H. B. 2126


(By Delegates Fleischauer and Beach)
[Introduced January 13, 2003; referred to the
Committee on the Judiciary.]




A BILL to amend and reenact sections twelve, sixteen-a and twenty-seven, article three, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section four, article three-a of said chapter; and to amend and reenact section three, article three, chapter sixty-one of said code, all relating to violations of fire laws and rules; increasing penalties; and providing criminal penalty under certain circumstances for persons involved in setting fires in public rights-of-way.

Be it enacted by the Legislature of West Virginia:
That sections twelve, sixteen-a and twenty-seven, article three, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that section four, article three-a of said chapter be amended and reenacted; that section three, article three, chapter sixty-one of said code be amended and reenacted, all 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 any other person authorized to enforce the provisions of this article under the supervision and direction of the state fire marshal has the authority to 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) Any other thing necessary to carry into effect the provisions of this article including, but not limited to, confiscating any materials, chemicals, items, or personal property owned, possessed or used in direct violation of the state fire code.
(b) Assistance upon request. -- Upon request, the state fire marshal shall assist any chief of any recognized fire company or department. Upon the request of any federal law-enforcement officer, state police officer, conservation officer or any county or municipal law-enforcement officer, the state fire marshal, any deputy state fire marshal or assistant state fire marshal employed pursuant to section eleven of this article and any person deputized pursuant to subsection (j) of this section may assist in the lawful execution of the requesting officer's official duties: Provided, That the state fire marshal or other person authorized to act under this subsection shall at all times work under the direct supervision of the requesting officer.
(c) Enforcement of rules. -- The state fire marshal shall enforce the rules promulgated by the state fire commission as authorized by this article.
(d) Inspections generally. -- The state fire marshal shall inspect all structures and facilities, other than one- and two-family dwelling houses, subject to 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 to determine whether the structures or facilities are in 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 consider necessary under the provisions of this article. The state fire marshal and any deputy state fire marshal or assistant state fire marshal approved by the state fire marshal may enter upon any property, or enter any building, structure or premises, including dwelling houses during construction and prior to occupancy, 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 of article three-b of this chapter.
(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 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 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 the investigation, the state fire marshal shall obtain a proper search warrant: Provided, That a search warrant is not 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 it is 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 the statements or testimony so taken to the prosecuting attorney for the county wherein where the fire or explosion or attempt to cause a fire or explosion occurred. Notwithstanding the above, no person may be compelled to testify or give any such a 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 is hereby authorized: and empowered and any person deputized pursuant to subsection (j) of this section may be authorized and empowered by the state fire marshal:
(1) To arrest any person anywhere within in 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 said chapter: 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 said chapter. Proper return shall be made on all arrest warrants before the tribunal having jurisdiction over such the 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 said chapter. Proper return shall be made on all search warrants before the tribunal having jurisdiction over such the violation.
(i) Witnesses and oaths. -- The state fire marshal is empowered and authorized to may 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 that he or she requires in making such the 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 any matter or proceeding aforesaid shall be considered these inquiries or investigations is perjury and shall be is punishable as such perjury.
(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 the property and such the investigations as may be directed by the state fire marshal, and the carrying out of such other orders as may be prescribed by him or her, to enforce and make effective the provisions of this article and any and all rules 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 of the department or the chief's 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 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 information regarding the amount of insurance, the value of the property insured and the amount of claim as adjusted. This report is in addition to any such other 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 report in writing to the owner or insurer the result of the examination regarding the property.
(m) Issuance of permits and licenses. -- The state fire marshal is authorized to issue permits, documents and licenses in accordance with the provisions of this article or of article three-b of this chapter. The state fire marshal may require any person who applies for a permit to use explosives, other than an applicant for a license to be a pyrotechnic operator under section twenty-four of this article, to be fingerprinted and to authorize the state fire marshal to conduct a criminal records check through the criminal identification bureau of the West Virginia state police and a national criminal history check through the federal bureau of investigation. The results of any criminal records or criminal history check shall be sent to the state fire marshal.
(n) Issuance of citations for fire and life safety violations. -- The state fire marshal, any deputy fire marshal and any assistant fire marshal employed pursuant to section eleven of this article are hereby authorized, and any person deputized pursuant to subsection (j) of this section may be authorized by the state fire marshal to issue citations, in his or her jurisdiction, 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 monthly to the state fire marshal in such the form and containing information as he or she may by rule 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 authority by 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 fire-fighting equipment, fire detection equipment and fire alarm systems.
(o) Required 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 the person has been provided, in the case of a paid municipal fire department by the municipality wherein where the fire department is located, or in the case of a volunteer fire department, by the county commission of the county wherein where the fire department is located or by the municipality served by the volunteer fire department and that evidence of liability coverage has been filed with the state fire marshal.
(p) Penalties for violations. -- Any person who violates any fire and life safety rule of the state fire code is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars or imprisoned confined in the county or regional jail not more than ninety days, or both fined and imprisoned.
Each and every day during which any violation of the provisions of this article continues after knowledge or official notice that same is illegal is a separate offense.
§29-3-16a. Smoke detectors in one- and two-family dwellings; carbon monoxide detectors in residential units; penalty.

(a) On or before the first day of July, one thousand nine hundred ninety-one, An operational smoke detector shall be installed in the immediate vicinity of each sleeping area within all one- and two-family dwellings, including any "manufactured home" as that term is defined in subsection (j), section two, article nine, chapter twenty-one of this code. The smoke detector shall be capable of sensing visible or invisible particles of combustion and shall meet the specifications and be installed as provided in the national fire protection association standard 72, "Standard for the Installation, Maintenance and Use of Household Fire Warning Equipment", 1996 edition, and in the manufacturer's specifications. When activated, the smoke detector shall provide an alarm suitable to warn the occupants of the danger of fire.
(b) The owner of each dwelling described in subsection (a) of this section shall provide, install and replace the operational smoke detectors required by this section. So as to assure that the smoke detector continues to be operational, in each dwelling described in subsection (a) of this section which is not occupied by the its owner thereof, the tenant in any dwelling shall perform routine maintenance on the smoke detectors within the dwelling.
(c) Where a dwelling is not occupied by the owner and is occupied by an individual who is deaf or hearing impaired, the owner shall, upon written request by or on behalf of the individual, provide and install a smoke detector with a light signal sufficient to warn the deaf or hearing-impaired individual of the danger of fire.
(d) An automatic fire sprinkler system installed in accordance with the national fire protection association standard 13D, "Standard for the Installation of Sprinkler Systems in Residential Occupancies", 1989 edition, may be provided in lieu of smoke detectors.
(e) After investigating a fire in any dwelling described in subsection (a) of this section, the local investigating authority shall issue to the owner a smoke detector installation order in the absence of the required smoke detectors.
(f) After the first day of July, one thousand nine hundred ninety-eight, An operational carbon monoxide detector with a suitable alarm shall be installed in accordance with the manufacturer's direction:
(1) In any newly constructed residential unit which has a fuel-burning heating or cooking source including, but not limited to, an oil or gas furnace or stove; and
(2) In any residential unit which is connected to a newly constructed building, including, but not limited to, a garage, storage shed or bar, which has a fuel-burning heating or cooking source, including, but not limited to, an oil or gas furnace or stove.
(g) Any person installing a carbon monoxide detector in a residential unit shall inform the owner, lessor or the occupant or occupants of the residential unit of the dangers of carbon monoxide poisoning and instructions on the operation of the carbon monoxide detector installed.
(h) When repair or maintenance work is undertaken on a fuel-burning heating or cooking source or a venting system in an existing residential unit, the person making the repair or performing the maintenance shall inform the owner, lessor or the occupant or occupants of the unit being served by the fuel-burning heating or cooking source or venting system of the dangers of carbon monoxide poisoning and recommend the installation of a carbon monoxide detector.
(i) Any person who violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty dollars nor more than one hundred thousand dollars.
(j) A violation of this section may not be considered by virtue of the violation to constitute is not evidence of negligence or contributory negligence or comparative negligence in any civil action or proceeding for damages.
(k) A violation of this section may not constitute is not a defense in any civil action or proceeding involving any insurance policy.
(l) Nothing in this section shall be construed to limit limits the rights of any political subdivision in this state to enact laws imposing upon owners of any dwelling or other building described in subsection (a) or (f) of this section a greater duty with regard to the installation, repair and replacement of the smoke detectors or carbon monoxide detectors than is required by this section.
§29-3-27. Penalties.
(a) Any person who violates any regulations rule promulgated by the state fire commission as provided in section five of this article, shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one hundred thousand dollars or imprisoned confined in the a county or regional jail not more than ninety days, or both fined and imprisoned confined.
Each and every day during which any illegal erection, construction, reconstruction, alteration, maintenance or use continues after knowledge or official notice that same is illegal shall be deemed is a separate offense.
(b) Any person who violates the provisions of section twenty- one of this article shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined for a first offense not more than one hundred thousand dollars or imprisoned confined in the a county or regional jail for not more than thirty days, or both fined and imprisoned confined, and for a second and each subsequent offense fined not less than one hundred dollars nor more than five hundred one thousand dollars or imprisoned confined in the a county or regional jail for not less than ninety days nor more than one year, or both fined and imprisoned confined.
(c) Any officer who shall fail fails to perform any duty required of him or her by this article or who shall violate violates any of its provisions shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty-five dollars nor more than fifty one thousand dollars for each failure or violation.
(d) Any person who violates any other provision of this article shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one hundred thousand dollars, or imprisoned confined in the a county or regional jail not more than ninety days, or both fined and imprisoned confined.
ARTICLE 3A. AUTHORITY OF LOCAL FIRE DEPARTMENTS.
§29-3A-4. Person attacking or hindering or obstructing firefighter or emergency equipment; penalties.

(a) It is unlawful, while any fire department or company or firefighter is lawfully exercising or discharging the department's, company's or firefighter's official duty during an emergency, for any person to:
(1) Attack any firefighter or any of his or her equipment with any deadly weapon as defined in section two, article seven, chapter sixty-one of this code; or
(2) Intentionally hinder, obstruct, oppose, or attempt to hinder, obstruct or oppose, or counsel, advise or invite others to hinder, obstruct or oppose, any fire department, fire company or firefighter.
(b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility not less than one nor more than ten years, or, in the discretion of the court, be confined in the regional or county jail not more than one year or fined not more than five hundred one thousand dollars, or both.
(c) Any person willfully violating any of the provisions of section one or three of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred one thousand dollars.
(d) Nothing in this article shall be construed to prevent prevents law-enforcement officials from controlling traffic and otherwise maintaining order at the scene of a fire.
(e) No person may willfully fail or refuse to comply with a lawful order or direction of any fire department or company or firefighter who is lawfully exercising or discharging the department's, company's or firefighter's official duty during an emergency, relating to directing, controlling or regulating traffic, so long as such order or direction is conveyed by a retro-reflective hand signing device. Any person violating the provisions of this subsection is guilty of a misdemeanor and, upon conviction thereof: (1) For a first offense shall be fined not more than one hundred dollars; (2) for a second offense occurring within one year of a previous conviction shall be fined not more than two hundred dollars; and (3) for a third and subsequent offense shall be fined not more than five hundred one thousand dollars.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-3. Third degree arson; burning personal property of another of the value of five hundred dollars or more; fire in public right of way; penalties.

(a) Any No person who may willfully and maliciously sets set fire to or burns burn, or who causes cause to be burned, or who aids, counsels, procures, persuades, incites, entices or solicits any aid, counsel, procure, persuade, incite, entice or solicit any other person to burn, any personal property of another person, of any class or character, of the value of not less than five hundred dollars. and the property of another person, shall be
(b) No person may willfully and maliciously set fire to or burn, or cause to be burned, or aid, counsel, procure, persuade, incite, entice or solicit any other person to burn, anything in a public right-of-way if the fire endangers private property, public safety, or both, regardless of the value or ownership of the property being burned.
(c) A person who violates subsection (a) or (b) of this section is guilty of arson in the third degree and, upon conviction thereof, shall be sentenced to the penitentiary a state correctional facility for a definite term of imprisonment which is not less than one nor more than three years. A person imprisoned pursuant to this section is not eligible for parole prior to having served a minimum of one year of his or her sentence.
NOTE: The purpose of this bill is to strengthen criminal penalties relating to violations of fire laws and rules. It also adds a penalty for setting fires in public rights-of-way.

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