By Ms. Jehlen, a petition (accompanied by bill, Senate,
No. 2166) of Patricia D. Jehlen and Timothy J. Toomey, Jr.
(with approval of mayor and city council) for legislation
to create a municipal hearing officer to hear appeals of
violation notices issued in the city of Somerville in
accordance with G.L.C., 40 SS 21D. Municipalities and
Regional Government. {Local approval received.}
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Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1. Notwithstanding General Laws c. 40, §21D, a person who desires to contest a violation of any ordinance of the City of Somerville alleged in a notice to appear, pursuant to violations issued by the City in accordance with G.L. c. 40, §21D, shall request in writing a hearing before a municipal hearing officer, who shall be appointed by the Mayor, with the approval of the Board of Aldermen, to conduct requested hearings pursuant to this act. Said notice to appear shall be in the format required under G.L. c. 40, § 21D, except that the third copy of the notice shall be submitted to the municipal hearing officer. Said municipal hearing officer may be the same person appointed as municipal hearing officer pursuant to General Laws Chapter 148A.
SECTION 2. Where a notice of violation is for one or more code violations, the alleged violator shall return the notice of violation by mail, personally or by authorized person to the municipal hearing officer and shall, within 21 days, either: (1) pay in full the scheduled assessment by check, postal note or money order; or (2) request a hearing before the municipal hearing officer. Any amounts paid shall be payable to the City of Somerville. If the alleged violator requests, in a timely manner, a hearing before the municipal hearing officer, the municipal hearing officer shall schedule a hearing not later than 45 days after receiving such 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 occasions in the evening per month. When a hearing notice is sent, the alleged violator shall be given an opportunity to request a rescheduled hearing date. In no case shall the municipal hearing officer, so designated, be an employee or officer of the department associated with the issuance of the notice of violation.
The municipal hearing officer shall receive annual training in the conduct of administrative hearing procedure. The hearing and disposition shall be informal, and the formal rules of evidence shall not apply. In conducting the hearing, the hearing officer shall determine whether the violation occurred and that it was committed by the person so notified to appear.
SECTION 3. Any person aggrieved by a decision of the municipal hearing officer, after a hearing, may appeal to the district court pursuant to General Laws Chapter 40, §21D, on a form provided by the City, and shall be entitled to a de novo hearing before a clerk magistrate of the court. The district court shall consider such appeals under a civil, as opposed to a criminal, 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.
SECTION 4. Any person who has received a notice of violation issued in accordance with this procedure who, within the prescribed time, fails to pay the scheduled assessment or fails to exercise his right 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 violations as stated in the notice of violation and such finding of responsibility shall be considered prima facie evidence of a finding of responsibility for the violation in any civil proceeding regarding said violation and shall be admissible as evidence in a subsequent criminal proceeding. A person who fails to appear at the scheduled hearing without good cause shall have the appeal dismissed and shall waive any further right to appeal. If the condition which caused the notice of violation to issue continues to exist, the finding of responsibility may also be used by the City of Somerville as prima facie 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 said building, structure or premises pending the correction of the condition.
SECTION 5. All fines, penalties or assessments in actions under this chapter, shall be paid to the general fund of the City of Somerville
