The State Fire Marshal’s office is amending Rule 69A-61.001, F.A.C., to clarify the purpose statement, amend the definitions to more closely track the implementing statute, and articulate that investigations will include explosions in addition to ...

 

DEPARTMENT OF FINANCIAL SERVICES

Division of State Fire Marshal

RULE NO.:RULE TITLE:

69A-61.001Initial Investigation of Fires

PURPOSE AND EFFECT: The State Fire Marshal’s office is amending Rule 69A-61.001, F.A.C., to clarify the purpose statement, amend the definitions to more closely track the implementing statute, and articulate that investigations will include explosions in addition to fires.

SUMMARY: This rulemaking updates the purpose statement and definition section. Further, the word “explosion” has been added as necessary.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The rule amendments do not impose any costs. The Division of State Fire Marshal conducted an analysis of the proposed rule’s potential economic impact and determined that the impact does not exceed any of the criteria established in subsection 120.541(1), F.S., and the rule amendment therefore does not require legislative ratification pursuant to subsection 120.541(3), F.S.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 633.104, 633.112(6)(c), 633.518 FS.

LAW IMPLEMENTED: 633.104, 633.112, 633.518 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW (IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):

DATE AND TIME: Tuesday, September 1, 2015, 9:45a.m. or at the conclusion of the Rule 69A-54.006 hearing

PLACE: 142 Larson Building, 200 East Gaines Street, Tallahassee, Florida

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Joseph Steadman, [phone] or [e-mail]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Joseph Steadman, Chief, Bureau of Fire & Arson Investigations, Division of State Fire Marshal, Department of Financial Services, 200 East Gaines Street, Tallahassee, Florida 32399-0342, phone: [phone] or [e-mail].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

69A-61.001 Initial Investigation of Fires.

(1)(a) PURPOSE. The purpose of this rule is to assist local fire officials and law enforcement officers in determining the established responsibilities with respect to the initial or preliminary assessment of fire scenes, and in the determining determination of whether probable cause exists to refer such scenes to the Division for an investigation pursuant to Section 633.112, F.S. Experience shows that the most effective deterrent to arson lies in the effective investigation of suspicious and incendiary fires. This requires a commitment by of fire officials, law enforcement, and the Division to direct investigative resources to those fires that are the result of carelessness or design of a suspicious nature, or are believed to be incendiary, and to more effectively prosecute offenders that commit the crime of arson. This rule imposes no additional or new obligations on local fire officials or law enforcement, but serves solely to clarify the conditions that necessitate the engagement and assistance of State Fire Marshal, Bureau of Fire and Arson Investigations’, resources upon the occurrence of a fire or explosion.

(b) SCOPE. Pursuant to Section 633.112, F.S., the State Fire Marshal is required to investigate any fire in which property has been damaged or destroyed and where there is probable cause to believe that the fire was the result of carelessness or design. The Bureau of Fire and Arson Investigations of the Division of State Fire Marshal is a law enforcement agency whose personnel are sworn law enforcement officers pursuant to Chapter 943, F.S. The State Fire Marshal is charged with enforcing all laws and rules adopted pursuant thereto for purposes of the prevention of fire and explosion through the regulation of conditions which could cause fire or explosion, pursuant to paragraph Section 633.104(2)(a), F.S. The purpose of the Bureau of Fire and Arson Investigations is to investigate crimes or criminal activity related to fires. This section sets forth the requirements and procedures for such investigations.

(2) DEFINITIONS. For purposes of this section, the following words or terms have the following definitions:

(a) No change.

(b) “Carelessness” means an act with sufficient evidence to support a reasonable good faith belief that an investigation could result in administrative, civil or criminal proceedings culpable negligence within the contemplation of Section 784.05, F.S., manslaughter as defined in Section 782.07(1), F.S., gross negligence, or a reckless disregard for property or life, so extreme that it is punishable as a crime. “Carelessness” does not mean or include ordinary carelessness, ordinary negligence, simple negligence, or any similar concept.

(c) “Design” means the specific intent to intentional ignition of a fire or explosion commit a crime or the general intent to commit any act that constitutes, or may result in, the commission of a crime.

(d) through (h) No change.

(i) “Probable cause” means reasonable cause or reasonable grounds to believe that a fire or explosion that was the result of carelessness or design an unlawful act has been committed or that an unlawful event has occurred.

(j) “Property damage” means that any property, real, personal, or mixed, tangible or intangible, having some value to any person has been damaged to such extent that its value has been diminished, or has been destroyed, and includes injury or death to any person.

(3) CONDUCT OF INITIAL INVESTIGATION.

(a) Any time a fire or explosion has occurred which results in property damage in any municipality, county, or special district having an organized fire department or designated arson investigations unit within its law enforcement providers, any local fire official whose intent is to request the State Fire Marshal to perform an investigation under Section 633.112, F.S., shall make or shall cause to be made an initial investigation of the circumstances surrounding the cause and origin of such fire or explosion. Law enforcement officers are permitted to, if any chooses, conduct such initial investigations.

(b) If the fire or explosion occurs in a municipality, county, or special district which has no organized fire department or designated arson investigations unit within its law enforcement providers, the municipality, county, or special district is permitted to request the bureau to conduct such initial investigation.

(4) FINDING OF PROBABLE CAUSE.

(a) If the local fire official or any law enforcement officer determines that there is probable cause to believe that the fire or explosion was the result of carelessness or design as provided for in Section 633.112, F.S., and as defined herein, the local fire official or any law enforcement officer seeking Bureau of Fire and Arson Investigations investigative resources shall report to the bureau the information identified in paragraph (b) of this subsection (4) to enable facts and circumstances constituting such probable cause, for the bureau to determine whether an investigation under Section 633.112, F.S., will be made and resources committed.

(b) Such report need not be in any particular form, but shall contain at a minimum the following information:

1. The date and time of the fire or explosion;

2. through 5. No change.

6. The facts and circumstances considered by the local fire official or law enforcement officer to constitute probable cause to believe that the fire or explosion was the result of carelessness or design.

(c) No change.

(5) FINDING OF NO PROBABLE CAUSE. If the local fire official or law enforcement officer determines that there is no probable cause to believe that the fire or explosion was the result of carelessness or design, and the fire or explosion does not meet the criteria in subsections (9) or (10), the local fire official or law enforcement officer shall have no obligation to refer the matter to the bureau.

(6) CONSULTATIONS WITH THE BUREAU. The local fire official or law enforcement officer is permitted to, at any time, verbally confer or consult with a law enforcement investigator or other law enforcement officer employed by the bureau to assist in a determination of whether probable cause exists to believe that the fire or explosion was the result of carelessness or design; however, such conference or consultation shall not relieve the local fire official or law enforcement officer of his or her responsibility to conduct the initial investigation required by subsection (3), or to make the determinations referred to in subsections (4) or (5).

(7) RESPONSIBILITIES OF THE BUREAU.

(a) If, after the immediate review of the report information provided pursuant to in paragraph (b) of subsection (4), the bureau determines that there is probable cause to believe that such fire or explosion was the result of carelessness or design, or the fire meets the criteria in subsections (9) or (10), the bureau shall immediately initiate a complete investigation of the subject fire or explosion, pursuant to the requirements of Section 633.112, F.S., or, in the event that an immediate response is not necessary based on the facts and circumstances, the bureau shall take all appropriate action to insure that the integrity of the evidence or the potential evidence is preserved until an investigation can be made.

(b) If, after the immediate review of the report information provided in paragraph (b) of subsection (4), the bureau determines that there is no probable cause to believe that such fire or explosion was the result of carelessness or design, and the fire or explosion does not meet the criteria in subsections (9) or (10), the bureau is not required to initiate an investigation of the fire or explosion. Verbal notification of this determination shall be provided to the requesting fire official or law enforcement officer by the bureau. The bureau shall provide notice to the requesting local fire official or law enforcement officer of such determination containing an explanation of the reason or reasons the bureau does not find probable cause, in writing, and shall close the case without with no further investigation.

(c) In the absence of an investigation by the bureau, nothing in these rules prohibits a local fire official or any law enforcement officer from conducting any investigation resulting from a fire or explosion that such fire official or law enforcement officer deems appropriate or necessary.

(8) STANDARD PROCEDURES FOR INITIAL INVESTIGATIONS.

(a) The bureau will not normally perform the initial investigation to determine whether probable cause exists to believe that the fire or explosion was the result of carelessness or design in any municipality, county, or special district having an organized fire department, or in any jurisdiction in which any law enforcement officer assumes the responsibility for such investigations.

(b) The bureau will normally perform the initial investigation to determine whether probable cause exists to believe that the fire or explosion was the result of carelessness or design in a municipality, county, or special district which has no organized fire department, but only after a request has been made verbally or in writing by the municipality, county, or special district having no organized fire department requesting such initial investigation.

(9) DEATH OR INJURY OF A FIREFIGHTER. Notwithstanding anything else contained in this section, any time a firefighter is:

(a) No change.

(b) Killed as the result of, during, while combating, or otherwise engaged in any act or action related to a fire or explosion,; the local fire official or law enforcement officer shall immediately notify the division of the information contained in paragraph (b) of subsection (4) to permit the division to conduct an investigation pursuant to subsection 633.508(7) Section 633.206, F.S., and, if applicable, an investigation pursuant to Section 633.112, F.S.

(10) PRESUMPTIONS FOR PURPOSES OF BUREAU INVESTIGATIONS.

(a) Fires or explosions meeting the following criteria shall be presumed by the bureau to be by carelessness or design for the sole purpose of activation of the bureau’s resources in accordance with this rule:

1. Any fire or explosion with a projected direct dollar loss exceeding $1,000,000 (one million dollars); or

2. Any fire or explosion involving a civilian death, or an injury that is likely to result in death; or

3. Any fire or explosion in which the cause is not readily determined by an initial investigation; or

4. Any fire or explosion involving the suspected failure of a fire suppression or fire detection system.

(b) The bureau shall cause an investigation to be made of all fires or explosions meeting the criteria in subparagraphs 1., 2., 3., or 4.

Rulemaking Authority 633.104, 633.112(6)(c), 633.508(7), 633.518 FS. Law Implemented 633.104, 633.112, 633.508(7), 633.518 FS. History–New 8-13-03, Formerly 4A-61.001, Amended__________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Joseph Steadman, Chief, Bureau of Fire & Arson Investigations, Division of State Fire Marshal, Department of Financial Services

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Jeff Atwater, Chief Financial Officer, Department of Financial Services

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: July 30, 2015

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: June 16, 2015