ALJDEC

00-11182-CPP · Department of Administration - Capitol Police Parking · 2001-01-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 11, 2001 APPEARANCES: Adam Fuentes on behalf of Capitol Police, Department of Administration; Lynn Bistany appeared on her own behalf ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT Adam Fuentes (“Mr. Fuentes”), a Capitol Police Aide, testified that on October 26, 2000, at 1:42 p.m., Citation Number 1182 (the “Citation”) was issued by Capitol Police Aide Laub to the owner of vehicle with license plate number 083BDH for failure to obey posted traffic or parking signs at the visitor parking lot for 1700 West Washington. There was no evidence presented by Mr. Fuentes that he had personal knowledge as to the factual circumstances surrounding the issuance of the above-mentioned Citation or of the alleged violation. Mr. Fuentes testified that the parking lot in question provides that visitors may park in that lot for a 2 hour period. Lynn Bistany (“Ms. Bistany/Appellant”) testified that she parked in the visitor’s lot at 1700 West Washington on October 26, 2000, because of concern for her safety. According to Ms. Bistany, several of her co- workers at the Capitol have been the victim of car jacking, theft, or burglary.

The Administrative Law Judge informed the parties that the scope of the hearing was limited to whether Ms. Bistany had violated the State’s Parking and Traffic Rules on October 26, 2000, and would not be addressing the issue of how the parking spaces should be designated or adjustments to existing parking conditions at 1700 West Washington, Phoenix, Arizona. CONCLUSIONS OF LAW 1. A.R.S.§41-796 (E) provides Police personnel with the authority to: “issue a notice to appear of an alleged violation in the form adopted by the department [of administration] directing a person accused of violating a rule for control of vehicles on state property adopted pursuant to this section to appear at a designated place to contest the allegation of violation or to admit the violation and pay a penalty…” . 3. A.R.S. § 41-796 authorizes the Arizona Department of Administration (the “Department”) to “adopt and administratively enforce rules for the control of vehicles on state property” regarding, among other things, the “place, method and time of parking” and the “designation of special parking areas for state employees and the general public.” 4. The Department has promulgated rules governing traffic and parking (See Arizona Administrative Code R2-6-201et seq.). 5. Mr. Fuentes, the only witness for the Department, did not establish that he had any knowledge as to whether such a violation occurred and his testimony only proved that the Citation had been issued. 6. Under A.R.S. §41-796 and the rules promulgated thereunder (A.A.C.2-6- 201 et seq.) a citation contains an alleged violation of the State’s Parking and Traffic Rules and is not determinative as to whether such a violation occurred. 7. 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.” 8. A.A.C. R2-6-203(A)(5) provides that unless authorized, a person shall not park a vehicle in a reserved parking space. 9. A.A.C. R2-6-205(B) provides, in pertinent part, that “a person…parking a vehicle on state property shall obey posted traffic and parking signs.” 10. A.A.C. R2-6-207 provides for a hearing process available to individuals who wish to contest alleged parking violations contained in a citation issued by the Capitol Police. 11. The above-mentioned statutory and regulatory scheme provides the Administrative Law Judge with the authority to determine whether the Appellant has violated the State’s Parking and Traffic Rules. It is implied that the Administrative Law Judge has discretionary authority to determine the amount of penalty to assess in the event that a violation of the rules has occurred as alleged in the Citation. 12. The Capitol Police, Department of Administration, has the burden of proving that on October 26, 2000, Lynn Bistany violated the State’s Parking and Traffic Rules as alleged in the Citation. 13. A.A.C. R2-6-206(B)(14) provides for a $16.00 fine for failure to obey posted traffic or parking signs on state property. 14. The Department failed to meet its burden of proving by the weight of credible evidence that on October 26, 2000, Lynn Bistany violated the State’s Parking and Traffic Rules as alleged in the Citation. ORDER Based on the above, IT IS ORDERED that no penalty be imposed against Lynn Bistany and that the Citation be dismissed. Notwithstanding 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. R2-6-208 and A.R.S. §41-1092.09(A). The Appellant has the right to appeal the action to the Superior Court, pursuant to A.R.S. §41-1092.08(H). Done this day, January 19, 2001.

________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, 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