H. B. 4376

(By Delegates Kuhn, Caputo, Shaver, Stalnaker,
Perdue and Hrutkay)
[Introduced February 4, 2002; referred to the
Committee on Government Organization then the Judiciary.]

A BILL to amend and reenact section twelve, article three, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to clarifying the powers and duties of the state fire marshal; providing for confiscation of contraband by the state fire marshal; providing that the state fire marshal may assist other law-enforcement agencies when so requested; clarifying the inspection powers of the state fire marshal; providing for entry upon property or into structures; and increasing the criminal penalties for violation of the fire and life safety code.

Be it enacted by the Legislature of West Virginia:
That section twelve, article three, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 3. FIRE PREVENTION AND CONTROL ACT
§29-3-12. Powers and duties of state fire marshal.
(a) Enforcement of laws. -- The state fire marshal and all other persons authorized to enforce the provisions of this chapter shall be under the supervision and direction of the state fire marshal in the performance of their duties as herein provided. The authority, powers and duties of the state fire marshal, his or her assistants and his or her deputies and deputized fire marshals with approval of the state fire marshal shall be statewide and they have authority to shall enforce all laws of the state having to do with:
(1) Prevention of fire;
(2) The storage, sale and use of any explosive, combustible or other dangerous article or articles in solid, flammable liquid or gas form;
(3) The installation and maintenance of equipment of all sorts intended to extinguish, detect and control fires;
(4) The means and adequacy of exit, in case of fire, from buildings and all other places in which persons work, live or congregate from time to time for any purpose, except buildings used wholly as dwelling houses for no more than two families;
(5) The suppression of arson; and
(6) Do all things necessary to carry into effect the provisions of this article including, but not limited to, confiscating any materials, chemicals, items, personal property or anything which is in direct violation of the state fire code.
(b) Assistance upon request. -- Upon request, the state fire marshal shall immediately assist any chief or any recognized fire company or department. Upon request, the state fire marshal, his or her assistants, deputies and deputized fire marshals approved by the state fire marshal and any full-time fire marshals may assist any federal law-enforcement officer, state police officer, conservation officer or any county or municipal law-enforcement officer in the lawful execution of the law-enforcement duties of the requesting officer: Provided, That the state fire marshal or any full-time fire marshal assistant, deputy or deputized fire marshal approved by the state fire marshal assisting the law-enforcement officer is at all times working under the direct supervision of the federal law-enforcement officer, state police officer, conservation officer or county or municipal law-enforcement officer.
(c) Enforcement of regulations. -- The state fire marshal shall enforce the regulations promulgated by the state fire commission as authorized by section three of this article.
(d) Inspections generally. -- The state fire marshal shall inspect all structures and facilities subject to the provisions of the state fire code and this article, including, but not limited to, state, county and municipally owned institutions, all public and private schools, health care facilities, theaters, churches and other places of public assembly as to fire exits and reasonable safety standards and report his findings and recommendations to the proper administrative heads for compliance with the state fire code.
(e) Right of entry. -- The state fire marshal may at all reasonable hours enter any building or premises, other than dwelling houses, for the purpose of making an inspection, which he or she may deem consider necessary to be made under the provisions of this article. The state fire marshal or any deputy or assistant state fire marshal approved by the state fire marshal may enter upon any property, or enter any means of conveyance, building, structure or premises, including dwelling houses, for the purpose of ascertaining compliance with the conditions set forth in any permit or license issued by the office of the state fire marshal pursuant to subdivision (1), subsection a, section twelve-b of this article or article three-b, chapter twenty-nine of this code.
(f) Investigations. -- The state fire marshal may at any time investigate as to the origin or circumstances of any fire or explosion or attempt to cause fire or explosion occurring in the state. The state fire marshal shall have has the authority at all times of the day or night, in performance of the duties imposed by the provisions of this article, to investigate where any fires or explosions or attempt to cause fires or explosions shall may have occurred, or which at the time may be burning. Notwithstanding the above provisions of this subsection, prior to entering any building or premises for the purposes of such investigation, the state fire marshal shall obtain a proper search warrant: Provided, that the same shall a search warrant is not be necessary where there is permissive waiver or the state fire marshal is an invitee of the individual having legal custody and control of the property, building or premises to be searched.
(g) Testimony. -- The state fire marshal, in making an inspection or investigation, when in his or her judgment such proceedings are necessary, may take the statements or testimony under oath of all persons who may be cognizant of any facts or have any knowledge about the matter to be examined and inquired into, and may have the statements or testimony reduced to writing; and shall transmit a copy of such statements or testimony so taken to the prosecuting attorney for the county wherein the fire or explosion or attempt to cause a fire or explosion occurred. Notwithstanding the above, no person shall may be compelled to testify or give any such statement under this subsection.
(h) Arrests; warrants. -- The state fire marshal, any full-time deputy fire marshal or any full-time assistant fire marshal employed by the state fire marshal pursuant to section eleven of this article and any deputized fire marshal specifically approved by the state fire marshal is hereby authorized and empowered:
(1) To arrest any person anywhere within the confines of the state of West Virginia, or have him or her arrested, for any violation of the arson-related offenses of article three, chapter sixty-one of this code or of the explosives-related offenses of article three-e of chapter sixty-one of this code: Provided, That any and all persons so arrested shall be forthwith brought before the magistrate or circuit court;
(2) To make complaint in writing before any court or officer having jurisdiction and obtain, serve and execute an arrest warrant when knowing or having reason to believe that anyone has committed an offense under any provision of this article, of the arson-related offenses of article three, chapter sixty-one of this code, or of the explosives-related offenses of article three-e of chapter sixty-one of this code. Proper return shall be made on all arrest warrants before the tribunal having jurisdiction over such violation.
(3) To make complaint in writing before any court or officer having jurisdiction and obtain, serve and execute a warrant for the search of any premises that may possess evidence or unlawful contraband relating to violations of this article, of the arson-related offenses of article three, chapter sixty-one of this code, or of the explosives-related offenses of article three-e of chapter sixty-one of this code. Proper return shall be made on all search warrants before the tribunal having jurisdiction over such violation.
(i) Witnesses and oaths. -- The state fire marshal is empowered and authorized to issue subpoenas and subpoenas duces tecum to compel the attendance of persons before him or her to testify in relation to any matter which is, by the provision of this article, a subject of inquiry and investigation by the state fire marshal and cause to be produced before him or her such papers as he or she may require in making such examination. The state fire marshal is hereby authorized to administer oaths and affirmations to persons appearing as witnesses before him or her. False swearing in the matter or proceeding aforesaid shall be deemed considered perjury and shall be punishable as such.
(j) Deputizing members of fire departments in this state. -- The state fire marshal may deputize a member of any fire department, duly organized and operating in this state, who is approved by the chief of his or her department and who is properly qualified, to act as his or her assistant for the purpose of making inspections with the consent of the property owner or the person in control of such the property and such investigations as may be directed by the state fire marshal, and the carrying out of such orders as may be prescribed by him or her, to enforce and make effective the provisions of this article and any and all regulations promulgated by the state fire commission under authority of this article: Provided, That in the case of a volunteer fire department, only the chief thereof or his or her single designated assistant may be so deputized.
(k) Written report of examinations. -- The state fire marshal shall, at the request of the county commission of any county or the municipal authorities of any incorporated municipality in this state, make to them a written report of the examination made by him or her regarding any fire happening within their respective jurisdictions.
(l) Report of losses by insurance companies. -- It shall be is the duty of each fire insurance company or association doing business in this state, within ten days after the adjustment of any loss sustained by it that exceeds fifteen hundred dollars, to report to the state fire marshal upon forms furnished by him, such information regarding the amount of insurance, the value of the property insured and the amount of claim as adjusted as in the judgment of the state fire marshal it is necessary for him to know. This report is in addition to any such information required by the state insurance commissioner. Upon the request of the owner or insurer of any property destroyed or injured by fire or explosion, or in which an attempt to cause a fire or explosion may have occurred, the state fire marshal shall make a written report in writing to the person requesting the same of owner or insurer the result of the examination made by him regarding the property.
(m) Issuance of permits and licenses. -- The state fire marshal is authorized to issue permits, documents and licenses as required in this article in accordance with the provisions of articles three, three-a and three-b of this chapter.
(n) Issuance of citations for fire and life safety violations. -- The state fire marshal, any full time deputy fire marshal, and any full time assistant fire marshal are hereby authorized, and any person deputized pursuant to subsection (j) of this section who is approved by the chief of his or her department and who is properly qualified, may be authorized by the state fire marshal, to issue citations, in their respective jurisdictions, for fire and life safety violations of the state fire code and as provided for by the rules promulgated by the state fire commission in accordance with article three, chapter twenty-nine-a of this code: Provided, That a summary report of all citations issued pursuant to this section by persons deputized under subsection (j) of this section shall be forwarded semiannually monthly to the state fire marshal in such form and containing such information as he or she may by regulation require, including the violation for which the citation was issued, the date of issuance, the name of the person issuing the citation and the person to whom the citation was issued. The state fire marshal may at any time revoke the authorization of a person deputized pursuant to subsection (j) of this section to issue citations, if in the opinion of the state fire marshal, the exercise of such authority by such the person is inappropriate.
Violations for which citations may be issued include, but are not limited to:
(1) Overcrowding places of public assembly;
(2) Locked or blocked exits in public areas;
(3) Failure to abate a fire hazard;
(4) Blocking of fire lanes or fire department connections; and
(5) Tampering with, or rendering inoperable except during necessary maintenance or repairs, on-premise firefighting equipment, fire detection equipment and fire alarm systems.
(o) Requiring training; liability coverage. -- No person deputized pursuant to subsection (j) of this section may be authorized to issue a citation unless that person has satisfactorily completed a law-enforcement officer training course designed specifically for fire marshals. The course shall be approved by the law-enforcement training subcommittee of the governor's committee on criminal justice and highway safety and the state fire commission. In addition, no person deputized pursuant to subsection (j) of this section may be authorized to issue a citation until evidence of liability coverage of such person has been provided, in the case of a paid municipal fire department by the municipality wherein the fire department is located, or in the case of a volunteer fire department, by the county commission of the county wherein the fire department is located or by the municipality served by such the volunteer fire department, and that evidence of liability coverage has been filed with the state fire marshal.
(o) (p) Penalties for violations. -- Any person who violates any fire and life safety regulation of the state fire code, shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more less than one hundred dollars nor more than one thousand dollars or imprisoned in the county or regional jail not more than ninety days, or both fined and imprisoned.
Each and every day during which any illegal erection, construction, reconstruction, alteration, maintenance or use violation of the provisions of this article continues after knowledge or official notice that same is illegal, shall be deemed is a separate offense.


NOTE: This bill authorizes the state fire marshal or his agents to confiscate materials, to assist other law-enforcement officers and to enter upon property and dwellings for the purpose of conducting inspections. In addition, the bill increases the possible fines for criminal violations of the fire code.

Strike-throughs indicate language that would be stricken from present law, and underscoring indicates new language that would be added.