ALJDEC

01-11990-CPP · Department of Administration - Capitol Police Parking · 2001-04-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 27, 2001 APPEARANCES: Isabelle Mendez on behalf of the Capitol Police, Department of Administration; Angela Woods on her own behalf ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________

FINDINGS OF FACT 1. Isabelle Mendez (“Ms. Mendez”), a Capitol Police Aide, testified that on December 4, 2000, at 11:25 a.m., Capitol Police Aide Nordby issued a citation (the “Citation”) to a vehicle with license plate number NEY508 for parking in an unauthorized parking space reserved for the handicapped at 1745 West Adams, Phoenix, Arizona. 2. Ms. Mendez testified that she did not have any personal or firsthand knowledge as to the facts and circumstances surrounding the issuance of the Citation. 3. During the hearing, Angela Woods (“Ms. Woods”) testified that on December 4, 2000, she hung her handicap placard from the rearview mirror of her vehicle that day and, despite using her vehicle several times, always displayed the placard upon parking the vehicle in the handicap parking space. According to Ms. Woods, when she noticed the Citation, she observed that the handicap placard had fallen from the rearview mirror where it had been displayed and was resting on the console that could be observed from the exterior of the vehicle.

3. Ms. Woods also testified that she has had a handicap decal/placard issued to her for the past ten years, that she has continuously parked in the same handicap space since 1996, that she has never been cited for a parking violation before, and that she is diligent in making sure the handicap placard is displayed every day. 4. It is undisputed that at the relevant time, Ms. Woods had a valid handicap placard. The testimony of Ms. Woods, as set forth above, is determined to be credible and more persuasive than the testimony of Ms. Mendez who had no personal knowledge as to the state of the vehicle at time of the issuance of the Citation. The evidence of record established that Ms. Woods placed the handicap placard on the rear view mirror and complied with the directives of the Department’s rule. Through no action on her part, the evidence of record also established that the placard fell from the rearview mirror and was located in the vehicle by the console that was visible from the exterior of the vehicle. Capitol Police Aide Nordby did not testify at the hearing of this matter. CONCLUSIONS OF LAW 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…”. A.R.S. §41-796(A) 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.” The Department has promulgated rules governing traffic and parking (See Arizona Administrative Code R2-6-201 et seq.). 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. 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.” A.A.C. R2-6-203(A)(3) provides that “a person shall not park a vehicle in a location that is not designated as a parking space”. 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.” 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. 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. A.A.C. R2-6-206(B)(5) provides for a $50.00 fine for unauthorized parking in a space reserved for the physically disables. The Capitol Police, Department of Administration has the burden of proving that on December 4, 2000, Angela Woods violated the State’s Parking and Traffic Rules as alleged in the Citation. The Department did not met its burden of proving by the weight of credible evidence that on December 4, 2000, Ms. Woods violated the State Parking and Traffic Rules established under A.R.S. §41-796 by parking her vehicle in a space reserved for the physically disabled without proper authorization. ORDER Based on the above, IT IS ORDERED that penalty be assessed against Appellant and that the Citation be dismissed.

Notwithstanding 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). 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, April 3, 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

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

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