W. Va. C.S.R. § 87-1-1 et seq. § §87-1-17

§ 87-1-17. Orders and Decisions of the State Fire Marshal; and Appeals and Procedure for Appeals
from such Orders or Decisions.

     17.1. State Fire Marshal's Order and Decisions are Final and Conclusive. -- Any order or final written
decision of the State Fire Marshal based upon or made in the course of the administration or enforcement
of the provisions of W. Va. Code § 15A-10-1 et seq. based upon or made pursuant to this rule is final, unless
vacated or modified upon review pursuant to the appeal rights and procedures provided by W. Va. Code §
51-11-1 et seq. and this rule.

    17.2. State Fire Marshal’s Order And Decisions Appealed. -- Any person aggrieved by an order or
final written decision of the State Fire Marshal based upon or made in the course of the administration or
enforcement of the provisions of W. Va. Code § 15A-10-1 et seq. or made pursuant to this rule, and desiring
to contest the order or written decision may file an appeal from the order or written decision with the Office
of Administrative Hearings, as set forth in W.Va. Code §15A-9-1 et seq. Preservation of the right to an
appeal and the procedure for the contested case is governed by this section 15A-10-1 et seq.

    17.3. W. Va. Code § 15A-10-3(g) and (i) Inquiry and Investigation. -- The testimony which may be
obtained by the State Fire Marshal pursuant to the authority in W. Va. Code § 15A-10-3(g) and (i) shall be
obtained without compliance with the provisions in this rule governing "Procedure in Contested Cases."
Where appropriate, a subsequent order by the State Fire Marshal relating to the testimony obtained is the
same as any other order by the State Fire Marshal subject to the appeal rights provided in W. Va. Code §
15A-10-1 et seq.

    17.4. Appeal Petition. -- When any person aggrieved by an order or final written decision of the State
Fire Marshal desires to appeal such order or final written decision, the appeal petition shall be typewritten,
styled "Appeal Petition", and the appellant shall submit an original and 1 copy to the Office of
Administrative Hearings. The Appeal Petition shall be complete in itself so as to fully state the matters
contested. No telegram, telephone call, or similar communication will be regarded as an appeal petition.
The appeal petition shall contain and include the following:

        17.4.1. a copy of the order or decision of the State Fire Marshal being contested;

       17.4.2. a clear and concise assignment of each error which the petitioner alleges to have been
committed by the State Fire Marshal in issuing the order or decision with each assignment of error being
shown in separately numbered paragraphs;

         17.4.3. a clear and concise statement of the facts upon which the petitioner relies as sustaining his
or her assignment of errors;

        17.4.4. the address to which the petitioner desires to have all notices, documents, and the final
order of the Office of Administrative Hearings mailed;

        17.4.5. the telephone number or numbers where the petitioner can be contacted;

         17.4.6. the names and addresses of all persons having any ownership interest in the property which
is the subject of the State Fire Marshal's order being contested;

        17.4.7. a prayer setting forth the relief sought; and

        17.4.8. the signature of the petitioner or its duly authorized officer.

    17.5. Time Requirement and Manner of Filing Appeal Petition. -- The petitioner shall submit an
appeal petition by personal delivery or mailed to the Office of Administrative Hearings within 30 days
following service upon the petitioner, or within 30 days following actual receipt if service is not required
or for some reason is not made of the order or decision being contested. Any appeal petition shall be sent
by certified mail, return receipt requested, and is timely if postmarked within the 30 day period. Any appeal
petition not delivered or mailed within the 30 day period is not timely filed and the order or decision of the
State Fire Marshal being contested is final.

    17.6. Copy of Appeal Petition to Office of Administrative Hearings. -- Upon receipt of an appeal
petition, the Chief Hearing Examiner, or hearing examiner with the Office of Administrative Hearings,
through office staff, shall supply a copy of the petition to the State Fire Marshal. If the State Fire Marshal
elects to file a response to the appeal petition, he or she shall deliver a copy of the response to the Chief
Hearing Examiner, or hearing examiner with the Office of Administrative Hearings and a copy to the
petitioner.

    17.7. Scheduling Appeal Petition for and Notice of Hearing. -- The Chief Hearing Examiner, or
hearing examiner with the Office of Administrative Hearings, through office staff, shall schedule a hearing
on the appeal petition giving the petitioner and the State Fire Marshal at least 10 days written notice of the
date, time, and place of the hearing. The notice to the petitioner shall be by personal delivery or by certified
mail, return receipt requested, shall contain a short and plain statement of the matters to be considered at
the hearing, and a copy of the State Fire Marshal's response, if any, to the appeal petition, and shall be
mailed or personally delivered by the State Fire Marshal no later than 30 days after receipt of the appeal
petition. A copy of the notice to the petitioner shall be supplied to the State Fire Marshal. The hearing
shall be conducted at a designated location in Charleston, West Virginia, or in the discretion of the Chief
Hearing Examiner, or hearing examiner with the Office of Administrative Hearings at a location within the
county where the premises in question are located.

    17.8. Authorized Representative. -- The petitioner may appear individually, or by counsel.

    17.9. Continuances -- A motion for continuance shall not be granted unless made in writing three
days before the hearing or during the hearing, in either case for good and sufficient cause. Upon
consideration of a motion for continuance, the urgency of the situation shall be determined and taken into
consideration. Conflicting engagements of counsel or the employment of new counsel are not good grounds
for a continuance unless a motion is filed promptly after the notice of hearing has been mailed or unless
extenuating circumstances are shown, which the hearing examiner considers adequate.

    17.10. Absence of Petitioner or Counsel at the Scheduled Hearing -- A hearing being conducted
pursuant to this rule shall not be delayed or continued due to the absence of the petitioner or his or her legal
counsel at a hearing, after service of notice of the time, date, and place of the hearing. The hearing shall
proceed and the case shall be submitted for decision on the part of the absent petitioner or petitioners.

    17.11. Subpoenas and Subpoenas Duces Tecum.

         17.11.1. At any hearing held under this section, the testimony of witnesses and the production of
documentary evidence may be required through the use of subpoenas and subpoenas duces tecum. The
State Fire Marshal may issue subpoenas and subpoenas duces tecum at the request of the petitioner, or the
hearing examiner.

        17.11.2. Every subpoena or subpoena duces tecum is required to prove service at least 5 days
before the return date of that subpoena, either by personal service made by any person 18 years of age, or
older, or by registered or certified mail. A return acknowledgment signed by the person to whom the
subpoena or subpoena duces tecum is directed is required to prove service by registered or certified mail.

          17.11.3. Any party requesting a subpoena or subpoena duces tecum shall see that it is properly
served.

        17.11.4. Any public official who serves any subpoena or subpoena duces tecum is entitled to the
same fee as a Sheriff who serves a witness subpoena for a circuit court of this state; and fees for the
attendance and travel of witnesses are the same as for witnesses before the circuit courts of this state. All

fees shall be paid by the State Fire Marshal if the subpoena or subpoena duces tecum is issued at the instance
of the hearing examiner. All fees related to any subpoena or subpoena duces tecum issued at the instance
of the petitioner or the State Fire Marshal shall be paid by the party requesting the subpoena or subpoena
duces tecum.

       17.11.5. A request for a subpoena or subpoena duces tecum shall be in writing and shall contain a
statement acknowledging that the requesting party agrees to pay the required fee.

         17.11.6. Any person receiving a subpoena or subpoena duces tecum issued under this section shall
honor the subpoena or subpoena duces tecum as though it were issued by a circuit court of the state, and
shall appear as a witness and/or produce the books, records, or papers in response to the subpoena or
subpoena duces tecum. In case of disobedience or neglect of any subpoena or subpoena duces tecum served
on any person or the refusal of any witness to testify to any matter regarding which he or she may be
lawfully interrogated, the circuit court of the county in which the hearing is being held, upon application
by the hearing examiner, shall compel obedience by attachment proceedings for contempt as in the case of
disobedience of the requirements of a subpoena or subpoena duces tecum issued from the circuit court or a
refusal to testify in the circuit court.

    17.12. Evidence.

        17.12.1. All witnesses appearing at the hearing shall testify under oath or affirmation. Every
adverse party has the right of cross-examination of witnesses who testify, and has the right to submit rebuttal
evidence.

        17.12.2. All relevant and material evidence, including papers, records, agency staff memoranda
and documents in the possession of the State Fire Commission or the State Fire Marshal of which either
party desires to avail himself or herself, may be offered and made a part of the record in the case.

           17.12.3. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded by the hearing
examiner. Except as otherwise in this section, the rules of evidence as applied in civil cases in the circuit
courts of this state shall be followed in considering the admissibility of evidence. However, when necessary
to ascertain facts not reasonably susceptible of proof under those rules, reasonably authenticated evidence
not admissible under those Rules may be admitted, except where precluded by the W. Va. Code or privilege,
if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.

    17.13. Record of Proceedings. -- All of the testimony, evidence, and rulings on admissibility of
evidence at any hearing shall be recorded by a certified court reporter, or electronic means. A transcript
shall only be prepared if the Commission's final decision is appealed. The cost of the transcript shall be
paid by the party requesting it.

    17.14. Informal Disposition. -- At any stage of the proceedings, informal disposition may be made of
any contested case by stipulation, agreed settlement, consent order, or default.

    17.15. Decision by the hearing examiner. -- Upon the conclusion of the hearing, the hearing examiner
shall prepare a decision supported by findings of fact and conclusions of law affirming, modifying, or
vacating the earlier order or decision of the State Fire Marshal. The decision signed by the hearing examiner
shall be final unless vacated or modified upon judicial review thereof. A copy of the order shall be served
on all parties to the hearing and all attorneys of record, if any, in person or by certified mail, return receipt
requested.

     17.16. Judicial Review. -- The petitioner or the State Fire Marshal may appeal the hearing examiner’s
decision to the Intermediate Court of Appeals as the Intermediate Court of Appeals has appellate
jurisdiction over all “[f]inal judgments, orders, or decisions of an agency or administrative law judge
entered after June 30, 2022” per West Virginia Code §51-11-4(b)(4).