ALJDEC

00-12205-CPP · Department of Administration - Capitol Police Parking · 2001-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 31, 2001. APPEARANCES: Capitol Police Security Aide Isabelle Mendez and Appellant, Lynn A. Wheeler. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Order are made:

FINDINGS OF FACT

1. Appellant, Lynn A. Wheeler, has contested the issuance of Capitol Citation Number 12205. 2. On December 7, 2000, Capitol Police Security Aide Nordey (Badge No. 869) observed Appellant’s vehicle parked in a handicap reserved parking space at the State parking lot located at 1600 West Monroe, Phoenix, Arizona. His vehicle did not have either a handicap license plate or a displayed handicap permit. 3. It was not disputed that Appellant was and is the lawful owner of the observed vehicle. 4. Security Aide Nordey issued Citation Number 12205 imposing a fine in the amount of $50.00 for unauthorized parking in a space reserved for the handicapped in violation of the provisions of A.R.S. § 41-796. 5. The testimony and evidence presented by the Appellant revealed that he did have a handicap permit in his vehicle on the date in question for use in transporting his father but inadvertently did not display it properly. CONCLUSIONS OF LAW

1. A.R.S. § 41-796 grants the Arizona Department of Administration authority to “adopt and administratively enforce the rules for the control of vehicles on state property”, including but not limited to the “(p)lace, method and time of parking”, as well as the “(d)esignation 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 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, that “a person shall not park a vehicle in a reserved parking space without authorization…” 4. A.A.C. R2-6-207 provides for a hearing process that is made available to those individuals, like the Appellant, who wish to contest the issuance of a parking citation. None of the provisions contained in the applicable statutes or rules prevent any assigned Administrative Law Judge from exercising a measure of discretion in these matters. Moreover, in order to provide a meaningful effect to the hearing process, as envisioned by such statutes and rules, it must be concluded that the Administrative Law Judge should have the inherent authority not only to affirm or dismiss an issued citation but also, after evaluation of the gravity of the charges offense compared with any demonstrating mitigating factors, to modify or reduce the proposed monetary penalty so as to more closely comport with the actual offense committed. 5. A.A.C. R 2-6-204(A) requires that a person shall properly display a reserved parking space decal in a prescribed manner to enable parking in a reserved parking space. 6. A.A.C. R2-6-206(B)(5) provides for the imposition of a fine in the amount of $50.00 for unauthorized parking in a space reserved for the disabled. However, A.A.C. R2-6-206(B)(12) provides for a $10.00 fine for the improper display of a parking decal. 7. It is concluded and held under the evidence in this matter that Appellant’s failure to display his handicap permit, possessed by him but not displayed or otherwise visible at the time that the citation was issued, may and should appropriately be treated as the legal and functional equivalent of an “improper” display. Although the Appellant is authorized to park in a space reserved for the disabled when displaying a handicap permit, none was present on the day in question. 8. The Department of Administration, through the Capitol Police, has sufficiently met its burden of proving by a preponderance of the evidence that Appellant had committed a violation of traffic and parking rules. However, under all the facts and circumstances presented at the hearing, it is held that Appellant was more appropriately proven to have violated the provisions of A.A.C. R2-6-206(B)(12), consisting of an improper display of a parking decal, thereby warranting the imposition of a fine in the amount of $10.00 instead of the $50.00 fine that would have been applicable for a violation of Subsection (5) of the foregoing Rule. 9. Nothing in this decision is intended to condone the Appellant’s failure, whether or not inadvertent, to have followed specific requirements applicable to the visible display of decal or permit confirming authorization to park in certain reserved spaces. On the contrary, this case should properly constitute a one-time exception, and any future charged and proven violations of a similar nature should not warrant any reduction.

ORDER

In view of the foregoing, IT IS ORDERED that Citation Number 12205, as amended to an allegation of improper display of Appellant’s handicap permit, is upheld, and that Appellant shall pay a fine in the amount of $10.00 in accordance with the payment instructions set forth at the bottom of the citation.

This Decision and Order of Administrative Law Judge is a final administrative decision, notwithstanding the provisions of A.R.S. § 41- 1092.08, in accordance with the standing motion of J. Elliott Hibbs, Director of the Arizona Department of Administration. 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). In addition, Appellant has the right to appeal the decision in this matter directly to the Superior Court pursuant to A.R.S. § 41-1092.08(H). Done this day, February 1, 2001.

______________________________________ Brian Brendan Tully Administrative Law Judge

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

Department of Administration-Capitol Police Parking J. Elliott Hibbs, Director 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