ALJDEC

00-11525-CPP · Department of Administration - Capitol Police Parking · 2001-01-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 11, 2001 APPEARANCES: Shelly Hebets appeared on behalf of the Capitol Police, Department of Administration; Kemba Hunter appeared on her own behalf ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. Shelly Hebets (“Ms. Hebets”), a Capitol Police Aide, testified that on November 13, 2000, at 10:16 a.m. she issued Citation Number 11525 (the “Citation”) for unauthorized parking in a reserved parking space. 2. Ms. Hebets also testified as to the circumstances surrounding the issuance of the Citation. Ms. Hebets observed Kemba Hunter’s vehicle parked in a Rideshare space at 1535 West Jefferson, Phoenix, Arizona, and looked inside the vehicle for a Rideshare permit but did not notice one displayed or located in the vehicle. According to Ms. Hebets, if the Rideshare permit is visible in a vehicle, Capitol Police Aides generally do not issue a citation. 3. During the hearing, Kemba Hunter (“Ms. Hunter/Appellant”) the owner of the above-mentioned vehicle, testified that, on the date of the above- mentioned incident, she had a Rideshare permit that was placed on the dashboard by the vehicle’s vehicle identification number. Ms. Hunter also testified that the windows of her vehicle are tinted. 4. Ms. Hunter presented a Rideshare permit with an expiration date of June 30, 2001, as demonstrative evidence and testified that the permit was hers. After that testimony, the Department requested that the Citation be amended to reflect failure to properly display a parking permit. Ms. Hunter objected to the request and the Administrative Law Judge denied the amendment request. 5. The testimony is sharply conflicting as to whether Ms. Hunter’s Rideshare permit was visible on November 13, 2000, such that the Administrative Law Judge has no reason to disbelieve the testimony presented by either party. 6. The evidence of record established that Ms. Hunter was authorized to park in a Rideshare parking space. The evidence is inconclusive as to whether on November 13, 2000, Ms. Hunter’s Rideshare permit was displayed in a manner so as to be visible from the exterior of her vehicle. CONCLUSIONS OF LAW 1. The Capitol Rideshare program provides, in part, that: “Your permit entitles you and your carpool passengers to park in designated Capitol Rideshare parking spaces on days you ride together, a minimum of three days per week. On those days, you must hang the permit on your rear view mirror so that it is clearly visible.” 2. 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 R2-6-201 et seq.). 5. Under A.R.S. §41-796 and the rules promulgated thereunder (A.A.C. R2-6- 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. 6. 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.” 7. A.A.C. R2-6-203(A)(5) provides that unless authorized, a person shall not park a vehicle in a reserved parking space. 8. 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.” 9. 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. 10. 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 those rules has occurred as alleged in the Citation. 11. A.A.C. R2-6-206(B)(6) provides for a $16.00 fine for unauthorized parking in any reserved parking space other than for the physically disabled.. 12. The Capitol Police, Department of Administration has the burden of proving that on November 13, 2000, Kemba Hunter violated the State’s Parking and Traffic Rules as alleged in the Citation 13. The Department failed to meet its burden of proving by the weight of credible evidence that on November 13, 2000, Kemba Hunter 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 Ms. Hunter, and 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

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