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