(1)
Introduction.
Notwithstanding the provisions of M.G.L. c. 90C, 740 CMR
2.04 sets forth the
procedures for hearings for violations of 740 CMR
1.00et seq.
A person issued a notice of a violation of a provision of 740 CMR
1.00et seq. may make a written request for an appeal hearing
before a hearing officer as provided in 740 CMR
2.04.
(2)
Definitions.
Refer to all definitions included in M.G.L. c. 30A and in 740 CMR
1.00et seq. In addition, the following words when used in 740
CMR
2.04 shall have the following meaning.
Hearing shall mean an adjudicatory
proceeding held under 740 CMR 2.04.
Hearing Officer shall mean the
individual(s) authorized by law or designated by the Authority to conduct a
hearing. A violation clerk as defined in 740 CMR 1.00et seq.
may be designated a hearing officer.
Notice of Violation shall mean the
notice of the violation of a provision of 740 CMR 1.00.
Party shall mean any person who is the
subject of a notice of a violation of one or more provisions of 740 CMR
1.00et seq.
(3)
Representation.
(a)
Appearance. An
individual may appear on his or her own behalf, or may be accompanied,
represented and advised by an authorized representative.
(b)
Authorized
Representative. An Authorized Representative shall appear by
filing a written notice with the Authority or hearing officer signed by the
party represented, except the party's signature is not required when an
attorney at law is the authorized representative. The notice shall contain the
name, address, telephone number, facsimile number and e-mail address, if
available, of the authorized representative and of the party represented and
may limit the purpose of the appearance. The filing by an attorney of any
pleading, motion or other paper shall constitute an appearance by the attorney
who signs it unless the paper states otherwise. An authorized representative
may exercise on a party's behalf any rights and powers vested in that party by
740 CMR
2.04.
(4)
Time.
(a)
Timely Filing. Parties must file papers required or
permitted to be filed with the Authority at the office of the hearing officer
as identified on the notice of violation.
(b)
Manner of
Filing. All papers filed by U.S. mail shall be deemed filed on the
date contained in the U.S. postal cancellation stamp or U.S. postmark, and not
the date contained on a postal meter stamp. Papers filed by all other means
shall be considered hand-delivered, and shall be deemed filed on the date
received by the Authority prior to 5:00 P.M. Papers received after 5:00 P.M.
shall be deemed filed on the following business day.
(c)
Notice of Authority
Action. Notice of actions and other communications from the
Authority or its designated hearing officer, shall be presumed to be received
on the day of hand delivery or, if mailed, three days after deposit in the U.S.
mail. The postmark shall be evidence of the date of mailing.
(d)
Computation of
Time. Unless otherwise specifically provided by applicable law,
computation of any time period referred to in 740 CMR
1.00 shall begin with the
first day following the act which initiates the running of the time period. The
last day of the time period is included unless it is a Saturday, Sunday or
legal holiday or any other day on which the office of the Authority is closed,
when the period shall run until the end of the next following business
day.
(5)
Filing Format. Papers filed with the Authority shall
be titled with the identifying number of the violation notice, the name of the
party, the name of the authorized representative, if any, the signature of the
party or authorized representative and the address and telephone number of the
person signing the papers.
(6)
Initiation of Hearing. A party may request a hearing
by submitting a written request for a hearing in the specified form and within
the specified time period as provided on the applicable violation
notice.
(7)
Notice of
Hearing. If a party requests a hearing, the Authority shall
schedule a hearing to determine whether the Authority shall affirm or dismiss
the finding of violation or assessment of penalty. The hearing officer shall
give the party written notice of the time, date, place and purpose of the
hearing.
(8)
Failure to
Attend. If the party or an authorized representative fails to
attend the hearing as scheduled, the hearing officer may enter a default
against the party and dismiss the appeal, and the party shall have no further
right to appeal either the finding of violation or assessment of
penalty.
(9)
Rights and
Duties of Parties. Each party may present his or her own case, and
may be assisted by an authorized representative at the party's expense. The
party or authorized representative shall have a right to:
(a) present witnesses;
(b) present and establish all relevant facts
and circumstances by oral testimony and documentary evidence;
(c) advance any pertinent arguments without
undue interference;
(d) question or
refute any testimony including an opportunity to cross examine adverse
witnesses; and
(e) examine and
introduce evidence from his or her case record, and examine and introduce any
other pertinent documents.
(10)
Evidence. The
hearing officer shall admit and consider evidence in accordance with M.G.L. c.
30A, § 11.
(11)
Decision. After the completion of the hearing, the
hearing officer shall render a decision as promptly as administratively
feasible in accordance with M.G.L. c. 30A, § 11(8). The decision shall be
final. The party shall have the right to appeal the decision in accordance with
M.G.L. c. 30A, § 14.