ALJDEC

00-12242-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, Mark McCain. 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 has contested the issuance of Capitol Police Citation Number 12242. 2. On December 12, 2000, Capitol Police Security Aide Nordey (Badge No. 869) observed Appellant’s vehicle parked in a Rideshare reserved parking space in the State parking lot located west of 1700 West Washington, Phoenix, Arizona. Security Aide Nordey looked for but did not find any parking permit displayed anywhere on Appellant’s vehicle. 3. It was not disputed that Appellant was and is the lawful owner of the observed vehicle. 4. Security Aide Nordey issued Citation Number 12242 imposing a fine in the amount of $16.00 for unauthorized parking in a reserved parking space in violation of the provisions of A.R.S. § 41-796. 5. The testimony and evidence presented by Appellant revealed that he is a Rideshare participant who has been issued Rideshare decal number 1080. On the date in question, Appellant and his Rideshare partner had parked in an assigned reserved parking space. After Appellant moved his vehicle from that parking space to run an errand, he returned to find that an unauthorized vehicle was parked in that space. Because he was a Rideshare participant, he then parked his vehicle in a Rideshare reserved space, but did not properly display the assigned Rideshare decal which was located within his vehicle.

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. The spirit and intent of the law with respect to allowing persons who participate in travel reduction programs, primarily known as “Rideshare” programs, is to recognize the ecological and environmental benefits achieved through the efforts of such individuals by according them some measure of preference in return for such efforts, assuring that the driver for that particular day will be able to park in one of a group of reserved spaces, convenient to the building entrance. 5. 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. 6. 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. 7. A.A.C. R2-6-206(B)(6) provides for the imposition of a fine in the amount of $16.00 for unauthorized parking in reserved parking spaces, other than spaces for the physically disabled. This subsection would encompass spaces reserved for Rideshare participants. However, A.A.C. R2- 6-206(B)(12) provides for a $10.00 fine for the improper display of a parking decal. 8. It is concluded and held under the evidence in this matter that Appellant’s failure to display his Rideshare decal, 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 Rideshare reserved parking space and holds or shares a Rideshare decal, none was present on the day in question. 9. 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 $16.00 fine that would have been applicable for a violation of Subsection (6) of the foregoing Rule. 10. 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 12242, as amended to an allegation of improper display of Appellant’s Rideshare decal, 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