ALJDEC

01-10235-CPP · Department of Administration - Capitol Police Parking · 2001-04-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 4, 2001 APPEARANCES: Elizabeth McAndrew appeared in her own behalf Shelley Hebets, Capitol Police Assistant appeared on behalf of the Capitol Police ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

Findings of Fact-General Application The hearing in this matter consisted of three parking citations which were issued to the Appellant on May 15, June 6, and November 1, 2000. All tickets (with an exception to be noted), were for alleged violation of A.A.C. R2-6-206(B)(5), unauthorized parking in a space reserved for the physically handicapped. For the purpose of issuing the Order in these cases and for administrative efficiency, the matters were consolidated by Order Consolidating Cases, nunc pro tunc, dated April 9, 2001. There is no apparent prejudice to the Appellant from the consolidation. All parking citations resulted in a Notice of Default being issued to the Appellant under A.A.C.R2-6-206(E). For the purpose of this decision the cases will be discussed jointly where appropriate and separately where necessary. The Appellant was unsure of when or how she received information which caused her to respond to the citations and default notices which had been issued to her. In any event, on February 5, 2001, the Appellant sent a single letter of explanation to the Capitol Police, which letter was made a part of all three cases which were then set for hearing. The Appellant also submitted a copy of a new handicapped placard, no. 5F-5478. On February 22, 2001, the three cases were submitted to the Office of Administrative Hearings (OAH), to be scheduled for hearing. Findings of Fact-Docket No. 10651 1. On June 2, 2000, Capitol Police Assistant, believed to be L. Spivey (Spivey), issued a parking citation to the Appellant, at 1717 West Jefferson, for unauthorized parking in a space reserved for the handicapped ($50.00 fine). A carbon type copy of the citation shows the citation is for parking in a no parking zone ($20.00). It appears that the original (top) copy of the citation was filled out to charge the parking in the handicapped space violation with the $50.00 fine marked, and the duplicate copy was misaligned and came out charging the no parking zone violation with the $20.00 fine marked. 2. According to the Appellant, her handicapped parking placard was cracked. It would no longer hang from the rearview mirror and was laying on the dashboard. The Appellant was working extended hours at the Department of Economic Security and did not have time to get a new placard. 3. On August 8, 2000, the Capitol Police sent a Notice of Default by certified mail to the Appellant for failure to request a hearing or pay the fine. The Appellant did not receive the Notice of Default and it was returned to the Capitol Police as “unclaimed”. Conclusions of Law The applicable law for all three cases concerns A.R.S. §41-796 which provides in pertinent part that the Department of Administration (DOA), may collect monetary penalties for violation of parking rules. A.A.C. R2-6-203 (A)(5) prohibits parking in a reserved parking space without authorization. A.A.C. R2-6-206(B)(5) assesses a $50.00 fine for unauthorized parking in a space reserved for the physically disabled. A.A.C. R2-6-206(B)(4) assesses a $20.00 fine for parking in a no parking zone. 1. Spivey is no longer with the Capitol Police and was not present to testify. Capitol Police Assistant, Shelley Hebets (Hebets), had no personal knowledge regarding the issuance of the ticket. No direct evidence was presented which would explain the reason for the violation noted on the copy of the citation being different from the violation cited on the original of the citation. 2. The Appellant testified she had placed her handicapped placard on the driver’s side of the dashboard of the car and there was no evidence to rebut this testimony. Under A.A.C. R2-6-204(C), the left side of the dashboard is an acceptable location for placement of the decal. 3. In light of the unique facts of this case, it is concluded that the default which issued on August 8, 2000, was not based on a properly documented citation. The copy of the default notice in the hearing file has an attachment of the citation alleging violation of R2-6-206(B)(5), although the copy which was issued to the Appellant cited violation of R2- 6-206(B)(4). Even if this inconsistency was caused for the reason stated in paragraph 1 of the findings of fact, in the absence of evidence from the person issuing the citation, it is not the proper function of the Administrative Law Judge (ALJ) to provide missing evidence by making assumptions in order to sustain the citation or to explain the contradiction caused by the citation(s) in this case. Order In view of the foregoing it is Ordered that Citation No. 10651 be Dismissed. On standing motion of J. Elliott Hibbs, the Director of the Department of Administration, this decision is the final agency decision, notwithstanding the language contained in A.R.S. §41-1092.08. Findings of Fact-Docket No. 01-10235 1. On May 15, 2000, Capitol Police Assistant, L. Spivey (Spivey), issued a parking citation to the Appellant, at 1717 West Jefferson, for unauthorized parking in a space reserved for the handicapped ($50.00 fine). 2. The Appellant testified she had her broken handicapped placard in a recessed area of the dashboard. 3. The Appellant did not send in the fine or appeal the citation (request a hearing), within 10 days as set forth on the citation and in A.A.C. R2-6- 206(E). 4. The Appellant testified she used to be able to send a copy of the placard and her driver’s license in response to the a parking citation. She believes she sent them to Capitol Police in this case (prior to the February 5, 2001 mailing referenced in the General Findings), but the evidence is unclear on this issue. 5. On June 21, 2000, Capitol Police issued a Notice of Default by certified mail under R2-6-206(E). The Notice of Default was returned “unclaimed”. Findings of Fact-Docket No. 01-11559 1. On October 30, 2000, the Appellant changed employment from the Department of Economic Security to the Motor Vehicle Division. 2. On November 1, 2000, Capitol Police Assistant Jardine (Jardine), issued a parking citation to the Appellant, at 1801 West Jefferson for unauthorized parking in a space reserved for the handicapped($50.00 fine). 3. The Appellant believes she had her broken decal on the dashboard. 4. The Appellant failed to send in her fine or appeal the citation within days. 5. On January 31, 2001, the Capitol Police issue Notice of Default to the Appellant. 6. On February 5, 2001, the Appellant responded to the Notice of Default. Conclusions of Law The applicable statute, A.R.S.§41-796, and rules, A.A.C. R 2-6- 203(A)(5) and 2-6-206(B)(5), have been previously cited. 1. The first issue concerns the matter of the default. A.A.C. R2-6-206(E) provides that failure to respond to the citation within 10 days shall be treated as an admission of the violation. The Department shall then serve notice of the default and assess an additional $20.00. 2. In these last two cases, the Notice of Default was returned “unclaimed”. However, notice only requires proper mailing and not necessarily receipt. 3. A question which arises is why the request for hearing in Case No. 01- 10235, was submitted to the OAH by the Capitol Police almost eight months after the default notice was sent to the Appellant. It would appear that the Appellant’s February 5, 2001, letter was applied to all of the Appellant’s more recent cases with the Capitol Police. Although the rule, R2-6-206(E), provides that the Department may take appropriate action to collect monetary penalties if resources are available, there is no evidence that such steps were taken in Case No. 01-10235, or that the default ever became final in any official manner. 4. Assuming that OAH jurisdiction attaches and the case is properly before the ALJ, the only issues are whether the default was properly entered and the imposition of penalties for the violations and the defaults. 5. The facts as presented sustain the defaults. The Appellant may have been able to previously mail in a copy of her decal thereby disposing of the citation. However, nothing in the cited statute or rules shows this is the manner in which the instant citations are addressed. The current parking rules were adopted September 16, 1997. 6. This leaves the question of the penalties to be imposed. The rule essentially requires the Department to declare the $50.00 penalty for each violation which is in default, and an additional $20.00 penalty for the default. 7. The ALJ is not aware of any provisions in the statute or rules which directly grant any discretion in altering the penalties prescribed by the rules. The only provision which may be applicable is A.A.C. R 2-6- 207(C), which provides in pertinent part that “…If the Director or Administrative Law Judge determines that a violation has occurred and imposes a monetary penalty….”. This provision can be construed as giving the ALJ discretion with respect to the monetary penalty to be imposed. The argument can be made that the language “…and imposes a monetary penalty…” , would be extraneous if the specific penalty prescribed under A.A.C. R2-6-206, was binding. 8. It would seem that in cases such as this, where a person has a handicap and has an authorizing decal but failed to properly display the decal, that strict application of the penalties authorized under the rule in the amount of $70.00 ($50.00 plus $20.00), for a total of $140.00 for the two cases, is excessive. This does not excuse the Appellant from the responsibility of properly displaying her decal or timely responding to a citation. After three citations in less than a year, the Appellant cannot continue to expect that she is exempt from the requirements which apply to others. Order In view of the foregoing, It Is Hereby Ordered that, on or before 10 days from the effective date of the Order entered in this matter, the Appellant shall pay $25.00 per case for a total of $50.00 pursuant to A.A.C.R2-6-206(B)(5) and R2-6-207(C), for the violations in Docket No. 01- 10235-CPP and 01-11559-CPP. On standing motion of J. Elliott Hibbs, the Director of the Department of Administration, this decision is the final agency decision, notwithstanding the language contained in A.R.S. 41-1092.08. The Appellant has the right to request a rehearing from the Department of Administration under A.A.C. R2-6-208 and A.R.S. §41-1092.09 (A). The Appellant also has the right to appeal this decision to Superior Court under A.R.S. §41-1092.08 (H).

Done this day, April 12, 2001

______________________________________ Allen Reed 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

By ___________________________

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