HomeMy WebLinkAbout1996-01-16 City Council (25)TO:
of Palo Alto
a ager’s Report
HONORABLE CITY COUNCIL 14
FROM: CITY MANAGER DEPARTMENT: POLICE
AGENDA DATE: January 16, 1996 CMR:120:96
SUBJECT:Emergency Ordinance Amending Chapter 10.60 of the Municipal Code
Concerning Civil Penalties and Administrative Review for Parking
Violations
REQUEST
In order to comply with recent legislation that became effective January 1, 1996, dealing with
civil penalties and administrative review of parking violations, revisions to Chapter 10.60 of the
Palo Alto Municipal Code are required. Staff requests approval of the attached ordinance,
which amends the City’s ordinance in accordance with state law. Due to the nature of the
legislation and in order to continue conducting administrative reviews without interruption, staff
requests the ordinance be adopted under emergency provisions and that it become effective
immediately. Additionally, the legislation mandates certain training requirements for parking
examiners and allows local governing bodies to approve types of training for their specific
examiners. Therefore, staffis requesting that Council approve the training the City’s current
examiner has received as acceptable to meet the State standards.
RECOMMENDATIONS
Staff recommends that Council:
1)
2)
Adopt the attached ordinance which amends Chapter 10.60 of the Palo Alto Municipal
Code concerning parking penalties and administrative review of parking violations.
Approve the City’s current parking examiner’s training and experience as a substitute
for the training required by statute for parking examiner.
POLICY IMPLICATIONS
None.
CMR:120:96 Page 1 of 4
EXECUTIVE SUMMARY
In June 1993, Council enacted Chapter 10.60, which established civil penalties and
administrative review for parking violations. At that time, the parking examiner program was
also initiated and approved by Council (See attached CMR:347:93). These actions were taken
in order to comply with Assembly Bill 408, which became effective in 1993.
In October 1995, the State Legislature adopted AB 1228, wb_ich amended sections of the
California Vehicle Code pertaining to parking penalties and the civil procedures associated with
conducting hearings for those people who elect to contest parking citations. Staff learned about
the legislation in late November. Certain portions of the bill were unclear and required
interpretation by the City Attorney. Based upon the City Attorney’s review of the legislation,
the attached ordinance was prepared for Council’s approval. Staff did not realize until the last
two weeks that a revision to the ordinance was required, thus the delayin getting the
amendment to Council. Due to the effective date of the legislation and the need to comply with
the legislation in order that the hearings may continue without delay, staff is requesting that-
Council adopt the ordinance under the emergency provision in the Municipal Code so that it can
become effective immediately.
The basic changes reflected in the ordinance are as follows:
Extends the time period during which a person may request an initial review of their
parking citation from 10 to 14 calendar days following the date of mailing of the
delinquent notice.
Allows for cancellation of all penalties and fees if the Police Department or Parking
Examiner determines that extenuating circumstances make it appropriate to dismiss the
citation in the interest of justice.
o Extends the time period during which a person may request a hearing with the Parking
Examiner from 15 to 21 calendar days from the date the results of the initial review were
mailed to the person.
Adds language that requires supervision of the examiner to be other than a person whose
primary duties are parking enforcement, parking citation processing, or parking citation
penalty collection.
Adds language which meets the requirement that administrative hearings must be
conducted within 90 days following the request for a heating.
CMR:120:96 Page 2 of 4
Adds language that requires the City Manager to approve the written guidelines for
conducting hearings.
Police Department staff has already made some operational changes to comply with the
legislation. The Parking Examiner has been supervised by the Supervisor of Parking Services.
Those responsibilities have been reassigned to the Coordinator of Field Services. The City
Attorney believes that this change is in accordance with the new State law.
The City’s Parking Administrative Adjudication Program manual, which includes guidelines
for conducting hearings, was written and presented to the Council in 1993. The appropriate
modifications to the timelines as detailed previously have been made in the manual.
The legislation also establishes training requirements for Parking Examiners. Specifically, a
Parking Examiner must obtain twenty hours of training provided by colleges, the State
Commission on Peace Officer Standards and Training, the American Arbitration Association
or similar organizations, or programs approved by the City Council. Twelve hours of relevant
experience may be substituted for up to twelve hours of the required training if that experience
is approved by the City Council. Training programs may include topics relevant to
administrative hearings, applicable laws and regulations, parking enforcement procedures, due
process, and evaluation of evidence hearing procedures.
Attachment A provides a summary of the training and experience the City’s current Parking
Examiner has received. Staff believes this more than adequately meets the training
requirements.
It should be noted that the legislation does provide local governing bodies authorization to
permit the performance of community service in lieu of payment of parking penalties. Based
upon the City’s experience with the community service program associated with graffiti
offenders and court referrals, a minimum of one hour of staff time is needed to supervise and
manage each offender. Therefore, staff is not recommending the institution of this option due
to the costs and staff time that would be needed to administer such a program.
FISCAL IMPACT
There is no fiscal impact associated with the attached ordinance.
ENVIRONMENTAL ASSESSMENT
The ordinance changes do not constitute a project for which environmental assessment is required.
CMR:120:96 Page 3 of 4
ATTACHMENTS
Ordinance
Attachment A
CMR:347:93
PREPARED BY: Lynne Johnson, Assistant Police Chief
DEPARTMENT HEAD REVIEW:
CHRIS DURKIN, Polic~ Chief
CITY MANAGER APPROVAL:
CMR:120:96 Page 4 of 4
ORDINANCE NO.
ORDINANCE OF THE COUNCIL OF THE CITY OF PALO ALTO
AMENDING CHAPTER 10.60 OF TITLE i0 OF THE PALO
ALTO MUNICIPAL CODE CONCERNING CIVIL PENALTIES AND
ADMINISTRATIVE REVIEW FOR PARKING VIOLATIONS AND
DECLARING THE URGENCY THEREOF, TO TAKE EFFECT
IMMEDIATELY
WHEREAS, Assembly Bill No. 408 (Chapter 1244) of the 1991-
1992 Regular Session of the California Legislature eliminated
criminal enforcement of motor vehicle parking restrictions and
substituted civil penalties enforceable through the local agency
where the parking violation occurs.
WHEREAS, Assembly Bill No. 1228 (Chapter 734) of the !995-
1996 Regular Session of the California ~Legislature, operative on
January i, 1996, made amendments to the administrative review
process for contest of parking citations and notices of dglinquent
parking violations.
WHEREAS, the City must make amendments to those provisions
of Chapter 10.60 of Title i0 of the Palo Alto Municipal Code
adopted by Ordinance No. 4159 in order to conform its
administrative review procedure for parking citations to the
requirements of these recently adopted state law changes.
WHEREAS, this ordinance is promulgated as an emergency
ordinance with immediate effect, due to the effective date of this
change in state law and the urgent need to conform the City’s
administrative r~view procedures to the recent amendments to state
law.
NOW THEREFORE, the City Council of the City of Palo Alto
ordains:
SECTION i. Chapter 10.60 of Title I0 of the Palo Alto
Municipal Code, entitled "Parking Violations", is hereby amended to
read as follows:
"i0.60.010 Parking violations punishable
as civil penalties. Violation of any provision
of Chapter 10.36, 10.40, 10.44, and 10.46 of
this Title i0 (hereinafter referred to as a
"parking violation") shall be punishable by a
civil penalty (hereinafter referred to as a
"parking penalty").These parking penalties,
together with any late payment penalties,
administrative fee,and other related charges
shall be established by ordinance or resolution
of the City Council.
10.60.020 Notice of parking violations and
notice of delinquent parking violations. The
amount of the parking penalty applicable to a
960111 syn 0042448
1
parking violation and the time and procedure for
the registered owner or the lessee or rentee of
the vehicle to deposit the parking penalty or
contest the penalty shal! be indicated upon the
notice of parking violation when it is served by
being affixed to the vehicle or as otherwise
provided by law. If the parking penalty is not
paid within the time and in the manner stated on
the notice of parking violation, the Police
Department or its designated processing agency
shall deliver or mail to the registered owner of
the vehicle a notice of delinquent parking
violation.
i0.60. 030 Police Department review of
parking violations. Within 21 ~i~!~i~ days of
the issuance of a notice of park:{~:~:~:~:~i:~:~ation or
within ~ ~i ~~iiiiii~idays from the mailing of a
notice ~~ ................ d~~"~ent parking violation
(whichever is later), ~ ~ person ..... ~ -.-~
may retest (by telephone, in writing, or in
~ ......~ ~-~"- £~~ review by theperson) an ........m ................................
Police Department. Upon the notice
o f parking viol at ion ~~{~}~~~4~
b~S~d--i~f~h-~&y be cancelled =====================================================
~::~ if a dete~ination ’~ .............. ~d~ ........ h~i~
~ihh~9--hhe violation did not occur, the notice
owner was not responsible for the violation;
however, under no circ~tances shall a personal
relationship with any officer, public official,
or law enforcement agency be grounds for
cancellation. The decision of the Police
Department shall be mailed to the person
re~esting review.
10.60,040 Appeal of parking violations to
Parking Examiner. Within ~9 ~ii~iii~i~iii~i~i~i~ days
by depositing the full ~ount of the parking
.............. ~ ....~ .......~ ...........If the
person
provides proof of financial inability to deposit
960111 syn 0042448
2
the full amount of the parking violation
(according to standards developed and ma4e
avallable for P ............ :~:~:~:~:~:~ I ..........
.................
as a prerequisite to contesting it shall be
waived. If the vehicle is immobilized or
impounded for unpaid parking violations, the
requirement for payment of parking penalties as
a prerequisite to contesting them shall also be
waived.
i0.60.040 Designation and qualifications
of Parking Examiner. The City Manager shall
designate a Parking Examiner having the
qualifications, training, and objectivity
necessary to perform the duties of that
performance evaluation,
compensation, and benefits shall not be directly
or indirectly linked to the amount of fines
collected as a result of decisions by the
Parking Examiner.
i0.60. 050 Hearings before the Parking
Examiner. The Parking Examiner shall notify the
person contesting the parking penalty of the
date and time scheduled for hearing and provide
the option of proceeding on a written statement
shal! be established by the Police Department’s
production at the hearing of the notice of
parking violation (or a copy thereof) ,
info~ation from the California Department of
Motor Vehicles identifying the registered o~er
of the vehicle, and the decision of the Police
Department being contested. Hearings shal! be
960111 syn 0042448
conducted info~9!~y, t.O ~e..~.idg~_~Y_ ru~es
witnesses. Upon completion of the hearing, the
Parking Examiner may cancel the notice of
parking violation and all penalties and fees
based thereon if a dete~ination is made that
either the violation did not occur, thc notice
~e issued or
}:~:~:~:~nsible for the violation;
however, under no circ~stances shall a personal
relationship with any officer, public official,
or law enforcement agency be grounds for
cancellation. The decision of the Parking
Ex~iner shall be ~iled or personally delivered
to the appellant and shall be final and not
subject to reconsideration.
charges and fees based thereon shall be
collectible as provided by the laws of
California.
10.60.060 Permit parking in City lots.
(a) The city manager is authorized to set
aside any portion or all of any city-owned
parking lot for permit parking and to issue
permits therefor as provided in this section.
(b) The city manager may issue parking
permits upon application therefor and upon the
payment of a fee in an amount to be determined
by the city manager. Such permit shall
designate the parking lot for which it is issued
and shall be affixed at or near the center of
the rear bumper in such a manner that it can be
readily identified from the rear of the vehicle
for which it is issued. Such permit may contain
such instructions as to its use as may be deemed
appropriate by the city manager.
9601 ! 1 syn 0042448
(c) The city manager shall install signs
adjacent .to permit parking spaces indicating
that they are reserved for permit parking only,
and the holder of such a permit properly
disp!ayed may park in any such space on the lot,
but only in such space.
(d) A vehicle with a permit shall not park
for more than seventy-two consecutive hours in
the same city-owned parking lot or structure.
This subsection shall not apply to official city
vehicles.
(e) No person who owns or has possession,
custody or control of a vehicle shall park that
vehicle or allow it to be parked in any permit
parking space adjacent to which there is a sign
indicating that such space is reserved for
permit parking only without displaying a valid
permit therefor. This prohibition shall not
apply to the use of such spaces during the
period from six p.m. to eight a.m. or on Sundays
and holidays."
SECTION 2. This ordinance is an emergency measure
necessary for the immediate preservation of the public peace,
health, safety and genera! welfare within the meaning of Article II
of the City Charter and shall go into immediate effect. The facts
constituting the necessity are:
Assembly Bill No. 1228 of the 1995-1996 Regular Session of
the California Legislature became operative on January !,
1996. In order to conform the City’s administrative review
process for parking citations to the requirements of state
law, and to preserve the safety and welfare of the public
provided by parking enforcement, immediate effectiveness of
this ordinance is required.
SECTION 3. The Council finds that the provisions of this
ordinance do not constitute a project under the California
Environmental Quality Act.
This ordinance was introduced at a regular meeting of the
Counci! of the City of Palo Alto on Tuesday, the 16th of January,
1996, and was passed by a four-fifths vote of all Council members
present at the meeting as follows:
INTRODUCED AND PASSED:
AYES:
NOES:
ABSTENTIONS:
960111 syn 0042448
ABSENT:
ATTEST:
City Clerk
APPROVED AS TO FORM:
Senior Asst. City Attorney
APPROVED:
Mayor
City Manager
Police Chief
960111 syn 0042448
6
ATTACHMENT A
Parking, Examiner’s Trainin~ and Experience
Educational History_
¯B.A., Comell University, Ithaca, N.Y., 1971
¯J.D., Comell University, Ithaca, N.Y., 1975
¯Receives thirty-six hours of continuing education training required for attorneys (twelve
hours per year, over a three-year period).
Relevant Employment History_
¯Admitted to practice, State of California, December 1975
¯Assistant City Attorney, City of South San Francisco, CA, 1975-1976
¯Deputy District Attorney, San Mateo County District Attorney’s Office, 1976-1978
¯Private Practice, maintained Law Offices of Louis L. Amadeo, Jr. with main office in
San Mateo and branch office in Palo Alto, 1978-Present
Relevant Legal Experience
¯Has been the Parking Examiner with the City of Palo Alto since July 1993.
¯Has conducted, as trial attorney, in excess of 100 misdemeanor and felony trials.
¯Has handled, to conclusior~ in excess of 1,000 misdemeanor and felony cases.
¯Has handled in excess of 1,000 cases involving violations of the California Vehicle
Code.
¯Has served as an arbitrator for civil cases for over three years.
start
June 17, 1993
3
THE HONORABLE CITY COUNCIL
Palo Alto, California
Resolution Adopting Parking Penalties and Fees and Ordinance
Establishinq Parkinq Examiner Proqram
Members of the Council:
Report in Brief
Assembly Bill 408 (AB 408) decriminalizes parking violations, re-
moves parking citation processing from the courts and establishes
a civil system for administrative adjudication of parking offenses.
While the operative date of the legislation is July i, 1993, it
allows for a phase-in period until January i, 1994. However, the
Santa Clara County Municipal Court has notified all agencies within
the County that they will cease handling citations as of June 30,
1993. As a result, effective July l, 1993, the City will be
responsible for processing and adjudicating parking citations. As
part of the legislation, the governing body of each jurisdiction
that issues parking citations mu~t establish a schedule of parking
penalties for parking violations, late payment penalties and
administrative fees. These penalties and fees for Palo Alto will
be included in the 1993-94 Municipal Fee Schedule. However,
because the penalties and fees must be effective on July 1 and the
Municipal Fee schedule is not effective until August i, a
resolution is needed to establish the penalties and fees for the
month of July. Additionally, the legislation requires~designation
of the Parking Examiner function by an individual agency’s
governing body or executive officer and approval of program
guidelines. Council adoption of an ordinance designating the
Parking Examiner and approving the program guidelines is also
requested. The ordinance is proposed for codification as Chapter
10.60 of the Municipal Code, repealing and replacing that Chapter,
since it presently deals with parking meters and parking meters
have not been used in Palo Alto for many years.
Backqround
As described in CMR:206:93, AB 408 becomes operative July i, 1993.
An administrative adjudication process will be implemented that
includes a no-charge review of citations by the Police Department
with an appeal in writing or in person before a Parking Examiner.
A final appeal to be heard in civil court is also available. The
CMR:347:93
Page Two
legislation amends Section 40203.5 of the Cal~fornia Vehicle Code
to allow the schedule~of parking penalties, late payment penalties,
administrative fees, and any other related charges be established
by the governing body of the jurisdiction where the notices of
parking violation are issued. Additionally, Section 40215 was
amended to include language that the administrative review of
contested parking citations be conducted before a Parking Examiner
designated by the issuing agency’s governing body or chief
executive officer, and that the reviews be conducted in accordance
with written procedures established by the issuing agency that will
ensure fair and impartial decisions.
Parkinq Examiner Function
The Parking Examiner will conduct administrative reviews of
contested citations in writing or by personal conference. The
legislation requires that a Parking Examiner demonstrate
qualifications, training and objectivity prescribed by the
governing body or chief executive of the issuing agency. The
legislation also demands that the continued employment,
compensation and/or performance evaluation shall not be in any way
linked to the amount of fines collected by the Examiner.
~rogram Guidelines
Training materials and guidelines for the Parking Examiner program
are reflected in Appendix C, These were originally drafted for use
by the City of Los Angeles and endorsed by the California Public
Parking Association.
The purpose of the materials is to provide training and guidance on
policies and procedures used in the operation of the Parking
Examiner program to assure fair, equitable and impartia! decisions.
It is important to note several other major changes in AB 408 in
the process of contesting parking citations. Prior to AB 408,
parking citations could be contested, under criminal procedures,
for a period of up to five years after issuance, based on the
statute of limitations for criminal infractions. Under the new
process, parking citations are a civi! matter and must be contested
within 21 days of issuance or within I0 days of the mailing of the
delinquency notice (a total of about 33 days in real time). If
citations are not contested within this timeframe, there is n__o
further recourse or procedure for an appeal to civi! court. An
appeal to civil court can be made only after a hearing has taken
place°
CMR:347:93
Page Three
The burden of proof has also changed from "beyond a reasonable
doubt" which is used in criminal cases to a "preponderance of the
evidence" used in civil cases.
The new process does not provide for the testimony of the officer
who issued the citation at the hearings. In other words, there is
no longer a right to confront or question the citing officer.
Parkinq Penalties and Fees
Prior to AB 408, parking fines (with the exception of state
mandated fines related to disabled parking) were set by the
Municipal Court of individual counties. Cities would recommend
certain levels of fines that were subsequently reviewed and adopted
as part of the counties’ bail schedules. Using this process,
parking fines varied from agency to agency. Under AB 408, parking
fines become civil penalties, and issuing agencies within the same
county are required, to the extent possible, to standardize these
penalties so there are not significant differences between
agencies. Additionally, the legislation allows for charging of
administrative fees to assist in defraying the costs of the Parking
Examiner program.
Staff has participated in meetings of agency representatives in
Santa Clara County and has surveyed other cities in the area to
determine the levels of parking penalties and fees. Appendix B
includes a breakdown of penalties and fees for 17 cities in Santa
Clara and San Mateo Counties, as well as six other cities in the
Bay Area. As shown in Appendix B, the majority of agencies plan on
a standardized penalty of $25 for most parking violations.
Appendix A reflects the proposed parking penalties and fees for the
parking violations associated with California Vehicle Code sections
and the City of Palo Alto’s Municipal Code. A comparison of
current fines to proposed penalties reflects a reduction in some
penalties such as parking in a red zone, storage on the street,
overtime permit parking, etc. and an increase in other violations
such as removal of chalk markings, unlawful alley parking, parking
without permit in permit area, etc. Staff proposes to maintain the
penalty for overtime parking, the most frequently cited violation,
at $19.
It should be noted that $5 of each parking penalty includes an
assessment that will continue to be imposed by the State and County
for jail and court construction.
Staff is recommending the approval of an additional penalty for
late payment of citations and a fee that would be charged at the
time a request is made to the California Department of Motor
Vehicles (DMV) for associated unpaid parking citations.
CMR:347:93
Page Four
Currently, a person has 30 days from the date of a citation
issuance before a delinquency notice is mailed by our processing
vendor (City of Inglewood). A late payment penalty of $23 is
imposed if a person does not pay or arrange for a court appearance
within i0 days after the mailing of the delinquency notice. Staff
proposes to increase the penalty to $25. Under AB 408, the late
penalty must be paid, or an appointment with the Parking Examiner
must be arranged, within 21 days after the citation is issued or
within i0 days of the mailing of the delinquency notice.
Approximately 12 percent of all citations issued result in a late
penalty fee.
Under the current procedure, if after 20 days from the mailing of
the delinquency notice, the citation has not been taken care of,
the City requests DMV to place a registration hold on the vehicle.
DMV withholds the annual registration until the parking citations
have been paid. DMV currently charges a $3 administrative fee for
each citation for which a registration hold is requested. Staff
recommends that Council adopt a $5 DMV registration hold fee (of
which $3 is sent to DMV) to assist in defraying the costs of the
Parking Examiner program. Based upon current figures, staff
estimates that about 15 percent of citations issued result in DMV
registration holds.
Implementation
Pending Council approval of the parking penalties and fees, the
program guidelines and the Parking Examiner position, staff will
implement the program on July I. For about the first three months,
the Parking Examiner will work a 40-hour work week in order to
catch up on the backlog of appointments. This backlog was created
when the County court calendars through June 30 were filled up by
May 25, and staff began making appointments to begin July 19 for
the Parking Examiner. After the backlog is reduced, staff
anticipates the Examiner to work about a 20-hour week.
Staff is currently working with the City of Mountain View and the
Mid-Peninsula Open Space Park District in the development of
agreements regarding their use of Palo Alto’s Parking Examiner.
Staff will return to Council for approval of those agreements in
the near future.
Recommendations
Staff recommends that Council approve the attached resolution
establishing parking penalties and fees for the month of July 1993,
and the attached ordinance to establish the Parking Examiner
program.
CMR:347:93
Page Five
Respectfully submitted,
J.HERNANDEZ
.eutenant~)Division
AssiStant Police Chief
FLEMING
Manager
Attachments: Appendices A, B and C
Related CMRs: 206:93
CMR:347:93
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Appendix C
City of Palo Alto
Parking Administrative Adjudication
Program Manual
ACKNOWLEDGEMENT
We gratefully acknowledge the Assistance
of the City of Los Angeles and
the University of California, Los Angeles
in designing the format for this manual.
Without their efforts considerable additional
taxpayer expense would have been necessary.
THANK YOU
TABLE OF CONTENTS
INTRODUCTION
MISSION STATE>~ENT
PHILOSOPher OF P.~!~KING ENFORCEMENT
GOVERNING ST7 ~o~ES
Author~2Notice ~z Parking Violation Information ............. ....3Affixi~ r the Notice of Parking Violation ............ .3Prima ~ ~cie Case
Seizur of the Vehicle .....................3Notice \equirements .......................4Leased ~nd Rented Vehicles ...................4
1.0 THE i2~ ~iAL INVESTIGATION
!.I _ziating the Investigation 51.2 .’estigation Procedures/Guidelines ............5
2.0 TP~ HE7. 2NG
2.1 ’~ .teral Approach to Hearings ................62.2 :J ~ntity of Evidence Required to Sustain Case .......82.3 7 ~mining the Citation to Establish the Prima Facie Case . 9
2.4 -~ Respondent’s Case ...................!02.5 " e Cross Examination ...................122.6 ~ ~ng the Results of the Initia! Investigation .......142.7 ’ - = Decision 142.8 :e Payment Penalties ...................162.9 -= ~ounts 16
2.10 ~or Dismissals/Precedence ................17~2.1i ~or History of Violations ................i7
3.0 HE~RiN
3.1
32
33
34
35
3
3
3
3
3
6
7
8
9
i0 indigence
PROCEDURES
~.e-Hearing Procedures ...................18:gin the Hearing .....................
~view the Prima Facie Case ................19
. imit Liability with Explanation ..............!9=ny Liability .......................197 ~nder a Decision .....................20Lose the Hearing .....................20
_oecia! Situations .....................21xummary of Hearing Examiner’s Major Tasks .........22
......................... 22
4.0 THE PRI~ FACIE CASE
4.1 Requirements ........................234.2 illegibility ........................23
5.0 LATE PENALTIES
5.1 Computation of Late Penalties ...............24
5.2 Potentia! Defenses for a Late Payment ...........24
5.3 Unacceptable Defenses for Being Late ............24
~.4 Late Payment Penalty for a Dismissed Citation .......25
5.5 Notice of Delinquent Parking Violation After Fine Paid .25
5.6 Proof of Payment ......................25
6.0 CONTINUANCES
6.1 Pre-Hearing Continuances ..................26
6.2 Continuances for Further Proof After Hearing Commences 26
6.3 Other Continuances .....................26
6.4 Procedure for Recording Continuances ......~ .....26
7.0 TYPES OF HEARINGS
7.1 Scheduled Hearings .....................28
7.2 Hearing by Written Declaration ...............28
8.0 APPEALS .............................29
INTRODUCTION
The purpose of this material is to provide the Parking Examiner, also known as
a Hearing Examiner, with a fairly comprehensive overview of the major topics
affecting this position. It should be emphasized at the outset that this manual
is not intended to contain every detai! or present every issue that wil! come up
in the course of his or her duties. Rather, this manual is intended to be a
primary resource for general information. The importance of studying this
Adjudication Manua! cannot be over-emphasized; it is, for the purposes of the
City of Palo Alto Parking Adjudication Program, the authoritative compilation of
the rules, regulations and policies.
There age certain aspects of being a Parking Examiner, particularly with respect
to the manner in which hearings are to be conducted or testimony is to be
elicited, which are not readily reduced to a written formula. Although there are
general format re_quirements designed to respond to basic due process concerns,
each Parking Examiner tends to develop his or her own persona! "style" within the
established parameters. Much of what needs to be learned can be learned only (or
best) by experience.
It is important for the Parking Examiner to feel free to rely on the knowledge
and exp_erience of the staff of the Police Department and Finance Department; in
other words, it is expected that, when in doubt, the Parking Examiner wil!
consult the appropriate staff member(s) on policy.
A treatment much longer than this manual might not anticipate or resolve the full
range of issues, intricacies, variations or problems with which the Parking
Examiner may eventually be confronted. It is hoped, however, that this manua!
will provide the Parking Examiner with a general overview of the issues most
likely to arise.
MISSION STATEMENT
The mission of the Administrative Adjudication Program is to provide for the
hearing and disposition of al! contested cases involving parking violations of
the California Vehicle Code (CVC), the Pa!o Alto Municipal Code (P.~MC), and the
parking regulations relating to the parking and impoundment of vehicles within
the area of jurisdiction of the City of Palo Alto. This includes al! parking
citations issued by Police and Community Services Department personnel.
The intent of the AB408 legislation authorizing administrative adjudication is
to free limited crimina! justice resources for more serious criminal matters and
to provide a more timely, convenient, simplified and less intimidating forum for
the hearing and disposition of contested parking violations. The City
acknowledges that it is important that the adjudicatory process thus established
be fair, convenient, and impartial from the viewpoint of those contesting alleged
parking violations, while at the same time administering justice in an efficient,
and uniform manner.
It is the primary goal of the Administrative Adjudication Program to provide all
individuals charged with a parking violation a forum in which the facts of their
case may be reviewed fairly and a disposition rendered in a timely manner.
PHILOSOPHY OF PARKING ENFORCEMENT
An effective parking enforcement program must protect and fairly apportion scarce
parking space for all legitimate users by insuring that those who violate parking
regulations are penalized for doing so. Penalties for non-payment of citations
must be strong enough to discourage violators from being scofflaws. Repeat
offenders who fai! to observe parking regulations or pay outstanding fines should
expect the following consequences: towed vehicles, garnishment of wages, offsets
against State income tax refunds and State lottery winnings.
For those who contest a citation, the adjudication process should be just and
timely; it must contribute to the overall goal of discouraging illega! parking
by enforcing parking regulations, but in a way that provides a fair and impartial
hearing for al!.
GOVERNING STATUTES
The following is a brief summary of those statutes which are basic to the hearing
process. Although the Hearing Officer may not be directly affected by all of the
provisions within a statute, the Parking Examiner should nonetheless become
familiar with them by reading the statutes in their entirety.
Authority: California Vehicle Code, Article 3
The establishment of the Administrative Adjudication Program is authorized
by California Vehicle Code ~ticle 3, Sections 40200.7 and 40215, which
became effective on July ! 1993, as enacted by California Assembly Bill
408. The adjudication procedure mandated by AB 408 is detailed as
follows:
The issuing or processing agency must perform an administrative
review of a citation, if t~e review is requested, within 21 days of
issuance of the citation or within !0 days of the mailing of the
notice of delinquent parking violation.
Within~15 days of the mailing of the results of the administrative
review, the person may request a mai!-in or in-person review of the
citation by a hearing examiner emp!oyed by the issuing agency. The
request for the hearing must be accompanied by payment of the full
amount due for the citation or, as provided by the agency’s policy,
appropriate proof of inability to pay the amount due. It is
important to note that the parking enforcement officer does not
appear for the hearing.
Within 20 days of the mailing of the hearing examiner’s decision, an
appeal may be filed with a civil court. The court current!v
requires persons filing the appeal to pay a $25 filing fee plus an~
other applicable court charges and fees. The appeal is heard de
novo in a municipal court with the parking agency’~~fi!e in the case
submitted as evidence. A copy of the notice of parking violation is
admitted into evidence as prima facie evidence of the violation. If
the court overrules the parking examiner, the parking agency must
refund the $25 filing fee and any part of the parking penalty that
the court may order to be refunded.
NOTE: There are no provisions in the Vehicle Code, nor is the issuing
agency required, to conduct an administrative review or schedule an
appearance before a parking examiner if the mandated time limits are not
followed by a violator.
Notice of Parkin~ Violation Information: CVC Section 40202(a)
The Parking Examiner should review each Notice of Parking Violation or
citation, or a computer printout of same, to ensure that it contains the
following statutori!y re.cg/ired information:
*Violation Code Section or Description
*Approximate time
*Location
*Vehicle license number or Vehicle Identification Number (VIN)
*Registration expiration date (or notation that tabs were not on
the vehicle)
Last four digits of the Vehicle Identification Number (VIN), (only
re.cg/ired if visible to the parking enforcement officer)
Co!or of vehicle
Make of vehicle
*~ount of Fine
*Location where penalty may be paid or contested
NOTE: Citations lacking the information marked with an asterisk (*) may
be dismissed outright by the parking examiner. This is called a summary
dismissa! and occurs because the City has failed to adequately establish
its prima facie case.
Affixing the Notice of Parking Violation: CVC Section 40202(b) and (d)
The statute requires that a citation be affixed to the motor vehicle or in
the case that a vehicle was driven away before the parking enforcement
officer could affix the citation, mailed to the registered owner of the
vehicle. If the respondent claims that the citation was never affixed to
the vehicle or seen on the vehicle, and presents credible evidence to
substantiate the claim, this should not be grounds for dismissing late
fee(s) which accrued because the citation was not paid or appealed in a
timely fashion. Only if the parking examiner can ascertain that the
respondent was not mailed a delinquent notice of the alleged violation(s)
should the charges or accumulated penalties be dismissed.
Prima Facie Case: CVC Section 40200 and 40215(b)(4)
A parking citation containing the requisite information (listed above)
which is affixed to a motor vehicle is considered to establish a prima
facie case that the registered owner of the vehicle identified on the
citation committed the violation. That is, a properly completed citation
satisfies the City’s burden to establish that the violation occurred.
However, the prima facie case may be successfully rebutted by a respondent
by presenting credible and sufficient evidence that the citation is not
valid. What constitutes sufficient evidence to rebut the citation, and
warrant dismissal, is determined in a hearing by a parking examiner and is
discussed in detail in this manua!.
Seizure of the Vehicle: CVC Section 22651(i) and 22651.7
The City is authorized to seize or impound (tow), at the registered
owner’s expense, any vehicle that has been issued five or more notices of
parking violation over a period of five or more days to which the
registered owner has not responded.
Notice Retirements: CVC Sections 40206 and 40207
The California Vehicle Code (CVC) re_quires that a processing agency notify
the registered owner of a vehicle when a citation for parking violation
issued to that vehicle is delinquent . This notice requirement is
satisfied when the processing agency mails a notice of delinquent parking
violation to the last known address of the registered owner, that address
being the one which is on file at the Department of Motor Vehicles (DMV) .
Therefore, a claim that notice was not received is not normally a valid
rebuttal to a citation. The processing agency has satisfied the statutory
requirements of notice by mailing the delinquent notice to the address of
record at the DMV. Notice mai! dates may be verified by information
contained in Parking Ticket System records maintained by City staff and
the City’s parking citation processing vendor.
Registered Owner/Driver Responsibilities: CVC Sections 40200(b) and (c)
Except as provided in Section 40209, the registered owner and driver,
rentee, or lessee of a vehicle cited for any parking violation shal! be
jointly liable for al! imposed parking penalties, unless the owner can
show that the vehicle was used without consent, exp. ress or implied. 9~
o’~ner who pays any parking penalty, civil judgement, costs, or
administrative fees associated with a parking violation shal! have the
right to recover the same from the driver, rentee or lessee.
The driver of a vehicle who is not the owner, but uses/operates the
vehicle with the exp. ress or implied permission of the owner shal! be
considered the agent of the owner to receive notices of parking violations
and may contest the parking violation.
Leased and Rented Vehicles: CVC Sections 40209 and 41102
When the vehicle identified on a citation is a leased or rented vehicle,
the Vehicle Code mandates certain processing requirements which are listed
below:
A notice of delinquent parking violation (which includes the vehicle
license number and date of the violation) must be sent to the
registered owner.
The registered owner of the vehicle may transfer responsibility for
the violation to the lessee or renter of the vehicle at the time of
the violation, but only if the name, address, and driver’s license
number of the lessee/renter is provided to the processing agency
(City) within 30 days of the mai! date of the delinquent notice. If
the registered owner does not provide this information within the 30
days al!otted, there is no requirement to transfer responsibility
for the citation.
If a lessee or renter is notified of a delinquent parking violation,
the lessee/renter has the option of paying the penalty which closes
the citation or contest its validity through the administrative
hearing process.
1.0 THE hNITIAL INVESTIGATION
i.!Initiatin~ the Investimation
All persons contesting a citation will first receive an "initial
investigation" of their citation prior to being scheduled for a hearing
with a parking examiner (Administrative Review). An investigation can be
initiated by written request, telephone or in person. ~ "Initia!
Investigation" form wil! be completed by the respondent or the
investigator responsible for the investigation. The Parking Supe~zisor or
his/her designee will be responsible for completing the investigation.
1.2 Investimation Procedures/Guidelines
In all cases, there should be a record of an investigation into the claim
of a missing sign, unpainted curb, etc. A summary of the investigation
wil! be entered into the on-line Parking Ticket System (PTS) record as
"notes." In some cases, the respondent’s claim wil! be fo~und to be
accurate during this investigation and the citation wil! be dismissed. In
other cases the results of the investigation wil! declare the citation
valid and the person who received the citation "liable" for the penalty
amount currently due. Results of an investigation wil! be included in the
file forwarded to the parking examiner.
CVC Section 40200.7 and 40215 mandate that a "violator" retest an
investigation within 21 days of receiving a citation or within !~ days of
the mailing date of a notice of delinquent parking violation. If the
request for a hearing was not made within these time limits, the
respondent has !ost the statutori!y prescribed ability to contest the
citation. Assuming that a hearing was properly requested, within 15 days
after the mai! date of the result of the investigation, the respondent
must pay the parking fine before being scheduled for a hearing. If the
person that received the citation does not comD!y with these requirements,
no further review of the citation is mandate~ by the vehicle code.
~ initial investigation which concludes that a citation was "validly
issued" does not dispose of the case entirely. The respondent is entitled
by State law the option of a hearing to demonstrate tha~ both the citation
and the results of the initial investigation are in error. The respondent
will be apprised of statutory entitlement to a hearing as part of the
written results of the initial investigation called the "Initia!
Investigation Response" form.
2.0 TH~ F[EAR!NG
2.1 General APProach to Hearincs
2.1.1 Informality of the HearinG
The hearing is an informal proceeding in the sense that the
rules of evidence required in a court tria! do not apply.
This benefits the respondent who is most often a lay person
unfamiliar with the intricacies of the lega! process. The
parking examiner should make this clear to the respondent if
the respondent appears confused that the hearing i~ not being
conducted under strict "rules of evidence." Despite this
relative informality, each hearing should be conducted in a
structured and professiona! manner. The fina! decision in a
hearing must be rendered in writin~ to the respondent.
2.1.2 The Role of the Parkin~ Examiner
The parking examiner has several major responsibilities. The
first obligation is to examine the citation for defects in the
prima facie case. The examiner listens to the respondent’s
and witness’story and cross-examines them to determine the
credibility of the defense and the authenticity of any
documents presented. In some cases the examiner helps the
respondent articulate the facts of his/her defense. The
examiner weighs the evidence, including any discrepancies
elicited during the cross-examination and renders a d~cision
based on the facts of the case and applicable laws.
It is essential that a parking examiner remain independent and
impartial. The parking examiner does not "represent" the City
in a hearing but rather "conducts" the hearings and renders
decisions in accordance with the rules, regulations, and
policies and procedures established by applicable laws. It
should go without saying that any interest the City may have
in collecting parking fines is simply not a permissible
consideration during the hearing process. In other words, the
parking examiner must be a neutra! and objective fact finder.
Vehicle Code Section 40ZlS(b) in fact requires that the amou~.t
of fines upheld by an examiner must not be linked to the
examiner’s continued employment, performance evaluations,
compensation or benefits.
2.1.3 The Conduct of a Parkinq Examiner
To adequately discharge the responsibilities of a parking
examiner demands that the examiner become somewhat inv~!ved in
each hearing. Respondents, especially those in good faith,
want most of al! to believe that they have had a ful! and fair
hearing before someone who has listened to them objectively,
even if the ultimate result of the hearing is a finding of
liable. It is of paramount importance that the parking
examiner !isten~attentively and show interest. It may be, of
course, difficult to !ook excited about hearing, "i didn’t see
the sign" for the twenty-third time. It is presumably the
only time that day that the respondent has explained the
problem. So the examiner must be patient and let the
respondent tel! a complete story and present al! pertinent
evidence, but at the same time not permitting irrelevancies to
intrude on the hearing process.
A parking examiner should never get angry during a hearing.
This may be difficult sometimes, since examiners are human and
some respondents can become qg/ite abusive. But if the parking
examiner is able to remain calm and professiona!, this wil!
often cool down an agitated respondent and will certainly
enhance the judicial aura of the proceedings.
It must be emphasized that a parking examiner should not be
influenced, one way or another, by any personal bias or
prejudice. The parking examiner, just as obviously, must not
solicit or accept anything of value in the course of his or
her duties. Any suspected impropriety must be reported to a
supervisor immediately.
It cannot be overly stressed that even an appearance of
impropriety must be avoided. The parking examiner must not
conduct a hearing for any relative, friend or c!ose persona!
acquaintance. If the parking examiner knows a respondent, the
parking examiner must inform a supervisor so that another
examiner can be assigned to the case. The parking examiner
must abide by this rule even if the examiner truly believes
that a relationship with the respondent will not affect his or
her judgment.
The parking examiner must always maintain control of the
hearing. This means, among other things, being carefu! to
observe the necessary procedura! guidelines (see the section
entitled Hearing Procedures). Although the parking examiner
should respond to reasonable requests for information or
clarification, the examiner should not be subjected to a
"cross-examination" by the respondent. The parking examiner
must not allow the hearing to degenerate into a discussion of
matters not germane to the citation(s) being adjudicated. In
particular, it is not the parking examiner’s function to
"defend" City policies or regulations. The parking examiner
renders a decision within the framework of the policies and
procedures, but the parking examiner position is in no way
that of a policy-maker.
Firmness
While it is of great importance to be fair, it is also
important to be firm. The parking examiner may be tempted to
find a respondent not liable, or reduce a fine, feeling that ~
part of justice is leniency or that leniency is good public
relations. For several reasons, this is inappropriate. In the
first place, the City is attempting to alleviate the problem
of illegal parking. The reduction of a fine, merely because
the respondent took the time to come to a hearing, or because
the respondent had a personal reason (other than a bona fide
emergency) for parking illegally, defeats this purpose.
Secondly, it is unfair to the public as a whole, in whose
interest we function, to make a special exception for someone
just because they appear at a hearing. Finally, it is simply
not good public relations to provide a loophole for those who
wrongly seek to read an exception for themselves into the law.
Ultimately, the best public relations is to treat everyone
equally and fairly, rather than "give a break" to the specia!
few who attempt to escape responsibility through a parking
examiner’s sympathy.
2.2 Quantity of Evidence Re~aired to Sustain Cas~
The Vehicle Code states that a properly completed citation is prima facie
evidence of the validity of statements contained therein. What this means
is that once a citation is determined to be properly completed, and a
prima facie case is therefore established that the violation occurred, the
burden of producing evidence to rebut the charge shifts to the respondent.
If the respondent wishes to deny the parking allegations (e.g., "the
parking space was not properly marked."), the respondent must persuade by
presenting a preponderance of credible evidence as weighed against the
prima facie case presented by the completed citation. A preponderance of
evidence is evidence of greater weight when weighed against the evidence
opposing it, and has more convincing force and a greater probability of
truth. If the respondent wants to present an affirmative defense (e.g.,
trapped in a space by a double parked truck! or an explanation (e.g.,
medical emergency), the respondent must prove the presentation by a
preponderance of the credible evidence as measured against the incredible
evidence, facts judicially noticed, various presumptions, etc.
2 .2 .!Substantial Proof
There is no such thing as a halfway-proved defense or
explanation. If the respondent’s sto~i amounts to a defense,
t: ~ parking examiner must decide whether the evidence is
c-:dible and sufficient. If not, the respondent is "liable"
and should forfeit the fine. On the other hand, if the
.parking examiner believes the respondent, and the evidence
presented refutes the prima facie case, the respondent should
be found "not liable.’, If the respondent has an explanation,
the parking examiner must decide in each case whether the
respondent has presented sufficient proof to support the
explanation. If not, the defense fails.
NOTE: That a respondent must provide credible and sufficient
evidence to rebut a citation is, to be sure, a rather flexible
standard. What w~!! constitute credible and sufficient
evidence will vary according to the circumstances of each
case.
2.2.2 The Rules of Evidence
The usual rules of evidence applicable in a court of law are
not required in these hearings. As a practical matter, there
are normally no limitations on the type of evidence that may
be accepted, except possible harmfu! or offensive materia!,
with the provision that time should not be wasted on the
immateria!. This in no way suggests that the parking examiner
should believe everything submitted or stated. But it is
permissible to consider, or accept for what it is worth,
anything offered, and to subject it to examination in order to
assign it a relative weight.
Evidence tending to support a respondent’s credible testimony
should be received favorably. At other times, evidentiary
re.~irements are more specific and inflexible; for example, if
a defense is that there were no signs at the entrance to a
sDecific parking lot this can be ~ve .... ed by either theresults of a sign investigation or comprehensive and accurate
photographs. The parking examiner should take care to
determine that any photographic evidence reflects a complete
record of conditions at the time a citation was issued a~d not
subsequent modifications. It should be recog~_ized that
carefully framed photographs can easily be made to exclude
important signs or parking regulation devices.
2 .2 .3 Official Notice of Common Facts
The parking examiner is permitted to take official notice of
facts commonly known, in the same manner as is no_~ma!ly done
by a judge in a court. The kind of facts which may be noticed
are the time the sun rises or sets, the date on which a
holiday is observed, etc.
2.2.4 General Denial
Generally speaking, a mere genera! denial of a violation,
unsupported by evidence, wil! not be sufficient to warrant a
dismissal. There are situations in which corroboration may
not be possible (e.g. a solitary driver contends that his
vehicle was "boxed-in" by another vehicle and was thereby
rendered unable to vacate a parking space prior to the
expiration of the al!otted time). In such cases the parking
examiner must make a decision based on a careful appraisa! of
the respondent’s credibility. It should be emphasized that
these are unusual ~ituations and normally some sort of
documentation or substantiation is available.
2.3 Examinin~ the Citation to Establish the Prima Facie Cas~
The City’s case is almost invariably limited to the production of a copy
(or computer printout) of the citation. When a hearing commences, the
parking examiner should first examine the citation for defects in the
prima facie case. The defects which are fata! to the prima facie case are
set out under "Governing Statutes" (page 3). If a defect is determined to
be fatal, the citation and case must be dismissed without further
testimony.
2.4 The ResDondent’s Case
OnCe the citation has been examined for obvious defects, the respondent
may present his or her case.
2.4.1 The ResDondent’s Story
Generally, the parking examiner should simply let the
respondent tel! his/her story. The parking examiner must
afford the respondent a fair opportttnity to establish their
defense. The parking examiner must always avoid prejudgment,
remaining open-minded and attentive even when the defense
seems to be of a routine and obvious nature. It is important
to hear and endeavor to understand what the respondent is
saying. At times this may not be easy to do, since some
respondents may be disorganized or nervous. The parking
examiner should try to make the respondent fee! at ease and
assist the respondent, as necessary, to adequately articulate
a defense. But this must be done without putting words in the
respondent’ mouth or constructing a defense for the
respondent. When a respondent has difficulty comm’~nicating in
the English !angn/age, the parking examiner should attempt to
sesure the services of a translator. This may require that
the hearing be continued until another time.
NOTE: Special arrangements may be required when a
respondent’s hearing is severely impaired. In such cases, the
parking examiner should contact a super~-isor.
2.4.2 Resoondent’s Witnesses
The respondent may call as many witnesses as needed. The
parking examiner should hear the story of each witness and
cross-examine as necessary. While a witness is testifying,
other witnesses must wait outside the hearing room u~.til
called.
A respondent may also submit a declaration, signed under
penalty of perjury, from a person who cannot attend the
hearing but has pertinent knowled.se of the facts relating to
the respondent’s defense. Such a declaration should be
presented in the form of a statement that sets forth only
those facts that are within the persona! knowiedqe of the
witness. It should begin "I, [name of witness], declare:" and
then state the facts to that person’s Knowledge in "=~=numm~_~d
paragraphs. The declaration should end with these sentences:
"I declare, under penalty of perjury under the laws of the
State of Ca!i- ~rnia, that the foregoing is true and correct.
Executed by .name] on [date] at [city and state where
signed]." The declaration must be signed by the witness.
If the unavailable witness does not reside in California, the
respondent must provide a notarized affidavit instead of a
declaration under penalty of perjury. The parking examiner
may accept, but should accord less weight, to a statement that
is made neither under penalty of perjury nor notarized.
In evaluating such declarations, the parking examiner should
bear in mind that a declaration cannot, of course, be cross-
examined and is, therefore, less usefu" than a witness
i0
appearing in person. Declarations must be ca~_ul~v
sc-~utinized and should be sufficiently detailed in order to be
a meaningfu! addition to respondent,s defense. The parking
examiner should, as always, be particularly alert to
inconsistencies between the supporting testimony and the
respondent’s version of events.
Dismissal is no___!t automatic even when corroboration by a
witness is presented. The parking examiner must always w~i=h
the reliability (credibility and accuracy) of both the
respondent and his or her witnesses. ~ong other things, the
parking examiner should consider the existence of a specia!
interest or bias on the part of the witness, whether such a
period of time has passed from the incident to the making of
the written statement as to detract from the ability of the
witness to recollect and testify accurately, and other
improbabilities.
2 .4 .3 ResDondent’s Documents
The respondent may submit any relevant documents. Each
document must be assigned an exhibit number and be retained as
part of the hearing record. Commonly presented documents
include such items as pictures, repair bills, doctor bills or
statements by doctors letters from witnesses, bills of lading
or delivery receipts; and various officia! documents.
While a respondent may present any documentary, evidence, the
hearing examiner must attempt to determine the authenticity
and the amount of credibility to assign to the documents.
Many documents that may be submitted, such as alleged towing
receipts or repair bills, could be fabricated and many others
may really prove nothing germane to the hearing.
Authenticity of Documents
Documents purporting to represent an existing fact or
legal situation must be authenticated in some way.
While formalities in these hearings are relaxed, the
parking examiner should strongly suspect such
submissions as unsworn legal documents, doctor’s notes
on plain stationery, repair bills without headings, etc.
if the hearin~ examiner doubts a document’s
authenticity, and respondent is not able to thoroughly
dispe! this doubt, the examiner should accept it into
evidence but consider its lega! weight to have been
severely diminished or non-existent.
Materia!itv of Documents
Sometimes respondents may attempt to authenticate a
defense with a document which reai!y has nothing at al!
to do with the case. For example, in a case involving
a "No Parking" violation, a repair bill that showed
replacement of a windshield wiper would be valueless as
mitigating evidence. The parking examiner always make
sure the document being presented is actually germane to
the case.
I!
Probative Value of Documents
To be assigned any weight when judging a case, a
document must prove something or explain something which
is germane to the defense. Pictures, for example, in
order to be usefu!, must orient the viewer and tel! a
complete story. A close-up of a si~c~l on a pole, for
instance, is by itself of little use since signs might
be stacked one on top of the other or different si~rns
may be posted on another pole nearby.
d.~sence of Documents
Sometimes the absence of documentary evidence can in
itself be instructive. A respondent, for example, who
claims to have had an emergency appendectomy and who
responds that she doesn’t have or "didn’t bring" any
hospital records, is either sorely !acking in common
sense or possibly not telling the truth. The same
applies to a number of situations where it is reasonable
to expect the respondent to produce some documentary.
evidence.
If the parking examiner believes that a reasonably
prudent person would have produced documentary evidence
to support a defense, this may be considered as a basis
for sustaining a citation on the grounds of
incredibility of the evidence or inadequate proof of the
defense.
NOTE: Anything that is submitted must be retained in the file as it
constitutes a part of the record for pu-~p_ose~ of a possible appea!. For
the documents that the respondent must retain, a complete copy should be
made for the officia! file of the hearing. If the respondent wishes to
withdraw an item from evidence, the parking examiner should explain the
possikle consequence to the defense and that the document may not be
subseqment!y accepted on appeal to civil court. If the respondent
persists, be certain that the respondent stipulates to the exact items
being with/.~~wn and that the respondent is -~ithdrawing the items of
his/her o~n_ volition. As a matter of routine practice, the parking
examiner should record and describe any evidence submitted (such as
pictures, charts, photos, inveices, etc.), cm the hearing disposition
form, and record any evide::ce later withdrawn. No case ~uld be
continued solely because the respondent failed to bring al! ~.’ai!ab!e
documents that the respondent may consider to be pertinent to the hearing.
The Cross Examination
Once the respondent or witness has stated his/her defense, the parking
examiner should begin the cross-examination. This is the point where
skil! in examination is critica!.
2.5.1 Objects of Cross-Examination
There are a number of things to determine on cross-
examination. In the first place, the parking examiner should
understand the perception of the witness. Did the witness
actually see what the witness thinks he saw? Did the witness
!ook, hear, examine, etc.?
12
The parking examlner must always be conscious of semantics.
A witDess may say, for example, that the respondent was "far
enough" from the hydrant. What exactly is "far enough?" How
many feet? Did the witness measure it? If so, how did the
witness measure it? If the witness says there was no sign,
what exactly does the witness mean by "no sign?" No sign
within a few yards of the car? Nc sign next to the car? The
witness may testify that the respondent°s car was properly
behind the sign. How much of the car was behind the sig~.--
half, one-third, three inches? Al! vehicles must be fully
parked in a legal space.
The parking examiner must _cg/estion the completeness of a
statement. Is the witness telling the whole story? For
example, to challenge a double parking charge a respondent may
claim a mechanica! "breakdown" and produce a bil! for starting
the car. The parking examiner reviews the circumstances and
finds that the respondent actually parked at I0:00 p.m. and
when the respondent returned to the car at midnight found that
it wouldn’t start. What the respondent may have not told the
parking examiner was that the car was illegally parked before
the mechanica! trouble.
Or, as another example, the respondent may claim to have been
pushed in front of a fire hydrant. The citation indicates
that the car was "0" feet from the hydrant. Under
questioning, the parking examiner probably could determine
that if the vehicle was actually pushed, it was pushed from
about five feet away to "0" feet, and was, therefore,
illegally parked in the first place.
The parking examiner must test a witness’ memory as well. How
well does a witness really remember? is the desire to beat
the case affecting a witness’ memory? For example, does the
witness really rementber checking her watch or hearing the time
on the radio when the witness left her apartment three months
ago and before seeing a citation which may have made the event
significant?
~d, of course, the parking examiner must closely ~aestion
credibility. Many of the stories presented may merely stretch
the truth or twist it a bit. A half-hour becomes a "few
minutes", three feet becomes fifteen feet, "I usually move my
car on time" becomes "! absolutely remember moving my car on
time", etc. But occasionally, a respondent may tel! an
outright lie. Many of the best sounding stories may be
complete fabrications. The parking examiner must try to
determine if the person testifying is, in fact, lying. This
may be a difficult decision to make. But, if after cross-
examination is completed, the parking examiner believes the
witness is not telling the truth, the parking examiner should
ignore that testimony in making a final ruling. The parking
examiner should make clear in exq2!aining the rationale for the
decision, that the decision was based on the credible
evidence, so that an appellate reviewer who did not hear the
testimony wil! understand how someone with a defense that may
sound legitimate was found liable.
13
2.6 Usinq the Results of the Initia! Investiqation
All persons contesting a citation should first receive an "initial
investigation" of their citation prior to being scheduled for a hearing
with a parking examiner (Administrative Review).
Even if the initial investigation confirms the existence of si~¢rns
governing the violation or that a curb was appropriately painted at the
time the citation was written, it is possible that the respondent may
still be able to establish with independent evidence that circumstances
mitigate the charge, it should be extremely rare that a citation for
which an investigation has determined that the respondent’s claim is
without merit, is later dismissed in a hearing because of an unsupported
genera! denial by the respondent. The parking examiner should always be
carefu! to verify that the investigation was completed for the !ocation
listed on the original (not "respondent’s" copy) of the citation.
The parking examiner must consider the results of the required
investigation when rendering a final decision. Since the results ef the
investigation must be forwarded to the examiner as part of the
respondent’s file, a hearing cannot be scheduled until the initia!
investigation process is complete. The parking examiner should routinely
examine a case file to determine whether the re_cfuired initial
investigation has been completed.
2.7 The Decision
2.7.!Determination
After the parking examiner has digested and weighed all the
evidence, a ruling must be m~de. The available facts must be
applied to the law. The 7,arking examiner must determine
whether the City’s prima facie case has been sustained by a
preponderance of the evidence, or, alte_~latively, has the
respondent convinced the hearing examiner of a legally
sufficient defense or mitigating explanation?
If the respondent has proven the defense to the parking
examiner’s satisfaction, the responden~ should be found "non
liable" and the citation permanently suspended, if the
respondent has not presented a credible defense, the
respondent must be found liable and the full fine forfeited.
Either the respondent has adequately proven a defense or the
defense has failed.
~sent other mitigating -circumstances, a respondent found
liable has forfeited the ful! fine. The only exception to
this would involve circumstances pertaining to the application
of late payment penalties. Only in those cases in which the
parking examiner is convinced that sufficient mitigating
circumstance prevented the respondent from being able to make
payment in a timely manner, may the late payment penalty be
waived. Late payment penalties are discussed in detail in a
following section of this manua!.
Normally, the parking examiner will not leave the hearing room
while deliberating. The parking examiner may a~no~nce the
decision to the response either before or after it has been
.~ritten, or may elect to take the case under submission. The
parking examiner must never change a decision afzer it is
announced merely because the respondent objects to it. The
parking examiner must not vacillate. Only if prior to the
conclusion of the hearing the parking examiner realizes that
an error has been made should the examiner reconsider a
ruling. In other words, simo!e. , even strenuous, d_s=~.~me..~~ .....~-
over the result car~no~ cause the parking examiner to change
the decision, if the respondent disagrees with the analysis
and the outcome, the recourse is to file an appeal in civil
court. The parking examiner’s decision should be final for
the hearing.
A written notification of the parking examiner’s decision will
be mailed to the respondent. The mai! date of the written
decision starts the clock ticking on the respondent’s 20 day
time limit for filing an appea! with the civi! court.
2,7.2 Rationale for the Findin~
Each decision should to be accompanied by a brief statement of
the parking examiner’s rationale. Where appropriate,
especially where the parking examiner has rendered a finding
of liable in a difficult case, the respondent should hnow the
reasons.
Sometimes a simple mention of the fact that all drivers
benefit from turncver at parking spaces wil! suffice.
Sometimes the parking examiner can mention the difficulties
experienced by emergency services, commuters, or other persons
when they cannot move freely through an area or find a place
to park..
To be successfu! in a hearing, the respondent must, at a
minimum, prove that the circumstances which support a ruling
of "not liable" did, in fact, exist at the time cf the
violation. The parking examiner must weigh the reasonableness
of the respondent’s behavior, the extent and nature of the
predicament and the gravity of the potential harm from the
violation. Where an initial violation may be excusable,
repetitions may be inexcusable.
The parking examiner must consider the steps the respondent
took to avoid the violation. For example, a radiator
malfunction might excuse a violation that resulted from
removing the vehicle from a stream of traffic to a place of
safety. But a string of such violations over a period of days
or even hours might wel! not be excusable, in such a
situation, the operator of the vehicle must demonstrate that
a reasonable effort was made to repair the malfunction. The
reasonableness of a respondent’s efforts is partially
dependent on the gravity of the violation. One .would be
expected to go to greater lengths to avoid public-safety typ. e
violations, such as b!ocking a fire hydrant, a handicapped
zone, or parking in a red zone, etc.
15
2.8 Late Payment Penalties
The parking examiner has the iuthority to dismiss late pay~r~enn penalties
which have accrued, but on!____Xv in the case that the respondent has
conclusively demonstrated that he did not have sufficient notice of the
violation and that this lack of notice precluded a timely response, if
the respondent credibly testifies that he did not see the original
citation (perhaps because it was b!own away or removed without the
respondent’s Knowledge), dismissa! of the late palanent penalty may be
warranted. But if the respondent does not take appropriate action to pay
or appea! the citation within 15 days of receipt of the mailed notice of
delinquent parking violation, dismissal of the late payment penalty would
no___%t be appropriate. If the citation reflected an incorrec~~n_=~ =, and
money was paid but not enough to c!ose the citation, the possibility of
confusion may be co..sl~__~d as possible justification for waiving a
pa!nnent penalty.
The situation is much more complicated when the respondent claims that
notices went to the wrong address after the Department of Motor Vehicles
had been notified of a change of address. Where the respondent
adequately demonstrates that a lack of notice under these circumstances
precluded timely payment, late penalties may be dismissed, but only when
the respondent also credibly maintains that the ori~ina! windshield copy
of the citation was not received, it is incumbent upon the respondent to
provide sufficient evidence to establish that the DMV was notified of a
change of address prior to the date that address information was re_~ested
by the City’s parking citation processing vendor.
The essential point is that late penalties must not be automatically or
routinely dismissed without sufficient cause. It should also be
remembered that a lack of notice that may be sufficient to support a
dismissa! of the late payment penalty, does not automatically invalidate
the citation itself.
The parking examiner should be wary of the respondent who claims not to
have seen or received a number of origina! citations. When such a claim
is advanced, the parking examiner must be scrupulous in the
respondent’s credibility and powers of recollection. In most cases,
subsequen~ mailed notices wil! render the issue moot if timely action was
taken by respondent. Again, even if a delinquent notice was mailed to a
"wrong" address, the respondent must prove that he fulfilled his
responsibility by filing a timely change of address with the
A respondent’s attempt to file a change of address with a processing
agency wil! not be effective in directing future overdue notices to the
correct address and wil! not fulfill the statutorily mandated
responsibility to maintain a current address with the D~V. in any case,
it should always be recognized thatthe postal service, if notified,
routinely forwards mad! to a new address for up to one year.
Fine Amounts
The Parking examiner does not have the authority to adjust the amo’~nt of
a fine for a violation. Four parking penalty amounts, associaSed with
disabled parking, are mandated by the state of California pursuant to
Vehicle Code Section 42001.5. All other fine amounts are se~ by the City
of Pale Alto pursuant to Vehicle Code Section 40203.5. The fact that the
same type of violation may "cost" a different amount depending on the
month and year that a citation was issued, does not give a parking
examiner the authority to adjust fine amounts to achieve "~niformity."
16
Likewise, parking enforcement personnel do" not have the authority to
change fines b~ writing in an amount on the citation. In such cases the
violator must be charged the fine amount authorized by the City a~ the
time the citation was issued. However, if the citation reflected an
incorrect parking penalty amount, the possibility that the respondent was
confused should be given considerable weight when reviewing the
appropriateness of suspending a late payment penalty.
2 .!0 Prior Dismissals/Precedence
It is possible that a parking examiner may discover that a hearing is
being held for a citation that has been previously dismissed. Obviously,
such a case should be dismissed. The computer record maintained by the
Parking Ticket System, is a good source of previous dispositions and
should indicate any prior dismissal. Otherwise, the respondent would have
to present convincing proof that the citation was previously dismissed.
With the exception of a prior dismissal, however, a prior decision (by any
parking examiner) does not have the force of precedence, even if the
earlier decision was for the same type of violation and under very similar
circumstances. Regardless of prior rulings, the parking examiner must
consider each case on its own merits. A prior dismissal may, after a!l,
have resulted from an error or been based on a subjective judgment of
credibility or an analysis of the evidence with which another parking .
examiner might not agree. Likewise, a prior finding of "liable" (for a
different citation) is not relevant in any subsequent hearing and should
not prejudice a respondent’s case. Obviously, should a parking examiner
become aware that he/she had previously ruled on a citation, the examiner
should, after consulting with a supervisor, decline to re-hear the case.
2 .ll Prior History of Violations
A related, but more complicated issue is the question of whether, or to
what extent, a history of prior violations should be relevant to the
adjudication of a subsequent case.
First, it must be emphasized that the fact that an individual has received
other (or similar) citations in the past, or has conceded the validity of
prior citations by making payment, or appealed prior citations, caF~.ot be
used as a basis to conclude that the respondent is "liable" in subse~aent
hearings, or that because the respondent is of a "litigious" disposition
that there is diminished merit to a defense. The existence of other
citations may be relevant to the issue of notice (i.e., an earlier
citation at the same location for the same type of violation may weaken a
respondent’s contention that she was unaware of posted signs). It should
be emphasized that awareness that one is committing a violation is not an
element that is required to be established in deciding the validity of a
citation. Similarly, citations at the same !ocation issued to the same
vehicle might impeach a respondent who asserts that she has never been on
a particular street or does not even know where it is. (However, such a
pattern of prior citations does not "prove" beyond rebuttal the accuracy
of the citation being contested).
A history of prior violations may also be considered when the respondent
makes it an issue. If, for example, the respondent contends that she has
never committed a violation before, evidence of prior citations issued to
the respondents vehicle may be usefu! in judging the respondent’s
credibility.
17
3.0 HEARLNG PROCEDURES
The hearing process is generally info_~mal. Nevertheless, there are
certain ~a!es which must be followed to insure that a proper record of the
hearing is made and maintained and to a~oid any problems or
irregularities.
3.1 Pre-Hearin~ Procedures
3 .!.i U~on the respondent’s arrival, the office assistant will
verify the respondent’s name and the citation number with
information provided on the scheduled hearing log and note the
time of arrival.
3 .1.2 The office assistant will direct the respondent to the waiting
area.
3 .1.3 The office assistant will prepare a file for each case to be
heard. The file must contain a copy of the citation(s)
contested that were sent with the scheduled hearing docket,
documentation of a completed initia! investigation, ticket
facsimile record from the Parking Ticket System, registered
owner screen print, transaction history screen print, and a
hearing disposition form.
The office assistant will escort the respondent into the
hearing area and give the case file to the parking examiner.
3.2 Be~in the Hearin~
3 .2.1 The Parking Examiner will present an opening statement, which
includes:
short explanation of the hearing process.
inform the respondent that the options for contesting a
citation are "admit liability with an explanation" or
"deny liability."
Notify the respondent that a written notice of the
decision in the hearing will be mailed to the
respondent’s home address.
3 .2 .2
inform the respondent of the right to appeal the
decision in civil court and the time limit for filing an
appea!.
The respondent will be asked if he or she is the registered
owner of the vehicle involved. If not, the respondent will be
asked to state his or her relationship to the registered o,~nner
or interest in the proceeding and noted on the hearing
disposition form.
3.2.3 The respondent and witnesses will be sworn in and instructed
to put up their right hand and repeat the oath. If someone
objects to taking an oath, any formal assertion of intention
to testify truthfully wil! suffice.
18
3 .2.4
3.2.5
3 .2.6
3.2.7
The respondent and witnesses will recite the following oath:
"Do you swear or affi_~m that the testimony you give will be
the truth?" If yes, please say, "I do."
Al! witnesses wil! be excused and info~ed that they will be
recalled when it is their turn to testify.
The citation number, license plate number and state of
registration, date, time, location and typ. e of violation will
be reviewed for fatal defects by the parking examiner.
The respondenn will be re.quested to enter a plea of "admit
liability with ex-p!anation" or "deny liability" for the record
and response noted on the hearing disposition form.
3.3 Review the Prima Facie Case
3 .3 .!The citation will be examined to determine if all statutoriiy
.ent ....by therequired and pertinent information has been =~=~
issuing officer.
3 .3 .2 The citation will be dismissed if any vital information is
missing.
3.3.3 If no required information on the citation is missing, the
steps outlined in 3.4 for a plea of "admit liability with
explanation" or fol!ow steps outlined on 3.5 for a p!ea of
"deny liability" wil! be fol!owed.
3.4 "Admit Liability with ExD!anation"
3 .4.1 If the respondent admits liability but desires to submit a
mitigating explanation, the respondent will asked to testify
to the mitigating circumstance.
3 .4.2 The respondent will be asked if there is any additiona!
testimony or evidence he/she wishes to present after they have
testified.
3 .4.3 If the testimony does not clearly set forth the mitigating
circumstance, the respondent will be asked questions relating
to the testimony.
3 .4.4 The witnesses will be called in, if needed, one by one. The
witnesses wil! be asked to present their testimony for the
record.
3 .4.5 All documents and other supporting evidence will be reviewed
by th~ parking examiner. Copies of al! documentation or o~her
supporting evidence wil! be placed in the case file.
3 .4.6 The respondent will he asked if there is any further testimony
prior to closing the hearing.
3.5 "Deny Liabi!itv"
3.5.1 The respondent wil! be asked to present his or her testimony
and explain the circumstances of the violation.
19
3.5.2
3.5.3
3.5.4
3.5.5
The respondent’s testimony must be listened to carefully. If
necessary, the respondent wii~ be cross-examined to cla~gv
points relating to the issuance of th~ citation.
The witnesses will be called in, one by one. The
will be asked to present their testimony.
All documents and other supporting evidence will be reviewed
by the parking examiner. Copies of al! documentation or other
supporting evidence wil! be placed in the case file.
The respondent will be asked if there is any further testimony
prior to closing the hearing.
3.6
3.7
Render a Decision
3 .6.1 The parking examiner will make a decision on liability based
on the testimony and evidence.
3 .6.2 The parking examiner will announce the decision to the
respondent and enter the disposition on the hearing
disposition form if not taken under submission. The examiner
will state the tota! amo~unt of the parking penalty that was
paid or is to be paid if found liable (refer to section 3.!0).
The examiner wil! state the tota! amount of the parking
penalty that is to be refunded if the respondent is found not
liable.
3.6.3 The parking examiner will make a brief statement to the
respondent regarding the decision and briefly explain the
rationale for the decision.
Close the Hearinm
3.7 .!
3.7.2
3.7.3
3 .7.4
The parking examiner will present a copy of the hearing
disposition to the respondent if the case is not taken ~.der
submission. A copy wi!! be retained for the file. The
respondent will be directed to. the office assistant.
In the event that a continuance has been granted, the parking
examiner must complete and file the continuance form in the
continuance folder. When a hearing that was continued is
completed, the parking examiner should make the relevant
entries in the continuance log. When a person to whom a
continuance has been granted fails to re-appear at the
appointed time, the parking examiner will render a decision of
liability.
The parking examiner must complete the continuance no-show
form to be mailed to the respondent.
If the parking examiner takes the matter under submission, a
decision should be rendered and results mailed to the
respondent within two weeks.
2O
3.8 Smecia! Situations
3.8 .i
3.8.2
3 .8.3
The Un_~u!v Respondent
Occasionally, a respondent will become unruly during or after
a hearing. This can often be precluded by fair and courteous
treatment and by a rationa! explanation of the decision.
Respondents should have been apprised of their right to an
appea! in civi! court prior to the commencement of the
hearing. Should a respondent become abusive, the parking
examiner can activate the panic alarm to request police
assistance.
A parking examiner is not required to tolerate personal abuse
as part of the position. If a respondent becomes abusive, the
parking examiner should warn him or her to desist, and that if
such behavior continues it wil! result in a termination of the
hearing. If a hearing must be terminated due to a
respondent’s objectionable behavior or refusal to comply with
the procedural re.cfuirements (after proper warning), the
parking examiner should make a decision based on the evidence
to that point. It is vita! that the parking examiner record
in writing the proceeding (including warnings about
objectionable behavior) and include am. explanation of the
resulting action on the hearing disposition form.
T~e premature termination of a hearing is a radical step and
should be avoided, if possible, in all but the most flagrant
cases of misconduct.
The RePresented Respondent
9_n appearance may be made for the registered owner of the
vehicle that was cited by a representative or agent. The
agent might be a relative or friend, the actual operator of
the car at the time it was cited, the lessee of a rented car,
an officer of a corporation, or an attorney. At present, the
City wil! allow anyone to appear for the registered owner, so
long as there is a clear statement on record of the registered
owner’s name and address and the relationship of the person
appearing to the registered owner.
The oath should be administered to the representative or agent
in the same manner as it would be administered to the
registered owner.
Ethical Guidelines
If at any time a parking examiner is confronted with a
respondent, either registered owner or representative, and the
parking examiner believes that there may be bias for or
against, the parking examiner should disqualify himself or
herself. If for any reason it could be implied that the
parking examiner would benefit from a decision favoring or not
favoring the respondent, the parking examiner should
disqualify himself or herself.
If, at any time, an approach is made by any person, including
someone connected with the City, that, either directly or by
implication, attempts to influence the parking examiner’s
decisions, the situation must immediately be brought to the
21
attention of the Parking Adjudication Director, the Assistant
Chief of Police.
3.9 SummarTf of Hearinm Examiner’s Major Tasks
Make the pre-hearing statement.
Review the citation for fata! defects.
Administer the oath.
Record respondent’s name and address on the hearing disposition form.
Record the registered owner’s name and address and the respondent’s
relationship, to the registered owner if aDD!icable_, on the h=~ ..... ~
disposition form.
Hear and examine the respondent, any witnesses and all the evidence.
Render and announce a decision including the rationale, or take the case
um.der submission.
Record the disposition on the hearing disposition form.
3.10 IndiGence
Vehicle Code Section 40200.7 re_cg/ires that a request for administrative
adjudication be preceded by payment of the full amount of the parking
penalty. ~m indigent respondent may re~aest a waiver of this required
payment by filing a "Request for Waiver of Parking Fine" and submitting a
written declaration of financial condition. The request for waiver will
be considered by the parking examiner.
If the waiver is granted, the case will be set for hearing and the
respondent notified. If the respondent is found not liable, no further
action is necessary. If, however, the respondent is found liable, the
parking examiner will decide the payment arrangements on a case by case
basis. The payment schedule should be noted on the disposition form and
a copy forwarded to Revenue Collections. Payments should begin within
thirty (30) days from the date of the hearing.
if the request for waiver is denied, the respondent will be notified.
22
4.0 THE PRIMA FACIE CASE
4.1 Recuirements
The following items should be indicated on a citation in the special boxes
provided:
The Vehicle Code or Municipal Code Section violated
The approximate time of the violation
The location where the violation occurred
The license plate number of the vehicle that committed the violation
The vehicle identification number when no license plate is visible
The expiration date of the vehicle registration tabs
The last four digits of the vehicle identification number (only if
visible to the issuing officer)
The color of the vehicle (optiona! and not cause for dismissal)
The make of the vehicle (sometimes subjective and not cause for
summary dismissal)
NOTE: When a citation which has the tab expiration date and/or vehicle
identification number (VIN) filled in and a claim is raised by a
respondent that the citation was no___!t issued to the respondent’s vehicle,
the conflicting tab expiration date and/or VIN indicated on the citation
and on the respondent’s vehicle registration may, have some probative
value as to whether the vehicle cited was actually the respondent’s
vehicle. This does not affect the prima facie case, however, only a
particular defense.
It should be noted that a claim that some of the information on a citation
is factually incorrect is not a challenge to the prima facie case, but
only a challenge to the correct identity of the vehicle that was cited.
If the respondent successfully proves that his or her vehicle was not
identified on the citation, this does not permanently dismiss the
citation, but rather transfers responsibility to another vehicle.
4.2 Ii!e~ibilitv
Where the handwriting on a manual citation is so illegible as to be
indecipherable, it should be summarily dismissed. This rule does not
apply to messy, smeared or othe~vise unreadable carbons, as this would
encourage some individuals to tamper with or deface the windshield copy of
the citation. Such claims must be verified with the original citation
maintained on file at Revenue Collections. In almost all cases this wil!
have already been considered in the initial .investigation.
If the parking examiner determines after further review that a citation is
actually unreadable or illegible, it should be dismissed.
23
5.0 LATE PENALTIES
5.1 Computation of Late Penalties
5.1.!Late penalties are assessed !0 days after the mai! date of the
notice of delinquent parking violation. The current late
penalty is $25.00. An additiona! $5.00 administrative fee is
assessed once a registration hold re_quest is made to the
Department of Motor Vehicles ($3.00 for DMV’s administrative
fee and $2.00 to offset the City’s adjudication costs).
5.2 Potential Defenses for a Late Payment
5.2 .l Non-Receipt of Notice
The most common defense claimed for making a late pai<ment is
non-receipt of the windshield copy of the citation.
Occasionally, it happens that a citation is removed by
pranksters or b!own off the windshield. If this were true, it
may be a defense to paying the origina! fine only after
receipt of a delinquent notice, but it should never be
accepted as a defense to a late response to the notice of
de!incruent_ parking v!o~=~!on,’ ~-~’ which must stand on its ow?...
When a respondent claims non-receipt of a citation, the
respondent should be questioned c!osely. Some techniques are
suggested in the section in this manual on examination. This
defense should never just be accepted on its face.
"Non-receipt" may also. means that the registered owner didn’t
physically receive the citation from the operator of the
vehicle. This is not a valid defense, since the respondent is
bound by an operator’s failure to comply with the parking
laws. To require less, would give everyone license to claim
someone else was operating the vehicle as an excuse for being
late and as a defense for the violation. The parking examiner
should make it standard practice to always determine who was
actually operating the vehicle at the time of the violation.
If someone else was th~ operator, the late payment penalty
should always be sustained ~n!ess it can be demonstrated that
the required notice of delinquent parking violation was not
sent to the address on file at the Department of Motor
Vehicles for the registered owner.
Timely response to a notice of delinquent parking violation
can be some evidence of good faith, although it does not
change the rules regarding the operator’s receipt and failure
to respond to the citation.
5.3 Unacceptable Defenses for Beina Late
5.3 .!Inconvenience or "Inability"
A respondent may claim that it was inconvenient or that he was
unable to pay the fine on time. Such a claim, due to minor
sickness, absence from the area, etc., is no___qt acceDtabie
mitigation if the citation was placed on the car or mailed.
24
5.3.2.
5.3.3
Since a respondent may answer by mail, there is little excuse
for failure to respond on time. The respondent is liable for
the late fee regardless of the excuse.
This also applies to the respondent that claims a lack of
funds, since a lack of funds does not preclude responding in
a timely manner, it should be remembered that anyone who can
afford to collect citations must be held responsible for
either answering or paying them on time.
Lost Notices of Parkinq Violation
A lost citation is not sufficient to mitigate a late pal~ment
penalty since it indicates negligence by the respondent.
Unseen Notices of Parkinm Violation
As stated above, the failure of the operator--a person,
garage, etc.--to give the citation to the registered owner is
not sufficient mitigation for liability for a late payment
penalty.
Unaware of Additional Fees
The respondent may state that he/she may not have been aware
that penalties would increase if payment was made after the
due date. Such a defense would not justify dismissal or any
reduction of the amount due. The notice of delinquent parking
violation gives adequate notice that the fine will increase if
paid after the due date.
5.4 Late Payment Penalty for a Dismissed Citation
when a citation is dismissed or the respondent is found not liable, no
late penalty shall be imposed, regardless of the fact that there may have
been lateness in the respondent’s response.
5.5 Notice of Delinquent Parkinm Vio!ation After Fine Paid
Infrequently, someone may receive a notice of delin~lent parking violation
after the fine has been paid. Usually, this results from the payment and
the computer-applied late pena!ties crossing paths due to the time delay
in mailing a payment. Sometimes, the respondent may not have paid the
ful! scheduled fine. The respondent is stil! liable for late penalties in
either case.
5.6 Proof of Payment
The best proof of payment is a canceled check, money order, or a cashier’s
receipt, all of which should contain the number of the citation claimed to
have been paid.
25
6.0 CONTfiN’UANCES
6.1 Pre-Hearinm Continuances
After the re.quired speech reminding respondents of their right to present
evidence, and under appropriate circumstances, a continuance may be
granted to those re_questing a continuance for the first time. if there
is doubt, grant the continuance. Relevant considerations are:
The reason(s) the respondent cam~ot produce evidence or otherwise
adequately state a case at the time of the hearing;
The likelihood that a continuance will result in the production of
significant relevant evidence; and
The sincerity and credibility of the respondent.
6.2 Continuances for Further Proof After Hearinm Commences
These are virtually never to be granted. Only in the case that the
respondent convinces the parking examiner that; (a) there exists evidence
which would be non-cumulative and excu!patoryand; (b) that the respondent
was genuinely taken by surprise, should a continuance be granted. This
last requirement rules out all respondents except those whom you dete_~r~ine
genuinely misunderstood the nature of the hearing, or if they understood,
were not then aware of the existence or availability of the evidence until
they were already in the hearing.
A continuance is not to be given to anyone who should have understood the
opening instructions and could have requested a continuance then, even if
he or she did not realize that the evidence he or she "left at home,"
could have helped. The instructions on the citation and the opening
instructions for the hearing are adequate prior notice.
6.3 Other Continuances
Should the respondent or a witness become il! during a hearing or another
emergency delay the hearing, a continuance may be granted.
Procedure for Recording Continuances
Continuances of matters heard on a citation should be granted for no more
than 30 calendar days unless the respondent proves that he or she wil! be
out of town, hospitalized or otherwise unable to appear. In this case, a
!onger period of time may be granted. The matter should be !ogged and the
continuance notation written on the hearing disposition form. Both
appearance date and continuance date should be written in full to avoid
possible tampering. When granting a continuance, the parking examiner
must complete the continuance form and give one copy to the respondent.
Respondents should be warned that failure to appear on the continued date
may result in late penalties being assessed and a judgment taken by
default for the ful! amount of the fine. They should a!so be instructed
to bring with them to the next hearing any late nozices they receive
during their continuance.
26
When a hearing is re-opened, even if the respondent fails to appear, the
information mu~t be recorded to the hearing disposition form.
In those cases in which the respondent does not return as scheduled, the
parking examiner should see that copies_ of the comDl~=d.___~ dispos±tion form
are mailed to the respondent’s address. The parking examiner muse also
complete and mai! a continuance default form to the respondent_ . ~.~ copy of
this form should be retained in the hearing file. Whenever an__~v
continuance is c!osed out, the~ parking examiner must make aDDroDria%e
entries in the continuance log.
27
7.0 TYPES OF HEARINGS
7.1 Scheduled Hearinqs
The City of Pa!o Alto Parking Adjudication Program conducts hearings on a
scheduled basis. A hearing is scheduled only when specifically
re.~uested, either in writing, by telephone or in person and after the full
amount of the Darkin~ penalty has been paid. in order to exercise the
right to contest a citation, an individual must re_quest a hearing within
the statutory time limits. If a hearing on a parking citation is granted
beyond the statutory time limits, the parking penalty and any late
penalties which have accrued must be paid prior to a hearing being
scheduled. Once the re_quest for a hearing has been received, the affected
citation is placed in a tempora-~qf suspended (hold) status in the Parking
Ticket System database, which not only prevents the accrual of late
payment penalties, but also excludes the contested citation from a DMV
registration hold or vehicle seizure eligibility.
Once a hearing has been conducted and a decision rendered, the respondent
has 20 days (in conjunction with the 20 day Appea! rule) from the
scheduled hearing date in which to pay any additiona! monies owed on a
citation not dismissed in a hearing. Upon expiration of this period,
~npaid citations are removed from suspended status and are again subject
to late payment penalties and DMV holds.
7.2 Hearinm by Written Declaration
In lieu of an in-person face to face hearing with a parking examiner,
citation appeals may also be made by written declaration. Hearing by
written Declaration forms are available at Revenue Collections or may be
re.quested by mai!. Hearings by Written Declaration wil! only be forwarded
to a parking examiner after payment of the full parking penalty is made
or, in the case of an indigent respondent, a re.~est to waive the fine is
made. The parking examiner wil! review the written declaration and render
a decision based on the information submitted. If the respondent is found
"not liable" the full amount of the parking penalty and any late penalties
which were paid will be refunded by mail.
28
8.0 APPEALS
The decision of the parking examiner is final for the adminisnrative
adjudication process. The respondent, however, has the right to a trial
"de novo" to contest the parking citation in the Municipa! Court Civil
Division of the county.
To exercise this right, an appeal must be filed in the Santa Clara County
Municipal Court, Sun-nyvale Facility, within 20 days from the mai! date of
the parking examiner’s decision. The court charges a $25 filing fee to
process an appeal. After filing for this appea!, the respondent muse
Dersona!!v notify the City of Pa!o Alto, Revenue Collections in writin~
via first class mai! or in person of his/her appea! request and submit
verification that the $25.00 filing fee has been deposited.
Failure to notify the City of Palo Alto within the 20 day limit wil!
the resDondent’s aDDea! re~ruest. If the court rules in favor of the
respondent, the City must refund the $25 filing fee as wel! as any parking
fines that the court may dismiss.
NOTE: A parking examiner should not make predictions on the prospects for
success of an appeal and should never attempt in any marker to dissuade a
respondent from exercising the right to appea!.
29
RESOLUTION NO.
RESOLUTION OF THE COUNCIL OF THE CITY OF PALOALT0
ESTABLISHING PARKING VIOLATION PENALTIES UNTIL THE
1993-1994 MUNICIPAL FEE SCHEDULE BECOMES EFFECTIVE
The Council of the City of Palo Alto does RESOLVE as
follows:
WHEREAS, Assembly Bill No. 408 of the 1991-1992 Regular
Session of the California Legislature substituted civil penalties
established by loca! parking enforcement agencies for the pre-
existing system of criminal fines enforced through the courts.
WHEREAS, Assembly Bill No. 408 is operative on and after
July i, 1993. Parking violation civil penalties together with
attendant late payment penalties, and other related fees and
charges will be enacted as part of the Municipal Fee Schedule
adopted within the budget ordinance for fiscal year 1993-1994, to
become effective August i, 1993. In the interim, the Council
intends to establish parking violation penalties and charges for
July 1993, and therefor until the Municipal Fee schedule becomes
effective, if for any reason its effective date should be delayed.
NOW THEREFORE, the Council of the City of Palo Alto does
RESOLVE as follows:
SECTION i. The parking penalties for parking violations,
late payment penalties, administrative fees and other charges set
forth in Exhibit "A" attached hereto and incorporated herein is
hereby established, effective for the period commencing and
including July i, 1993, through and including the date upon which
the 1993-1994 Municipa! Fee Schedule becomes effective.
SECTION 2. The City Council finds that the action hereby
approved does not constitute a project under the California
Environmenta! quality Act.
INTRODUCED AND PASSED:
AYES:
NOES:
ABSENT
ABSTENTIONS:
ATTEST:APPROVED:
City Clerk
APPROVED AS TO FORM:
Senior Asst. City Attorney
Mayor
City Manager
Police Chief
930611 syn 0041355
ORDINANCE NO.
ORDINANCE OF THE COUNCIL OF THE CITY OF PALO ALTO
REPEALING CHAPTER 10.60 OF TITLE I0 OF THE PALO
ALTO MUNICIPAL CODE REGARDING PARKING METERS AND
ENACTING A NEW CHAPTER 10.60 OF TITLE i0
ESTABLISHING CIVIL PENALTIES AND ADMINISTRATIVE
REVIEW FOR PARKING VIOLATIONS ANDDECLARING THE
URGENCY THEREOF, TO TAKE EFFECT IMMEDIATELY
WHEREAS, Assembly Bill No. 408 of the 1991-1992 Regular
Session of the California Legislature eliminated criminal
enforcement of motor vehicle parking restrictions and substituted
civil penalties enforceable through the local agency where the
parking violation occurs.
WHEREAS, Assembly Bill No. 408 is operative on July i,
1993. In order to replace the criminal penalties for parking
violations under prior state law and local ordinances with civil
penalties, a schedule of parking penalties must be effected on and
after July I, 1993, and the administrative review process for the
assessment and civil adjudication of these penalties which Assembly
Bill No. 408 requires must be implemented concurrently.
WHEREAS, the administrative review procedure which is
required by Assembly Bill No. 408 includes an initia! review by the
processing agency fol!owed by an appeal before an impartial
administrative hearing examiner. This administrative review
procedure is hereby authorized and established.
WHEREAS, this ordinance is promulgated as an emergency
ordinance with immediate effect July I, 1993, due to the imminent
effective date of this change in state law, the refusal of the
Santa Clara County Municipa! Court to phase out of parking
violation processing gradually after that date, and the urgent need
to implement a replacement system of civil parking penalties and
administrative review procedures.
NOW THEREFORE, the City Council of the City of Palo Alto
ordains:
SECTION I. Chapter 10.60 of Title i0 of the Palo Alto
Municipal Code is hereby repealed.
SECTION 2. A new Chapter 10.60 of Title i0 of the Palo
Alto Municipal Code is hereby enacted, entitled "Parking
Violations" to read as follows:
"10.60.010 Parking violations punishable as
civil penalties. Violation of any provision of
Chapter 10.36, 10.40, 10.44, and 10.46 of this
Title I0 (hereinafter referred to as a "parking
violation") shall be punishable by a civil penalty
(hereinafter referred to as a "parking penalty").
These parking penalties, together with any late
930611 syn 0041354
payment penalties, administrative fee, and other
related charges shall be established by ordinance
or resolution of the City Council.
10.60.020 Notice of parking violations and
notice of delinquent parking violations. The
amount of the parking penalty applicable to a
parking violation and the time and procedure for
the registered owner or the lessee or rentee of
the vehicle to deposit the parking penalty or
contest the penalty shall be indicated upon the
notice of parking violation when it is served
being affixed to the vehicle or as otherwise
provided by law. If the parking penalty is not
paid within the time and in the manner stated on
the notice of parking violation, the Police
Department or its designated processing agency
shall deliver or mail to the registered owner of
the vehicle a notice of delinquent parking
violation.
10.60.030 Police Department review of
parking violations. Within 21 days of the
issuance of a notice of parking violationor
within l0 days from the mailing of a noticeof
delinquent parking violation (whichever is later),
the person served with such notice (or that
person’s representative) may request (by
telephone, in writing, or in person) an
investigative review by the Police Department.
Upon this review, the notice of parking violation
and all penalties and fees based thereon may be
cancelled if a determination is made that either
the violation did not occur, thenotice of parking
violation was defectively issued or served, or
that the registered owner was not responsible for
the violation; however, under no circumstances
shall a persona! relationship with any officer,
public officia!, or law enforcement agency be
grounds for cancellation. .The decision of the
Police Department shall be mailed to the person
requesting review.
10.60.040 Appeal of parking violations to
Parking Examiner. Within 15 days from the mailing
to that person of the results of the Police
Department’s review, that person may contest
through an administrative review before a Parking
Examiner by depositing the full amount of the
parking penalty and a written explanation of the
reason for contesting the parking violation. If
the person served with the parking violation
provides proof of financial inability to deposit
the full amount of the parking violation
(according to standards developed and made
930611 ~yrt 0041354
2
available for public review by the Police
Department), the requirement for payment of the
parking penalty as a prerequisite to contesting it
shall be waived. If the vehicle is immobilized or
impounded for unpaid parking violations, the
requirement for payment of parking penalties as a
prerequisite to contesting them shall also be
w&ived.
10.60.040 Designation and qualifications of
Parking Examiner. The City Manager shall
designate a Parking Examiner having the
qualifications, training, and objectivity
necessary to perform the duties of that position.
The Parking Examiner’s continued employment,
performance evaluation, compensation, and benefits
shall not be directly or indirectly linked to the
amount of fines collected as a result of decisions
by the Parking Examiner.
10.60.050 Hearings before the Parking
Examiner. The Parking Examiner shall notify the
person contesting the parking penalty of the date
and time scheduled for hearing and provide the
option of proceeding on a written statement or in
person at that time. Prima facie evidence of the
parking violation shall be established by the
Police Department’s production at the hearing of
the notice of parking violation (or a copy
thereof), information from the California
Department of Motor Vehicles identifying the
registered owner of the vehicle, and the decision
of the Police Department being contested.
Hearings shall be conducted informally, to be
guided by rules of legal evidence. The appellant
shall be entitled to testify and to present
witnesses. Upon completion of the hearing, the
Parking Examiner may cancel the notice of parking
violation and al! penalties and fees based thereon
if a determination is made that either the
violation did not occur, the notice of parking
violation was defectively issued or served, or
that the registered owner was not responsible for
the violation; however, under no circumstances
shall a personal relationship with any officer,
public official, or law enforcement agency be
grounds for cancellation. The decision of the
Parking Examiner shall be mailed or personally
delivered to the appellant and shall be final and
not subject to reconsideration. Unless cancelled
by decision of the Parking Examiner, the parking
penalty and all late charges and fees based
thereon shall be collectible as provided by the
laws of California.
930611 ~n 0041354
3
i0.60.060 Permit parking in City lots.
(a) The city manager is authorized to set
aside any portion or all of any city-owned parking
lot for permit parking and to issue permits
therefor as provided in this section.
(b) The city manager may issue parking
permits upon application therefor and upon the
payment of a fee in an amount to be determined by
the city manager. Such permit shal! designate the
parking lot for which it is issued and shall be
affixed at or near the center of the rear bumper
in such a manner that it can be readily identified
from the rear of the vehicle for which it is
issued. Such permit may contain such instructions
as to its use as may be deemed appropriate by the
city manager.
(c) The city manager shall install signs
adjacent to permit parking spaces indicating that
they are reserved for permit parking only, and the
holder of such a permit properly displayed may
park in any such space on the lot, but only in
such space.
(d) A vehicle with a permit shall not park
for more than seventy-two consecutive hours in the
same city-owned parking !or or structure. This
subsection shall not apply to official city
vehicles.
(e) No person who owns or has possession,
custody or control of a vehicle shall park that
vehicle or allow it to be parked in any permit
parking space adjacent to which there is a sign
indicating that such space is reserved for permit
parking only without displaying a valid permit
therefor. This prohibition shall not apply to the
use of such spaces during the period from six p.m.
to eight a.m. or on Sundays and holidays."
SECTION 3. This ordinance is an emergency measure
necessary for the immediate preservation of the public peace,
health, safety and general welfare within the meaning of Article II
of the City Charter and shall go into immediate effect. The facts
constituting the necessity are:
Assembly Bi!l No. 408 of the 1991-1992 Regular Session of
the California Legislature becomes operative on July I,
1993. The Municipal Court of Santa Clara County has
refused to phase out its role in processing parking
violations gradually, as provided for in AB 408. In order
to replace the criminal penalties for parking violations
under prior state law and local ordinances with civil
930611 syn 01341354
4
penalties, the administrative review process for the
assessment and civil adjudication of these penalties which
AB 408 requires must be effective on July i, 1993.
SECTION 4. The Council finds that the provisions of this
ordinance do not constitute a project under the California
Environmental Quality Act.
This ordinance was introduced at a regular meeting of the
Council of the City of Palo Alto on Monday, the twenty first of
June, 1993, and was passed by a four-fifths vote of all Council
members present at the meeting as follows:
INTRODUCED AND PASSED:
AYES:
NOES:
ABSTENTIONS:
ABSENT :
ATTEST:APPROVED:
City Clerk
APPROVED AS TO FORM:
Senior Asst. City Attorney
Mayor
City Manager
Police Chief
930611 syn 0041354