OPINION ISSUED JULY 10, 1987
WEST HAMLIN VOLUNTEER
FIRE DEPARTMENT, INC.
STATE FIRE MARSHAL
Claimant appeared in person.
Robert D. Pollitt, Assistant Attorney General, for respondent.
Claimant, West Hamlin Volunteer Fire Department, Inc., alleges
respondent, the State
Fire Marshal, wrongfully denied it a share of funds distributable
municipal pensions and
protection funds for the fiscal year 1985086. Certified similar
departments had each
received $4,575.93. The funds are provided by a State tax on fire
In W.Va. Code §33-3-14d (b), the State Fire Marshal, "... Before
first day of August ...
of each calendar year ... is required to report to the state
the names and addresses of
all volunteer and part volunteer fire companies and departments
the state which meet the
eligibility requirements established in W.Va. Code §8-15-8a." One
"Each volunteer or part volunteer fire company or department must:
Submit and maintain
current submission of fire loss data to the state fire marshal,
including verification via notary
public, if no fire loss has occurred;"
The State Fire Marshal provides forms for the filing of monthly
for satisfying this
requirement and forms for applying for certification. Claimant had
timely filed its application for
Walter Smittle III, the State Fire Marshal, testified that he had
certified the claimant for a
share of the fund because he had not received reports from the
for the months of
February, March, April and May of 1986, when he submitted his
certification to the State
Treasurer on July 30, 1986, for the fiscal year 1985-86.
exhibits included copies
of reminder notices to the claimant that reports had not been filed
(a) the months of July and
August of 1985 and (b) the months of September, October, November
December of 1985
and for the month of January 1986. No testimony revealed when
these notices was sent
to the claimant. At some time, the reports for these months were
apparently filed. No such
reminder notice was apparently sent to claimant by the State fire
Marshal with reference to the
reports not being on file for February, March, April and May 1986.
such reminder notice
was required to be given.
By letter dated August 5, 1986, the State Treasurer had advised
claimant that it had not
been certified; that it was not too late to get certified; that a
determination would be made
about August 20, 1986. Under the statute [W.Va. Code §33-3-14d
was then too late,
for the first day of August had passed and the certification had
made. Nevertheless, the
claimant's Captain Everett Adkins had made a trip to Charleston and
delivered the missing
reports to the office of the State Fire Marshal on August 20, 1986. He
testified that the reports
then prepared and filed were not prepared from any file copies of
reports which had been
previously prepared for the missing months.
It is the burden of a claimant to present its case. No witness
testified that the reports for the
missing months had been timely filed or mailed by the claimant. A
claimant's exhibit, computer
prepared in the State Fire Marshal's office, for the period January
1986 to September 30,
1986, showed incidents reported by the claimant fore each of the
six months of 1986; but of
course the reports filed late by claimant, on August 20, 1986,
reflected in this exhibit,
so it does not establish that the reports for the missing months
Although the Court is aware of the fine service which is provided
departments, such as this claimant, the Court must, upon the
and exhibits presented
and upon the applicable statutes, deny this claim.