ALJDEC

00-10823-CPP · Department of Administration - Capitol Police Parking · 2000-09-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 20, 2000 APPEARANCES: Appellant appeared on her own behalf and the Arizona State Capitol Police appeared through police aides, Andrew Leach (“Leach) and D. Arnson. 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 June 8, 2000, at 8:45 a.m., Capitol Police Aide Caouette (badge no. 859) observed Appellant’s motor vehicle at the location of 205 South 17th Ave., a State of Arizona building, parked in a parking space specifically posted as being reserved for the Rideshare Program participants only. Caouette apparently did not observe a Rideshare permit on Appellant’s vehicle and therefore, issued a citation (no. 10978) for unauthorized parking in a reserved parking space. This Citation carries a $16.00 fine.

2. Evidence of record established that on the exact same day as described in the foregoing Finding of Fact, at 12:09 p.m., Leach observed Appellant’s motor vehicle again parked at the location of 205 S. 17th Ave., parked in a parking space specifically posted as being reserved for the Rideshare Program participants only and that no Rideshare permit was visible. Leach issued a citation (no. 10823) for unauthorized parking in a reserved parking space. This Citation carries a $16.00 fine. It is important to note that Leach did not observe the earlier citation issued by Caouette.

3. Appellant, a state employee, testified that she has been a member of the Rideshare Program for two (2) years. That on the day in question she had car trouble and thus, was forced to switch cars at the last minute, forgetting to take her Rideshare permit with her from the motor vehicle that she normally drives to work. Notwithstanding the fact that she did not have her Rideshare permit, she still parked in a parking space reserved for Rideshare participants only.

4. Appellant testified that when she went to lunch, she observed the first citation issued by Caouette, took same off her windshield, ran an errand, returned to work and then once again parked in the Rideshare parking space. This Tribunal cannot understand why Appellant would again park in the Rideshare only parking space for the second time on June 8, 2000, without having her permit, when she already had received a citation for this act earlier in the day.

5. Appellant testified that she has not received any other Rideshare parking violations.

6. 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 should not be found to be in violation of the law allowing authorized persons to park in a Rideshare parking space for the first citation issued on June 8, 2000. Nevertheless, subsequent to the first citation, she should have learned her lesson, that despite the fact that she was a Rideshare participant, since she did not have her permit she should have parked in a non-reserved parking space. Thus, Appellant shall be required to pay the $16.00 fine on citation no. 10823, only.

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…”

4. A.A.C. R2-6-204 (A) provides, in pertinent part, “unless a person is a visitor using parking reserved for visitors, the person shall properly display a reserved parking space decal” when parked in a reserved parking space.

5. A.A.C. R2-6-205 (B) provides, in pertinent part, “a person…parking a vehicle on state property shall obey posted…parking signs.”

6. A.A.C. R2-6-206 (A) provides, in pertinent part, “the registered owner of a vehicle involved in a violation of…R2-6-203, R2-6-204, or R2-6- 205…shall pay the monetary penalties prescribed in this section. A.A.C. R2- 6-206 (B) (6) provides for a $16.00 penalty for unauthorized parking in any reserved parking space, other than those reserved for the physically handicapped.

7. 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.

8. In addition to the foregoing rule regarding hearings on contested citations, it is held that due to the fact that 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.

9. The spirit and intent of the law regarding allowing person’s with Rideshare permits to have the ability to park in special parking spaces is to reward said individuals for their efforts to help reduce vehicular traffic and pollution in the greater Phoenix area. Although there are necessary requirements to display Rideshare parking privileges, in order to allow law enforcement to perform their duties in regard to policing the proper use of Rideshare parking, the applicable law, considered within its entire context, is not viewed as necessarily requiring any punishment for a person who is otherwise entitled to park in a Rideshare designated parking space who, on a singular occasion, parks in a Rideshare reserved parking space without having the required permit for display. Nevertheless, any repeated infractions in this regard should not and are not deemed to be excusable.

10. The citations issued in this matter states, “unauthorized parking in a reserved parking space” (emphasis added). Appellant was shown to have a valid permit, allowing her to qualify for Rideshare parking privileges. She is precisely the type of person that should be rewarded with preferential parking for her efforts to help reduce air pollution and traffic congestion in Phoenix. Thus, she is entitled to one, and only one, excuse regarding the failure to have a Rideshare permit displayed in her vehicle while her vehicle is parked in a parking space specifically reserved for Rideshare participants.

ORDER

In regard to citation no. 10978, Appellant is hereby formally admonished that she must exercise greater care in the future, when parked in a parking space reserved for Rideshare participants, to assure that the Rideshare permit is properly displayed in her vehicle. In regard to citation no. 10823, IT IS HEREBY ORDERED that on or before ten (10) days from the effective date of the Order entered in this matter, Appellant shall pay the fine of $16.00, as provided in citation no. 10823. 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. The Appellant has the right to request a rehearing from the Department of Administration pursuant to A.A.C. R2-6-207 and A.R.S. § 41- 1092.09 (A). In addition, the Appellant has the right to appeal this decision to the Superior Court, pursuant to A.R.S. § 41-1092.08 (H). Done this day, September 28, 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

Doris Anderson 1520 W. Aster Dr. Phoenix, AZ 85029

By ___________________________

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