[HISTORY: Adopted by the City Council of the City of Fitchburg 6-21-2022 by Ord. No. 192-2022. Amendments noted where applicable.]
Adoption of the provisions of Chapter 40U of the General Laws;
noncriminal disposition is hereby authorized for the violation of
any rule, regulation, order, ordinance or bylaw regulating the housing,
sanitary, or snow and ice removal requirement.
A.
MUNICIPAL HEARING OFFICER
UNPAID CHARGE
Definitions.
A person appointed by the appointing authority of a municipality
to conduct hearings of alleged Code violations pursuant to this chapter.
An unpaid fine incurred as a result of a violation of a rule,
regulation, order, ordinance or bylaw regulating the housing, sanitary
or municipal snow and ice removal requirement.
B.
Effective date. This chapter shall take effect in Fitchburg upon
its acceptance.
C.
Procedures for payment of municipal fines; power to revoke or rescind.
By adopting Chapter 40U, the City of Fitchburg adopts procedures for
the payment of the municipal fines provided in this Chapter 40U and
may revoke or rescind any such acceptance.
D.
Procedures for payment of fines determined by majority vote. The
adoption of procedures for the payment of certain municipal fines
under this chapter shall be by majority vote of the City Council.
E.
Sidewalk snow and ice removal. Fitchburg has adopted by ordinances contained in § 157-33 of Fitchburg Municipal Code that provide for the removal of snow and ice from sidewalks within such portions of the municipality as they consider expedient by the owner of land abutting such sidewalks.[1] Such ordinances and bylaws shall determine the time and
manner of removal and shall affix penalties, not exceeding $200, for
each such violation. Such ordinances and bylaws shall be specific
as to the width of the area to be cleared and the standards for clearance.
[1]
Editor's Note: So in original.
F.
Municipal Hearing Officer. The City of Fitchburg 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 Chapter 148A of the General Laws.
G.
Administrative disposition of noncriminal violations. The City of
Fitchburg 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, ordinance or bylaw 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 ticketing device and shall be prenumbered.
I.
Affixing of 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 notices and copies. Within three
business days after completion of each shift, the officer or inspector
shall give to his superior those copies of each notice of 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 be retained. The Municipal Hearing
Officer shall maintain a docket of all such notices to appear.
K.
Schedule of fines for violation. The City of Fitchburg has, by ordinance
or bylaw, established a schedule of fines for violations subject to
this chapter 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 this
chapter 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.
(1)
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.
(2)
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 penalties of perjury that the property owner did not receive the
notice of violation.
(3)
If
the fine remains unpaid after that 30 day period, additional penalties
and interest may be attached. Thereafter, any fine and additional
penalties and interest that may be attached and which remain unpaid
shall become an additional assessment on the property owner's
tax bill. Such amount and cost relative 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 violations
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 chapter and
without waiving judicial review as provided in MGL c. 30A, § 14,
challenge the validity of the violation notice and receive a 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 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 provided
by this chapter 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 or bylaw of the City of Fitchburg
alleged in a notice to appear, pursuant to violations issued by the
City of Fitchburg 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 the 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 notice of 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 Chapter 30A of
the General Laws. Rules for judicial proceedings shall not apply.
In conducting the hearing, the Municipal Hearing Officer 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
chapter 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 finding of responsibility shall be considered prima facie 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 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 that building, structure or premises pending the correction of
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 chapter shall be paid to the general fund of the municipality.
