Code of Massachusetts Regulations › 520 CMR - DEPARTMENT OF PUBLIC SAFETY › Title 520 CMR 16.00 - Enforcement of Civil Fines for Expired Elevator Certificates › Section 16.03 - Appeals

Current through Register 1525, July 5, 2024
(1)
Purpose and Scope
. 520 CMR 16.03 establishes procedures and standards for the appeal of all fines assessed pursuant to 520 CMR 16.00, including administrative review and requests for hearings.
(2)
Initial Request for Administrative Review
. A person aggrieved by the issuance of a fine may make written demand upon the Commissioner for an administrative review by the Commissioner or his or her designee on forms approved by the Department. The request for review must fully state and support the reasons why a waiver or reduction of a fine is warranted, including specific reference to all relevant factors under 520 CMR 16.03(6) and any and all supporting documentation. The Commissioner or his or her designee shall conduct an administrative review, based solely on the evidence presented within the written request and Department records, and shall issue a written decision.
(3)
Request for Hearing
. An appellant may request a hearing within 30 days upon receipt of the decision after administrative review if the requested relief was denied in whole or in part. Upon receipt of a valid request, the Department shall schedule and conduct a hearing and shall issue a written decision thereon.
(4)
Fees
. The Commissioner may assess a fee for an appeal filed under 520 CMR 16.03, to be determined by the secretary of administration and finance under M.G.L. c. 7, § 3B.
(5)
Waiver of Appeal
. The failure to file an appeal requesting administrative review within 30 days of receipt of the notice of violation constitutes a waiver of the right to appeal, and all fines set forth in the notice shall be imposed. The payment of a fine constitutes a waiver of the right to appeal.
(6)
Waiver or Reduction of Fines
. The Commissioner or the Commissioner's designee may waive all or a portion of the $100 per day fine assessed for operating an elevator after the expiration of its certificate in violation of M.G.L. c. 143, § 65. In determining whether to waive all or a portion of the fine, the Department may consider the following factors:
(a) Willfulness or lack thereof;
(b) Previous violations of 520 CMR 16.02;
(c)
Clerical Errors
. Substantial evidence of a clerical error shall include, but not be limited to, inadvertent errors on the application for annual inspection;
(d)
Inaccurate Assessment
. Substantial evidence of an inaccurate assessment shall be limited to evidence that a fine was issued in excess of or contrary to statutory authority or regulation, or based on incorrect information;
(e)
Lack of Prior Use
. Substantial evidence of lack of prior use shall include proof that the unit was not capable of being operated during the period for which the fine was assessed;
(f)
De minimis
Risk of Injury to Public
. Substantial evidence of a
de minimis
risk of injury shall include proof that members of the public were incapable of accessing the elevator for the entire period of operation without a valid certificate. Per 520 CMR 16.02(2), an elevator is deemed operational unless it has been placed out of service or decommissioned in accordance with a procedure approved by the Board;
(g)
Financial Hardship
. For all elevator owners, including individuals and corporate entities, organizations, municipalities, religious institutions, or other entities, demonstrated financial hardship shall mean financial difficulty paying the fine as determined by the Commissioner or his or her designee based on substantial evidence provided by the owner or his or her representative. Upon a finding of severe financial hardship, the Commissioner or the Commissioner's designee shall waive the fine; and
(h)
Other Factors
. Any reason for appeal or relief from the imposed fine other than those in 520 CMR 16.03(6)(a) through (g), supported by substantial evidence.