ALJDEC

01-12176-CPP · Department of Administration - Capitol Police Parking · 2001-04-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 27, 2001 APPEARANCES: Capitol Police Officer Jim Warren appeared on behalf of the Capitol Police, Department of Administration; Amy Lo appeared on her own behalf ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _________________________________________________________________ FINDINGS OF FACT Capitol Police Officer Jim Warren (“Officer Warren”) testified that on December 28, 2000, at 3:22 p.m., a citation (the “Citation”) was issued by Capitol Police Assistant Buck to a vehicle for unauthorized parking in a reserved space, a Rideshare parking space, at 1700 West Washington, Phoenix, Arizona. There was no evidence presented by Officer Warren that he had personal knowledge as to the factual circumstances surrounding the issuance of the above-mentioned citation or of the alleged violation. Amy Lo appeared at the hearing and credibly testified that she received the Citation but that she had hung her Rideshare placard on the rearview mirror and that it had fallen down on the floor but was visible from the exterior of the vehicle. There was no credible evidence presented to establish that the Rideshare placard on Ms. Lo’s vehicle was not appropriately displayed on December 28, 2000.

CONCLUSIONS OF LAW 1. A.R.S. §41-796 (E) provides Capitol 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…” . 2. 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.” 3. The Department has promulgated rules governing traffic and parking (See Arizona Administrative Code R2-6-201 et seq.). 4. 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. 5. 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.” 6. A.A.C. R2-6-203(A)(5) provides that unless authorized, a person shall not park a vehicle in a reserved parking space. 7. 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.” 8. 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. 9. 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. Impliedly, the Administrative Law Judge has discretionary authority to determine the amount of penalty to assess in the event that a violation of those rules has occurred as alleged in the Citation. 10. Capitol Police, Department of Administration, has the burden of proving that on December 28, 2000, Ms. Lo violated the State’s Parking and Traffic Rules as alleged in the Citation. 11.Officer Warren, the only witness for the Department, did not establish that he had any knowledge as to whether such a violation occurred and his testimony only proved that the Citation was issued. 12. A.A.C. R2-6-206(B)(6) provides for a $16.00 fine for unauthorized parking in any reserved parking space other than for the physically disabled. 13. The Department failed to meet its burden of proving by the weight of credible evidence that on December 28, 2000, Ms. Lo violated the State’s Parking and Traffic Rules as alleged in the Citation. ORDER Based on the above, IT IS ORDERED that no penalty be imposed against Ms. Lo and the Citation be dismissed. Notwithstanding A.R.S. §41-1092.08, on standing motion of J. Elliott Hibbs, Director of the Department, this decision is the final administrative decision. The Appellant has the right to request a rehearing from the Department

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 March, 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 _______________________________

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