ALJDEC

02-13261-CPP · Department of Administration - Capitol Police Parking · 2001-12-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 29, 2001 APPEARANCES: Appellant appeared on his own behalf and the Arizona State Capitol Police appeared through police aide, Jared Bunn 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 June 19, 2001, at 11:30 a.m., Bunn observed Appellant’s motor vehicle at the location of 15 S. 15th Ave., an Arizona Department of Administration building, parked in a parking space specifically reserved for “General Services Employee” parking. Bunn testified that he did not observe any permit for parking in said reserved area of the parking garage and therefore, Bunn issued the citation at issue herein and placed same on Appellant’s windshield. This Citation carries a $16.00 fine.

2. Appellant testified that he is an employee of the General Services Division of the Department of Administration. He further indicated that his department has forty (40) to fifty (50) parking spaces reserved and that the employees receive an orange parking placard, to identify that they are eligible to park in said area of the garage.

3. Appellant contends that the placard in question was on the dash of his vehicle when he returned to find the above-described parking citation. Bunn testified that the placard is quite large and would be hard to miss. Appellant countered this claim by stating that he has tinted windows and the placard may have been hard to see in a dark garage.

4. It is determined and held that the weight of the credible evidence of record was sufficient to support a finding that Appellant failed to display his parking placard on the date and time in question. Nevertheless, under all of the mitigating facts presented herein and discussed in the Conclusions of Law set forth below that Appellant was not in violation of the law allowing authorized person’s to park in a parking space reserved for a specific group. However, he was in violation of the law requiring the proper display of his parking placard.

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...”

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…” In addition, A.A.C. R2-6-205 (B) provides, in pertinent part, “a person…parking a vehicle on state property shall obey posted…parking signs.”

4. A.A.C. 2-6-204 (C) provides, in pertinent part, that a person who has a decal to park in a reserved parking space “shall display the decal…” and “ensure that the decal is visible through the windshield so it can be read by someone standing outside the vehicle.”

5. 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.

6. In addition to the foregoing rule regarding hearings on contested citations, it is held that due to the fact 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.

7. Although there are necessary requirements to display authorization to park in specially reserved parking areas, in order to allow law enforcement to perform their duties in regard to policing the proper use of reserved parking, the applicable law, considered within its entire context, is not seen as requiring any punishment for a person who is otherwise entitled to park in a reserved parking space who may have inadvertently forgot, on a singular occasion, to display his parking placard.

8. The citation issued in this matter states, “unauthorized parking in a reserved parking space” (emphasis added). Appellant was shown to be authorized to park in the reserved parking area in question. Although Appellant is found to have violated the provisions of A.A.C. R2-6-204 (B), for failing to display his reserved parking placard in the appropriate location in his vehicle, under all of the facts and circumstances presented herein, the imposition of a monetary penalty is unwarranted.

9. Nothing in this decision is intended to condone Appellant’s failure to have displayed his placard on the date in question. In fact, this case should properly constitute a one-time exception and any future charged and proven violations of a similar nature should warrant imposition of the monetary penalty set forth in the citation.

ORDER

Appellant is hereby formally admonished that he must exercise greater care in the future, when parked in a reserved parking space that he is authorized to park in, to assure that his placard is properly displayed in his vehicle. Notwithstanding the language contained in A.R.S. § 41-1092.08, on standing motion of J. Elliot Hibbs, Director of the Department of Administration, this decision is the final administrative decision.

Done this day, December 5, 2001

______________________________________ Mark A. Silver Administrative Law Judge

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

Department of Administration-Capitol Police Parking J. Elliott Hibbs Attn.: Rod Simpson 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