SENATE DOCKET, NO. 1262        FILED ON: 1/18/2013

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 970

The Commonwealth of Massachusetts

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PRESENTED BY:

Michael F. Rush

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act to promote worksite safety and restoration of local roads.

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PETITION OF:

SENATE DOCKET, NO. 1262        FILED ON: 1/18/2013

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 970

The Commonwealth of Massachusetts

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In the Year Two Thousand Thirteen

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An Act to promote worksite safety and restoration of local roads.

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. Chapter 40 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by inserting after section 21D the following section:-

Section 21D1/2. (a) When any city or town, or board, commission, or officer thereof having control of the public ways, adopts ordinances, bylaws, rules, or regulations establishing safety standards or standards for the proper restoration of public ways to be followed by persons permitted to open or dig up a public way, such city or town may by ordinance or by-law not inconsistent with this section provide for the non-criminal disposition of violations of any such ordinance, by-law, rule, or regulation.  A city or town may fix fines as penalties for violations of such ordinances, bylaws, rules or regulations.  Such fines may not exceed three-hundred dollars for the first five documented violations by any person or entity in a calendar year, may not exceed five-hundred dollars for the sixth- through- tenth documented violations by any person or entity in a calendar year, and may not exceed one-thousand dollars for the eleventh or any subsequent documented violation by any person or entity in a calendar year.  For purposes of this paragraph, each day that a violation of a local ordinance, bylaw, rule or regulation persists can constitute a separate violation.

Any such ordinance or by-law may provide that the non-criminal enforcement and disposition of any violation of an ordinance, by-law, rule or regulation establishing safety standards or standards for the proper restoration of public ways to be followed by persons permitted to open or dig up a public way shall be pursuant to section 21D of chapter 40 of the General Laws.  Alternatively, an ordinance or by-law may provide for the administrative disposition of non-criminal violations of ordinances, by-laws, rules or regulations establishing safety standards or standards for the proper restoration of public ways pursuant to subsections (b) through (k).

(b) The body, board, commission, or officer having responsibility for the maintenance and construction of public ways in a municipality shall appoint a hearing officer. The hearing officer shall hear appeals of violation notices issued within the municipality for violations of any ordinance, bylaw, rule, or regulation establishing safety standards or standards for the proper restoration of public ways to be followed by persons permitted to open or dig up a public way. The hearing officer may be a member or employee of the body, board, commission, or officer having control of the maintenance and construction of public ways, and the hearing officer’s other duties may include participation in the formation of safety standards or standards for the proper restoration of public ways to be followed by persons permitted to open or dig up a public way.  However, the hearing officer shall not be involved in the issuance of individual permits to open or dig up the public way, or the inspection of compliance with safety or restoration standards imposed on persons permitted to open or dig up the public way.  Under no circumstances shall the hearing officer participate in any way in the decision to issue a notice of violation that will be subject to a hearing under this section.

(c) Every officer and inspector empowered to enforce violations of ordinances, bylaws, rules, or regulations establishing safety standards or standards for the proper restoration of public ways to be followed by persons permitted to open or dig up a public way who takes notice of a violation of such, shall provide the offender with a notice forthwith, which shall be in the form of a written notice of violation, to appear before the hearing officer or the hearing officer’s designee during regular office hours, not later than 21 days after the date of such violation. All notices of violation shall be prepared in triplicate or by the use of an automated ticketing device and shall be pre-numbered.

(d) The notice of violation shall be presented to the person in charge of any permitted worksite, if present, 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 notice of violation.  If there is no representative or employee of the permit holder present at the site when the officer or inspector takes notice of the violation, he shall deliver the notice of violation to the body, board, commission, or officer having responsibility for the maintenance and construction of public ways within the time specified in subsection (e), who shall, not later than the end of the next business day after receipt of the notice, mail the notice of violation to the person or entity permitted to work at the site where the violation was discovered.

(e) Within 3 business days after completion of each shift, the officer or inspector shall give to the body, board, commission, or officer having responsibility for the maintenance and construction of public ways those copies of each notice of a violation issued during such shift.  The body, board, commission, or officer having responsibility for the maintenance and construction of public ways shall retain and preserve 1 copy and shall, not later than the end of the next business day after receipt of the notice, deliver another copy to the 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.  Within 5 business days of receiving the notice of violation, the body, board, commission, or officer having responsibility for the maintenance and construction of public ways in a municipality shall determine whether the violation is subject to an escalated fine as a subsequent documented violation under the city or town ordinance or bylaw as authorized by subsection (a) of this section.  If so, within 6 business days of receiving the notice, it shall deliver an amended copy of the notice reflecting the increased fine to the hearing officer and shall mail the amended notice reflecting the increased fine to the person or entity permitted to work at the site where the violation was discovered.  For purposes of making this determination, a documented violation shall include all noticed violations, whether or not under appeal, that have not been dismissed by the hearing officer or a court.  In the event that a notice of violation that is treated as a documented violation that increases a subsequent fine actually paid by any person is subsequently dismissed by a hearing officer or court, that person shall be entitled to a refund from the city or town, which he is entitled, but not required to receive in the form of a deduction from the fee to be paid for any subsequent permit to open or dig up a public way.            

(f) The municipality shall, by ordinance or by-law, establish a schedule of fines for violations of ordinances, bylaws, rules, or regulations establishing safety standards or standards for the proper restoration of public ways to be followed by persons permitted to open or dig up a public way, subject to the limitations imposed in subsection (a).

(g) Where a notice of violation is issued for a violation of an ordinance, bylaw, rule, or regulation establishing safety standards or standards for the proper restoration of public ways to be followed by persons permitted to open or dig up a public way, 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 municipality. If a fine remains unpaid for 21 days and no hearing has been requested, a letter shall be sent to the person or entity permitted to work at the site where the violation was discovered, 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 person or entity permitted to work at the site where the violation was discovered requests a hearing before the hearing officer and swears in writing under the pains and penalties of perjury that the person or entity did not receive the notice of violation.  Thereafter, any fine which remains unpaid may be added to the fee that may be charged by the city or town for any permit to open or dig up a public way that the person or entity applies for on or after the expiration of the 30 day period.

(h) 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 subsection (j), 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 municipal hearing officer for review shall have attached; the person’s name and complete address as well as the notice of violation 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. 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 allowing for judicial review.  If the outcome of the hearing is against the alleged violator, the hearing officer shall explain the reasons for the outcome on the notice.  If the outcome of the hearing is against the alleged violator, and he does not appeal to a court pursuant to subsection (j), the person or entity that received the violation must pay the fine within 21 days of being given notice of the decision.  Thereafter, unless an appeal is filed pursuant to subsection (j), any fine which remains unpaid may be added to the fee that may be charged by the city or town for any permit to open or dig up a public way that the person or entity applies for on or after the expiration of the 21 day period.

(i) If the alleged violator requests a hearing before the municipal 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. When a hearing notice is sent, the alleged violator shall be given an opportunity to request a rescheduled hearing date.  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.  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 or entity notified to appear.  If the outcome of the hearing is against the alleged violator, and he does not appeal to a court pursuant to subsection (j), the person or entity that received the violation must pay the fine within 21 days of being given notice of the decision.  Thereafter, unless an appeal is filed, any fine which remains unpaid may be added to the fee that may be charged by the city or town for any permit to open or dig up a public way that the person or entity applies for on or after the expiration of the 21 day period. 

(j) A person aggrieved by a decision of the hearing officer may appeal to the district court for the jurisdiction where the alleged offense occurred, or the Boston Municipal Court for offenses alleged to have occurred in Boston, 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 hearing officer who conducted the hearing.  If the outcome of the court proceeding is against the alleged violator, the person or entity that received the violation must pay the fine within 21 days of being given notice of the decision.  Thereafter, any fine which remains unpaid may be added to the fee that may be charged by the city or town for any permit to open or dig up a public way that the person or entity applies for on or after the expiration of the 21 day period.  

(k) All fines, penalties or assessments in actions under this section shall be paid to the general fund of the municipality.

SECTION 2. Section 70 of Chapter 164 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by striking out the last sentence and inserting in place thereof the following sentence:-

A gas company will be subject to any local ordinances, bylaws, or regulations concerning the digging up, opening, and repair of streets, lanes and highways except to the extent that any such local ordinance, bylaw, or regulation requires the party opening the street, lane or highway to repair it to any standard better than as good repair as it was in when opened.

SECTION 3. Section 76 of Chapter 164 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by inserting, after the last sentence, the following paragraph:-

The department’s power of general supervision shall not preempt or replace local laws or regulations concerning local traffic and site safety measures and standards for proper restoration of a roadway owned by a municipality to be followed by persons permitted to open or dig up a public way, provided that such local rules: (i) are established by local ordinances, bylaws, rules, or regulations and imposed as a condition of all permits to dig up or open public ways in said municipality; (ii) apply to all persons receiving a permit to open or dig up public ways, including any contractor working for the municipality.