A communication transmitted from Louis A. DePasquale, City Manager, relative to Awaiting Report Item Number 20-22, regarding a report on working with the Inspectional Services Department to increase the fines for absentee property owners who continue to have violations stemming from rodent infestation

Nancy E. Glowa Assistant City Solicitors Paul S. Kawai City Solicitor ANTIQV INSTIVIS Keplin K. U. Allwaters ATERIS Arthur J. Goldberg Sean M. McKendry Deputy City Solicitor Megan B. Bayer Brian A. Schwartz Samuel A. Aylesworth Katherine Sarmini Hoffman First Assistant City Solicitor Public Records Access Officer Seah Levy CITY OF CAMBRIDGE Office of the City Solicitor 795 Massachusetts Avenue Cambridge, Massachusetts 02139 October 26, 2020 Louis A. DePasquale City Manager Cambridge City Hall 795 Massachusetts Avenue Cambridge, MA 02139 Re: Response to Awaiting Report No. 20-22 of 3/16/20 Re: Report on Working with the Inspectional Services Department to Increase the Fines for Absentee Property Owners Who Continue to have Violations Stemming from Rodent Infestations. Dear Mr. DePasquale: We have prepared this memorandum in response to the above-referenced Awaiting Report No. 20-22, Council Order No. O-4 of 3/1620 (the "Council Order"). The Council Order requests the City Manager to confer with the Inspectional Services Department ("ISD") to increase fines to absentee landlords "who continue to have violations stemming [from] rodent infestations." In speaking with Inspectional Services Commissioner Ranjit Singanayagam (the "Commissioner"), ISD currently assesses a fine of $300 to property owners who violate ISD orders related to rodent infestations. As will be discussed below, it is my opinion that the Commissioner has the authority to assess fines for such violations in the maximum amount of $500. The State Sanitary Code ("Sanitary Code" or "Code") contains the applicable regulations with respect to the enforcement of local rodent infestation issues. Singanayagam, as Commissioner, is the local enforcement authority for the City with respect to the Code. G.L. c. 111, § 127A; City Code, Sec. 2.44.020. The Sanitary Code provides that, "[u]nless otherwise expressly provided in any article of the [Code]," a local enforcement authority may enforce the Code "by fine in accordance with 105 CMR 400.700." 105 CMR 400.200. 105 CMR 400.700(B) states: "Any person who shall fail to comply with any order issued pursuant to the provisions of the State Sanitary Code shall upon conviction be fined not less than ten nor more than $500. Each day's failure to comply with an order shall constitute a separate violation." (Emphasis added). Facsimile [phone removed] Telephone [phone removed] TTY/TTD [phone removed]

Under the Code, the owner "of a dwelling containing two or more dwelling units" is required to maintain said dwelling and premises so that they are free from rodents. 105 CMR 410.550(B). The failure of a property owner to maintain such a building so that it is free of rodents therefore constitutes a violation of the Sanitary Code. 105 CMR 410.010; 105 CMR 410.550(B); local enforcement authority requiring the correction of such a violation within a specified time period, the local enforcement authority may issue a fine to the owner of not less than $10 but no more than $500. 105 CMR 400.700; 104 CMR 410.830(A)(11) and (B); 105 CMR 410.850(A); 105 CMR 410.854; 105 CMR 410.910. Accordingly, although ISD currently assesses a $300 fine to property owners for violations of the Sanitary Code related to rodent infestations, Commissioner Singanayagam has the authority to issue fines up to $500 for such violations. Additionally, Commissioner Singanayagam also pursues criminal actions in Cambridge District Court against property owners who fail to comply with corrective orders issued by ISD for violations of the Sanitary Code that arise out of rodent infestations. It should be noted that while ISD has the authority to promulgate local sanitary regulations that are stricter than what is provided in the Sanitary Code, G.L. c. 111, § 127A; 105 CMR 400.015, such regulations cannot conflict with the Code. G.L. c. 111, § 127A. Thus, if ISD were to promulgate regulations that allowed for the assessment of fines against property owners for rodent infestation violations in amounts higher than what is explicitly provided in the Sanitary Code (i.e., higher than $500), it is my opinion that any such regulation would conflict with the Code and would thus likely be invalidated by a court. See Easthampton Sav. Bank v. City of Springfield, 470 Mass. 284, 294-96 (2014) (holding ordinance conflicted with Sanitary Code where ordinance placed heavier burden on property owner to ensure compliance with the Code than what is provided in the Code's provisions). Despite this, and as noted above, the provisions of the Sanitary Code allowing for the assessment of fines for the failure to follow an order requiring the correction of a violation provide that each day's failure to comply with such an order constitutes a separate violation. 105 CMR 400.700(B). Thus, although ISD does not have the power to assess fines above $500 for Sanitary Code violations related to rodent infestations, the fines assessed to a property owner can become substantial over time if that owner fails to address such a violation within the time period provided in a corrective order and takes a long time thereafter to take necessary corrective measures. Enfront. of St. Sntry. and Bldg. Codes, § 5.3.7 (MCLE 2020). Very truly yours, Nancy E. Glowa City Solicitor 2