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 New Rule Regarding Fire Investigations by State
Re: Division of State Fire Marshal, Administrative Rule 4A-61.001
Like many other agencies of state government, the State Fire Marshal has experienced increasing pressures on its limited resources for conducting investigations of fire incidents throughout the State of Florida. In many cases, the State Fire Marshal simply cannot commit the resources necessary to properly investigate a fire incident, especially where significant follow-up investigation is required into the circumstances surrounding the loss and the subjects of the investigation. In an attempt to address this concern, the State Fire Marshal has promulgated Rule 4A-61.001 with an effective date of August 13, 2003. This is a new Rule adopted under the Florida Administrative Code concerning the responsibilities of the State Fire Marshal and local fire officials/law enforcement officers in the investigation of fire incidents. This Rule was enacted to attempt to reduce the number of responses by the State Fire Marshal to fires which are accidental or have no clear indications of any criminal cause. It sets forth the conditions and circumstances under which the State Fire Marshal will respond to a fire incident. It requires the local fire department/law enforcement agency to conduct a preliminary fire cause investigation prior to contacting the State Fire Marshal to request their assistance in the investigation. Under Section (1)(a) PURPOSE it states that "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 the determination of whether probable cause exists to refer such scenes to the Division for an investigation pursuant to Section 633.03, Florida Statutes." It goes on to state "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." Section (1)(b) SCOPE notes that " . . . 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." It goes on to state "The purpose of the Bureau of Fire and Arson Investigations is to investigate crimes or criminal activity related to fires." The substantive portions of this new Rule begin with Section (3) CONDUCT OF INITIAL INVESTIGATION. Under Sub-section (3)(a) any fire department or fire official intending to request the State Fire Marshal to investigate a fire must first make an initial investigation into the circumstances surrounding the fire and its origin and cause. Law enforcement officials are permitted, but not required to do so. Under Section (3)(b) when a fire occurs in an area with no organized fire department or designated arson investigation unit, the local law enforcement agencies may directly request the Bureau of Fire and Arson Investigation to conduct the initial investigation. Section (4) FINDING OF PROBABLE CAUSE imposes a requirement of "probable cause" to believe that the fire was the result of carelessness (at the level of gross negligence or culpable negligence) or design (i.e., arson) in order to make a request for an investigation under Section 633.03 by the State Fire Marshal/Bureau of Fire and Arson Investigations. The facts and circumstances of the fire constituting probable cause must be submitted to the Bureau of Fire and Arson Investigation for their determination of whether probable cause exists and an investigator should be sent to the scene. Section (4)(b) mandates certain information to be contained in the report submitted to the Bureau of Fire and Arson Investigations. The report must contain the following:
Section (5) FINDING OF NO PROBABLE CAUSE states that when local fire officials or law enforcement officers determine there is no probable cause to believe the fire was the result of carelessness or design, did not involve injury or death of a firefighter and is otherwise not appropriate for investigation under the provisions of Section (10), there is no obligation to refer the matter to the Bureau and an investigation will never be opened by the Bureau. Section (6) CONSULTATIONS WITH THE BUREAU provides for verbal consultation with Bureau Investigators whenever a local fire official or law enforcement officer wishes to confer or consult about the fire to determine whether probable cause exists. It is specifically provided that this verbal consultation shall not remove the responsibility to conduct an initial investigation as set forth under Section (3). Section (7) RESPONSIBILITIES OF THE BUREAU details the process for reviewing the probable cause report from local fire officials or law enforcement officials. Section (7)(a) provides that where the Bureau agrees there is probable cause, or the fire is otherwise required to be investigated under the criteria of Sections (9) or (10), the Bureau must immediately initiate a complete investigation of the fire. If the investigation is not immediately begun, the Bureau must take appropriate action to preserve the scene and all evidence. Under Section (7)(b) the Bureau may reject the finding of probable cause by the local fire officials or law enforcement officials after reviewing their reports. Where there is no probable cause determined by the Bureau and the fire is not otherwise required to be investigated under Sections (9) or (10), the Bureau will not initiate an investigation. The requesting official must be notified verbally of this decision, and written notification of the decision with an explanation of the reason or reasons for determining probable cause does not exist, must be sent to the requesting official at the time the decision is made. Section (8) STANDARD PROCEDURES FOR INITIAL INVESTIGATIONS outlines the responsibilities of the Bureau for conducting an investigation. Section (8)(a) states that the Bureau will not perform the initial investigation to determine probable cause in any area where an organized fire department or law enforcement agency is available to conduct that investigation. Section (8)(b) states that the Bureau will conduct a probable cause investigation where there is no organized fire department or law enforcement agency available, but only after a request has been made verbally or in writing by the municipality, county or special district where the fire is located. Section (9) DEATH OR INJURY OF A FIREFIGHTER provides that any time a firefighter is injured and requires hospitalization or treatment by a physician at a medical facility (presumably, something more than treatment at the fire scene by an EMT) or whenever a firefighter is killed in the line of duty, the fire must immediately be reported to the Bureau and an investigation will be conducted. Section (10) PRESUMPTIONS FOR PURPOSES OF BUREAU INVESTIGATIONS sets forth certain circumstances under which an investigation will always be conducted by the Bureau regardless of other factors. Those include fires where:
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