Delaware Administrative Code
Title 1 - Authorities, Boards and Commissions
700 - Delaware State Fire Prevention Commission
701 - Administration and Enforcement
Chapter 1 - Adoption and Administration of Regulations
Section 701-1-7.0 - Procedures of Appeal

Universal Citation: 1 DE Admin Code 701-1-7.0

Current through Register Vol. 28, No. 3, September 1, 2024

7.1 Filing of Appeals.

7.1.1 All appeals shall be made in such form as is designated by the State Fire Prevention Commission. Forms for appeal are available at the Office of the State Fire Marshal.

7.1.2 An appeal shall not be considered filed until it has been received by the State Fire Prevention Commission.

7.1.3 All appeals that originate from enforcement action by one of the Assistant State Fire Marshals, from the jurisdictions as defined 16 Del.C. § 6612 (c), shall be reviewed by the State Fire Marshal with the jurisdictional Assistant State Fire Marshal, to determine if, in fact, the State Fire Prevention Regulations appear to have been appropriately interpreted and applied to the case in question.
7.1.3.1 It shall be the responsibility of the jurisdictional Assistant State Fire Marshal, who initiated the enforcement action resulting in the filing of the appeal, to contact the State Fire Marshal and arrange for this review.

7.1.3.2 The State Fire Marshal shall make a report to the State Fire Prevention Commission of his findings with respect to his review of the enforcement action. The report shall be limited to an opinion from the State Fire Marshal that the State Fire Prevention Regulations appear to have been interpreted and applied correctly by the jurisdictional Assistant State Fire Marshal; this information may be considered as part of their deliberation by the State Fire Prevention Commission as to the validity of the need for an appeal hearing.

7.1.3.3 If the State Fire Prevention Commission finds that the State Fire Prevention Regulations have not been correctly interpreted or applied by the jurisdictional Assistant State Fire Marshal, then the Commission may remand the issue back to the jurisdictional Assistant State Fire Marshal for appropriate application of the State Fire Prevention Regulations.

7.2 Time within which appeals may be made.

7.2.1 Any person alleging that there is error in an order or decision of the State Fire Marshal may appeal to the State Fire Prevention Commission within 45 days after such order or decision is made.

7.2.2 Any person seeking a variance, special exception, interpretation, or decision upon some other special question may appeal to the State Fire Prevention Commission at any time.

7.3 Operation of Appeal as a Stay.

7.3.1 The filing of an appeal shall not automatically stay the operation of the order or decision of the State Fire Marshal on which the appeal is made.

7.3.2 The State Fire Prevention Commission may, however, upon petition, grant a stay pending the outcome of an appeal where it is found that a stay will not cause immediate detriment to the public safety. The burden of proof shall be upon the party requesting the stay.

7.4 Time of Hearing; Notice.

7.4.1 All appeals, unless dismissed by the State Fire Prevention Commission as unfounded, shall, if reasonably possible, be heard by the Commission within three (3) months after they are filed. The time and place of the hearing shall be fixed by the State Fire Prevention Commission.

7.4.2 Notice of the time and place of the hearing shall be personally served, or sent by registered mail to the address provided on the appeal or request, with return receipt requested, to the appellant at least twenty (20) days prior to the date fixed for the hearing.

7.4.3 Prior to any hearing, the Chairperson may designate a member of the State Fire Prevention Commission to serve as the hearing officer.

7.5 Request for Continuance; Failure to Appear.

7.5.1 Requests for continuances must be made in writing to the Chairperson of the State Fire Prevention Commission at least one week prior to the date of the hearing. Such requests may be granted upon the showing of good cause thereof.

7.5.2 Requests made less than one week prior to the hearing will not be granted except upon a showing of dire emergency.

7.5.3 In the event a party fails to request a continuance in a timely manner, and fails to appear, the Commission may, at its discretion, after twenty (20) minutes consider that the appeal has been withdrawn and summarily affirm the decision of the State Fire Marshal.

7.6 Hearing Procedure.

7.6.1 All testimony shall be recorded by an electronic recording device and such record shall be preserved for at least sixty (60) days following the hearing. The party initiating the appeal or the party seeking the variance, special exception, interpretation, or other decision upon some other specific question may elect to have the proceedings transcribed by a court reporter and shall be responsible for the following:
7.6.1.1 Making the necessary arrangements to have the court reporter in attendance for the proceedings; and

7.6.1.2 Assuming all costs associated with the court reporter being in attendance and all costs for all transcripts and any copies thereof; and

7.6.1.3 Providing the State Fire Prevention Commission with one original copy and one copy of the transcript.

7.6.2 The State Fire Prevention Commission shall keep a permanent written record of all hearings in the form of official minutes.

7.6.3 Appearances shall be noted in the official minutes.

7.6.4 All testimony shall be taken under oath.

7.6.5 Evidence:
7.6.5.1 All evidence which the State Fire Prevention Commission determines to be relevant, reliable, and not unduly repetitious shall be admissible.

7.6.5.2 Objections to the admission or exclusion of evidence shall be brief and shall state the grounds for objection.

7.6.5.3 Any offer of proof made in connection with an objection taken to any admission or exclusion of evidence shall consist of a statement of that which the offerer contends would be adduced by such testimony or document. Where the offer concerns a document, a copy of same shall be marked for identification.

7.6.6 Appellant shall appear personally and may be represented by counsel. If appellant is a corporation, it shall be represented by counsel.

7.6.7 The State Fire Prevention Commission shall open the hearing with a brief statement of the purpose of the hearing.

7.6.8 Appellant shall then testify in his behalf and shall be subject to examination by the State Fire Prevention Commission.

7.6.9 Appellant may follow his testimony with the production of additional evidence in support of his position.

7.6.10 Following appellant's presentation, opposing evidence may be presented by the State Fire Marshal.

7.6.11 Any documentary evidence, which the appellant may elect to present at the hearing, may be returned to him, upon receipt of written request for the return of such documents, within sixty (60) days of the date of the hearing. Otherwise, the State Fire Prevention Commission may dispose of such evidence at its discretion.

Disclaimer: These regulations may not be the most recent version. Delaware may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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