ALJDEC

01-12061-CPP · Department of Administration - Capitol Police Parking · 2001-04-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 27, 2001 APPEARANCES: Adam Fuentes on behalf of the Capitol Police, Department of Administration; Karen Liersch on her own behalf ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________FINDING S OF FACT Adam Fuentes (“Mr. Fuentes”), a Capitol Police Aide, testified that on January 2, 2001, at 10:20 a.m. he issued Citation Number 12061 ( the “Citation”) to a vehicle with license plate number 873DSA for parking in an unauthorized parking space reserved for the handicapped at 1535 West Jefferson, Phoenix, Arizona. 2. Mr. Fuentes also testified that he issued the above-mentioned citation after observing Ms. Liersch’s vehicle parked in the above-mentioned space and that no handicap decal or license plate was visible. 3. During the hearing, Karen Liersch (“Ms. Liersch”) testified that on January 2, 2001, she had hung her handicap placard from the rearview mirror of her vehicle that morning and when she returned in the afternoon, she noticed it had fallen and was by the gas pedal. 4. Ms. Liersch also testified that she has had a handicap decal/placard issued to her for the past seven years, that she has continuously parked in the same handicap space that has been assigned to her, 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. 5. It is undisputed that at the relevant time, Ms. Liersch had a valid handicap placard. 6. During the hearing, Mr. Fuentes orally presented a motion to amend the Citation so as to allege that Ms. Liersch improperly displayed a handicap placard. Ms. Liersch did not object to the motion. The testimony of both Mr. Fuentes and Ms. Liersch is conflicting such that this Administrative Law Judge has no reason to disbelieve the testimony of either party. The evidence of record established that Ms. Liersch placed the handicap placard on the rear view mirror and complied with the directives of the Department’s Parking and Traffic rules. 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 gas pedal. 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)(11) provides for a $10.00 fine for improper display of a parking decal. The Capitol Police, Department of Administration has the burden of proving that on January 2, 2001 Karen Liersch violated the State’s Parking and Traffic Rules as alleged in the Citation, as amended. The Department did not met its burden of proving by the weight of credible evidence that on January 2, 2001, Ms. Liersch violated the State Parking and Traffic Rules established under A.R.S. §41-796 by an improper display of a parking decal. 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 ___________________________

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