W. Va. Code R. § 103-7-28

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 103-7-28 - Disposition of Complaints

28.1. Any person, firm, corporation, State Fire Marshal, or public officer may make a complaint to the State Fire Marshal which charges a certified home inspector with a violation of this rule. The State Fire Marshal may provide a form for that purpose, but a complaint may be filed in any written form. In addition to describing the alleged violation which prompted the complaint, the complaint should contain the following:

28.1.a. The name and address of the certified home inspector against whom the complaint is lodged;

28.1.b. The date of inspection;

28.1.c. The name of any person who may have inspected or repaired the home after the alleged incident;

28.1.d. The nature of the alleged violation;

28.1.e. The location of the alleged violation.

28.2. A complaint against a certified home inspector shall allege that such person is, in his or her professional capacity, engaging in conduct, practices or acts constituting professional negligence or a willful departure from accepted standards of professional conduct in violation of this rule.

28.3. Complainants are immune from liability for the allegations contained in their complaints filed with the State Fire Marshal unless the complaint is filed in bad faith or for a malicious purpose.

28.4. The State Fire Marshal shall maintain a complaint log which records the receipt of each complaint, its nature and its disposition.

28.5. The State Fire Marshal shall maintain a separate file on each complaint received, and each file shall have a number assigned to it.

28.6. Upon receipt of a complaint, the State Fire Marshal shall issue one of the following acknowledgments to the complainant:

28.6.a. That the matter will be reviewed by the State Fire Marshal;

28.6.b. That the complaint is outside the jurisdiction of the State Fire Marshal, with suggestions as to how the complainant might best obtain a resolution of his or her problem; or,

28.6.c. That more information will be required in order to adequately review the individual complaint.

28.7. If the State Fire Marshal acknowledges the complaint under subdivision 28.6.a., or 28.6.c., the State Fire Marshal shall send a copy of the complaint, including any supporting documentation, by certified mail to the certified home inspector or applicant in question for his or her written comment, and he or she shall submit a written response to the State Fire Marshal within 30 days of the date of such correspondence, or waive the right to do so.

28.8. Requests for comment on complaints sent to certified home inspectors or applicants shall be considered properly served when sent to the last address on file with the State Fire Marshal. It is the responsibility of the certified home inspector or applicants to keep the State Fire Marshal informed of his or her current address.

28.9. Upon receipt of a certified home inspector's or applicant's comments in response to a complaint, the State Fire Marshal shall promptly send a copy of the same, including any supporting documentation, to the complainant.

28.10. After receipt and review of a complaint, unless the complaint is determined to fall within the provisions of subdivision 28.6.b. (outside of the jurisdiction) of this rule, the State Fire Marshal shall cause to be conducted any reasonable inquiry or investigation he or she considers necessary to determine the truth and the validity of the allegations set forth in the complaint. The review of complaints and any view or investigation thereof may, at the discretion of the State Fire Marshal, be assigned to a designee, who shall be a full time employee of the State Fire Marshal, or to an ethics investigator, for review and investigation.

28.11. Upon receipt of a complaint the designee or ethics investigator shall, within 60 days, review and investigate the same and provide the State Fire Marshal with a report. The report shall contain a statement of the allegations, a statement of facts, and an analysis of the complaint including a description of the inspection, the records reviewed, and interviews conducted, and a statement of the designee's or ethics investigator's findings and recommendations. The State Fire Marshal, the designee or ethics investigator shall, upon request of the State Fire Marshal, his or her designee or ethics investigator, be afforded an opportunity to have investigation interviews with the certified home inspector or applicant in question or any other involved parties, a report of which shall be placed in the investigation file.

28.12. To facilitate the disposition of a complaint, the State Fire Marshal, his or her designee, or ethics investigator, may request any person to attend an informal conference at any time prior to the State Fire Marshal entering any order with respect to the complaint. The State Fire Marshal, his or her designee or ethics investigator, shall give notice of the conference, which notice shall include a statement of issues to be informally discussed. Statements made at a conference may not be introduced at any subsequent hearing on the merits without the consent of all parties to the hearing. No prejudice shall attach for failure to attend a conference pursuant to a request.

28.13. The State Fire Marshal may issue subpoenas and subpoenas duces tecum to complete the State Fire Marshal's investigation and to determine the truth or validity of complaints. A designee, or ethics investigator may request that the State Fire Marshal issue subpoenas or subpoenas duces tecum. Any such request shall be accompanied by a brief statement specifying the necessity for the same.

28.14. At any point in the course of an investigation or inquiry into a complaint, the State Fire Marshal may determine that there is not sufficient evidence to warrant further proceedings, or that the complaint fails to allege misconduct for which a certified home inspector may be sanctioned by the Fire Marshal after which the complaint may be dismissed.

28.15. At any point in the course of an investigation or inquiry, the State Fire Marshal may determine that there is sufficient evidence to warrant a finding that a violation has occurred, after which the Fire Marshal shall in a reasonable period of time render a decision.

28.15.a. Before any such license is denied, limited, suspended, or revoked; however, written notice shall be given to the licensee stating the grounds for such denial, limitation, suspension, or revocation.

28.15.b. An applicant or licensee has 10 working days after receipt of the order denying, limiting, suspending, or revoking a license to request a formal hearing contesting the denial, limitation, suspension, or revocation of a license under this article. If a formal hearing is requested, the applicant or licensee and the secretary shall proceed in accordance with the provisions of §29A-5-1 et seq. of this code.

28.15.c. If the license is denied, limited, suspended, or revoked, the license or certification holder shall cease and desist practices of their profession as of the effective date of the denial, limitation, suspension, or revocation. Any administrative appeal of such denial, limitation, suspension, or revocation shall not stay the denial, limitation, suspension, or revocation.

28.15.d. A party aggrieved by a decision by the State Fire Marshal may appeal such final decision to the Office of Administrative Hearings, pursuant to §15A-9-1 et seq. of this code, or may choose independent informal dispute resolution as set forth in this article.

28.15.e. Then a party may appeal the hearing examiner's decision to the Intermediate Court of Appeals as the Intermediate Court of Appeals has appellate jurisdiction over all "[f]inal judgments, orders, or decisions of an agency or administrative law judge entered after June 30, 2022" per West Virginia Code § 51-11-4(b)(4).

W. Va. Code R. § 103-7-28