 4-29-60 before being placed in service.

(b) ~~Any undeveloped land,~~ If title to ~~which~~ undeveloped land, is transferred to the county, ~~will be~~ the undeveloped land is subject~~, before being developed and placed in service,~~ to an annual fee payment as provided in Section 4-29-60 developed land is before being developed and placed in service. The time during which fee payments are made ~~under~~ pursuant to Section 4-29-60 ~~will not be considered~~ are not part of the maximum periods provided in ~~subsections~~ subsection (C)(2) and ~~(C)~~(3), and no a lease ~~shall be considered~~ is not an 'initial lease agreement' for purposes of this section unless and until the first day of the calendar year for which a fee payment is due ~~under~~ pursuant to subsection (D)(2) in connection with ~~such~~ the lease.

(2) After property qualifying ~~under~~ pursuant subsection (B) is placed in service, an annual fee payment, determined in accordance with one of the following, is due:

(a) an annual payment in an amount not less than the property taxes that would be due on the project if it were taxable, but using:

(i) an assessment ratio of ~~not less than~~ at least six percent, except as provided in subsection (D)(4),; ~~and~~

(ii) a fixed millage rate as provided in subsection (G),: and

(iii) a fair market value estimate determined by the South Carolina Department of Revenue ~~as follows:~~. ~~(i)~~ The estimate for real property ~~using~~ is the original income tax basis for South Carolina income tax purposes without regard to depreciation. However, if real property is constructed for the fee or is purchased in an arm's length transaction, fair market value ~~is deemed to equal~~ equals the original income tax basis, otherwise the Department of Revenue ~~will~~ shall determine fair market value by appraisal~~; and~~. The estimate ~~(ii)~~ for personal property ~~using~~ is the original income tax basis for South Carolina income tax purposes, less depreciation allowable for property tax purposes,; except that the investor is not entitled to any extraordinary obsolescence.;

Printed Page 2788 . . . . . Thursday, June 7, 2001

present value calculations performed ~~under~~ pursuant to this subsection must use a discount rate equivalent to the yield in effect for new or existing United States Treasury bonds of similar maturity as published during the month in which the inducement agreement is executed. If no yield is available for the month in which the inducement agreement is executed, the last published yield for the appropriate maturity must be used. If there are no bonds of appropriate maturity available, bonds of different maturities may be averaged to obtain the appropriate maturity.; or

(c) an annual payment using a formula that results in a fee not less than the amount required pursuant to subsection (D)(2)(a), except that every fifth year the applicable millage rate ~~is allowed to~~ may increase or decrease in step with the average actual millage rate applicable in the district where the project is located based on the preceding five-year period.

(3) At the conclusion of the payments determined pursuant to items (1) and (2) of this subsection~~, an annual payment~~ the annual fee payment is equal to the taxes due on the project as if it were taxable. When the property is no longer subject to the fee ~~under~~ pursuant to subsection (D)(2), the fee or property taxes must be assessed:

(a) with respect to real property, based on the fair market value as of the latest reassessment date for similar taxable property; and

(b) with respect to personal property, based on the then-depreciated value applicable to ~~such~~ the property under the fee, and ~~thereafter~~ after that continuing with the South Carolina property tax depreciation schedule.

(4)(a) The assessment ratio ~~may not be lower than~~ must be at least four percent:

(i) in the case of a business ~~which is~~ investing at least two hundred million dollars, ~~which, when added to the previous investments, results~~ resulting in a total investment of at least four hundred million dollars when added to previous investments, and ~~which is~~ creating at least two hundred new full-time jobs at the site qualifying for the fee;

(ii) in the case of a business ~~which is~~ investing at least four hundred million dollars and ~~which is~~ creating at least two hundred new full-time jobs at a site qualifying for the fee; or

Printed Page 2789 . . . . . Thursday, June 7, 2001

member or equity holder is creating~~, at the site qualifying for the fee,~~ at least one hundred new full-time jobs, at the site qualifying for the fee, with an annual average salary of at least forty thousand dollars within four years of the date of execution of a millage rate agreement.; or

(iv) in the case of a business which is investing at least six hundred million dollars in this State.

(v) in the case of investments totaling at least four hundred million dollars and creating at least two hundred new full-time jobs at the site qualifying for the fee and:

a. the investment by the investor affiliate is considered necessary and suitable for the operation of the sponsor facility;

b. the investor affiliate is located contiguous to the investor project;

c. one hundred percent of the output of the investor affiliate is provided to the investor for the project; and

d. the investor affiliate is not considered a supplier of manufactured parts or of any value added output of the investor.

(b) The new full-time jobs requirement of this item does not apply in the case of a ~~taxpayer which~~ business that paid more than fifty percent of all property taxes actually collected in the county for more than the twenty-five years ending on the date of the agreement ~~paid more than fifty percent of all property taxes actually collected in the county~~.

(c) In an instance in which the governing body of a county, ~~has~~ by contractual agreement, has provided for a change in fee-in-lieu of taxes arrangements conditioned on a future legislative enactment, ~~any~~ a new enactment ~~shall~~ does not bind the original parties to the agreement unless the change is ratified by the governing body of the county.

(5) Notwithstanding the use of the term 'assessment ratio', ~~a business~~ an investor qualifying ~~under~~ pursuant to ~~items~~ item (2) or (4) of this subsection may negotiate an inducement agreement with a county using differing assessment ratios for different assessment years covered by the agreement. ~~However, the~~ The lowest assessment ratio allowed is the lowest ratio for which the ~~business~~ investor may qualify under this section.

(E) Calculations pursuant to subsection (D)(2) must be made on the basis that the property, if taxable, is allowed all applicable property tax exemptions except the exemption allowed ~~under~~ pursuant to Section 3(g) of Article X of the Constitution of this State and the ~~exemption~~ exemptions allowed pursuant to Section 12-37-220B(32) and (34).

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(F) With regard to calculation of the fee provided in subsection (D)(2), the inducement agreement may provide for the disposal of property and the replacement of property subject to the fee as follows:

(1)~~(a)~~ If an investor disposes of property subject to the fee, the fee must be reduced by the amount of the fee applicable to that property. ~~(b)~~ Property is disposed of only when it is scrapped or sold in accordance with the lease agreement. ~~(c)~~ If the investor used any method to compute the fee other than that provided in subsection (D)(2)(a), the fee on the property which was disposed of must be recomputed in accordance with subsection (D)(2)(a) and to the extent ~~that~~ the amount ~~which~~ that would have been paid ~~under~~ pursuant to subsection (D)(2)(a) exceeds the fee actually paid by the investor, the investor must pay the difference with the next fee payment due after the property is disposed of. If the investor used the method provided in subsection (D)(2)(c), the millage rate provided in subsection (D)(2)(c) must be used to calculate the amount which would have been paid ~~under~~ pursuant to subsection (D)(2)(a). ~~(d)~~ If there is no provision in the agreement dealing with the disposal of property in accordance with this subsection, the fee remains fixed and no adjustment to the fee is allowed for disposed property.

(2) ~~Any property~~ Property ~~which is~~ placed in service as a replacement for property ~~which~~ that is subject to the fee payment may become part of the fee payment as provided in this item:

(a) Replacement property ~~does not have to serve the same~~ may have a function as that differs from the property it is replacing. Replacement property is ~~deemed~~ considered to replace the oldest real or personal property subject to the fee~~, whether real or personal, which is~~ and disposed of in the same property tax year as the replacement property is placed in service. Replacement property qualifies for fee treatment provided in subsection (D)(2) only up to the original income tax basis of fee property it ~~is replacing~~ replaces. More than one piece of replacement property ~~can~~ may replace a single piece of fee property. To the extent that the income tax basis of the replacement property exceeds the original income tax basis of the property ~~which~~ it ~~is replacing~~ replaces, the excess amount is subject to payments as provided in Section 4-29-60. Replacement property is entitled to the fee payment for the period of time remaining on the twenty-year fee period for the property ~~which~~ it ~~is replacing~~ replaces.

Printed Page 2791 . . . . . Thursday, June 7, 2001

provided on the original fee property. The fee payment for replacement property must be based on ~~subsections~~ subsection (D)(2)(a) or ~~(D)(2)~~(c), if the investor originally used ~~this~~ that method, without regard to present value.

(d) If there is no provision in the inducement agreement dealing with replacement property, any property placed in service after the time period allowed for investments as provided by subsection (C)(2), is subject to the payments required by Section 4-29-60 if the county has title to:

(i) the property,; or

(ii) to property taxes, as provided in Chapter 37 of Title 12, if the investor has title to the property.

(G)(1) The county and the investor may enter into an agreement to establish the millage rate ~~(millage rate agreement)~~ for purposes of calculating payments ~~under~~ pursuant to subsection (D)(2)(a) and the first five years ~~under~~ pursuant to subsection (D)(2)(c). This millage rate agreement ~~must~~ may be executed ~~on the date of the inducement agreement or~~ at ~~anytime~~ any time ~~thereafter~~ up to and including, but not later than, the date of the initial lease agreement. This millage rate agreement may be a separate agreement or may be made a part of either the inducement agreement or the initial lease agreement.

(2) The millage rate established pursuant to item (1) of this subsection ~~cannot~~ must be ~~lower than the~~ a cumulative property tax millage rate legally levied by or on behalf of all taxing entities within which the subject property is to be located ~~which is the cumulative rate~~ that is applicable during the period beginning on the thirtieth day of June preceding the calendar year in which the millage rate agreement is executed and ending on the date the initial lease agreement is executed. If no a millage rate agreement is not executed on or before the date of the initial lease agreement, the millage rate is ~~deemed to be~~ the cumulative property tax millage rate applicable on the thirtieth day of June preceding the calendar year in which the initial lease agreement is executed ~~by the parties~~.

(H)(1) Upon agreement of the ~~parties~~ county, investors, and investor affiliates, and except as provided in subsection (H)(2), an inducement agreement, a millage rate agreement, or both, may be amended or terminated and replaced with regard to all matters including, but not limited to, the addition or removal of ~~controlled group members~~ investors or investor affiliates.

Printed Page 2792 . . . . . Thursday, June 7, 2001

(2) No An amendment or a replacement of an inducement agreement or millage rate agreement may not be used to change the millage rate, discount rate, assessment ratio, or ~~length~~ duration of the agreement ~~under any such agreement.~~; ~~However,~~ except that an existing inducement ~~agreements~~ agreement ~~which~~ that ~~have~~ has not ~~yet~~ been implemented by the execution and delivery of a millage rate agreement or a lease purchase agreement, may be amended up to the date of execution and delivery of a millage rate agreement or a lease purchase agreement in the discretion of the governing body.

(I) Investment expenditures incurred by ~~any~~ an investor in connection with a project, or relevant phase of a project for those projects completed and placed in service in more than one year, qualify as expenditures subject to the fee in subsection (D)(2), so long as these expenditures are incurred:

(1) any time after, or within sixty days before, the county takes action reflecting or identifying the project or proposed project or investment including, but not limited to, the adoption of an inducement or similar resolution by county council; and

(2) before the end of the applicable time period for investments referenced in ~~subsections~~ subsection (C)(2) and ~~(C)~~(3).

An inducement agreement must be executed within two years after the date on which the county takes action reflecting or identifying the project or proposed project or investment including, but not limited to, the adoption of an inducement or similar resolution by county council; otherwise, only investment expenditures made or incurred by ~~any~~ an investor after the date of ~~such~~ the inducement agreement in connection with a project ~~shall~~ qualify as expenditures subject to the fee in subsection (D)(2).

(J)(1) Subject to subsection (K), project investment expenditures ~~which are~~ incurred within the applicable time period provided in subsection (I) by an ~~entity~~ investor whose investments are not ~~being~~ computed in at the level of investment for purposes of ~~subsections~~ subsection (B) or (C) ~~shall~~ qualify as investment expenditures subject to the fee in subsection (D)(2) ~~where~~ if the:

(a) ~~such~~ expenditures are part of the original cost of ~~the~~ property ~~which is~~ that is transferred, within the applicable time period provided in subsection (I), to one or more other ~~entities which are members of the same controlled group as the transferor entity and~~ investors or investor affiliates whose investments are being computed in at the level of investment for purposes of ~~subsections~~ subsection (B) or (C); and

Printed Page 2793 . . . . . Thursday, June 7, 2001

(b) ~~such~~ property would have qualified for the fee in subsection (D)(2) if it had been initially acquired by the transferee entity ~~rather than~~ instead of the transferor entity.

(2) The income tax basis of ~~such~~ the property immediately before ~~such~~ the transfer must equal the income tax basis of ~~such~~ the property immediately after ~~such~~ the transfer; ~~provided, however,~~ except that, to the extent income tax basis of ~~such~~ the property immediately after ~~such~~ the transfer unintentionally exceeds the income tax basis of ~~such~~ the property immediately before ~~such~~ the transfer, ~~such~~ the excess ~~shall be~~ is subject to payments ~~under~~ pursuant to Section 4-29-60.

(3) The county must agree to ~~any~~ an inclusion in the fee of the property described in subsection (J)(1).

(K)(1) Property ~~which has been~~ previously subject to property taxes in South Carolina ~~will~~ does not qualify for the fee except as provided in this subsection:

(a) land, excluding improvements ~~thereon~~ on it, on which a new project ~~will be~~ is located may qualify for the fee even if it has previously been subject to South Carolina property taxes;

(b) property ~~which~~ that has been subject previously to South Carolina property taxes, but ~~which~~ has never been placed in service in South Carolina, may qualify for the fee; and

(c) property ~~which has been~~ placed in service in South Carolina and subject to South Carolina property taxes ~~which~~ that is purchased in a transaction other than between any of the entities specified in Section 267(b) of the Internal Revenue Code, as defined ~~under~~ pursuant to Chapter 6 of Title 12 as of the time of the transfer, may qualify for the fee ~~provided~~ if the ~~fee-paying entity~~ investor invests at least an additional forty-five million dollars in the project.

(2) Repairs, alterations, or modifications to real or personal property which are not subject to a fee ~~will~~ are not be eligible for a fee, even if they are capitalized expenditures, except for modifications to existing real property improvements ~~which constitute~~ constituting an expansion of ~~such~~ the improvements.

(L)(1) For a project not located in an industrial development park as defined in Section 4-1-170, distribution of the fee in lieu of taxes on the project must be made in the same manner and proportion that the millage levied for school and other purposes would be distributed if the property were taxable. For this purpose, the relative proportions must be calculated based on the following procedure: holding constant the millage rate set in subsection (G) and using all tax abatements automatically granted for taxable property, a full schedule of the

Printed Page 2794 . . . . . Thursday, June 7, 2001

property taxes that would otherwise have been distributed to each millage-levying entity in the county must be prepared for the life of the agreement, for the maximum time period allowed ~~under~~ pursuant to (C)(3). The property taxes ~~which~~ that would have been paid on the property if it ~~was~~ were owned by the investor to each millage-levying entity as a percentage of the total of ~~such~~ the property taxes for all ~~such~~ the entities determines each entity's relative shares of each year's fee payment for all subsequent years of the agreement.

(2) For a project located in an industrial development park as defined in Section 4-1-170, distribution of the fee in lieu of taxes on the project must be made in the manner provided for by the agreement establishing the industrial development park.

(3) A county or municipality or special purpose district that receives and retains revenues from a payment in lieu of taxes may use a portion of this revenue for the purposes outlined in Section 4-29-68 without the requirement of issuing special source revenue bonds or the requirements of Section 4-29-68(A)(4).

(M) As a directly foreseeable result of negotiating the fee, gross revenue of a school district in which a project is located in any year a fee negotiated pursuant to this section is paid, may not be less than gross revenues of the district in the year before the first year for which a fee in lieu of taxes is paid. In negotiating the fee, the parties shall assume that the formulas for the distribution of state aid at the time of the execution of the inducement agreement must remain unchanged for the duration of the lease agreement.

(N) Projects on which a fee in lieu of taxes is paid pursuant to this section are considered taxable property at the level of the negotiated payments for purposes of bonded indebtedness pursuant to Sections 14 and 15 of Article X of the Constitution of this State, and for purposes of computing the index of taxpaying ability pursuant to Section 59-20-20(3). However, for a project located in an industrial development park as defined in Section 4-1-170, projects are considered taxable property in the manner provided in Section 4-1-170 for purposes of bonded indebtedness pursuant to Sections 14 and 15 of Article X of the Constitution of this State, and for purposes of computing the index of taxpaying ability pursuant to Section 59-20-20(3). Provided, however, that the computation of bonded indebtedness limitation is subject to the requirements of Section 4-29-68(E).

(O)(1) ~~Any~~ An interest in an inducement agreement, millage rate agreement, and lease agreement, and property to which the agreement

Printed Page 2795 . . . . . Thursday, June 7, 2001

relates, may be transferred to ~~any other~~ another entity at any time. Notwithstanding ~~any other~~ another provision of this chapter, ~~any~~ an equity interest in ~~any~~ an ~~entity~~ investor or investor affiliate with an interest in any inducement agreement, millage rate agreement, or lease agreement may be transferred to ~~any other~~ another entity or person at any time.

(2) ~~A single entity, or two or more entities which are members of a controlled group,~~ An investor or investor affiliate may enter into ~~any~~ a lending, financing, security, or similar arrangement, or succession of such arrangements, with ~~any~~ a financing entity, concerning all or part of a project and may enter into ~~any~~ a sale-leaseback arrangement, including without limitation, an assignment, a sublease, or similar arrangement, or succession of such arrangements, with one or more financing entities, concerning all or part of a project, regardless of the identity of the income tax owner of the property which is subject to the fee payment ~~under~~ pursuant to subsection (D)(2). Even though income tax basis is changed for income tax purposes, neither the original transfer to the financing entity nor the later transfer from the financing entity back to the original ~~transferor or members of its controlled group,~~ investor or investor affiliate pursuant to terms in the sale-leaseback agreement, affects the amount of the fee due.

(3) ~~All~~ A ~~transfers~~ transfer undertaken with respect to the project to effect a financing authorized ~~under~~ by subsection (O) must meet the following requirements:

(a) The Department of Revenue must receive written notification, ~~in writing~~ within sixty days after the transfer, of the identity of each transferee and other information required by the department with the appropriate returns. Failure to meet this notice requirement ~~will~~ does not affect adversely ~~affect~~ the fee, but a penalty up to ten thousand dollars a year or portion of a year up to a maximum penalty of one hundred twenty thousand dollars may be assessed by the department for late notification ~~for up to ten thousand dollars a year or portion of a year up to a maximum penalty of one hundred twenty thousand dollars~~.

(b) If the financing entity is the income tax owner of property, either:

(i) the financing entity is primarily liable for the fee as to that portion of the project to which the transfer relates with the original transferor remaining secondarily liable for the payment of the fee; or

Printed Page 2796 . . . . . Thursday, June 7, 2001

(ii) the original transferor must agree to continue to be primarily liable for the payment of the fee as to that portion of the project to which the transfer relates.

(4) Before an investor may transfer an inducement agreement, millage rate agreement, lease agreement, or the assets subject to the lease agreement, it must obtain the approval of the county with which it entered into the original ~~inducement~~ agreement~~, millage rate agreement, or lease agreement~~. ~~However, no such~~ That approval is not required in connection with transfers to investor affiliates or other financing-related transfers.

~~(P)~~ ~~Reserved.~~

~~(Q)~~ ~~Reserved.~~

~~(R)~~ For purposes of subsections (O)(1)(a) and (P), and subject to subsection (U), each transferee, with respect to a project which is the subject of a transfer, shall be considered to have made amounts of qualified investments represented by the property interest which is subject to the fee and which is transferred, without regard to depreciation.

~~(S)~~ ~~Reserved.~~

~~(T)~~(P) No An inducement agreement, a millage rate agreement, or a lease agreement, ~~nor~~ or the rights of ~~any~~ an ~~entity~~ investor or investor affiliate pursuant to ~~any such~~ that agreement, including, without limitation, the availability of the subsection (D)(2) fee, ~~shall~~ may not be ~~adversely~~ affected adversely if the bonds issued pursuant to ~~any such~~ that agreement are purchased by one or more of the entities ~~which~~ that are or become ~~parties to any such agreement~~ investor or investor affiliates.

~~(U)(1)~~(Q) ~~Notwithstanding any other provision of this section, if~~ If an investor fails to make the minimum investment required ~~under~~ by subsection (D)(2) within the time provided in subsection (C)(2), then ~~if and to the extent allowed pursuant to an applicable agreement between the investor and the county,~~ the investor is entitled to the benefits of Chapter 12 of this title if and to the extent allowed pursuant to an applicable agreement between the investor and the county, and if the requirements of subsection (B(4)(a) are satisfied. Otherwise, the fee provided in subsection (D)(2) is no longer available and the investor ~~is required to~~ must make the payments ~~which are~~ due ~~under~~ pursuant to Section 4-29-60 for the remainder of the lease period.

Printed Page 2797 . . . . . Thursday, June 7, 2001

forty-five million dollar minimum investment to which the fee relates and is held by an entity or controlled group of entities, then if and to the extent allowed pursuant to any applicable agreement between the investor and the county, the investor is entitled to the benefits provided under Chapter 12 of this title. Otherwise, the fee provided in subsection (D)(2) is no longer available and the investor is required to make the payments which are due under Section 4-29-60 for the remainder of the lease period.

~~(V)~~(R) The minimum amount of the initial investment provided in subsection ~~(B)(2)~~ (B)(3) of this section may not be reduced except by a special vote which, for purposes of this section, means an affirmative vote in each branch of the General Assembly by two-thirds of the members present and voting, but not less than three-fifths of the total membership in each branch.

~~(W)~~(S)(1) The investor shall file the returns, contracts, and other information ~~which~~ that may be required by the Department of Revenue.

(2) Fee payments, and returns calculating fee payments, are due at the same time as property tax payments and property tax returns would be due if the property were owned by the ~~party~~ investor or investor affiliate obligated to make ~~such~~ the fee payments and file such returns.

(3) Failure to make a timely fee payment and file required returns ~~shall result~~ results in penalties being assessed as if the payment or return ~~was~~ were a property tax payment or return.

(4) The Department of Revenue may issue ~~the~~ rulings and promulgate regulations ~~it determines~~ necessary or appropriate to carry out the purpose of this section.

(5) The provisions of Chapters 4 and 54 of Title 12, applicable to property taxes, ~~shall~~ apply to this section;, and, for purposes of ~~such~~ that application, the fee ~~shall be considered~~ is considered a property tax. Sections 12-54-20, 12-54-80, and 12-54-155 do not apply to this section.

(6) Within thirty days of the date of execution of an inducement or lease agreement, a copy of the agreement must be filed with the Department of Revenue and the county ~~auditors~~ auditor and the county ~~assessors~~ assessor for ~~the~~ every county ~~or counties~~ in which the project is located. If the project is located in a multicounty park, the agreements must be filed with the auditors and assessors for all counties participating in the multicounty park.

~~(X)~~(T) Except as otherwise expressly provided in subsection (C)(2), ~~any~~ a loss of fee benefits ~~under~~ pursuant to this section ~~shall be~~ is

Printed Page 2798 . . . . . Thursday, June 7, 2001

prospective only from the date of noncompliance and, subject to subsection ~~(U)~~(Q), only with respect to that portion of the project to which ~~such~~ the noncompliance relates; ~~provided, however,~~ except that ~~such~~ the loss of fee benefits ~~cannot~~ may not result in the recovery from the ~~fee-paying entity~~ investor and investor affiliate of fee payments for more than:

(1) three years from the date a return concerning the fee is filed for the time period during which the noncompliance occurs,. ~~absent~~ a A showing of bad faith noncompliance~~, in which case such~~ increases the three-year period ~~shall instead be~~ to a ten-year period; or

(2) ten years if ~~no such~~ a return is not filed for the time period during which the noncompliance occurs.

~~(Y)~~(U) Section 4-29-65 ~~shall be inapplicable~~ does not apply ~~with respect~~ to this section. All references in this section to taxes ~~shall be considered to mean~~ means South Carolina taxes unless otherwise expressly stated.

~~(Z)~~ ~~Reserved.~~

~~(AA)~~(W)(1) Notwithstanding ~~any other~~ another provision of this section, in the case of a qualified recycling facility the annual fee is available for no more than thirty years, and for those projects constructed or placed in service during a period of more than one year, the annual fee is available for a maximum of thirty-seven years.

(2) Notwithstanding ~~any other~~ another provision of this section, for a qualified recycling facility, the assessment ratio ~~may not be less than~~ must be at least three percent.

(3) Any machinery and equipment foundations, port facilities, or railroad track systems used, or to be used, for a qualified recycling facility is considered tangible personal property.

(4) Notwithstanding subsections (F) and (I) of this section, the total costs of all investments made for a qualified recycling facility are eligible for fee payments as provided in this section.

(5) For purposes of ~~any~~ fees that may be due on undeveloped property for which title has been transferred to the county by or for the owner or operator of a qualified recycling facility, the assessment ratio is three percent.

(6) Notwithstanding subsection (D)(2)(b) of this section, in the case of a qualified recycling facility, net present value calculations performed ~~under~~ pursuant to ~~the~~ that subsection must use a discount rate equivalent to the yield in effect for new or existing United States Treasury bonds of similar maturity as published on any day selected by

Printed Page 2799 . . . . . Thursday, June 7, 2001

the investor during the year in which assets are placed into service or in which the inducement agreement is executed.

(7) As used in this subsection, 'qualified recycling facility' and 'investment' have the meaning provided in Section 12-7-1275(A).

~~(BB)~~(1) Notwithstanding ~~any other~~ another provision of this section, the fair market value of property of a pharmaceutical company investing more than four hundred million dollars in one county in this State is the lower of the fair market value estimate ~~(1)~~ as ~~determined~~ determines:

(a) pursuant to subsection (D)(2)(a)(i),; or

~~(2)~~(b) ~~as determined~~ by the county in which the investment is located as follows:

~~(a)~~ (i) for real property, using the original income tax basis for South Carolina income tax purposes without regard to depreciation, less any ~~such~~ basis amount attributable to cost overruns, including capitalized interest overruns; and

~~(b)~~(ii) for personal property, using the original income tax basis for South Carolina income tax purposes, less any ~~such~~ basis amount attributable to cost overruns, including capitalized interest overruns, and less depreciation allowable for property tax purposes, except that the investor is not entitled to any extraordinary obsolescence.

(2) This subsection applies only to property placed in service before January 1, 2000."

F. Section 12-44-50(A)(1)(b)(i) of the 1976 Code is amended to read:

"(i) by the county, which must ~~not~~ be ~~lower than the~~ a cumulative property tax millage rate legally levied by or on behalf of all millage levying entities within which the project is to be located, ~~which is the cumulative rate~~ that is applicable during the period beginning on the thirtieth day of June preceding the calendar year in which the fee agreement is executed and ending on the date the initial lease agreement is executed; or"

G. Notwithstanding the provisions of Section 4-12-30(H)(2), Section 4-29-67(H)(2), and Section 12-44-40(L)(2), the parties may agree to change the millage rate under an existing inducement agreement or millage rate agreement for an investment that exceeds two hundred million dollars to a cumulative property tax millage rate legally levied by or on behalf of all taxing entities within which the subject property is to be located that is applicable during the period beginning on the thirtieth day of June preceding the calendar year in which the millage rate agreement is executed and ending on the date the initial lease

Printed Page 2800 . . . . . Thursday, June 7, 2001

agreement is executed. A change in millage rates pursuant to this section is applicable prospectively only and not retroactively.

H. This SECTION takes effect upon approval by the Governor. Provided, however, the provisions of subsection B., subsection F., and the amendment to Section 4-29-67(G) in subsection E. apply to a fee in lieu of property taxes agreement in which an initial lease agreement is executed on or after that date. Subsection G. is repealed effective December 31, 2001./

Renumber sections to conform.

Amend title to conform.

Senator ALEXANDER explained the amendment.

The amendment was adopted.

Amendment No. 6

Senator ALEXANDER proposed the following Amendment No. 6 (DKA\4534MM01), which was adopted:

Amend the bill, as and if amended, by striking SECTION 19 in its entirety and inserting:

/ SECTION 19. A. Section 12-28-1730(E) of the 1976 Code is amended to read:

"(E) The department may impose a civil penalty against every terminal operator who wilfully fails to meet shipping paper issuance requirements under Sections 12-28-920, 12-28-1500, and 12-28-1575 or wilfully files a return without the supporting schedules as required by the department pursuant to Sections 12-28-1330 and 12-28-1340. The civil penalty imposed on the terminal operator is the same as the civil penalty imposed under subsection (B)."

B. Section 12-28-1730 of the 1976 Code is amended by adding:

"(H) If a person liable for the tax files a return and wilfully fails to provide all information required by the department, the department may add to the tax the amount provided in Section 12-54-43(C)(1)." /

Renumber sections to conform.

Amend title to conform.

Senator ALEXANDER explained the amendment.

The amendment was adopted.

Printed Page 2801 . . . . . Thursday, June 7, 2001

Amendment No. 7

Senator ALEXANDER proposed the following Amendment No. 7 (DKA\4541MM01), which was adopted:

Amend the bill, as and if amended, by adding appropriately numbered SECTIONS to read:

/ SECTION __. A. Section 12-24-40 of the 1976 Code is amended by adding a new item to read:

"(15) transferring title to facilities for transmitting electricity that is transferred, sold, or exchanged by electrical utilities, municipalities, electric cooperative, or political subdivisions to a limited liability company which is subject to regulation under the Federal Power Act (16. U.S.C. Section 791 (a)) and which is formed to operate or to take functional control of electric transmission assets as defined in the Federal Power Act."

B. Section 12-36-2120 of the 1976 Code is amended by adding a new item to read:

"(59) facilities for transmitting electricity that is transferred, sold, or exchanged by electrical utilities, municipalities, electric cooperative, or political subdivisions to a limited liability company which is subject to regulation under the Federal Power Act (16 U.S.C. Section 791 (a)) and which is formed to operate or to take functional control of electric transmission assets as defined in the Federal Power Act."

C. Section 12-6-3410(J) of the 1976 Code is amended by adding a new item to read:

"(9) 'corporation', 'corporate', 'company', and 'taxpayer' for purposes of this section also include a limited liability company which is subject to regulation under the Federal Power Act (16 U.S.C. Section 791(a)) and which is formed to operate or to take functional control of electric transmission assets as defined in the Federal Power Act regardless of whether the limited liability company is treated as a partnership or as a corporation for South Carolina income tax purposes. If treated as a partnership, a limited liability company that qualifies for a credit under this section passes the credit through to its members in proportion to their interests in the limited liability company. Each member's share of the credit is nonrefundable, but is allowed as a credit against any tax under Section 12-6-530 or 12-20-50. Each member may carry any unused credit forward as provided in subsection (F). The limited liability company may not carry forward a credit that passes through to its members."

D. This section takes effect upon approval by the Governor and subsections A. and B. apply with respect to sales or deeds made or

Printed Page 2802 . . . . . Thursday, June 7, 2001

recorded after this date, and subsection C. is applicable to taxable years beginning after December 31, 2000. Provided, however, the corporate income tax credit taken against the cost of tangible personal property pursuant to Section 12-6-3410(D) authorized to be taken by those corporations or companies referred to in Section 12-6-3410(J)(9) may be taken for taxable years beginning after December 31, 2002.

SECTION __. A. Section 12-36-90(2) of the 1976 Code is amended by adding an appropriately lettered subitem to read:

"( ) interest, fees, charges however described, imposed on a customer for late payment of a bill for electricity or natural gas, or both, whether or not sales tax is required to be paid on the underlying electricity or natural gas bill."

B. This section takes effect upon approval by the Governor and applies with respect to retail sales occurring on or after that date and sales before that date for all periods remaining open for the assessment of taxes by agreement or by operation of law. However, a refund is not due a taxpayer of sales and use tax paid on interest, fees, or charges, however described, imposed on a customer for late payment of a bill for electricity or natural gas, or both, before the effective date of this section. /

Renumber sections to conform.

Amend title to conform.

Senator ALEXANDER explained the amendment.

The amendment was adopted.

Amendment No. 8

Senator LAND proposed the following Amendment No. 8 (DKA\ 4522MM01), which was adopted:

Amend the bill, as and if amended, by adding appropriately numbered SECTIONS to read:

/ SECTION __. Section 12-44-80 of the 1976 Code is amended by adding at the end:

"(C) Misallocations of the distribution of the fee payments on the project pursuant to this chapter may be corrected by adjusting later distributions, but these adjustments must be made in the same fiscal year as the misallocations."

SECTION __. Section 4-12-30(K) of the 1976 Code is amended by adding at the end:

Printed Page 2803 . . . . . Thursday, June 7, 2001

"(4) Misallocations of the distribution of the fee-in-lieu of taxes on the project pursuant to this chapter may be corrected by adjusting later distributions, but these adjustments must be made in the same fiscal year as the misallocations."

SECTION __. Section 4-29-67(L) of the 1976 Code, as last amended by Act 462 of 1996, is further amended by adding at the end:

Renumber sections to conform.

Amend title to conform.

Senator LAND explained the amendment.

The amendment was adopted.

On motion of Senator MOORE, with unanimous consent, Amendment No. 15 was taken up for immediate consideration.

Amendment No. 15

Senator MOORE proposed the following Amendment No. 15 (3777R002.TLM), which was adopted:

Amend the bill, as and if amended, by adding an appropriately numbered new SECTION to read:

/ SECTION ____. (A) Regardless of an election made pursuant to Section 12-6-1170 of the 1976 Code to defer until age sixty-five a retirement income deduction, as that section applied for taxable years 1993 through 1997, or in the alternative, in case of a failure to make such an election, a South Carolina individual income taxpayer who received retirement income in one or more of those taxable years and who for one or more of those years claimed no retirement income deduction with respect to that retirement income is allowed a deduction from South Carolina taxable income of retirement income received in such a year not to exceed three thousand dollars.

(B) For purposes of this section, "retirement income" has the meaning provided in Section 12-6-1170(4) of the 1976 Code as this section applied in taxable years 1993 through 1997.

(C) Notwithstanding the provisions of Section 12-54-85(F) of the 1976 Code relating to the timeliness of claims for refunds and for taxable years 1993, 1994, 1995, 1996 only, the period within which

Printed Page 2804 . . . . . Thursday, June 7, 2001

such claims are timely filed is extended through April 15, 2002, for taxpayers filing a claim pursuant to this section. /

Renumber sections to conform.

Amend title to conform.

Senator MOORE explained the amendment.

The amendment was adopted.

Recorded Vote

Senator DRUMMOND desired to be recorded as voting against the adoption of the amendment.

Amendment No. 9

Senator LAND proposed the following Amendment No. 9 (DKA\ 4521MM01), which was adopted:

Amend the bill, as and if amended, page [3777-32], by striking SECTION 42 in its entirety.

Amend further by adding an appropriately numbered SECTION to read:

/ SECTION __. A. Section 12-56-20(4) of the 1976 Code is amended by adding at the end:

" 'Delinquent debt' also includes any fine, penalty, cost, fee, assessment, surcharge, service charge, restitution, or other amount imposed by a court or as a direct consequence of a final court order which is received by or payable to the clerk of the appropriate court or treasurer of the entity where the court is located."

B. The 1976 Code is amended by adding:

"Section 14-1-202. (A) The clerk of the appropriate court, or county treasurer or municipal treasurer, as appropriate, is authorized to collect any fine, penalty, cost, fee, assessment, surcharge, service charge, restitution, or other amount imposed by a court or as a direct consequence of a court order.

(B) The clerk of the appropriate court, or county treasurer or municipal treasurer, as appropriate, may compromise any fine, penalty, cost, fee, assessment, surcharge, service charge, restitution, or other amount imposed by a court or as a direct consequence of a court order to the extent necessary to collect these items. If a clerk or treasurer compromises an amount pursuant to this subsection, the proceeds representing the collected amount must be distributed pro rata to the entities that otherwise would have received the original amount." /

Printed Page 2805 . . . . . Thursday, June 7, 2001

Renumber sections to conform.

Amend title to conform.

Senator LAND explained the amendment.

The amendment was adopted.

Amendment No. 10

Senator ALEXANDER proposed the following Amendment No. 10 (DKA\4542MM01), which was adopted:

Amend the bill, as and if amended, by deleting item (2) as contained in Section 12-10-50(A), SECTION 11, and inserting:

/ (2) provide a benefits package, including health care, to full-time employees at the project; /

Renumber sections to conform.

Amend title to conform.

Senator ALEXANDER explained the amendment.

The amendment was adopted.

Amendment No. 11

Senator THOMAS proposed the following Amendment No. 11 (DKA\4524MM01), which was adopted:

Amend the bill, as and if amended, by adding an appropriately numbered SECTION to read:

/ SECTION __. A. The 1976 Code is amended by adding:

"Section 12-45-35. (A) A county treasurer may appoint an employee in his office to be his deputy. The appointment must be filed with the Comptroller General and the governing body of that county. When the appointment is filed, the deputy may act for and on behalf of the county treasurer when the treasurer is incapacitated by reason of a physical or mental disability or during a temporary absence.

(B) If there is a vacancy in the office of county treasurer by reason of death, resignation, or disqualification, the appointed deputy shall carry out the duties of the office until a successor is appointed or elected or qualified."

B. Section 12-39-40 of the 1976 Code is amended to read:

"Section 12-39-40. (A) ~~In the event of a vacancy by reason of death, resignation or disqualification in the office of county auditor in any county in this State having a chief clerk in the auditor's office, the~~

Printed Page 2806 . . . . . Thursday, June 7, 2001

~~duties and functions of such office shall be discharged by the chief clerk in the interval between the occurrence of such vacancy and the appointment and qualification of a successor.~~ A county auditor may appoint an employee in his office to be his deputy. The appointment must be filed with the Comptroller General and the governing body of that county. When the appointment is filed, the deputy may act for and on behalf of the county auditor when the auditor is incapacitated by reason of a physical or mental disability or during a temporary absence.

(B) If there is a vacancy in the office of county auditor by reason of death, resignation, or disqualification, the appointed deputy shall carry out the duties of the office until a successor is appointed or elected and qualified." /

Renumber sections to conform.

Amend title to conform.

Senator ALEXANDER explained the amendment.

The amendment was adopted.

Amendment No. 13

Senators WILSON and SETZLER proposed the following Amendment No. 13 (3777C001.MRH), which was adopted:

Amend the bill, as and if amended, by adding the following appropriately numbered new SECTIONS:

/ SECTION ___. The last paragraph of Section 4-29-67(C)(2) of the 1976 Code, as last amended by Act 462 of 1996, is further amended to read:

"For purposes of those businesses qualifying under Section 4-29-67(D)(4), the five-year period referred to in this subsection is eight years and the seven-year period is ten years. However, for those businesses which, after qualifying under Section 4-29-67(D)(4), have more than five hundred million dollars in capital invested in this State and employ more than one thousand people in this State, the five-year period referred to in this subsection is ten years, and the ten-year extended period referred to in the previous sentence is fifteen years."

SECTION ___. Section 4-29-67(C)(3) of the 1976 Code, as last amended by Act 462 of 1996, is further amended to read:

Printed Page 2807 . . . . . Thursday, June 7, 2001

total of twenty-seven years for the fee for a single project which has been granted an extension. For those businesses qualifying under subsection (D)(4), the annual fee is available for no more than thirty years and for those projects placed in service in more than one year the annual fee is available for a maximum of ~~thirty-seven years~~ forty years or, for those businesses qualifying for the fifteen-year extended period, forty-five years." /

Renumber sections to conform.

Amend title to conform.

Senator WILSON explained the amendment.

The amendment was adopted.

Amendment No. 14

Senator MATTHEWS proposed the following Amendment No. 14 (SKB\18624SOM01), which was adopted:

Amend the bill, as and if amended, by striking SECTION 22 in its entirety and inserting:

/ SECTION 22. Section 12-36-910(B)(3) of the 1976 Code is amended to read:

"(3) gross proceeds accruing or proceeding from the charges for the ways or means for the transmission of the voice or messages, including the charges for use of equipment furnished by the seller or supplier of the ways or means for the transmission of the voice or messages., provided that gross proceeds from the sale of prepaid wireless calling arrangements subject to tax at retail under paragraph (5) must not be subject to tax under this paragraph. Effective for bills rendered on or after August 1, 2002, charges for mobile telecommunications services subject to the tax under this item must be sourced in accordance with the Mobile Telecommunications Sourcing Act as provided in Title 4 of the United States Code. The term 'charges for mobile telecommunications services' is defined for purposes of this section the same as it is defined in the Mobile Telecommunications Sourcing Act. All other definitions and provisions of the Mobile Telecommunications Sourcing Act as provided in the Title 4 of the United States Code are adopted;" /

Amend the bill, SECTION 23, in Section 12-36-910(B), page 23 by striking lines 18 and 19 and inserting:

/ "gross proceeds accruing or proceeding from the sale or recharge at retail for prepaid wireless calling arrangements." /

Printed Page 2808 . . . . . Thursday, June 7, 2001

Renumber sections to conform.

Amend title to conform.

Senator MATTHEWS explained the amendment.

The amendment was adopted.

Amendment No. 16

Senators HAYES and GREGORY proposed the following Amendment No. 16 (DKA\4549MM01), which was adopted:

Amend the bill, as and if amended, by adding an appropriately numbered SECTION to read:

/ SECTION __. A. Section 4-12-30(D)(4)(a) of the 1976 Code, as last amended by Act 462 of 1996, is amended by adding at the end:

"(iv) in the case of a business including a corporation, its subsidiaries, and its limited liability company members, that (A) builds a gas-fired combined-cycle power facility and invests at least four hundred million dollars and creates at least twenty-five full-time jobs as defined in Section 12-6-3360(M) at that facility and (B) invests an additional five hundred million dollars in this State."

B. Section 4-29-67(D)(4)(a) of the 1976 Code, as last amended by Act 151 of 1997, is further amended by adding at the end:

"(v) in the case of a business including a corporation, its subsidiaries, and its limited liability company members, that (A) builds a gas-fired combined-cycle power facility and invests at least four hundred million dollars and creates at least twenty-five full-time jobs as defined in Section 12-6-3360(M) at that facility and (B) invests an additional five hundred million dollars in this State."

C. Section 12-44-30(8) of the 1976 Code is amended by adding at the end:

"(d) at least four hundred million dollars in the building of a gas-fired combined-cycle power facility and creates at least twenty-five full-time jobs as defined in Section 12-6-3360(M) at that facility and invests an additional five hundred million dollars in this State." /

Renumber sections to conform.

Amend title to conform.

Senator HAYES explained the amendment.

The amendment was adopted.

Printed Page 2809 . . . . . Thursday, June 7, 2001

Amendment No. 18A

Senator PASSAILAIGUE proposed the following Amendment No. 18A (3777R006.ELP), which was adopted:

Amend the bill, as and if amended, by adding an appropriately numbered new SECTION to read:

/ SECTION ___. Chapter 29, Title 41 of the 1976 Code is amended by adding:

"Section 41-29-185. When the last day for filing a quarterly report is a Saturday, Sunday or legal holiday, the end of the period is extended to the next business day. For this purpose, a legal holiday is any day the Commission or the offices of the United States Postal Service are closed." /

Renumber sections to conform.

Amend title to conform.

Senator PASSAILAIGUE explained the amendment.

The amendment was adopted.

Amendment No. 20

Senator HUTTO proposed the following Amendment No. 20 (NBD\ 11888AC01), which was adopted:

Amend the bill, as and if amended, by adding an appropriately numbered Section to read:

/SECTION __. Section 12-36-2120(10) of the 1976 Code is amended by adding an appropriately lettered subitem to read:

"( ) meals or foodstuffs prepared or packaged that are sold to public or nonprofit organizations for congregate or in-home service to the homeless or needy or disabled adults over eighteen years of age or individuals over sixty years of age. This subitem only applies to meals and foodstuffs eligible for purchase under the USDA food stamp program." /

Renumber sections to conform.

Amend title to conform.

Senator HUTTO explained the amendment.

The amendment was adopted.

Printed Page 2810 . . . . . Thursday, June 7, 2001

Amendment No. 21

Senator PINCKNEY proposed the following Amendment No. 21 (3777R007.CCP), which was adopted:

Amend the bill, as and if amended, by adding an appropriately numbered new SECTION to read:

/ SECTION ___. A. Section 4-10-330(A)(3) of the 1976 Code, as added by Act 138 of 1997, is amended to read:

"(3)(a) If the county proposes to issue bonds to provide for the payment of any costs of the projects, the maximum amount of bonds to be issued, whether the sales tax proceeds are to be pledged to the payment of the bonds and, if other sources of funds are to be used for the projects, specifying the other sources;

(b) the maximum cost of the project or facilities ~~funded from proceeds of the tax and the maximum amount of net proceeds to be raised by the tax~~, or portion of the project or portion of the facilities, to be funded from proceeds of the tax or bonds issued as provided in this article and the maximum amount of net proceeds expected to be used to pay the cost or debt service on the bonds, as the case may be; and"

B. Section 4-10-330(C) of the 1976 Code, as added by Act 138 of 1997, is amended to read:

"(C) Upon receipt of the ordinance, the county election commission ~~must~~ shall conduct a referendum on the question of imposing the sales and use tax in the area of the county that is to be subject to the tax. If the ordinance is received prior to October 1, 1997, a referendum for this purpose may be held on Tuesday, November 4, 1997; however, if the ordinance is received on October 1, 1997, or thereafter, a A referendum for this purpose must be held at the time of the general election. Two weeks before the referendum the election commission ~~must~~ shall publish in a newspaper of general circulation the question that is to appear on the ballot, with the list of projects and the cost of the projects. If the proposed question includes the use of sales taxes to defray debt service on bonds issued to pay the costs of any project, the notice must include a statement indicating that principal amount of the bonds proposed to be issued for the purpose and, if the issuance of the bonds is to be approved as part of the referendum, stating that the referendum includes the authorization of the issuance of bonds in that amount. This notice is in lieu of any other notice otherwise required by law."

C. Section 4-10-330(D) of the 1976 Code, as added by Act 138 of 1997, is amended by adding a paragraph at the end to read:

Printed Page 2811 . . . . . Thursday, June 7, 2001

"If the referendum includes the issuance of bonds, the question must be revised to include the principal amount of bonds proposed to be authorized by the referendum and the sources of payment of the bonds if the sales tax approved in the referendum is inadequate for the payment of the bonds."

D. Section 4-10-340(B)(2) of the 1976 Code, as added by Act 138 of 1997, is amended to read:

"(2) the end of the calendar month during which the Department of Revenue determines that the tax has raised revenues sufficient to provide the net proceeds equal to or greater than the amount specified in the referendum question the end of the calendar quarter during which the Department of Revenue receives a certificate under Section 4-10-360 indicating that no more bonds approved in the referendum remain outstanding that are payable from the sales tax and that all the amount of the costs of the projects approved in the referendum will have been paid upon application of the net proceeds during this quarter."

E. Section 4-10-360 of the 1976 Code, as amended by Act 93 of 1999, is further amended to read:

"Section 4-10-360. The revenues of the tax collected under this article must be remitted to the Department of Revenue and placed on deposit with the State Treasurer and credited to a fund separate and distinct from the general fund of the State. After deducting the amount of any refunds made and costs to the Department of Revenue of administering the tax, not to exceed one percent of the revenues, the State Treasurer shall distribute the revenues quarterly to the county treasurer in the county area in which the tax is imposed and the revenues must be used only for the purposes stated in the imposition ordinance. The State Treasurer may correct misallocations by adjusting subsequent distributions, but these adjustments must be made in the same fiscal year as the misallocations. However, allocations made as a result of city or county code errors must be corrected prospectively. Within thirty days of the receipt of any quarterly payment, the county treasurer or the county administrator shall certify to the Department of Revenue amounts of net proceeds applied to the costs of each project and the amount of project costs remaining to be paid and, if bonds have been issued that were approved in the referendum, a schedule of payments remaining due on the bonds that are payable from the net proceeds of the sales tax authorized in the referendum."

F. This SECTION takes effect upon approval by the Governor and applies with respect to referenda held on or after that date. A county

Printed Page 2812 . . . . . Thursday, June 7, 2001

holding a referendum and adopting an ordinance pursuant to Article 3, Chapter 10, Title 4 of the 1976 Code, before the effective date of this act in which the ordinance provides that the proceeds of the sales tax would be used to repay bonds issued to fund project costs may continue to collect the tax and apply the revenue to the repayment of the bonds while any of these bonds remain outstanding, but in no event may the tax be collected for any period longer than the maximum term of the tax provided in the referendum. /

Renumber sections to conform.

Amend title to conform.

Senator PINCKNEY explained the amendment.

The amendment was adopted.

Amendment No. 12

Senators LEVENTIS and WALDREP proposed the following Amendment No. 12 (BBM\10447HTC01), which was adopted:

Amend the bill, as and if amended, by adding an appropriately numbered SECTION to read:

/ SECTION ___. A. Subsections (A) and (B) of Section 12-6-3510 of the 1976 Code, as last amended by Act 399 of 2000, are further amended to read:

"(A) A taxpayer may claim a credit of an amount equal to thirty-three percent, but not more than fifteen thousand dollars, of the taxpayer's cash investment in a company that develops or produces a qualified ~~South Carolina~~ motion picture project. A taxpayer may claim no more than one credit in connection with the production of a single qualified South Carolina motion picture project. This credit is allowed over more than one taxable year but a taxpayer's total credit in all years, toward any such project, may not exceed fifteen thousand dollars. Any unused credit may be carried forward to fifteen succeeding taxable years.

Printed Page 2813 . . . . . Thursday, June 7, 2001

threshold must accompany the application for the credit. Any unused credit may be carried forward to fifteen succeeding taxable years. The total amount of credit, which may be claimed by all taxpayers with respect to the construction, or conversion, or equipping~~, or any combination of these activities,~~ of a single motion picture production facility or post-production facility may not exceed five million dollars. A taxpayer may claim the credit allowed by this section only one time in connection with a single motion picture production facility and one time in a single post-production facility."

B. Section 12-6-3510(F)(6)(a) of the 1976 Code, as last amended by Act 399 of 2000, is further amended to read:

"(a) In subsection (A) 'taxpayer' means the investor who invests in a company that develops or produces a qualified motion picture project."

C. The amendments to Section 12-6-3510 of the 1976 Code in this section do not affect the date of repeal of Section 12-6-3510 as provided in Section 3(Y)(1) of Act 2000 of 1999. /

Renumber sections to conform.

Amend title to conform.

Senator LEVENTIS explained the amendment.

The amendment was adopted.

Clerk's Perfecting Amendment

The following correcting amendment (3777R010.whb) was placed in the Journal to reconcile all amendments adopted on H. 3777:

Amend the bill, as and if amended, by striking the bill in its entirety and inserting the following:

/ SECTION 1. Chapter 10, Title 12 of the 1976 Code is amended by adding:

"Section 12-10-95. (A) Subject to the conditions in this section, a business engaged in manufacturing or processing operations or technology intensive activities at a manufacturing, processing, or technology intensive facility as defined in Section 12-6-3360(M) and that meets the requirements of Section 12-10-50(B) may negotiate with the council to claim as a credit against withholding five hundred dollars a year for the retraining of a production or technology employee if retraining is necessary for the qualifying business to remain competitive or to introduce new technologies. In addition to the yearly limits, the retraining credit claimed against withholding may not exceed

Printed Page 2814 . . . . . Thursday, June 7, 2001

two thousand dollars over five consecutive years for each retrained production or technology employee.

(B) A qualifying business is eligible to claim as a retraining credit against withholding the lower amount of the following:

(1) the retraining credit for the applicable withholding period as determined by subsection (A); or

(2) withholding paid to the State for the applicable withholding period.

(D) Travel and lodging expenses and wages for retraining participants are not reimbursable.

(E) The qualifying business must match on a dollar-for-dollar basis the amount claimed as a credit against withholding for retraining. When applicable, the total amount of retraining credits and matChing funds must be paid to the technical college that provides the training. All training costs, including costs in excess of the retraining credits and matching funds, are the responsibility of the business.

(F) A qualifying business claiming retraining credits pursuant to this section is subject to the reporting and audit requirements in Section 12-10-80(A).

(G) A qualifying business may not claim retraining credit for training provided to the following production or technology employees:

(a) temporary or contract employees; and

(b) employees who are subject to a revitalization agreement, including a preliminary revitalization agreement."

SECTION 2. Section 12-2-25 of the 1976 Code is amended to read:

"Section 12-2-25. (A) As used in this title and unless otherwise required by the context:

(1) 'partnership' includes a limited liability company taxed for South Carolina income tax purposes as a partnership.;

(2) 'partner' includes ~~any~~ a member of a limited liability company taxed for South Carolina income tax purposes as a partnership.;

Printed Page 2815 . . . . . Thursday, June 7, 2001

(3) 'corporation' includes a limited liability company or professional or other association taxed for South Carolina income tax purposes as a corporation.; and

(4) 'shareholder' includes ~~any~~ a member of a limited liability company taxed for South Carolina income tax purposes as a corporation.

(1) a single-member limited liability company, which is not taxed for South Carolina income tax purposes as a corporation, is not regarded as an entity separate from its owner;

(3) a grantor trust, to the extent that it is a grantor trust, is not regarded as an entity separate from its grantor.

SECTION 3. Section 12-6-40 of the 1976 Code, as last amended by Section 7, Part II, Act 387 of 2000, is further amended to read:

(2)(a) For purposes of this title, 'Internal Revenue Code' is deemed to contain all changes necessary for the State to administer its provisions. Unless a different meaning is required:

( i) 'Secretary', 'Secretary of the Treasury', or 'Commissioner' means the Director of the Department of Revenue.

( ii) 'Internal Revenue Service' means the department.

(iii) 'Return' means the appropriate state return.

( iv) 'Income' includes the modifications required by Article 9 of this chapter and allocation and apportionment as provided in Article 17 of this chapter.

Other terms in the Internal Revenue Code must be given the meanings necessary to effectuate this item.

(b) For purposes of Internal Revenue Code Sections 67 (Two Percent Floor on Miscellaneous Itemized Deductions), 71 (Alimony

Printed Page 2816 . . . . . Thursday, June 7, 2001

and Separate Maintenance Payments), 85 (Unemployment Compensation), 165 (Losses), 170 (Charitable Contributions), 213 (Medical and Dental Expenses), 219 (Retirement Savings), 469 (Passive Activity Losses and Credits Limited), and 631 (Gain or Loss in the Case of Timber, Coal, or Domestic Iron Ore), 'Adjusted Gross Income' for South Carolina income tax purposes means a taxpayer's adjusted gross income for federal income tax purposes without regard to the adjustments required by Article 9 and Article 17 of this chapter.

(d) The terms defined in Internal Revenue Code Sections 7701, 7702, and 7703 have the same meaning for South Carolina income tax purposes, unless a different meaning is clearly required.

~~(D)~~ For a taxpayer utilizing the provisions of Internal Revenue Code Section 1341 (Computation of Tax where Taxpayer Restores Substantial Amount Held under Claim of Right) for South Carolina tax purposes the phrase "taxes imposed by this chapter" means taxes imposed by Chapter 6 of this title.

~~(E)~~ ~~The terms defined in Internal Revenue Code Sections 7701, 7702, and 7703 have the same meaning for South Carolina income tax purposes, unless a different meaning is clearly required.~~

Printed Page 2817 . . . . . Thursday, June 7, 2001

SECTION 4. Section 12-6-50(11) of the 1976 Code is amended to read:

"(11) Sections 861 through 908, 912, ~~and~~ 931 through 940, and 944 through 989 relating to the taxation of foreign income;"

SECTION 5. Section 12-6-2210(A) of the 1976 Code is amended to read:

SECTION 6. Section 12-6-3330(C)(2) of the 1976 Code is amended to read:

(a) it does not include an amount:

( i) received from a retirement plan or an annuity;

( ii) paid or distributed from an individual retirement plan as defined in Internal Revenue Code Section 7701(a)(37);

(iii) received as deferred compensation; or

( iv) received for services performed by an individual employed by his spouse within the meaning of Internal Revenue Code Section 3121(b)(3)~~(A)~~(B) ~~as amended through December 31, 1987~~; and

(b) Internal Revenue Code Section 911(d)(2)(B) must be applied without regard to the phrase 'not in excess of thirty percent of his share of net profits of such trade or business'."

SECTION 7. Section 12-6-3410(J)(1) and (4) are amended to read:

"(1) 'Corporate headquarters' means the facility or portion of a facility where corporate staff employees are physically employed, and

Printed Page 2818 . . . . . Thursday, June 7, 2001

where the majority of the company's financial, personnel, legal, planning, information technology, or other headquarters related functions are handled either on a regional or national basis. A corporate headquarters must be a regional corporate headquarters or a national corporate headquarters as defined below:

( i) at least five states, including this State, or

(ii) two or more states, including this State, if the entire business operations of the corporation are performed within fewer than five states.

(4) 'Headquarters related functions and services' are those functions involving financial, personnel, administrative, legal, planning, information technology, or similar business functions."

SECTION 8. Section 12-6-3500 of the 1976 Code is amended to read:

"Section 12-6-3500. If the right to receive retirement income by a taxpayer allowed the deduction pursuant to Section 12-6-1170 was earned by the taxpayer while residing in another state which imposed state income tax on the employee's contributions, a credit is allowed against the taxpayer's South Carolina income tax liability in an amount sufficient to offset the taxes paid the other state. This credit must be claimed over the taxpayer's lifetime. The department shall prescribe the amount of the annual credit based on the taxpayer's life expectancy at the time ~~of the election made pursuant to~~ the taxpayer first claims the retirement income deduction pursuant to Section 12-6-1170, and may require the documentation it determines necessary to verify the amount of income tax paid the other state on the contributions. Regardless of the tax rates applicable on the contributions in the other state, the total of the credit allowed may not exceed an amount determined by multiplying the contributions taxed in each year by the marginal South Carolina individual income tax rate for that year."

Printed Page 2819 . . . . . Thursday, June 7, 2001

SECTION 9. Section 12-6-3520 of the 1976 Code is amended to read:

(E)(1) An 'S' corporation, limited liability company, or partnership that qualifies for the credit ~~under~~ pursuant to this section ~~as an 'S' corporation or partnership entitles~~ may pass through the credit earned to each shareholder of the 'S' corporation, member of the limited liability company, or partner of the partnership to a nonrefundable credit against taxes. Any credit generated by an 'S' corporation must first be used against any tax liability of the 'S' corporation under Section 12-6-530. Any remaining credit passes through to the shareholders of the 'S' corporation.

(2) The amount of the credit allowed a shareholder, member, or partner~~, or owner of a limited liability company~~ pursuant to this section

Printed Page 2820 . . . . . Thursday, June 7, 2001

is equal to the shareholder's percentage of stock ownership, the member's interest in the limited liability company, or the partner's interest in the partnership, for the taxable year, multiplied by the amount of the credit ~~that the taxpayer would have been entitled to if it were taxed as a corporation~~ earned by the entity. Credit earned by an 'S' corporation owing corporate level income tax must be used first at the entity level. Only the remaining credit passes through to the shareholders of the 'S' corporation.

(3) For purposes of this subsection, 'limited liability company' means a limited liability company taxed like a partnership."

SECTION 10. Section 12-10-30 of the 1976 Code, as last amended by Act 399 of 2000, is further amended to read:

"Section 12-10-30. As used in this chapter:

(1) 'Council' means the ~~Advisory~~ Coordinating Council for Economic Development.

(2) 'Department' means the South Carolina Department of Revenue.

(3) 'Employee' means an employee of the qualifying business who works full time ~~within the enterprise zone~~ at the project.

(4) 'Gross wages' means wages subject to withholding.

(5) 'Job development credit' means the amount a qualifying business may claim as a credit against employee withholding pursuant to Sections 12-10-80 and 12-10-81 and a revitalization agreement.

(6) 'New job' means a job created or reinstated as defined in Section 12-6-3360(M)(3).

Printed Page 2821 . . . . . Thursday, June 7, 2001