W. Va. Code R. § 87-2-13

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

Section 87-2-13 - Orders and Decisions of State Fire Marshal and Appeals and Procedures for Appeals from Such Orders and Decisions

Any person aggrieved by an order or final written decision of the State Fire Marshal based upon or made in the course of the administration or enforcement of the provisions of W. Va. Code '29-3-1 et seq. or based upon or made pursuant to these State rules, and desiring to contest such order or written decision with the State Fire Commission. Preservation of the right to an appeal and the procedure for the contested case is governed by this section and by the W. Va. Code '29-3-1, et seq. and W. Va. Code, Chapter 29A.

13.1. State Fire marshal's Order and Decisions are Final and Conclusive - Any order or final written decision of the State Fire Marshal based upon or made in the course of the administration or enforcement of the provisions of W. Va. Code '29-3-1 et seq. or based upon or made pursuant to these rules is final unless vacated or modified upon review pursuant to the appeal rights and procedures provided by the official Code of West Virginia and this rule.

13.2. Appeal Petition - The appeal petition shall be typewritten, styled "Appeal Petition", and submitted with an original and one (1) copy. It shall be complete in itself so as to fully state the matters contested. No telegram, telephone call, or similar communication will be regarded as an appeal petition. The petition shall contain and include the following:

a. a copy of the order or decision of the State Fire Marshal being contested;

b. a clear and concise assignment of each error which the petitioner alleges to have been committed by the State Fire Marshal in issuing said order or decision with each assignment of error being shown in separately numbered paragraphs;

c. a clear and concise statement of fact upon which the petitioner relies as sustaining his assignment of errors;

d. the address petitioner desires to have all notices, documents, and the final order of the State Fire Commission mailed to;

e. the telephone number or numbers where petitioner can be contacted;

f. the names and addresses of all persons having any ownership interest in the property which is the subject of the State Fire Marshal's order being contested;

g. a prayer setting forth the relief sought; and (H) the signature of the petitioner or its duly authorized officer.

13.3. Time Requirement and Manner of Filing Appeal Petition - An appeal petition must be personally delivered or mailed to the State Fire Marshal within thirty (30) days following service upon the petitioner, or within thirty (30) days following actual receipt if service be not required or for some reason not made of the order or decision being contested. Appeal petitions shall be sent by certified mail, return receipt requested, and are timely if postmarked within the thirty (30) day period. Any appeal petition not delivered or mailed within the thirty (30) day period is not timely filed and the order or decision of the State Fire Marshal being contested is final.

13.4. Copy of Appeal Petition to State Fire Commission - Upon receipt of an appeal petition, the State Fire Marshal shall forthwith supply a copy of the petition to the State Fire Commission together with an opinion by the State Fire Marshal regarding the urgency of the matter being contested. If The State Fire Marshal elects to file a response to the appeal petition, he shall deliver a copy of the response to the State Fire Commission and mail a copy to the petitioner.

13.5. Scheduling Appeal Petition for and Notice of Hearing - The State Fire Commission through the State Fire Marshal shall schedule a hearing on the appeal petition giving the petitioner and the State Fire Marshal at least ten (10) days written notice of the date, time, and place of the hearing. The notice to the petitioner shall be by personal delivery or by certified mail, return receipt requested, shall contain a short and plain statement of the matters to be considered at the hearing, shall contain a copy of the State Fire Marshal's response, if any, to the appeal petition, and shall be mailed or personally delivered by the State Fire Marshal no later than thirty (30) days after receipt of the appeal petition. A copy of the notice to the petitioner shall be supplied to the State Fire Marshal. Any hearing shall be conducted at a designated location at the State Capitol in Charleston, West Virginia.

13.6. Authorized Representative - The petitioner may appear individually, or by counsel.

13.7. Continuances - A motion for continuance shall not be granted unless made in writing three (3) days before the hearing, or during the hearing, in either case for good and sufficient cause. Upon consideration of a motion for continuance, the urgency of the situation shall be determined and taken into consideration. Conflicting engagements of counsel or the employment of new counsel are not good grounds for a continuance, unless set forth in a motion filed promptly after the notice of hearing has been mailed, or unless extenuating circumstances are shown, which the State Fire Commission or hearing examiner considers adequate.

13.8. Absence of Petitioner or Counsel at the Scheduled Hearing - A hearing shall not be delayed or continued due to the absence of the petitioner or his legal counsel at a hearing, after service of notice of time, date, and place. The hearing shall proceed and the case shall be submitted for decision on the part of the absent petitioner or petitioners.

13.9. Hearing Examiner - Any member of the State Fire Commission may conduct a hearing on an appeal petition, issue subpoenas and subpoenas duces tecum, and shall have full authority to conduct the proceedings on an appeal petition, and when acting in such capacity shall be referred to as the hearing examiner. Alternatively, the State Fire Commission may authorize and empower an impartial attorney as a hearing examiner with the specific powers listed in W. Va. Code 29A-5-1(d).

13.10. Subpoenas and Subpoenas Duces Tecum - At any hearing held hereunder, the testimony of witnesses and the production of documentary evidence may be required through the use of subpoenas and subpoenas duces tecum. Subpoenas or subpoenas duces tecum may be issued at the request of the petitioner, the State Fire Marshal, or of the State Fire Commission, and shall be issued by and in the name of the State Fire Commission.

Every subpoena and/or subpoena duces tecum is required to prove service at least five (5) days before the return date thereof, either by personal service made by any person eighteen (18) years of age, or older, or by registered or certified mail, but a return acknowledgement signed by the person to whom the subpoena or subpoena duces tecum is directed is required to prove service by registered or certified mail.

Any party requesting a subpoena or subpoena duces tecum must see that it is properly served. Service of a subpoena or subpoena duces tecum issued at the insistence of the State Fire Commission is the responsibility of such Commission.

Any public official who serves any subpoena or subpoena duces tecum shall be entitled to the same fee as a Sheriff who serves a witness subpoena for a circuit court of this state; and fees for the attendance and travel of witnesses be the same as for witnesses before the circuit courts of this state. All fees shall be paid by the State Fire Commission if the subpoena or subpoena duces tecum is issued at the instance of the Commission. All such fees related to any subpoena or subpoena duces tecum issued at the instance of the petitioner or the State Fire Marshal shall be paid by the party requesting such subpoena or subpoena duces tecum.

A request for a subpoena or subpoena duces tecum shall be in writing and shall contain a statement acknowledging that the requesting party agrees to pay the required fee.

Any person receiving a subpoena or subpoena duces tecum issued hereunder shall honor the same as though it were issued by a circuit court of the state, and shall appear as a witness and/or produce such books, records, or papers in response to such subpoena or subpoena duces tecum. In case of disobedience or neglect of any subpoena or subpoena duces tecum served on any person or the refusal of any witness to testify to any matter regarding which he or she may be lawfully interrogated, the circuit court of the county in which the hearing is being held, upon application by the State Fire Commission, shall compel obedience by attachment proceedings for contempt as in the case of disobedience of the requirements of a subpoena or subpoena duces tecum issued from such circuit court or a refusal to testify therein.

13.11. Evidence

a. All witnesses appearing at such hearing shall testify under oath or affirmation. Every adverse party shall have the right to cross-examination witnesses who testify, and shall have the right to submit rebuttal evidence.

b. All relevant and material evidence, including papers, records, agency staff memoranda and documents in the possession of the State Fire Commission or the State Fire Marshal of which either party desires to avail himself, may be offered and made a part of the record in the case.

c. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. Except as otherwise herein stated, the rules of evidence as applied in civil cases in the circuit courts of this state shall be followed in considering the admissibility of evidence. However, when necessary to as certain facts not reasonably susceptible of proof under those rules, reasonably authenticated evidence not admissible thereunder may be admitted, except where precluded by the official Code of West Virginia or privilege, if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs.

13.12. Record of Proceeding - All of the testimony, evidence and rulings on admissibility of evidence at any such hearing shall be recorded by a certified court reporter. An official record of the hearing will be prepared by the State Fire Commission, but a transcript shall only be prepared if this Commission's final decision is appeal. The cost of the transcript shall be paid by the party requesting it.

13.13. Informal Disposition - At any stage of the proceedings, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default.

13.14. Decision by the State Fire Commission - Upon the conclusion of the hearing, the person designated by the State Fire Commission as hearing examiner shall prepare a decision supported by findings of fact and conclusions of law affirming, modifying, or vacating the earlier order of decision of the State Fire Marshal. The State Fire Commission may either accept, modify, or reject the hearing examiner's decision. If the Commission accepts the hearing examiner's decision it shall sign the decision. If the Commission rejects or modifies the hearing examiner's decision, it shall prepare a written decision setting forth findings of facts and conclusions of law. In either event, the order signed by the State Fire Commission shall be final unless vacated or modified upon judicial review thereof. A copy of the order shall be served on all parties to the hearing and all attorneys of record, if any, in person or by certified mail, return receipt requested.

13.15. Judicial Review - The petitioner or by the State Fire Marshal may appeal the Commission's decision to the circuit court of the county where the premises are totally or partially located, if the appeal is filed within thirty (30) days after the date upon which party was served with a copy of the final order or decision of the State Fire Commission. The final order signed yby the State Fire Commission is final if the proceedings for judicial review are not instituted within the said thirty (30) day period.

W. Va. Code R. § 87-2-13