(1) Any individual shall be permitted to appeal a decision of the AHJ to the Appeals Board when it is claimed that any one or more of the following conditions exist:
(a) The true intent of the fire prevention law(s) or regulation(s) under which a violation allegedly has occurred has been incorrectly interpreted.
(b) The provisions of the cited fire prevention law(s) or regulation(s) do not fully apply.
(c) A decision or order based upon provisions of fire prevention law(s) or ordinance(s) is unreasonable or arbitrary as it applies to alternatives or new materials.
(2) Appeals shall be submitted in writing to the authority having jurisdiction within 30 calendar days of notification of violation. A copy of the appeal shall be forwarded by the AHJ to the Secretary for the Board, and to the Kentucky State Fire Marshal.
(3) Any party requesting a hearing before the Board who fails to appear at the time and place set for such hearing shall be deemed to have waived the right to appeal, and the original order of the authority having jurisdiction shall be considered final and unappealable.
(B) Organization of the Board and Board meetings.
(1) The Board shall establish written rules and regulations for conduct of its business.
(2) The Board shall meet on an "as needed basis," upon notification that an appeal of an order issued under applicable state and/or local fire prevention laws or regulations has been filed, but must meet at least frequently enough to satisfy the following requirements:
(a) Meetings must occur within 30 days of the filing of notice of an appeal.
(b) At least five days' notice must be given for an impending hearing. Such notice must be hand-delivered to the appellant. If the appellant is not able to be located, such notice may be sent via certified mail, return receipt requested. Notice also shall be posted at the location of the authority having jurisdiction in a conspicuous place with public access.
(3) All meetings of the Board shall be open to the public, as set forth in the Kentucky Open Meetings Act.
(4) A quorum of the Board shall consist of four members.
(5) An affirmative vote of a majority of a quorum is necessary in order for the Board to take action. If a quorum is not present for any vote, then the matter may be continued, but official action must occur within 15 days of the original hearing, and no later than 45 days of the filing of the original appeal.
(6) The Board may choose to elect or appoint a Chair from among its members on an annual basis, or on a per-meeting basis. If a Chair is chosen for each meeting, the Board may decide at any time to change to election on an annual basis. The annual term shall run from the time of election until the last day of the twelfth month following the election.
(7) Minutes kept by the Secretary to the Board shall be maintained in a central location, designated by the Secretary of the Cabinet for Public Protection, and shall be open to the public, in accordance with the Kentucky Open Records and Open Meetings Acts, KRS 61.870 et seq.
(1) The Board shall hear testimony and accept evidence from the authority having jurisdiction, or other officer issuing the order being appealed, as well as any other parties in support of the order.
(2) The Board shall hear testimony and accept evidence from the appellant, as well as any other parties contesting the order.
(3) The Board shall hear testimony and accept evidence from any other interested party, including the Kentucky Fire Marshal.
(4) At the conclusion of the public hearing, the Board shall close the proceedings and deliberate in open session, issuing its decision at the conclusion of deliberation. Such decision shall be reduced to writing and submitted for Chair's signature within one business day.
(5) The written decision shall be sent by certified mail, return receipt requested, or by hand delivery, on the first business day following its issuance. A copy shall be sent via first-class mail to the AHJ and the State Fire Marshal, and shall be maintained with the meeting minutes.
(D) Conflicts of interest and due process concerns.
(1) No Board member shall sit in judgment on any case in which the member, personally, is directly interested. In such case, the Board member shall recuse himself or herself from the hearing room, and shall not be considered part of the quorum.
(2) Board members shall not discuss pending appeals with any of the parties, or their representatives, to the appeal outside of the scope of the hearing. If a Board member discovers that he or she has had an ex-parte conversation or exchange, this shall be disclosed at the hearing, and the Board shall determine whether the Board member in question should abstain from voting.
(E) Imposition of penalties. When the Board upholds an order of an authority having jurisdiction upon appeal, it may also uphold any fine issued; reduce such fine; or order a physical remedy in lieu of, or in addition to such fine, and may set forth a specific time period by which such remedy must occur.
(Lou. Metro Ord. No. 84-2004, approved 7-1-2004)
