ALJDEC

00-10227-CPP · Department of Administration - Capitol Police Parking · 2000-08-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 11, 2000 APPEARANCES: Maria E. Guerra-Yerez(“Appellant”) appeared on her own behalf and the State of Arizona Capitol Police appeared through Capitol Police Aide, William Harper.

ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Evidence of record established that on May 15, 2000 Capitol Police Aide Spivey, badge no. 833, observed Appellant’s motor vehicle at the location of 1645 W. Jefferson in the afternoon hours, parked in a parking space specifically reserved and marked for handicap parking only. Spivey issued the citation at issue herein and placed same on Appellant’s windshield. This Citation carries a $50.00 fine.

2. Appellant testified that she has qualified for a handicap permit for approximately the last year, due to a diagnosis of degenerative arthritis. On the day in question, she indicated that she had placed her handicap placard on her mirror but that when she returned to her vehicle at the end of the work day and observed that she had received a parking citation, she noticed that somehow her placard had ended up on the seat of her vehicle. She offered conjecture that when she placed her sun-shield on her dash, she must have inadvertently knocked the placard off and not noticed the problem when she exited the vehicle.

3. Appellant testified that this is the first handicap parking violation that she has received.

4. It is determined and held that under all of the mitigating facts presented herein and discussed in the Conclusions of Law set forth below that Appellant was not in violation of the law allowing authorized person’s to park in a handicap parking space. Nevertheless, she was in violation of the law requiring the proper display of a handicap permit.

CONCLUSIONS OF LAW

1. A.R.S. § 41-796 grants the Arizona Department of Administration with the authority to “adopt and administratively enforce rules for the control of vehicles on state property, including, but not limited to, the “place, method, and time of parking” and “designation of special parking areas for state employees and the general public.”

2. A.A.C. R2-6-201 (9) defines “reserved parking space” as “any parking space designated for a special purpose or a special class, such as physically disabled persons, travel reduction program participants, or visitors.”

3. A.A.C. R2-6-203 (A) (5) provides, in pertinent part, “a person shall not park a vehicle in a reserved parking space without authorization…” In addition, A.A.C. R2-6-205 (B) provides, in pertinent part, “a person…parking a vehicle on state property shall obey posted…parking signs.”

4. A.A.C. 2-6-204 (B) provides, in pertinent part, “to park in a parking space reserved for the physically disabled, a person shall obtain a removable windshield placard or special plates…and display the placard or plates…”

5. A.A.C. R2-6-207 provides for the hearing process which is available to those individuals, like Appellant, who wish to contest the issuance of a parking citation. There is nothing in the applicable statutes or rules that prevents an Administrative Law Judge from exercising a measure of discretion in these matters. In fact, A.A.C. R2-6-207 (C) provides, in pertinent part, “…if…the administrative law judge determines that a violation has occurred and imposes a monetary penalty…a bill…shall be served with the decision.” (emphasis added). Thus, in those situations where an individual contests a parking citation, this section would appear to place the imposition of a monetary penalty within the discretion of the administrative law judge.

6. In addition to the foregoing rule regarding hearings on contested citations, it is held that due to the fact a hearing process is set in place by applicable statutes and rules, in order to provide a meaningful effect to such hearings, it is further concluded that the Administrative Law Judge has inherent authority to not only affirm or dismiss a citation but also, upon evaluation of the gravity of the offense or other mitigating factors, the judge may modify the monetary penalty in order to more closely and more fairly comport with the actual offense committed. Additionally, under appropriate circumstances, the judge has the power to merely issue an admonishment.

7. The spirit and intent of the law, regarding allowing person’s with specified physical impairments to have the ability to park in special handicapped parking spaces, is to permit said individuals to have access to buildings that might not otherwise be available without such parking spaces. Although there are necessary requirements to display handicap privileges, in order to allow law enforcement to perform their duties in regard to policing the proper use of handicap parking, the applicable law, considered within its entire context, is not seen as requiring any punishment for a person who is otherwise entitled to park in a handicap designated parking space who may have inadvertently forgot, on a singular occasion, to display her handicap placard.

8. The citation issued in this matter states, “unauthorized parking in a space reserved for handicapped” (emphasis added). Appellant was shown to have a valid handicap, allowing her to qualify for handicap parking privileges. She is precisely the type of person that the law was contemplating when same was enacted to assist people who need to park in close proximity to public buildings and to avoid stairwells. Although Appellant is found to have violated the provisions of A.A.C. R2-6-204 (B), for failing to place her handicap placard in the appropriate location in her vehicle, under all of the facts and circumstances presented herein, the imposition of a monetary penalty is unwarranted.

9. Nothing in this decision is intended to condone Appellant’s failure to have displayed her handicap placard on the date in question. In fact, this case should properly constitute a one-time exception and any future charged and proven violations of a similar nature should warrant imposition of the monetary penalty set forth in the citation.

ORDER

Appellant is hereby formally admonished that she must exercise greater care in the future, when parked in a parking space reserved for the physically disabled, to assure that her handicap placard is properly displayed in any vehicle which does not have a handicap license plate. Notwithstanding the language contained in A.R.S. § 41-1092.08, on standing motion of J. Elliot Hibbs, Director of the Department of Administration, this decision is the final administrative decision.

Done this day, August 16, 2000

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Department of Administration-Capitol Police Parking J. Elliott Hibbs Attn.: Wendy Hammon 1700 W. Washington, Room B-15 Phoenix, Arizona 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826