ALJDEC

00-11279-CPP · Department of Administration - Capitol Police Parking · 2000-11-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 8, 2000 APPEARANCES: Appellant appeared on his own behalf and the Arizona State Capitol Police appeared through police aide, William Harper (“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 August 28, 2000, at 11:29 a.m., Harper observed Appellant’s motor vehicle at the location of 1600 W. Monroe, a State of Arizona Department of Revenue building, parked in a parking space specifically posted as being reserved for the Rideshare Program participants only. Notwithstanding an extremely concerted effort to observe a Rideshare parking permit, Harper did not observe such a permit anywhere within the vehicle. Therefore, Harper 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 Department of Revenue employee for sixteen (16) years, testified that on the day in question his Rideshare permit was on the console of his vehicle, under some papers, and that he had inadvertenly forgotten to place his Rideshare placard on his mirror. It is important to note that on the day in question he did carpool with another employee.

3. Appellant further testified that he has been a Rideshare participant for approximately ten (10) years and that he has no prior Rideshare parking violations.

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 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 persons 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 permits, 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 forgotten, 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. He 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 his 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 he 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 his vehicle. 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, 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