Current through Register Vol. XLI, No. 50, December 13, 2024
Section 87-6-10 - Grounds for Denial, Restriction, Suspension or Revocation of Recognition or Certification10.1. Right to a Hearing10.1.1. The State Fire Commission may not suspend, revoke, or place probationary restrictions upon, the recognition of an existing, recognized local fire department without a prior hearing, unless the local fire department explicitly and formally waives the right to a hearing.10.1.2. The Commission may deny an application for certification or refuse to issue a certification without a prior hearing, upon entry of a written order stating the findings of the Commission and the reasons for the denial or refusal; Provided, that the local fire department or proposed new department may request a hearing upon the action of the Commission and shall be afforded a reasonably prompt hearing following such demand.10.1.3. The State Fire Commission hereby grants authority to the State Fire Marshal to order a local fire department to suspend fire fighting and rescue operations as a temporary, emergency measure when the continued operations of that department pose a substantial and imminent risk of harm to public safety, which may also include risk of harm to members of the local department. If the State Fire Marshal issues an order to suspend operations, the State Fire Marshal shall immediately make arrangements with the local 911 call center and surrounding fire departments to provide coverage for the affected fire protection district, and the State Fire Marshal shall, within 48 hours, notify the Commission's Chair or Vice-Chair of the order and the specific grounds for the action taken. The Commission shall provide a hearing to the local fire department upon the grounds cited within 30 days and, following the hearing, the Commission may approve, rescind, modify, or extend the order as an official order of the Commission. An order to suspend operations does not constitute a suspension of recognition of the local fire department.10.2. The following acts, failures or circumstances are deemed to be performance failures of a local fire department that may warrant official action by the Commission: 10.2.1. Failure to maintain minimum levels of performance in training, equipment maintenance or fire protection procedures, as established by statute, by legislative rule, or by written policy promulgated pursuant to W. Va. Code § 15A-11-8(h);10.2.2. A pattern of failure to provide fire protection service to the department's assigned fire protection district or to other areas served through mutual aid agreements;10.2.3. A pattern of failure to respond to reasonable requests and lawful directives of the State Fire Marshal or State Fire Commission;10.2.4. Any act of deceit, falsification or misrepresentation in the creation, maintenance, or submission of records that the local fire department is required to prepare or file under any provision of state law;10.2.5. Chronic or gross failure to adhere to the West Virginia State Fire Code;10.2.6. Chronic or gross abuse of the powers and privileges provided under subsection 3.2 of this rule;10.2.7. A practice or pattern of performance that demonstrates a substantial threat to the safety of people and property within the community served, which threat may also include a substantial risk of harm to the safety to the firefighting personnel themselves;10.2.8. Lack of an ISO Public Protection Classification, failure to obtain such classification or, except in the case of an application for a new department, a Public Protection Classification indicating that there is no fire protection or that there is an unacceptable level of protection within the department's assigned fire protection district;10.2.9. Any circumstance resulting in the absence, loss, removal, or substantial alteration of a first due area or other approved run area;10.2.10. Any act of a local governmental authority with jurisdiction over the geographical area served by the local fire department, in lawful exercise of plenary powers assigned to that authority, that effectively removes or substantially diminishes department's power to serve within department's assigned fire protection district, or any such act that effectively removes or substantially diminishes the physical facilities available to the local fire department;10.2.11. An adjudication that the local fire department is in default of payment of any fees, taxes, invoices or premiums due to the State of West Virginia, such as sales and use taxes, unemployment compensation or workers compensation payments, where the Commission is required by state or federal law to deny the local department's certification, recognition or legal authority to operate, and where the adjudication is rendered by a court of competent jurisdiction or by an administrative agency with specific statutory authority to determine such failure or default; and10.2.12. Any violation of law that demonstrates a gross or flagrant disregard for the rule of law directly bearing on the safety of the community or communities to be served by the local fire department and that cannot be corrected by other authorities acting through other means such as removal of the responsible individuals or criminal prosecution of the offending individuals.10.3. Disciplinary powers of the State Fire Commission10.3.1. The Commission may deny certification or recognition and may restrict, suspend, or revoke the recognition of a local fire department upon a showing that the department or proposed department has violated the standards for recognition as set out in this rule. No restriction, suspension or revocation of recognition may occur without a prior hearing conducted by the Commission, except that the Commission may temporarily suspend recognition pending a subsequent hearing if the Commission determines that continued operation of a local fire department constitutes an immediate danger to the public.10.3.2. Remedial alternatives - Upon notice to the Commission of violation of the standards for recognition and safe operation of a local fire department, the Commission may, at any point, in lieu of other disciplinary action, utilize any of the following methods to resolve or remedy the circumstances resulting in such violation: 10.3.2.a. The Commission may authorize the State Fire Marshal to issue a warning letter to the local fire department identifying the nature of the violation or violations and advising the local fire department that additional violations could result in the modification or loss of its recognition.10.3.2.b. The Commission may establish a plan and period of improvement during which the local department may attempt to correct or alleviate the circumstances giving rise to a violation and the Commission may extend such period if additional time is required to address all circumstances. If at the conclusion of such period or extended period, the local fire department has reasonably satisfied the requirements or objectives of the improvement plan, the Commission shall dismiss the complaint. If, however, the local fire department has failed to satisfy the objectives, the matter shall be set down for hearing upon the violations alleged against the local fire department.10.3.2.c. The Commission may enter into a stipulation, agreed settlement or consent order with the local fire department to resolve and conclude the disciplinary action under such terms as the Commission deems reasonable and just. The Commission may authorize the State Fire Marshal or other representative of the Commission to negotiate the terms of such agreement and present the resulting agreement to the Commission for its approval.10.4. The use of any of these remedial alternatives rests in the sole discretion of the Commission. The Commission may elect to proceed directly to a disciplinary hearing if it appears unlikely or impossible to remedy the situation that has given rise to the violations or if it appears that there is an imminent risk of harm to the public by the continued operation of the local fire department.10.5. No local fire department shall have a guaranteed or presumed right to certification or recognition, or to reissuance of a recognition, if that department's recognition was previously revoked or withdrawn by the Commission.