West Virginia Code of State Rules › Agency 87 - Fire Commission › Title 87 - LEGISLATIVE RULE FIRE COMMISSION › Series 87-09 - Contested Case Hearing Procedures for State Fire Commission › Section 87-9-2 - Hearing Procedure

Current through Register Vol. XLI, No. 28, July 12, 2024
2.1. Any
				person who desires a hearing must present a written demand for such to the Fire
				Commission within 30 days of issuance of an Order denying a license.
2.2. When the Fire Commission or its
				authorized designee is presented with such a demand for a hearing, it shall
				schedule a hearing within forty-five (45) days of receipt by it of such written
				demand, unless postponed to a later date by mutual agreement.
2.3. Charges may be instituted against any
				licensee, permitee, or certified individual by the Fire Marshal when probable
				cause exists for believing that the individual may have engaged in conduct,
				practices or acts in such condition that his or her license, permit or
				certification should be suspended, revoked or otherwise disciplined for one or
				more of the grounds set forth in W. Va. Code §
									29-3-12b or the
				Fire Marshal's or Fire Commission's legislative rules. Charges may be based
				upon information received by way of a verified written complaint filed with the
				Fire Marshal and further information gathered by the Fire Marshal, his or her
				designee,or an ethics investigator, in the process of investigating such
				complaint. Charges may also be based upon information received solely through
				investigative activities undertaken by the Fire Marshal.
2.4. Charges instituted against a licensee,
				permitee, or certified individual shall be set forth in a Complaint and Notice
				of Hearing issued in the name of the Fire Commission as the agency of the state
				regulating the particular profession. Such Complaint and Notice of Hearing
				shall designate the Fire Commission as the "Complaintant", and shall designate
				the certified home inspector involved in the proceeding as the "Respondent";
				shall set out the substance of each offense charged with sufficient
				particularity to reasonably apprise the Respondent of the nature, time and
				place of the conduct or condition complained of therein; and shall state the
				date, time and place for the hearing.
2.5. Upon receipt of a demand for a hearing
				described in subsections 1 and 2 of this section, the Fire Commission shall
				provide the demanding party, with a Complaint and Notice of Hearing issued in
				the name of the Fire Commission as the agency of the state regulating the
				practice of the profession described. Such Complaint and Notice of Hearing
				shall designate the demanding party as the "Complainant" and shall designate
				the Fire Commission as the "Respondent"; shall set out the substance of each
				and every reason that the Fire Commission has denied the demanding party a
				license, permit or certificate with sufficient particularity to reasonably
				apprise the demanding party of the nature, time and place of the conduct or
				condition at issue therein; and shall state the date, time and place for the
				hearing.
2.6. The Fire Commission
				may amend the charges set forth in a Complaint and Notice of Hearing as it
				deems proper.
2.7. A Complaint and
				Notice of Hearing shall be served upon the demanding or charged party at least
				thirty (30) days prior to the date of hearing.
2.8. Upon written motion received by the Fire
				Commission no later than twenty (20) days prior to the date of hearing, a more
				definite statement of the matters charged, or the reasons stated for denial of
				certification shall be provided to the demanding or charged party or his or her
				counsel, at least fifteen (15) days prior to the hearing date.
2.9. Hearings shall be conducted as follows:
2.9.1. Any party to a hearing shall have the
				right to be represented by an attomey-at-law, duly qualified to practice law in
				the state of West Virginia, or to represent his or herself.
2.9.2. The Fire Commission shall be
				represented by the West Virginia Attorney General's Office.
2.9.3. Irrelevant, immaterial, or unduly
				repetitious evidence shall be excluded from the hearing. Furthermore, the rules
				of evidence as applied in civil cases in the circuit courts of this state shall
				be followed. However, when necessary to ascertain facts not reasonably
				susceptible of proof under those rules, evidence not admissible there under may
				be admitted, except where precluded by statute, if it is of a type commonly
				relied upon by reasonably prudent persons in the conduct of their
				affairs
2.9.4. The rules of
				privilege recognized by the law of this state shall be followed.
2.9.5. Objections to evidentiary offers shall
				be noted in the record. Any party to the hearing may vouch the record as to any
				excluded testimony or other evidence.
2.9.6. Any party to a hearing may appear with
				witnesses to testify on his or her behalf; may be heard in person, by counsel
				or both; may present such other evidence in support of his or her position as
				deemed appropriate by the Fire Commission and, when appropriate, may
				cross-examine witnesses called by the Fire Commission in support of the charges
				or in defense of its decision to deny certification.
2.9.7. The hearing shall be held at such time
				and place as is designated by the Fire Commission, but no hearing shall be
				conducted unless and until at least thirty (30) days written notice there of
				has been served upon the charged or demanding party and/or his or her attorney
				in person; or if he or she cannot be found, by delivering such notice at his or
				her last address of record in the Fire Marshal's office and giving information
				of its purport, to his wife or her husband, or to any other person found there
				who is a member of his or her family and above the age of sixteen (16) years;
				or if neither his wife or her husband nor any such person can be found there,
				and he or she cannot be found, by leaving such notice posted at the front door
				of such address; or if he or she does not reside in this state, such notice may
				be served by the publication thereof once a week for three successive weeks in
				a newspaper published in this state; or such notice may by served by registered
				or certified mail.
2.9.8. The
				hearing shall be open to the general public, imless requested to be closed to
				the public by the certified home inspector or applicant.
2.9.9. The Fire Marshal, his or her
				employees. Members of the West Virginia State Fire Commission and its officers,
				agents and employees shall be competent to testify at the hearing as to
				material and relevant matters: Provided, That no person who testifies at such
				hearing shall thereafter participate in the deliberations or decisions of the
				Fire Commission with respect to the case in which he or she
				testified.
2.9.10. The hearing
				shall be conducted by a quorum of the Fire Commission, or a hearing officer
				appointed by the Fire Commission.
2.9.11. A record of the hearing, including
				the complaint(s), if applicable, the notice of hearing, all pleadings, motions,
				rulings, stipulations, exhibits, documentary evidence, evidentiary depositions
				and the stenographic report of the hearing, shall be made and a transcript
				thereof maintained in the Fire Commission's files. Upon request, a copy of the
				transcript shall be fiamished to any party by the transcriptionist at his or
				herown expense.
2.9.12. Documentary
				evidence may be received in the form of copies or excerpts or by incorporation
				by reference.
2.9.13. Where a
				hearing is held upon the instance of the Fire Commission after charges have
				been brought against a licensee, permitee, or certified individual, the Fire
				Commission shall have the burden of proof and shall present its evidence and/or
				testimony in support of the charges first.
2.9.14. Where a hearing is held upon demand
				under the provisions of subsections 9.1,9.2, 9.3, and 9.6 of this section, the
				demanding party shall have the burden of proof and shall therefore be required
				to present his or her evidence first. The Fire Commission may require the
				person demanding the hearing to give security for the costs thereof and if the
				demanding party does not substantially prevail, such costs may be assessed
				against them in the Order of the Fires Commission, and may be collected by
				forfeiture of the security posted, by assessment in an Order issued them by the
				Fire Commission, in a civil action or by other proper remedy.
2.9.15. Following the conclusion of the Fire
				Commission's presentation of evidence in accordance with subsection 2.9.13 of
				this section the Respondent or charged party shall have the right to submit his
				or her evidence in defense.
2.9.16.
				Following the conclusion of the demanding party's presentation of evidence in
				accordance with subsection 2.9.14 of this section, the Fire Commission shall
				have the right to offer its evidence in rebuttal.
2.9.17. The Fire Commission may call
				witnesses to testify in support of its decision to deny licensure, to deny a
				permit, or to deny a certificate or in support of the charges instituted
				against an individual; may present such other evidence to support its position;
				and, may cross-examine witnesses called by the demanding party or charged party
				in support of his or her position.
2.9.18. All parties shall have the right to
				offer opening and closing arguments, not to exceed ten (10) minutes for each
				presentation.
2.9.19. Hearings held
				by the Fire Commission as a result of charges instituted against a licensee,
				permitee, or certified individual may be continued or adjourned to a later date
				or different place by the Fire Commission or its hearing officer by appropriate
				notice to all parties.
2.9.20.
				Motions for a continuance of a hearing may be granted upon a showing of good
				cause. Motions for continuance must be in writing and received in the office of
				the Fire Commission no later than seven (7) days before the hearing date. In
				determining whether good cause exists, consideration will be given to the
				ability of the party requesting the continuance to proceed effectively without
				a continuance. A motion for a continuance filed less than seven (7) days from
				the hearing date may be denied unless the reason for the motion could not have
				been ascertained earlier. Motions for continuance filed prior to the date of
				hearing shall be ruled on by the chair of the Fire Commission, or its hearing
				officer. All other motions for continuance shall be ruled on by the Fire
				Commission member(s), the member presiding over the hearing, or the hearing
				officer
2.9.21. All motions related
				to a case set for hearing before the Fire Commission, except motions for
				continuance and those made during the hearing, shall be in writing an shall be
				received in the office of the Fire Commission at least ten (10) days before the
				hearing. Prehearing motions shall be heard at aprehearing conference or at the
				hearing prior to the commencement of testimony. The Fire Commission member(s)
				presiding at the hearing, or the hearing officer, shall hear the motions and
				the response firom thenon-moving party and shall rule on such motions
				accordingly.