HOUSE DOCKET, NO. 3825        FILED ON: 1/16/2009

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 4116

The Commonwealth of Massachusetts

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In the Year Two Thousand Nine

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An Act Establishing the Position of Municipal Hearing Officer in the Town of Southbridge..

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 section 21D of chapter 40 of the General Laws, a person who desires to contest a violation of any ordinance of the town of Southbridge alleged in a notice to appear, pursuant to violations issued by the town in accordance with said section 21D of said chapter 40 shall request, in writing, a hearing before a municipal hearing officer, who shall be appointed by the town manager, with the approval of the town council, to conduct requested hearings pursuant to this act.  The notice to appear shall be in the format required under said section 21D of said chapter 40, except that the third copy of the notice shall be submitted to the municipal hearing officer.  The municipal hearing officer may be the same person appointed as municipal hearing officer pursuant to chapter 148A of the General Laws.SECTION 2.  Where a notice to appear is for 1 or more code violations, the person notified to appear shall return the notice of violation by mail, personally or by an authorized person to the municipal hearing officer and shall, within 21 days, either: (a) pay, in full, the scheduled assessment by check, postal note or money order; or (b) request a hearing before the municipal hearing officer.  Any amounts paid shall be payable to the town of Southbridge.  If the person notified to appear 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 the hearing request.  The municipal hearing officer shall send a hearing notice to duly notify the person notified to appear of the date, time and location of the hearing.  Hearings shall be held at least twice each month, in the evening.  When a hearing notice is sent, the person notified to appear 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.  The municipal hearing officer shall receive annual training in the conduct of administrative hearing procedure.  The hearings and dispositions by the municipal hearing officer shall be informal and the formal rules of evidence shall not apply.  In conducting the hearings, the municipal hearing officer shall find whether the violation occurred and whether 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 section 21D of chapter 40 of the General Laws, on a form provided by the town, 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 to appear issued in accordance with this procedure who, within the prescribed time: fails to pay the scheduled assessment; fails to request a hearing before the municipal hearing officer; or fails to appear at the time and place of the hearing shall be found responsible for the violations as stated in the notice to appear 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 to appear to issue continues to exist, the finding of responsibility may also be used by the town of Southbridge as prima facie evidence of the existence of a violation in any proceeding to suspend or revoke any license, permit or certificate issued by the town relative to the building, structure or premises pending the correction of the condition.SECTION 5.  All fines, penalties or assessments in actions under this act, shall be paid to the general fund of the town of Southbridge.

SECTION 6.  This act shall take effect upon its passage.