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.
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