ADVISORY

To: Head of Fire Departments
From: Stephen D. Coan, State Fire Marshal
Date: April 26, 1999
Re: Fines for Illegal Burning


In response to a question raised in regard to what fines are applicable for illegal burning and whether a fire department may recover costs for illegal burning or legal burning which burns out of control, DFS General Counsel offers the following opinion:

Chapter 48 section 13 governs the setting of open air fires, conditions and restrictions and penalties for violation.

Section 13 provides in summary that:

No person shall set, maintain or increase a fire in the open air at any time except by permission of the fire chief or forest warden of the city/town (in districts only by a forest warden).

Permission or permit may be oral or in writing containing; date granted and dates covered, name, address and conditions and restrictions.

Exemptions for adults (over 18) to light a reasonable fire cooking without permission, on sand, gravel or on tidewaters if fire is contained by rocks, metal, etc. (non-flammable material).

Penalties for violations of chapter 48 section 13 shall be not more than $500.00 plus the cost of suppression, imprisonment for more than one month or both.

Therefore, the head of the fire department may file a complaint in the district court alleging no permit or violation of the permit and seeking both files plus cost of suppression for illegal burning. The increased files (to $500.00 plus cost of suppression), were added by statute and made effective July 18, 1997. Both the amount of the fine as well as recoverable costs will be determined by the judge at trial.

Legal burning which burns out of control is probably not actionable unless there is a sufficient showing of negligence rising to criminal conduct which can be used to infer intent necessary for a finding of guilty.

Finally, all fires received under chapter 48 section 13 shall be expended by the forest warden, under direction of the selectman, for trimming brush, fire patrols or for preventing the spread of fire (see chapter 48 section 24).