ALJDEC

01-11962-CPP · Department of Administration - Capitol Police Parking · 2001-02-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 7, 2001 APPEARANCES: Appellant appeared on his own behalf and the Arizona State Capitol Police appeared through police aides, Earl Nordby (“Nordby”) and Isabelle Mendez (“Mendez”). 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 November 29, 2000, at 8:01 a.m., Mendez observed Appellant’s motor vehicle at the location of 1601 W. Jefferson, a State of Arizona building, parked in a parking space specifically posted as being reserved for the Rideshare Program participants only. Notwithstanding a concerted effort to locate a Rideshare permit within Appellant’s vehicle, Mendez did not observe a Rideshare permit in Appellant’s vehicle and therefore, issued a citation (no. 11962) for unauthorized parking in a reserved parking space. This Citation carries a $16.00 fine.

2. Evidence of record established that on the same day as described in the foregoing Finding of Fact, at 12:10 p.m., Nordby observed Appellant’s motor vehicle again parked at the same exact location of 1601 W. Jefferson, parked in the parking space specifically posted as being reserved for the Rideshare Program participants only and that no Rideshare permit was visible. Nordby issued a citation (no. 11898) for unauthorized parking in a reserved parking space. This Citation carries a $16.00 fine. It is important to note, for reasons described in the findings below, that Nordby did not observe the earlier citation issued by Mendez. 3. Appellant, a State employee, testified that he is a member of the Rideshare program. On the date in question, he had only been a Rideshare participant for approximately two (2) weeks. He testified that on the day in question when he arrived at work he had his Rideshare permit placard in his vehicle but simply forgot to hang the placard from his rear view mirror. 4. Appellant further testified that sometime before the noon hour, he observed the first citation issued by Mendez. He felt that if he took his Rideshare permit and the citation to the office of the Capitol Police, that possibly they would cancel the violation upon being shown that he was, in fact, authorized to park in a Rideshare parking space and also that he had his Rideshare permit in his vehicle. Thus, without thinking of the consequences, he took the citation and the permit to the Capitol Police office, leaving his vehicle in the Rideshare parking space with no permit and without the original parking citation issued by Mendez. 5. This Tribunal cannot understand or condone Appellant’s action in leaving his vehicle in the Rideshare only parking space, without the required permit, when he had already received a citation for this act earlier in the day. 6. Appellant testified that he has not received any other Rideshare parking violations. 7. 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 should not be found to be in violation of the law allowing authorized persons to park in a Rideshare parking space for the first citation issued on November 29, 2000. Nevertheless, subsequent to the first citation, he should have learned his lesson that despite the fact that he was a Rideshare participant, since he did not have his permit properly displayed in his vehicle, he should have parked in a non-reserved parking space. Thus, Appellant shall be required to pay the $16.00 fine on citation no. 11898, only. 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 person’s 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 privileges, 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 necessarily requiring any punishment for a person who is otherwise entitled to park in a Rideshare designated parking space who, on a singular occasion, parks in a Rideshare reserved parking space without displaying the required permit. Nevertheless, any repeated infractions in this regard should not and are not deemed to be excusable. 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. Thus, he is entitled to one, and only one, excuse regarding the failure to have a Rideshare permit displayed in his vehicle while his vehicle is parked in a parking space specifically reserved for Rideshare participants. ORDER In regard to citation no. 11962, 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. In regard to citation no. 11898, IT IS HEREBY ORDERED that on or before ten (10) days from the effective date of the Order entered in this matter, Appellant shall pay the fine of $16.00, as provided in citation no. 11898. Notwithstanding the language contained in A.R.S. § 41-1092.08, on standing motion of J. Elliott 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). In addition, the Appellant has the right to appeal this decision to the Superior Court, pursuant to A.R.S. § 41-1092.08 (H). Done this day, February 16, 2001.

______________________________________ Mark A. Silver Administrative Law Judge

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

J. Elliott Hibbs, Director Department of Administration-Capitol Police Parking ATTN: Wendy Hammon 1700 W. Washington, Rm. B-15 Phoenix, Arizona 85007

By ___________________________ -----------------------

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