HOUSE DOCKET, NO. 4760        FILED ON: 1/26/2022

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 4434

The Commonwealth of Massachusetts

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PRESENTED BY:

Patricia A. Duffy

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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 relative to the use of recreation vehicles in the City of Holyoke.

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PETITION OF:

HOUSE DOCKET, NO. 4760        FILED ON: 1/26/2022

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 4434

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Second General Court
(2021-2022)

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An Act relative to the use of recreation vehicles in the City of Holyoke.

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  26B of Chapter  90B of the  General  Laws  or any other general or special law to the contrary, the state police and the Holyoke Police Department may impound any recreation vehicle or off-road vehicle as defined in section 20 of Chapter 90B used in the City of Holyoke by an owner or operator on any City-owned or City-controlled public way, sidewalk, park, playground, recreational area, public school property or any other property owned or controlled by the City until such time as a forfeiture hearing can be heard in the manner set forth in sections 2 and 3.

SECTION 2.  The following items shall be subject to forfeiture:

(a)any recreation vehicle or off-road vehicle as defined in section 20 of chapter 90B used or intended to be used  to violate section  26B of Chapter  90B  of the General Laws or used to facilitate a violation of said section 26B of said Chapter 90B in the City of Holyoke, but no forfeiture under this act shall extinguish a perfected security interest held by a creditor in a recreation or off­ highway vehicle at the time of filing of the forfeiture action; and

(b)    the following exemptions shall apply:

i.no recreation or off-highway vehicle used as a common    carrier in the transaction of business as a common carrier shall be subject to forfeiture, unless the owner or other person lawfully in charge of such recreation or off-highway vehicle consented to or participated or intended to participate in the violation or facilitation of a violation of section 26B of Chapter 90B of the General Laws;

ii.no recreation or off-highway vehicle used or intended to be used to violate said section 26B of said Chapter 90B or to facilitate a violation of said section 26B of said Chapter 90B shall be subject to forfeiture by reason of any act or omission established by the owner thereof to have been  committed or omitted by any person other than such owner while such recreation or off-highway vehicle was unlawfully in the possession of a person other than the owner in violation of the criminal laws of the United States, the Commonwealth, or any state; and

iii.no recreation or off-highway vehicle shall be subject to forfeiture unless the owner knew or should have known that such recreation or off-highway vehicle was used or intended to be used to violate or to facilitate a violation of said section 26B of said Chapter 90B;

iv.no recreation or off-highway vehicle shall be subject to    

crushing upon forfeiture if it is registered with the Director of division of law enforcement of the department of fisheries, wildlife, and environmental law enforcement as a vintage recreation or off-highway vehicle.

SECTION 3.  The Hampden County Superior Court shall have jurisdiction under any action brought pursuant to this act.

(a)the Holyoke Police Department will hold all impounded recreation or off-highway vehicles for 90 days, beginning the day of impoundment, to verify whether or not the vehicle is stolen. After the 90 days hold for verification, the City may petition the Superior Court in the name of the City in the nature of a proceeding in rem to order forfeiture of a recreation vehicle or off-highway vehicle. Such proceeding shall be deemed a civil suit. Any person claiming a right in the property subject to forfeiture shall have the right to claim a trial by jury, but if such right is not claimed, the right to trial by jury shall be waived. In all such suits where the property is claimed by any person other than the City, the City shall have the burden of proving the existence of probable cause to institute the action, and any such claimant shall then have the burden of proving that the property is not forfeitable pursuant to section 2 herein. The court shall order the City to give notice by certified mail to the owner of the recreation or off-highway vehicle and to other persons who appear to have an interest therein, and the court shall promptly hold a hearing on the petition. At such forfeiture hearing, the court shall hear evidence and, if no jury has been requested, make findings of fact and conclusions of law, and shall thereupon issue a final order, from which the parties shall have the right to appeal as is provided by law. In all such suits where a final order results in forfeiture, said final order shall provide for disposition of the recreation or off­ highway vehicle by the City in any manner not prohibited by law, including official use by an authorized law enforcement or other public agency; or by sale at a public auction or by competitive bidding; or by crushing of the recreation or off-highway vehicle. The proceeds of any such sale shall be used to pay the reasonable expenses of the forfeiture proceedings, seizure, storage, maintenance of custody, advertising and notice, and the balance thereof shall be deposited in the general fund of the City pursuant to section 53 of Chapter 44 of the General Laws and shall be appropriated to the police department.

SECTION 4.  Whoever violates section 25 of Chapter 90B of the General Laws in the City of Holyoke shall, in addition to forfeiture of the recreation or off­highway vehicle as set forth in section 3, also be punished by a fine of not less than $250 for a first violation and not less than $500 nor more than $2,500 for a second or subsequent violation.

SECTION 5.  All owners or operators of a recreation or off-highway vehicle used  or intended to be used to violate section 26B of said Chapter 90B shall be precluded from fueling such recreation or off-highway vehicles at any gas station located within Holyoke.

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