HOUSE DOCKET, NO. 5177        FILED ON: 7/29/2010

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 4986

The Commonwealth of Massachusetts

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In the Year Two Thousand Ten

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An Act to the regulation of dogs in the City of Boston..

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.  As used in this act, the following words shall have the following meanings unless the context clearly requires otherwise:

“Dog law”, any provision of the Boston Municipal Code or General Laws relating to the regulation of dogs, a violation of which is punishable by a municipal fine, including, but not limited to, chapters 16-1.9 through 16.1.9F and 16.1.10A of the city of Boston Municipal Code and General Laws governing dogs found in sections 137 through 174D of chapter 140 that do not conflict with provisions of the Boston Municipal Code regulating dogs.

“Dog Officer”, the dog officer of the city of Boston as identified in chapter 14-5 and chapter 16-1.9C of the city of Boston Municipal Code or his designee.

“Hearing officer”, a person appointed by the mayor of Boston or his designee to conduct hearings of alleged code violations pursuant to this chapter.

SECTION 2. In addition to the types of municipal fines covered by the adoption of the provisions of chapter 40U of the General Laws, the city of Boston may adopt the provisions of chapter 40U of the General Laws for the payment of municipal fines for violations of dog laws. 

SECTION 3. The city of Boston may maintain or adopt procedures for the payment of municipal fines for violations of dog laws separate from those procedures described in said chapter 40U.   

SECTION 4. The city of Boston, pursuant to chapter 140 section 147A, a local-option statute accepted by the city in 1996, may pass ordinances related to the regulation of dogs, subject to exceptions enumerated in chapter 140 section 147A, and notwithstanding contrary provisions in sections 137 through 174D of chapter 140 of the General Laws, which are laws related to the regulation of dogs.  

SECTION 5. The mayor of Boston or his designee shall appoint a hearing officer. The officer shall hear appeals of violation notices issued within the city.

SECTION 6. The city of Boston may implement a system for the administrative disposition of noncriminal violations pursuant to section 21D of chapter 40.   

SECTION 7.  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 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 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 city.

If a fine remains unpaid for 21 days and no hearing has been requested, a letter shall be sent to the violator’s known address, or to the address of the owner of the dog as it may appear on the collar of such dog or as it may appear on the application for a license for such dog in the records of the police commissioner, 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.

  Thereafter, any fine and additional penalties and interest that may be attached and which remain unpaid shall become an additional assessment on the violator’s real property tax bill. Such amount and cost relative thereto may also be a lien upon such real estate as provided in section 42B of chapter 40. The city’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.  In the instance the violator pays no taxes on real estate to the city, the fine and additional penalties and interest that may be attached and which remain unpaid shall become an additional assessment to the violator’s motor vehicle excise tax.

SECTION 8. Any person notified to appear before the 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 section 14 of chapter 30A, challenge the validity of the violation notice and receive a review and disposition of the violation from the 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 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 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 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 hearing officer shall be final, subject to any hearing provisions provided by this chapter or to judicial review as provided in said section 14 of said chapter 30A.

SECTION 9. Notwithstanding section 21D of chapter 40, a person who desires to contest a violation of any dog law alleged in a notice to appear, pursuant to violations issued by the city in accordance with said section 21D of said chapter 40, shall request in writing a hearing before a hearing officer. The notice to appear shall be in the format specified in said section 21D of said chapter 40, except that the third copy of the notice shall be submitted to the hearing officer unless the ticket was produced by an automated ticketing device.

If the alleged violator requests a hearing before the hearing officer in a timely manner, the hearing officer shall schedule a hearing not later than 45 days after receiving the hearing request. The hearing officer shall duly notify the alleged violator of the date, time and location of the hearing. Hearings shall be held on at least 2 evenings each month. When a hearing notice is sent, the alleged violator shall be given an opportunity to request a rescheduled hearing date.

The 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. Rules for judicial proceedings shall not apply. In conducting the hearing, the hearing officer shall determine whether the violation occurred and whether it was committed by the person notified to appear.

SECTION 10. A person aggrieved by a decision of the hearing officer may appeal to the district court or other court of competent jurisdiction pursuant to section 21D of chapter 40, on a form provided by the  city, 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 hearing officer who conducted the hearing.

SECTION 11. 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 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.

SECTION 12. All fines, penalties or assessments collected pursuant to this chapter shall be deposited in and disbursed from a revolving fund in accordance with Boston Municipal Code chapter 16-1.9D to the extent permitted by the General Laws cited therein.

SECTION 13.  The dog officer and Boston police department of the city of Boston shall have the authority to promulgate rules and regulations necessary to implement and enforce this chapter.

SECTION 14. If any of the above sections are determined to be not constitutional under the law, the remainder of the provisions shall remain valid.

SECTION 15.  This act shall take effect upon its passage.