[Amended 9-26-1995 by Ord. No. 1995-37; 5-13-1997 by Ord. No.
1997-9; 9-9-1997 by Ord. No. 1997-23; 5-26-1998 by Ord. No.
1998-15; 12-17-1999 by Ord. No. 1999-28; 5-20-2005 by Ord. No.
2005-8; 2-26-2008 by Ord. No. 2008-3]
In accordance with the provisions of MGL c. 40, § 21D,
noncriminal disposition is hereby authorized for the violation of
any and all City ordinances as are contained in the Code of the City
of Fall River, Massachusetts, as amended.
[Amended 9-26-1995 by Ord. No. 1995-37; 5-13-1997 by Ord. No.
1997-9; 9-9-1997 by Ord. No. 1997-23; 5-26-1998 by Ord. No.
1998-15; 2-26-2008 by Ord. No. 2008-3; 10-10-2017 by Ord. No. 2017-23[2]]
A.
MUNICIPAL HEARING OFFICER
UNPAID CHARGE
Definitions.
As used in this section, the following terms shall have the meanings
indicated:
A person appointed by the appointing authority of a municipality
to conduct hearings of alleged code violations pursuant to this section.
An unpaid fine increased as a result of a violation of a
rule, regulation, order or bylaw regulating the housing, sanitary
or municipal snow and ice removal requirement.
C.
Procedures
for payment of municipal fines; power to revoke or rescind. A municipality
that adopts MGL c. 40U shall, in the manner provided in MGL c. 40U,
adopt procedures for the payment of the municipal fines provided in
MGL c. 40U and may revoke or rescind any such acceptance.
D.
Procedures
for payment of fines determined by a majority vote. The adoption of
procedures for the payment of certain municipal fines under MGL c.
40U shall be by majority vote of the City Council.
E.
Sidewalk
snow and ice removal; penalties for noncompliance; standards for clearance.
A municipality shall by ordinance provide for the removal of snow
and ice from sidewalks within such portions of the municipality as
it considers expedient by the owner of land abutting such sidewalks.
Such ordinances shall determine the time and manner of removal and
shall affix penalties, not exceeding $200, for each such violation.
Such ordinances shall be specific as to the width of the area to be
cleared and standards for clearance.
F.
Municipal
hearing officer. A municipality shall appoint a municipal hearing
officer. The officer shall hear appeals of violation notices issued
within the municipality. The municipal hearing officer may be the
same person appointed as a municipal hearing officer pursuant to MGL
c. 148A.
G.
Administrative
disposition of noncriminal violations. A municipality may implement
a system for the administrative disposition of noncriminal violations
pursuant to MGL c. 40, § 21D.
H.
Violation
notices. Every officer and inspector who takes notice of a violation
of a rule, regulation, order, or ordinance regulating the housing,
sanitary or snow and ice removal requirement shall provide the offender
with a notice forthwith, which shall be in tag form, to appear before
the municipal hearing officer or the hearing officer's designee during
regular office hours, not later than 21 days after the date of such
violation. All tags shall be prepared in triplicate or by the use
of an automated device and shall be pre-numbered.
I.
Affixing
of violation tags. The tag shall be affixed securely to the building
or, for a building with an on-site professionally managed property
office, delivered to the office during normal business hours and shall
contain, but shall not be limited to: the date, time and place of
the violation, the specific violation charged, the name and badge
number of the officer or inspector and his division, a schedule of
payment for established fines and instructions for return of the tag.
J.
Retention
and delivery of violation notice copies. Within three business days
after completion of each shift, the officer or inspector shall give
to his superior those copies of each notice or a violation issued
during such shift. The superior shall retain and preserve one copy
and shall, not later than the beginning of the next business day after
receipt of the notice, deliver another copy to the municipal hearing
officer before whom the offender has been notified to appear, unless
the ticket was produced by an automated ticketing device, in which
case no duplicate copies need to be retained. The municipal hearing
officer shall maintain a docket of all such notices to appear.
K.
Schedule
of fines for violation. The municipality shall, by ordinance, establish
a schedule of fines for violations subject to MGL c. 40U committed
within the municipality; provided, however, that all such fines shall
be uniform for the same offense committed in the same zone or district,
if any. A fine established under MGL c. 40U shall not exceed the maximum
allowable amount under the relevant sections of the housing or sanitary
code or municipal snow and ice removal requirement, excluding late
fees.
L.
Return
of notice of violation; payment; request for hearing; additional charges
for nonpayment. Where a notice of violation is issued for a code violation,
the alleged violator, within 21 days, shall return the notice of violation
by mail, personally or by an authorized person, to the municipal hearing
officer and shall either: 1) pay in full the scheduled fine by check,
postal note, money order or other legal tender; or 2) request a hearing
before the municipal hearing officer. Each violation issued shall
contain a statement explaining the procedure to adjudicate the violation
by mail. Any amounts paid shall be payable to the municipality. If
a fine remains unpaid for 21 days and no hearing has been requested,
a letter shall be sent to the property owner of record's mailing address
and, if appropriate to the local individual or property management
company responsible for the maintenance of the property, with a processing
fee of not more than $10, notifying him that the fine shall be paid
within 30 days after receipt of that notice unless within 14 days
of receiving that notice the property owner requests a hearing before
the municipal hearing officer and swears in writing under the pains
and penalty of perjury that the property owner did not receive the
notice of violation. If the fine remains unpaid after the thirty-day
period, additional penalties and interest may be attached. Thereafter,
any fine and additional penalties thereto may also be a lien upon
such real estate as provided in MGL c. 40, § 42B. A municipality's
determination of whether to place a lien on the property may involve
the number of and the dollar amount of the violation on the property.
The property owner of record shall be notified by certified mail of
the lien on the property. No lien shall be removed without notice
from the Tax Collector that all such matters have been disposed of
in accordance with law. Additional charges equal to the amount required
to file the lien and the amount required to release the lien shall
be assessed against the owner of record for the purpose of ensuring
that all costs associated with filing and release are recovered.
M.
Challenge
to validity of violation notice. Any person notified to appear before
the municipal hearing officer, as provided herein, may, without waiving
the right to a hearing provided by this section and without waiving
judicial review as provided in MGL c. 30A, § 14, challenge
the validity of the violation notice and review and disposition of
the violation from the municipal hearing officer by mail. The alleged
violator may, upon receipt of the notice to appear, send a signed
statement of objections to the violation notice as well as signed
statements from witnesses, police officers, government officials and
other relevant parties. Photographs, diagrams, maps and other documents
may also be sent with the statements. Any statements or materials
sent to the municipal hearing officer for review shall have attached
the person's name and complete address as well as the ticket number
and the date of the violation. The municipal hearing officer shall,
within 21 days after the receipt of such material, review the material
and dismiss or uphold the violation and notify the alleged violator
by mail of the disposition of the hearing. If the outcome of the hearing
is against the alleged violator, the municipal hearing officer shall
explain the reasons for the outcome on the notice. Such review and
disposition conducted by mail shall be informal, the rules of evidence
shall not apply and the decision of the municipal hearing officer
shall be final, subject to any hearing provisions by this section
or to judicial review as provided in said MGL c. 30A, § 14.
N.
Written
request for hearing; time and location of hearing.
(1)
Notwithstanding
MGL c. 40, § 21D, a person who desires to contest a violation
of any ordinance of a municipality alleged in a notice to appear,
pursuant to violations issued by a municipality in accordance with
said MGL c. 40, § 21D, shall request in writing a hearing
before a municipal hearing officer. The notice to appear shall be
in format specified in said MGL c. 40, § 21D, except that
the third copy of the notice shall be submitted to the municipal hearing
officer unless the ticket was produced by an automated ticketing device.
(2)
If
the alleged violator requests a hearing before the municipal hearing
officer in a timely manner, the municipal hearing officer shall schedule
a hearing not later than 45 days after receiving the hearing request.
The municipal hearing officer shall duly notify the alleged violator
of the date, time and location of the hearing. Hearings shall be held
on at least two evenings each month. When a hearing notice is sent,
the alleged violator shall be given an opportunity to request a rescheduled
hearing date. The municipal hearing officer so designated shall not
be an employee or officer of the department associated with the issuance
of the violation.
(3)
The
municipal hearing officer shall receive annual training in the conduct
of administrative hearings. The hearing and disposition shall be informal
and shall follow the rules set forth in MGL c. 30A. Rules for judicial
proceedings shall not apply. In conducting the hearing, the municipal
hearing office shall determine whether the violation occurred and
whether it was committed by the person notified to appear.
O.
Appeal
of decision of municipal hearing officer. A person aggrieved by a
decision of the municipal hearing officer may appeal to the district
court, housing court or other court of competent jurisdiction pursuant
to MGL c. 40, § 21D, on a form provided by the municipality,
and shall be entitled to a de novo hearing before a clerk magistrate
of the court. The court shall consider such appeals under a civil
standard. The aggrieved person shall file the appeal within 10 days
after receiving notice of the decision from the municipal hearing
officer who conducted the hearing.
P.
Effect
of failure to pay, request hearing or appear. Any person who has received
a notice of violation issued in accordance with this section who,
within the prescribed time, fails to pay the same or fails to request
a hearing before the municipal hearing officer or who fails to appear
at the time and place of the hearing, shall be deemed responsible
for the violation as stated in the notice of violation. Such findings
of responsibility shall be considered prima facia evidence of the
violation in a civil proceeding regarding that violation and shall
be admissible as evidence in a subsequent criminal proceeding. If
a person fails to appear at the scheduled hearing without good cause,
the appeal shall be dismissed and the violator shall waive any further
right of appeal. If the condition which caused the notice of violation
to issue continues to exist, the finding of responsibility may also
be used by a municipality as prima facia evidence of the existence
of a violation in any proceeding to suspend or revoke any license,
permit or certificate issued by such municipality relative to that
building, structure or premises pending the correct or the condition.
Q.
Payment
of fines, penalties or assessments to the general fund of the municipality.
All fines, penalties or assessments in actions under this section
shall be paid to the general fund of the municipality.
R.
Local
ordinances superseded. In a municipality that has accepted MGL c.
40U, said statute shall supersede any local ordinances to the contrary.
[Amended 9-26-1995 by Ord. No. 1995-37; 5-13-1997 by Ord. No.
1997-9; 9-9-1997 by Ord. No. 1997-23; 5-26-1998 by Ord. No.
1998-15; 2-26-2008 by Ord. No. 2008-3]
All of the procedures set forth in MGL c. 40, § 21D
shall apply to the noncriminal disposition of ordinance violations
under this article.
[Amended 2-26-2008 by Ord. No. 2008-3]
This article, however, shall not apply to violations of municipal
traffic ordinances, rules or regulations which are otherwise enforced
pursuant to MGL c. 90C.
[Amended 9-26-1995 by Ord. No. 1995-37; 5-13-1997 by Ord. No.
1997-9; 9-9-1997 by Ord. No. 1997-23; 5-26-1998 by Ord. No.
1998-15; 12-17-1999 by Ord. No. 1999-28; 5-20-2005 by Ord. No.
2005-8; 2-27-2007 by Ord. No. 2007-4; 2-26-2008 by Ord. No.
2008-3]
Unless otherwise provided by law, any person who violates a City ordinance pursuant to § 2-1021 and who has been given notice pursuant to § 2-1022 shall be subject to a penalty of $100 for the first violation, $200 for the second violation, and $300 for each subsequent violation. Each day a violation continues shall constitute a separate offense. This section shall not preclude the City from proceedings to restrain the violation of any ordinance of the City by injunction where such proceeding is more appropriate.
