ALJDEC

00-11236-CPP · Department of Administration - Capitol Police Parking · 2000-11-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 8, 2000 APPEARANCES: Appellant appeared on her own behalf and the Arizona State Capitol Police appeared through police aide, Ken Prescott (“Prescott”). 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 August 24, 2000, at 12:03 p.m., police aide Wolgan (badge no. 861) observed Appellant’s motor vehicle at the location of 1645 W. Jefferson, parked in a parking space specifically posted as being reserved for the Rideshare Program participants only. Wolgan issued a citation for unauthorized parking in a reserved parking space and placed same on Appellant’s windshield. This Citation carries a $16.00 fine.

2. Appellant, a state employee, testified that on the day in question she inadvertently forgot to hang her placard from her mirror after parking in a Rideshare parking space. She returned to her vehicle during her lunch hour and found the citation. She further observed that although she had forgotten to hang her permit from her mirror, that the permit placard was, in fact, laying on the console of her vehicle in the face-up position. Thus, the permit was visible had anyone taken the time to look within her vehicle.

3. Prescott testified that as a courtesy his department has a policy of looking inside vehicles parked in a Rideshare area, when no permit is found to be hanging from the mirror of the vehicle. He opined that Wolgan must have neglected to look inside the vehicle.

4. Appellant testified that she has been a Rideshare participant for approximately one (1) year and has no prior Rideshare parking violations.

5. 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 persons to park in a Rideshare parking space. Nevertheless, the weight of the credible evidence of record was sufficient to support a finding of a violation of the law requiring the proper display of a Rideshare 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…”

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 the 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 requiring any punishment for a person who is otherwise entitled to park in a Rideshare designated parking space who may have inadvertently forgot, on a singular occasion, to display the Rideshare permit.

10. The citation issued in this matter states, “unauthorized parking in a reserved parking space” (emphasis added). Appellant was shown to have a valid permit, allowing him to qualify for Rideshare parking privileges. She is precisely the type of person that should be rewarded with preferential parking for his efforts to help reduce air pollution and traffic congestion in Phoenix. Although Appellant is found to have violated the provisions of A.A.C. R2-6-204 (A), for her failure to place the Rideshare permit in the appropriate location in his vehicle, under all of the facts and circumstances presented herein, the imposition of a monetary penalty is unwarranted.

11. Nothing in this decision is intended to condone Appellant’s failure to have displayed the Rideshare permit 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 Rideshare participants, to assure that the Rideshare permit is properly displayed in her vehicle. Notwithstanding the language contained in A.R.S. § 41-1092.08, on standing motion of J. Elliott Hibbs, Director of the Department of Administration, this decision is the final administrative decision.

Done this day, November 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