HOUSE BILL 73

45th legislature - STATE OF NEW MEXICO - first session, 2001

INTRODUCED BY

Jeannette O. Wallace





FOR THE NEW MEXICO FINANCE AUTHORITY OVERSIGHT COMMITTEE



AN ACT

RELATING TO THE STATE FIRE MARSHAL; TRANSFERRING THE STATE FIRE MARSHAL'S OFFICE AND THE FIREFIGHTER TRAINING ACADEMY TO THE ENERGY, MINERALS AND NATURAL RESOURCES DEPARTMENT; GRANTING THE STATE FIRE MARSHAL THE AUTHORITY TO DIRECT THE STATE POLICE AND OTHER LAW ENFORCEMENT PERSONNEL; CLARIFYING THAT STATE FIRE MARSHAL RULES MUST BE COMPATIBLE WITH BUILDING CONSTRUCTION RULES OF THE CONSTRUCTION INDUSTRIES DIVISION; ELIMINATING STATE FIRE MARSHAL RESPONSIBILITY FOR FLAMMABLE LIQUIDS REGULATION; TRANSFERRING PERSONNEL, MONEY, PROPERTY, CONTRACTUAL OBLIGATIONS AND STATUTORY REFERENCES; MAKING AN APPROPRIATION.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 8-8-9 NMSA 1978 (being Laws 1998, Chapter 108, Section 9) is amended to read:

"8-8-9. INSURANCE DIVISION.--

A. The director of the insurance division is the "superintendent of insurance" and shall have all the powers and duties prescribed to him in the New Mexico Insurance Code.

B. The insurance division shall consist of such bureaus as the superintendent of insurance determines for the orderly conduct of business [including the fire marshal bureau. The superintendent of insurance may organize the firefighter's training academy as part of the fire marshal bureau or may organize it as a separate bureau]."

Section 2. Section 9-5A-3 NMSA 1978 (being Laws 1987, Chapter 234, Section 3, as amended by Laws 1997, Chapter 137, Section 1 and also by Laws 1997, Chapter 149, Section 2) is amended to read:

"9-5A-3. DEPARTMENT ESTABLISHED.--

A. There is created in the executive branch the "energy, minerals and natural resources department". The department shall be a cabinet department and shall include [but not be limited to] the following organizational units:

(1) the administrative services division;

(2) the state parks division;

(3) the forestry division [which shall include a soil and water conservation bureau];

(4) the energy conservation and management division;

(5) the mining and minerals division; [and]

(6) the oil conservation division; and

(7) the state fire marshal division, including the firefighter training academy as a bureau.

B. The state game commission is administratively attached to the department."

Section 3. Section 59A-52-1 NMSA 1978 (being Laws 1984, Chapter 127, Section 947, as amended) is amended to read:

"59A-52-1. STATE FIRE MARSHAL CREATED.--The position of "state fire marshal" is created as the [bureau chief] director of the state fire marshal [bureau of the insurance] division of the energy, minerals and natural resources department."

Section 4. Section 59A-52-3 NMSA 1978 (being Laws 1984, Chapter 127, Section 949, as amended) is amended to read:

"59A-52-3. [DEPUTY STATE FIRE MARSHAL AND OTHER EMPLOYEES--QUALIFICATIONS OF DEPUTY] DESIGNATION OF AUTHORITY BY STATE FIRE MARSHAL.--The state fire marshal may [with the approval of the superintendent, appoint or remove a deputy state fire marshal and other employees] designate his employees; law enforcement officers, including the state police; and fire chiefs and their designees to assist in the execution of the state fire marshal's duties; provided, however, that the state fire marshal and [any deputy state fire marshal appointed] anyone designated by the state fire marshal shall be experienced in fire prevention and fire fighting and have [completed a course of training by actual attendance at a fire-training school] successfully completed training appropriate to the duties designated. All designations shall be made in writing. Designations of law enforcement officers, fire chiefs and other persons employed by municipal or county governments shall be approved by the municipality or county."

Section 5. Section 59A-52-8 NMSA 1978 (being Laws 1984, Chapter 127, Section 954) is amended to read:

"59A-52-8. INVESTIGATION OF FIRE HAZARDS--ABATEMENT.--The state fire marshal [is authorized to make investigations or require his deputy to make investigations and reports of] may investigate existing conditions in the state [which] that are fire hazards and [to] make reasonable orders for the alleviation of such situations as he [may deem] deems necessary. If the orders of the state fire marshal are not carried out by persons to whom they are directed, [he] the state fire marshal shall institute proper proceedings under municipal ordinances or state laws to require compliance with his orders, as he [may deem] deems necessary."

Section 6. Section 59A-52-9 NMSA 1978 (being Laws 1984, Chapter 127, Section 955) is amended to read:

"59A-52-9. MAY ENTER UPON PREMISES.--The state fire marshal [his deputy, his authorized officer or designated agent shall have authority] may at all normal hours of operation [to] enter [in and] upon all buildings and premises subject to [this article] Chapter 59A, Article 52 NMSA 1978 for the purpose of examination and inspection."

Section 7. Section 59A-52-10 NMSA 1978 (being Laws 1984, Chapter 127, Section 956) is amended to read:

"59A-52-10. INVESTIGATION OF FIRES AND EXPLOSIONS--HEARINGS--USE OF STATE POLICE LABORATORY.--The state fire marshal [or his deputies or employees are authorized to make investigations deemed necessary of] may investigate any fire or explosion, or attempt to cause any fire or explosion in the state, and to require reports from his [deputies] employees or designees concerning all fires and explosions in their districts. For the purpose of such investigations, the state fire marshal [and his deputies or designated persons are authorized to] may conduct [hearing] hearings, subpoena witnesses, take testimony and enter upon and examine any building or premises where any fire or explosion or attempt to cause a fire or explosion [shall have] has occurred, or which at the time may be burning. The state fire marshal [or his deputies or designated persons shall also have the power to] may cause to be produced before [them] him such papers as [they may require] he requires in making such examination. In addition the state fire marshal [or his deputies or designated persons] may, in [their] his discretion, take full control and custody of such buildings and premises, and place such person in charge thereof as [they may deem] he deems proper, until [their] his examination and investigation [is] are completed. For evaluation of the evidence, the state fire marshal shall have access to the facilities and personnel of the state police laboratory, and the executive head of [such] the laboratory shall cooperate fully with the state fire marshal."

Section 8. Section 59A-52-15 NMSA 1978 (being Laws 1984, Chapter 127, Section 961) is amended to read:

"59A-52-15. FIRE PREVENTION--PUBLIC OCCUPANCIES [REGULATIONS] RULES.--

A. For prevention and control of fires the state fire [board] marshal shall formulate, adopt and promulgate and amend or revise [regulations] rules for fire prevention and safe conduct or use of public occupancies and rules concerning the sale, servicing or use of fire safety, prevention, detection or suppression equipment or materials. For the purposes of this provision, "public occupancies" consist of places of assembly, educational occupancies, institutional occupancies, residential occupancies consisting of four [(4)] or more family units, health care occupancies, mercantile occupancies, office occupancies, industrial occupancies, storage occupancies and miscellaneous structures consisting of towers, underground structures and windowless buildings and all buildings owned or occupied by the state government or any political subdivision thereof or by municipal governments [and regulations concerning the sale, servicing or use of fire safety, prevention, detection or suppression equipment or materials]. The [regulations] rules shall be adopted after notice and public hearing. The notice shall be entitled "notice of proposed rule making" and it shall contain the date of the hearing and shall state the subject of the hearing. A copy of the notice, along with a copy of the proposed [regulations] rules, shall be filed with the [supreme court librarian] records center for publishing at least twenty [(20)] days prior to the hearing. In addition, the [board] state fire marshal shall make available for inspection at [its offices] his office a copy of the proposed [regulations] rules.

B. The rules [and regulations] shall follow nationwide standards [except in the area of life safety codes which] that shall be compatible with [the Uniform Building Code, as revised from time to time, issued by the international conference of building officials] state rules for building construction adopted by the construction industries division of the regulation and licensing department.

C. The rules [and regulations] shall allow reasonable provision under which facilities in service prior to the effective date of the rules [and regulations] and not in strict conformity therewith may be continued in service. [Noncomforming] Nonconforming facilities in service prior to the adoption of [regulations which] rules that are found by the state fire marshal to constitute a distinct hazard to life or property shall not be exempt from [regulations] rules nor permitted to continue in service."

Section 9. Section 59A-52-18 NMSA 1978 (being Laws 1984, Chapter 127, Section 964) is amended to read:

"59A-52-18. RULES [AND REGULATIONS]--STATEWIDE EFFECT--RESERVED POWER OF MUNICIPALITIES AND COUNTIES.--The rules [and regulations] promulgated pursuant to [this article shall] Chapter 59A, Article 52 NMSA 1978 have uniform [force and] effect throughout the state, and no municipality or [subdivision] county shall enact or enforce any ordinances or rules [or regulations] inconsistent with the statewide rules [and regulations] promulgated pursuant to [this] that article. Nothing in [this] that article shall in any way impair the power of [any] a municipality or county to regulate the use of its land by zoning, building codes or restricted fire district [regulations] rules."

Section 10. Section 59A-52-19 NMSA 1978 (being Laws 1984, Chapter 127, Section 965) is amended to read:

"59A-52-19. POLICE POWER OF STATE FIRE MARSHAL--COOPERATION OF STATE OFFICERS.--

A. The state fire marshal [his deputy or his authorized officer or designated agent] and his employees and designees shall have full powers as peace officers to enforce the provisions of [this article] Chapter 59A, Article 52 NMSA 1978 and all rules [and regulations] issued pursuant to [this] that article.

B. The revenue officers and law enforcement officers of the state shall cooperate with the state fire marshal [his deputy or authorized officer or designated agent] whenever called upon by [them] him for assistance in enforcing [this article] Chapter 59A, Article 52 NMSA 1978."

Section 11. Section 59A-52-20 NMSA 1978 (being Laws 1984, Chapter 127, Section 966) is amended to read:

"59A-52-20. CEASE AND DESIST ORDERS [CERTAIN VIOLATIONS ARE MISDEMEANORS].--[A.] When the state fire marshal [his deputy or his authorized officer or designated agent] finds [any] a violation of the [regulations] rules issued in compliance with [this article] Chapter 59A, Article 52 NMSA 1978, he [or they] shall issue an order to the owner or his agent to cease and desist such violations.

[B. When there is so found any violation of any statute or rules and regulations concerning flammable liquids a cease and desist order shall issue if the violation constitutes an immediate and distinct hazard to life or property, and any such violation shall constitute a misdemeanor punishable by a fine not to exceed five hundred dollars ($500). Each day such violation continues constitutes a separate offense.]"

Section 12. Section 59A-52-21 NMSA 1978 (being Laws 1984, Chapter 127, Section 967, as amended) is amended to read:

"59A-52-21. ADMINISTRATIVE APPEAL OF ORDERS AND MODIFICATIONS.--[Any] A person aggrieved by [any] an order of the state fire marshal [his deputy or authorized officer or his designated agent] may appeal to the [commission] secretary of energy, minerals and natural resources within ten days from the date of the service of [such] the order. The [commission] secretary shall hear [such] the party within twenty days after receipt of an appeal request and shall give not less than ten days' written notice of the hearing. Within fifteen days after [such] the hearing, the [commission] secretary shall file [its] his decision and, unless [by its authority the order is revoked or modified] the secretary revokes or modifies the order, it shall be complied with within the time fixed in the decision, with such time to be not less than thirty days."

Section 13. Section 59A-52-22 NMSA 1978 (being Laws 1984, Chapter 127, Section 968, as amended) is amended to read:

"59A-52-22. JUDICIAL REVIEW OF ORDER.--A person aggrieved by a decision of the [state fire marshal] secretary of energy, minerals and natural resources may appeal to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978."

Section 14. Section 59A-52-23 NMSA 1978 (being Laws 1984, Chapter 127, Section 969, as amended) is amended to read:

"59A-52-23. ENFORCEMENT OF CEASE AND DESIST ORDERS.--After expiration of time for an administrative appeal, and if no such appeal has been taken, the state fire marshal may commence an action in the district court for Santa Fe county to enforce the cease and desist order by injunction or other appropriate remedy as the district court may adjudge. The [commission] secretary of energy, minerals and natural resources may likewise commence an action in the district court for Santa Fe county to enforce [its] his decision rendered on appeal from the cease and desist order of the state fire marshal."

Section 15. Section 59A-53-6 NMSA 1978 (being Laws 1984, Chapter 127, Section 977, as amended) is amended to read:

"59A-53-6. APPEAL AND REVIEW OF DETERMINATION.--The state fire marshal shall promptly notify each incorporated city, town, village and county fire district affected of his determination of needs, and an incorporated city, town, village or county fire district may appeal from the determination of the state fire marshal to the [commission] secretary of energy, minerals and natural resources, within ten days after the determination of needs. The [commission] secretary shall review the determination of the state fire marshal in such informal and summary proceedings as [it] he deems proper and shall certify to the state treasurer annually, on or before the last day of June, the results of all appeals from the determinations of the state fire marshal. The certification by the [commission] secretary, or by the state fire marshal if no appeal is taken, shall be final and binding on all concerned and not subject to any further review."

Section 16. Section 59A-53-7 NMSA 1978 (being Laws 1984, Chapter 127, Section 978, as amended) is amended to read:

"59A-53-7. DISTRIBUTION OF FIRE PROTECTION FUND.--

A. Annually on or before the last day of July, the state treasurer shall distribute from the money in the fire protection fund, to each incorporated municipality and to each county fire district, the amount the state fire marshal or the [commission] secretary of energy, minerals and natural resources, as the case may be, has certified to him. Payment shall be made to the treasurer of any incorporated municipality and to the county treasurer of the county in which any county fire district is located for credit to the county fire district.

B. The state treasurer is authorized to redirect a distribution to the New Mexico finance authority in the amount the state fire marshal or the [commission] secretary of energy, minerals and natural resources, as the case may be, has certified to him pursuant to an ordinance or a resolution passed by the municipality or county and a written agreement of the municipality or county in which any county fire district is located and the New Mexico finance authority."

Section 17. Section 59A-53-15 NMSA 1978 (being Laws 1984, Chapter 127, Section 986, as amended) is amended to read:

"59A-53-15. APPROPRIATION FROM STATE TREASURY.--All money [which] that from time to time is deposited in the state treasury and credited to the fire protection fund is appropriated to the [corporation commission] state fire marshal division of the energy, minerals and natural resources department for the use of the state fire marshal for the purposes set out in Chapter 59A, Article 53 NMSA 1978 and shall be distributed by the state treasurer and expended as provided in that article. Hereafter, all sums in excess of one hundred thousand dollars ($100,000) for pro rata distribution plus seventy-five percent of the approved state fire marshal budget for the succeeding fiscal year plus the amount certified to be distributed as provided in that article shall be credited to the general fund on or before June 30 of each fiscal year."

Section 18. Section 60-2C-3 NMSA 1978 (being Laws 1989, Chapter 346, Section 3, as amended) is amended to read:

"60-2C-3. LICENSE OR PERMIT REQUIRED FOR SALE OF FIREWORKS--ADMINISTRATION--PERMITS AND LICENSES.--

A. No person may sell, hold for sale, import, distribute or offer for sale, as manufacturer, distributor, wholesaler or retailer, any fireworks in this state unless such person has first obtained the appropriate license or permit.

B. The state fire marshal shall enforce the Fireworks Licensing and Safety Act. All license applications shall be submitted to the [office of the] state fire marshal division of the energy, minerals and natural resources department. All retailers shall be required to purchase a retail fireworks permit for each retail location. The retail permit may be purchased from any licensed manufacturer, distributor or wholesaler or from the [state fire marshal's office] division. Retail permits may be purchased at any time by the licensed manufacturer, distributor or wholesaler in books of twenty permits per book from the [state fire marshal] division. Permits shall be numbered, and it [shall be] is the responsibility of the licensed manufacturer, distributor or wholesaler to keep records of the purchases of these permits and to submit these records to the [state fire marshal] division semi-annually on January 31 and July 31 of each year. Each semi-annual report is to cover the preceding six-month period. Retail permits that are unsold may be exchanged for new permits.

C. The state fire marshal shall appoint [the deputies and] employees required to carry out the provisions of the Fireworks Licensing and Safety Act. The state fire marshal may also appoint any commissioned law enforcement officer or duly appointed fire chief or his designee with approval from the local governing body required to carry out the provisions of that act.

D. The state fire [board] marshal division shall formulate, adopt, promulgate and amend or revise rules [and regulations] for the safe handling of fireworks."

Section 19. TEMPORARY PROVISION--TRANSFERS.--

A. On the effective date of this act, all personnel, appropriations, money, records, furniture, equipment, supplies and other property of the state fire marshal's office and the firefighter training academy of the public regulation commission are transferred to the state fire marshal division of the energy, minerals and natural resources department. Five full-time equivalent positions in the administrative services division of the public regulation commission are transferred to the energy, minerals and natural resources department.

B. On the effective date of this act, all existing contracts and other obligations of the state fire marshal's office and the firefighter training academy of the public regulation commission shall be binding on the state fire marshal division of the energy, minerals and natural resources department.

C. On the effective date of this act, statutory references to the state fire marshal or the state fire marshal bureau of the insurance division of the public regulation commission shall be deemed to be references to the state fire marshal or the state fire marshal division of the energy, minerals and natural resources department. Statutory references to the state fire board or the public regulation commission acting as the state fire board shall be deemed to be references to the secretary of energy, minerals and natural resources.

Section 20. APPROPRIATION.--One hundred twenty-one thousand nine hundred dollars ($121,900) is appropriated from the general fund to the energy, minerals and natural resources department for expenditure in fiscal year 2002 for information support needs of the state fire marshal division, including telecommunications, computer hardware and software, infrastructure and supplies. Any unexpended or unencumbered balance remaining at the end of fiscal year 2002 shall revert to the general fund.

Section 21. REPEAL.--Sections 59A-52-16 and 59A-52-17 NMSA 1978 (being Laws 1984, Chapter 127, Sections 962 and 963) are repealed.

Section 22. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2001.

- 17 -