By: Brandon on Jul-15-20
Introduced in Council: May 4,2020 Adopted by Council: May 18,2020
Introduced by: Chuck Overstreet Referred to: Public Safety
Bill No.7871 -
A Bill to amend and reenact Sections 54-3, 54-42, 54-43, 54-141, 54- 2
142, 54-143, 54-144, 54-145, and 54-146 of the Municipal Code of the
City of Charleston, as amended; and to amend said code by adding thereto
a new section, designated Section 54-147, all relating to fire
prevention and continuing the operation and authority of the fire
prevention bureau; clarifying that certain authority rests solely with
certified municipal fire marshals; establishing investigation of certain
fire related offenses to be a duty of the fire department; clarifying
that the fire chief is the municipal fire marshal and that the fire
chief may designate that authority to certified municipal fire marshals
within the fire prevention bureau; codifying the current version of the
fire prevention code specifically within the municipal code as the
Charleston Fire Prevention Code; stating its purpose and intent;
removing provisions related to an outdated version of the fire
prevention code; incorporating by reference the WV Fire Prevention and
Control Act of the West Virginia Code, the State Fire Codes, relevant
rules and regulations, and the relevant national standards and codes
associated with fire prevention with any revisions made by the WV State
Fire Marshal; describing the application of the Charleston Fire
Prevention Code, exemptions, and the inspection authority; stating the
authorized orders under the Charleston Fire Prevention Code and the
appeals process; detailing the structure of the Fire Prevention Bureau,
the duties and responsibilities of the Fire Prevention Bureau, and the
permits issued by the Fire Prevention Bureau; requiring the Fire
Prevention Bureau to investigate fires and granting limited powers of
arrests to certified municipal fire marshals that meet certain training
requirements of the West Virginia Fire Marshal, as authorized by state
code; declaring any fire marshals that successfully complete the
training to be certified municipal fire marshals while assigned to the
Fire Prevention Bureau and authorizing them to arrests for certain fire
related offenses, file certain criminal complaints, and take certain
investigatory measures; clarifying the authority to summons a person
who violates the Charleston Fire Prevention Code to municipal court;
authorizing the Chief of the Fire Department to revoke or rescind the
authority of a certified municipal fire marshal’s enforcement powers
when the enforcement powers have been abused or improperly enforced;
increasing the potential fine for violation of the Charleston Fire
Prevention Code; eliminating the mandatory one day confinement for
violation of the Charleston Fire Prevention Code; and authorizing the
Fire Prevention Bureau to create any necessary policies, with the
approval of the Chief of the Fire Department, that do not conflict with
the Charleston Fire Prevention Code.
Now, therefore, be it ordained by the Council of the City of Charleston:
That Sections 54-3, 54-42, 54-43, 54-141, 54-142, 54-143, 54-144, 54-145, and 54-146 of the Municipal Code of the City of Charleston, as amended; are amended and reenacted; and that said code is amended by adding thereto a new section, designated Section 54-147, all to read as follows:
Chapter 54 - FIRE PREVENTION AND PROTECTION.
ARTICLE I. - IN GENERAL.
Sec. 54-3. - Duty of spectators, and authority of firefighters and police, at scene of fire.
(a) Every person present at the scene of a fire shall be subject and obedient to the orders of any police officer or member of the fire department there present as to any matter relating to extinguishment of the fire, the removal and protection of persons or property or the maintenance of order; and it shall be unlawful for any person present at the scene of any fire to disobey any such lawful order of any police officer or member of the fire department there present.
(b) Certified municipal fire marshals and police officers present at the scene of any fire shall have power to arrest any person for disobedience of the lawful order of a police officer or fire marshal and to hold the offender in custody until the fire has been extinguished, at which time the offender shall be taken before an appropriate judicial officer to be dealt with according to law.
Sec. 54-42. - Duties of department.
It shall be the duty of the fire department, headed by the fire chief, to:
(1) Combat fires and explosions within the city;
(2) Inspect and abate fire and explosion hazards;
(3) Take measures within its capabilities to prevent the occurrence of fires and explosions;
(4) Investigate suspected incidents of arson and explosives offenses, malicious burning, obstructing a fire marshal, or failing to obey lawful orders, and take appropriate actions to assist in the prosecution of such offenses;
(5) Maintain records of fires, explosions and related matters;
(6) Provide emergency medical services; and
(7) Discharge such other duties as may be imposed upon it by this Code and other ordinances and by state law.
Sec. 54-43. – Chief of the fire department; fire chief; powers.
(a) The chief of the fire department, who may be known and referred to as the fire chief, shall be the commanding officer of the fire department and shall be responsible to the mayor and city council for the administration, training, discipline, morale and effective deployment and utilization of all personnel of the department and for the maintenance and effective deployment and utilization of the property, equipment and apparatus of the fire department.
(b) The fire chief shall have all such powers as may be necessary and lawful to meet the responsibilities imposed upon him by this section, including but not limited to the following:
(1) The fire chief shall have absolute command, control, management, assignment to duties and supervision of every officer, member and employee of the fire 88 department during a fire and at all practices and drills, and during all hours when such personnel are on duty.
(2) The fire chief shall have absolute control, authority and command of the police officers present at the scene of any fire during the time and continuance of any fire, conflagration and all orders issued by him to such police officers, and to other persons present, shall be explicitly obeyed and performed by them.
(3) The fire chief shall have supervision of the engine houses, vehicles, and all apparatus and equipment belonging to the fire department. The fire chief shall be responsible for the serviceable condition of all equipment belonging to the fire department, and the fire chief shall be responsible that every piece of fire apparatus is equipped at all times with the necessary wrenches and all other equipment belonging to that piece of apparatus and necessary in the successful fighting of fire.
(4) The fire chief shall have supervision over all repairs to apparatus and the charge of all supplies and shall issue them upon his or her own discretion or upon the authority of the city council to the units of the fire department.
(5) The fire chief shall be responsible for the keeping of necessary records for the 104-fire department, which shall be subject to the inspection of the mayor and members of the city council at any time. The fire chief shall record and report annually to the city council a statement of all fires occurring since the previous report, the units and personnel responding to alarms, the loss and insurance as far as ascertained, the causes of any such fires, together with such suggestions as he may deem advisable to bring the number of fires to a minimum. The fire chief shall also keep at his or her office such books or other records as the city council may prescribe.
(6) The fire chief shall be the municipal fire marshal and may vest the authority of the municipal fire marshal to the members of the Fire Prevention Bureau who meet the training requirements, consistent with the provisions of West Virginia Code § 8-15-1 and Section 54-145 of this Code.
(7) The fire chief shall exercise and perform such other functions; powers and duties as may be deemed appropriate to carry out the purpose of this article.
ARTICLES III. - FIRE PREVENTION CODE.
Sec. 54-141. - Purpose; adopted; applicability; short title.
For the purpose of continuing a fire prevention bureau within the fire department, and prescribing regulations governing conditions hazardous to life and property from fire or explosion, for the safeguarding to a reasonable degree, life and property from the hazards of fire and explosion, the fire prevention code is hereby adopted. It is the intent of this article to prescribe regulations consistent with nationally recognized good practice for the safeguarding to a reasonable degree, life and property from hazards of Fire and explosion. This article also establishes direction concerning the investigation of dangerous and hazardous conditions resulting from fire and explosion. The adoption of the amendments to this article in 2020 hereby replace the previously adopted 1968 version, as amended, of the Fire Prevention Code that was incorporated in this Code. This article shall hereafter be referred to as the “Charleston Fire Prevention Code” and the provisions shall be controlling.
Sec. 54-142. – Adoption and incorporation of relevant Codes.
This Charleston Fire Prevention Code does not include a reprinting of all the requirements imposed by statute, but rather incorporates by reference, as if they were printed here, the entirety of the WV Fire Prevention and Control Act (Chapter 29, Article 3 of the West Virginia Code, as amended, and all legislative rules adopted thereunder), which includes the various National Standards and Codes published by the National Fire Protection Association (NFPA) that have been adopted by the WV State Fire Marshal with any revisions or amendments made by the WV State Fire Marshal. In addition, there are hereby adopted for the purpose of prescribing regulations for fire prevention and safety, the relevant provisions of West Virginia Code and the Rules and Regulations pertaining to the State Fire Codes, as adopted by the WV State Fire Marshal.
Sec. 54-143. – Application, Exemptions, Inspections.
(a) The application of this article shall apply equally to new and existing conditions, except where the said existing conditions, not in strict compliance with the terms of this article, shall be permitted to continue where conditions do not constitute a distinct hazard to life and property in the opinion of the Chief of the Fire Department.
(b) This Charleston Fire Prevention Code has no application to personal care homes caring for three or less patients or buildings used wholly as dwelling houses for no more than two families.
(c) Nothing contained in this article shall be construed as applying to the transportation of any item shipped under the jurisdiction of and in compliance with regulations prescribed by the Interstate Commerce Commission nor as applying to the military forces of the United States.
(d) The Chief of the Fire Department, members of the Fire Prevention Bureau, or any other designee of the Fire Chief at all reasonable hours, may enter any building or premises within the jurisdiction for the purpose of making an inspection, or investigation which under the provisions of this law, he or they may deem necessary.
(e) The Chief of the Fire Department, members of the Fire Prevention Bureau, or any other designee of the Fire Chief shall inspect any building, structure and /or business within their jurisdiction, this is to include any structure accessible to public occupancy. This is not to include the interior of private dwelling structure with less than 3 units.
Sec. 54-144. – Authorized Orders under the Charleston Fire Prevention Code; Appeals.
(a) In addition to the other powers contained in this Chapter, the Charleston Fire Department is authorized to issue the following orders:
(1) Order of Removal or Compliance. Whenever the Chief of the Fire Department, members of the Fire Prevention Bureau, or any other designee of the Fire Chief shall determine any building in violation of the Charleston Fire Prevention Code, he or she shall have the authority to cause said violation to be corrected in an amount of time he or she may deem prudent, not to exceed 21 days unless it involves a violation which requires a plan of correction as identified upon the completion of inspection. This -grace period for correction is not to contradict any portion of the Charleston Fire Prevention Code.
(2) Order to Evacuate. The Chief of the Fire Department, members of the Fire Prevention Bureau, or any other designee of the Fire Chief shall have the authority to cause to evacuate any building within his or her jurisdiction he or she may deem safe to occupy and to remain evacuated until such time he or she declares the building safe to occupy.
(3) Order of Revocation of Permit. The Chief of the Fire Department, members of the Fire Prevention Bureau, or any other designee of the Fire Chief shall have the authority to revoke or cause to revoke any permit, license or approval issued if any violation of the Charleston Fire Prevention Code is found on any inspection, or in any case of misrepresentation of any material fact on any application or plans on which said permit, license or approval was issued.
(b) Any order of the Chief of the Fire Department, members of the Fire Prevention Bureau, or any other designee of the Fire Chief pursuant to this section may be appealed to the City of Charleston’s Board of Appeals in accordance with Section 14-91 of the Municipal Code of Charleston.
Sec. 54-145. – Fire Prevention Bureau Members, Responsibilities, and Authority.
(a) The Fire Prevention Bureau of the City of Charleston shall operate under the supervision of the Chief of the Fire Department. Subject to West Virginia State Code and Regulations, the Chief of the Fire Department shall designate officers (members) of the Fire Department as fire marshals in the Fire Prevention Bureau, who shall hold these positions at the discretion of the Chief of the Fire Department. The Chief of the Fire Department shall, subject to West Virginia Civil Service Law and Regulations, appoint a Captain of the Fire Prevention Bureau to be the officer in charge of the Bureau. Subject to the West Virginia Civil Service Law and Regulations, the Chief of the Fire Department may detail such members of the Fire Department as Fire Inspectors, Fire Investigators, or both. The Chief of the Fire Department may detail such other members of the Fire Department from time to time and as deemed necessary for assignments that may be limited to pre-fire planning, building surveys and other details pertaining to such assignments.
(b) The Fire Prevention Bureau is responsible for Fire and Life Safety Inspections, building construction and fire protection systems plan review, public fire safety education and investigation of any fires within the City of Charleston. Fire marshals assigned to the Fire Prevention Bureau shall be responsible for administration and enforcement of the Charleston Fire Prevention Code. It shall be the responsibility of the Fire Prevention Bureau to review all plans for new construction, and all other plans for remodeling and renovations pertaining to any buildings/structures within the jurisdiction of the city as identified by the WV State Fire Code and the City of Charleston. The review procedure of any plans or drawing submitted does not relieve the owner, architect, contractor or engineer of responsibility under the applicable code and statues. It shall be the responsibility of the Fire Prevention Bureau to issue appropriate permits following inspections, Open Fires and Outdoor Burning permits (in accordance with the Charleston Fire Prevention Code and any WVDEP or WVDNR requirements, as applicable), Blasting Permits, Fireworks Permits, and Outdoor Special Events permits. Furthermore, all permits issued are subject to the following:
(1) All permits shall at all times be kept on the premises designated therein, and at all times be subject to inspection by any officer of the fire or police departments.
(2) The Fire Prevention Bureau may revoke any permit or approval issued if any violation of the Charleston Fire Prevention Code is found upon inspection or in case there are any false statements or misrepresentations as to a material fact in the application or plans for which the permit approval maws based.
(3) The issuance of any permit does not relieve the owner, installer or operator of any responsibility for damages and or injuries resulting from misrepresentation. The Charleston Fire Prevention Code shall not be construed to affect the responsibility of any owner, operator, or installer from damages incurred to persons or property caused by any defect therein, nor shall the City be held responsible for any such liability by any reason of the inspection or re-inspection authorized herein or the permit issued as herein provided or by reason of or approval or disapproval of any related request.
(c) The Fire Prevention Bureau shall investigate any fire which involves the loss of life or injury to person or by which property has been destroyed or damaged in accordance with applicable codes. The investigator shall make the origin and cause of the fire and facts of the fire known to the Fire Chief. The investigator shall immediately take charge of any physical evidence, notify and process the said evidence with the proper authorities designated by law to pursue the investigation of such matters, and shall cooperate with authorities in the prosecution of the case. The investigation, prevention, and extinguishing of fires and dangerous conditions related to fire within the City of Charleston will be further promoted by granting limited powers of arrests to fire marshals that meet all training required by the West Virginia Fire Marshal, including the Law Enforcement Core Training Standards of the West Virginia State Fire Commission and the West Virginia State Fire Marshal. The training required may be provided by the Charleston Police Department, where possible. Fire marshals who successfully complete the training are deemed to be certified municipal fire marshals and while assigned to the Fire Prevention Bureau are authorized to exercise powers and duties similar to those exercised by the State Fire Marshal pursuant to West Virginia Code § 29-3-12, and they are specifically authorized to:
(1) Arrest any individual disobeying lawful orders at the scene of a fire;
(2) Arrest any individual who violates prohibitions against arson and explosives offenses, malicious burning, obstructing a fire marshal, or failing to obey lawful orders;
(3) Arrest without a warrant, if the unlawful conduct occurs in their presence; and
(4) File criminal complaints with the municipal court or other appropriate judicial officer in order to obtain a warrant for the arrest and initiate a criminal matter.
(d) The arrest authority of certified municipal fire marshals contained in subsection (c) of this section applies to the relevant state statutes contained in the West Virginia Code. Certified municipal fire marshals may execute any summons or warrant issued by the municipal judge or a Kanawha County Magistrate for these offenses. Any return by a certified municipal fire marshal showing the manner of executing the warrant or summons has the same force and effect as if made by member of the Charleston Police Department. The Fire Prevention Bureau may obtain the assistance of the Charleston Police Department and the City Solicitor at any time deemed necessary to assist with investigation and prosecution, as necessary.
(e) In addition to this arrest authority, the Chief of the Fire Department, members of the Fire Prevention Bureau, or any other designee of the Fire Chief shall have the authority to issue a summons to appear before the municipal court for violations of the Charleston Fire Prevention Code.
(f) The Chief of the Fire Department, who is ultimately responsible for the enforcement of the Charleston Fire Prevention Code, may revoke or rescind, at any time any certified municipal fire marshal’s enforcement powers when, in the opinion of the fire chief, these powers have been abused or improperly enforced.
Sec. 54-146. – Violations and penalties; recourse of city to correct violations. (a) Whoever violates any provision of the Charleston Fire Prevention Code or neglects or fails to comply with such a provision, or who shall violate, neglect or fail to comply with any order or regulation made under such code, or who shall build or construct any structure or part of a structure in violation of any detailed statement of specifications, plans or blueprints submitted and approved under such code, or in violation of any certificate or permit issued under such code, shall be guilty of a misdemeanor and, upon conviction, shall be fined not less than $100.00 and not more than $500.00, or may be imprisoned for not more than 30 days, or both.
(b) The imposition of any such penalty shall not excuse the violation, neglect or noncompliance, nor permit nor allow its continuance; and any person violating, neglecting or failing to comply with the provisions of the Charleston Fire Prevention Code shall be required to correct or remedy such violations, neglects, defaults or defects within a reasonable time; and each day that any such violation, neglect or noncompliance shall continue shall constitute a separate offense. The application or use of these penal provisions shall not be held to prevent the removal of the prohibited conditions; and the city shall have the right, in addition to such penal provisions, to proceed in any court having jurisdiction for the correction of such conditions by any lawful procedure provided for by the statutes of the state.
Sec. 54-147. – Policies.
Fire Prevention Bureau, with the approval of the Chief of the Fire
Department, is hereby authorized to create policies that govern the
operating procedures of the Fire Prevention Bureau and any policy
necessary to ensure that every fire in the City of Charleston is
promptly reported to the Fire Prevention Bureau for appropriate action,
provided that no such policy may be in conflict with the Charleston Fire