Preservation of the right to an appeal and the procedure for the contested case is governed by this section.
(a) Whenever the Fire Chief shall disapprove an application or refuse to grant a permit applied for, or when it is claimed that the provisions of the Fire Prevention Code do not apply or that the true intent and meaning of the code have been misconstrued or wrongly interpreted.
(b) Time Requirement and Manner of Filing Appeal Petition. The petitioner shall submit an appeal petition by personal delivery or mailed to the City Council within fifteen (15) days following service upon the petitioner, or within fifteen (15) 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 fifteen (15) day period. Any appeal petition not delivered or mailed within the fifteen (15) day period is not timely filed and the order or decision of the Fire Chief being contested is final.
(c) Appeal Petition. The appeal petition shall be typewritten, styled "Appeal Petition", and the appellant shall submit an original and one (1) copy. It 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 petition shall contain and include the following:
(1) A copy of the order or decision of the Fire Chief being contested;
(2) A clear and concise assignment of each error which the petitioner alleges to have been committed by the Fire Chief in issuing the order or decision with each assignment of error being shown in separately numbered paragraphs;
(3) A clear and concise statement of the facts upon which the petitioner relies as sustaining his or her assignment of errors;
(4) The address to which the petitioner desires to have all notices, documents, and the final order of the City Council;
(5) The telephone number or numbers where the petitioner can be contacted;
(6) The names and addresses of all persons having any ownership interest in the property which is the subject of the Fire Chief's order being contested;
(7) A prayer setting forth the relief sought; and
(8) The signature of the petitioner or its duly authorized officer.
(d) Copy of Appeal Petition to City Council And Fire Chief. The Mayor upon receipt of an Appeal Petition shall provide a copy of the petition to the members of City Council and Fire Chief. The Fire Chief, within forty-eight (48) hours of receipt of the Appeal Petition shall provide an opinion as to the urgency of the matter being contested. Any written Response by the Fire Chief to the Appeal Petition must be filed within fifteen (15) days of the filing of the Appeal Petition. The Response shall be filed with the Mayor and a copy of the Response shall be provided to the Petitioner by certified mail return receipt requested.
(e) Hearing Notice. A hearing on the Appeal Petition shall be scheduled within forty-five (45) days of receipt of the Appeal Petition by the Mayor. Notice of the date, time and place of the hearing shall be provided in writing to the members of City Council, Petitioner and Fire Chief at least ten (10) days prior to the date of the hearing. The Notice of Hearing shall be made upon the Petitioner by personal service of process or by certified mail return receipt requested. The Notice of Hearing shall contain a brief statement of matters to be considered during the hearing, along with a copy of the Response of the Fire Chief, if any. Any hearing shall be held in the City Council Chambers for the City of Lewisburg, 942 Washington Street, West unless otherwise designated by the Mayor.
(f) Authorized Representative. The petitioner may appear individually, or by counsel.
(g) 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 Lewisburg City Council considers adequate.
(h) Absence of Petitioner or Counsel at the Scheduled Hearing. A hearing by the City Council 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.
(i) Hearing Examiner. Any member of the City Council may conduct a hearing on an appeal petition and has full authority to conduct the proceedings on an appeal petition, and when acting in that capacity shall be referred to as the hearing examiner.
(j) Subpoenas and Subpoenas Duces Tecum. 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 Fire Chief may issue subpoenas and subpoenas duces tecum at the request of the petitioner, the hearing examiner or the City Council.
(k) Every subpoena or subpoena duces tecum is required to prove service at least five (5) days before the return date of that subpoena, either by personal service made by any person eighteen (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.
(l) Any party requesting a subpoena or subpoena duces tecum shall see that it is properly served. Service of a subpoena or subpoena duces tecum issued at the insistence of the City Council is the responsibility of the City Council.
(m) A request for a subpoena or subpoena duces tecum shall be in writing.
(n) 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 Lewisburg City Council, 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.
(o) 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.
(p) All relevant and material evidence, including papers, records, agency staff memoranda and documents in the possession of the City Council or the Fire Chief of which either party desires to avail himself or herself, may be offered and made a part of the record in the case.
(q) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded by the City Council. 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.V. Code or privilege, if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.
(r) 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. An official record of the hearing shall be prepared by the City Council. A transcript, shall only be prepared if the City Council's final decision is appealed. The cost of the transcript shall be paid by the party requesting it.
(s) 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.
(t) Decision by the City Council. Upon the conclusion of the hearing, the person designated by the City Council as hearing examiner shall prepare a decision supported by findings of fact and conclusions of law affirming, modifying, or vacating the earlier order of decision of the Fire Chief. The City Council may accept, modify, or reject the hearing examiner's decision. If the Council accepts the hearing examiner's decision it shall sign the decision. If the Council rejects or modifies the hearing examiner's decision, it shall prepare a written decision setting forth findings of facts and conclusions of law. In either event, the order signed by the City Council 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.
(u) Judicial Review. The petitioner or the Fire Chief may appeal the City Council's decision to the Circuit Court of Greenbrier County, if the appeal is filed within thirty (30) days after the date upon which party was served with a copy of the final order or decision of the City Council. The final order signed by the City Council is final if the proceedings for judicial review are not instituted within the said thirty (30) day period.
(v) Nothing in this section shall be construed to prevent any person from seeking a temporary injunction restraining the enforcement of any provision of the Fire Prevention Code pending final disposition of the cause in any case wherein such injunctive relief is authorized by State Law.
(Ord. 215. Passed 10-19-10.)