HomeMy WebLinkAboutAGENDA REPORT 1993 0922 CC REG ITEM 12BZ
9 z �I.
ITEM N
I� Agenda Report
�199it of Moorpark
.CTION: c . ,
t- )_ncil Mc�_:., .
. .
TO: rahle e City Council 199 —
r/ACro
F1 ZOM: B Hare, Deputy City Manage 79
D TE: August 23, 1993 (CC. Mtg. 9/8/93)
8 BJECT: Consider Ordinance No.
Amend
Ordinance 134 and Extending the Date of
Completion for the Rebuild of the Cable
Television System Owned and Operated by the
Chronicle Publishing company serving the
City of Moorpark.
T e City of Moorpark adopted Ordinance No. 134 on November
21, 1990, granting the Chronicle Publishing Company doing
b siness as Ventura County Cablevision (VCC), the right to
oTAn and operate a cable television system in the City of
Moorpark. The term of this franchise is ten (10) years.
4r C tinuation of the franchise was dependent upon VCC
uilding their system on or before December 31, 1993.
Tha requirements for the rebuilding of the cable system
ma dated that the cable company deliver signals at
fr quencies up to 450 megahertz (MHz) with a channel
ca acity of 64 channels. Over the last year, the Budget &
Fi ance Committee, staff, and the cable company have
di cussed the rebuild of the system using state -of- the -art
to hnology. VCC has agreed to rebuild the system with
f i eroptic cable providing a channel capacity of 77 channels
ani a signal of 550 MHz. This would greatly enhance the
sy tem and exceed the requirements in Ordinance No. 134.
Th installation of fiberoptic cable will take additional
ti e and effort on the part of the cable company. They have
re uested an extension of the December 31, 1993 deadline to
Se tember 30, 1994. This has been reviewed by the Budget &
Fi ance Committee and the Committee has agreed that the
ex ension is in the best interest of the community.
Staff and the Budget & Finance Committee recommend adoption
of Ordinance No. , amending Ordinance No. 134 and
extending the date for completion of the rebuild of cable
system owned and operated by the Chronicle Publishing
Co any serving the City of Moorpark.
M E M O R A N D U M
TO: The Honorable City Council
FRO Donald P. Reynolds Jr., Administrative Services Managev.,��
DATE,: September 16, 1993
SUB ECT: Administrative Hearing Manual for Parking Citations, as
Required by AB408
Ple se find attached the draft City manual for the administration
of arking citations and the hearing process associated with AB408.
Thi manual is required to be adopted by the City as discussed the
sta f report concerning this item has been placed on the Council's
age, for September 22, 1993.
The manual has been slightly changed to conform with City policies,
but otherwise, matches the manual used by Thousand Oaks which is
proposed to the City's contractor for services related to the
parking citation hearing process.
CC:� Steven Nueny, City Manager
CITY OF MOORPARK
AB 408
ADMINISTRATIVE
MANUAL
SEPTEMBER 22, 1993
ACKNOWLEDGEMENT
We greatefully acknowledge
the cities of Los Angeles and Thousand Oaks
in designing
the format and template for
this manual.
THANK YOU
7.0
8.0
9.0
10.0
ll.0
12.0
13.0
14.0
(TYPES OF HEARINGS . . . • . • • . • . • • . . • • • . .
7.1 Scheduled Hearings 43
7.2 Hearing by Written Declaration 43
DEFENSES
8.1 Denials . . . . . . . . . . . . . . . . . . . .
. . . . . . 44
8.2 Explanations . . . . . . . . . . . . . . . . . .
. . . . . . 48
8.3 Unacceptable Defenses or Explanations . . . . .
. . . . . . 50
8.4 Appeals for Leniency . . . . . . . . . . . . . .
. . . . . . 57
SPECIAL CLASSES OF VEHICLES
10.4
9.1 Commercial Vehicles . . . . . . . . . . . . . .
. . . . . . 59
9.2 Governmental Vehicles . . . . . . . . . . . . .
. . . . . . 62
9.3 City Vehicles . . . . . . . . . . . . . . . . .
. . . . . . 62
DISABLED PARKING
10.1
Requirement to Obtain Disabled Plate or Placard . . .
. . . 62
10.2
Description . . . . . . . . . . . . . . . . . . . . .
. . . 63
10.3
Issuance . . . . . . . . . . . . . . . . . . . . . . .
. . . 64
10.4
Parking Privileges . . . . . . . . . . . . . . . . . .
. . . 64
TYPE
OF VIOLATION
11.1
Public Safety . . . . . . . . . . . . . . . . . . . .
. . . 65
11.2
Non - Public Safety . . . . . . . . . . . . . . . . . .
. . . 65
SEIZING OR BOOTING A VEHICLE
12.1
Tow and Storage Fees . . . . . . . . . . . . . . . . .
. . . 66
12.2
Hearings on Seized Vehicles . . . . . . . . . . . . .
. . . 66
12.3
Release of Seized Vehicles . . . . . . . . . . . . . .
. . . 67
RENTAL /LEASED VEHICLES . . . . . . . . . . . . . . . . . . . . . . 67
APPEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
TABLE OF CONTENTS
INTR
DUCTION
MISSION
STATEMENT
PHILOSOPHY
OF PARKING ENFORCEMENT
GOVE
NING STATUTES
Authority . . . . . . . . . . . . . . . . . . .
. 2
Notice of Parking Violation Information . . . . . . . . . . . .
. 3
Affixing the Notice of Parking Violation . . . . . . . . . . .
. 4
PrimaFacie Case . . . . . . . . . . . . . . . . . . . . . . .
. 4
Seizure of the Vehicle . . . . . . . . . . . . . . . . . . . .
. 5
Notice Requirements . . . . . . . . . . . . . . . . . . . . . .
. 5
Leased and Rented Vehicles . . . . . . . . . . . . . . . . . .
. 5
1.0
ADMINISTRATIVE REVIEW . . . . . . . . . . . . . . . . . . . . .
. 7
2.0
THE HEARING
2.1 General Approach to Hearings . . . . . . . . . . . . . . .
. 8
2.2 Quantity of Evidence Required to Sustain Case . . . . . .
. 11
2.3 Examining the Citation to Establish the Prima Facie Case .
. 13
2.4 The Respondent's Case . . . . . . . . . . . . . . . . . .
. 13
2.5 The Cross Examination . . . . . . . . . . . . . . . . . .
. 18
2.6 The Administrative Review . . . . . . . . . . . . . . . .
. 23
2.7 The Decision . . . . . . . . . . . . . . . . . . . . . . .
. 24
2.8 Late Payment Penalties . . . . . . . . . . . . . . . . . .
. 26
2.9 Fine Amounts . . . . . . . . . . . . . . . . . . . . . . .
. 28
2.10 Prior Dismissals /Precedence . . . . . . . . . . . . . . .
. 28
2.11 Prior History of Violations . . . . . . . . . . . . . . .
. 29
3.0
HEARING PROCEDURES
3.1 Pre - Hearing Procedures . . . . . . . . . . . . . . . . . .
. 29
3.2 Begin the Hearing . . . . . . . . . . . . . . . . . . . .
. 30
3.3 Review the Prima Facie Case . . . . . . . . . . . . . . .
. 31
3.4 Admit Liability with Explanation . . . . . . . . . . . . .
. 32
3.5 Deny Liability . . . . . . . . . . . . . . . . . . . . . .
. 32
3.6 Render a Decision . . . . . . . . . . . . . . . . . . . .
. 33
3.7 Close the Hearing . . . . . . . . . . . . . . . . . . . .
. 33
3.8 Special Situations . . . . . . . . . . . . . . . . . . . .
. 34
3.9 Summary of Hearing Examiner's Major Tasks . . . . . . . .
. 36
3.10 Indigence . . . . . . . . . . . . . . . . . . . . . . . .
. 36
4.0
THE PRIMA FACIE CASE
4.1 Requirements . . . . . . . . . . . . . . . . . . . . . . .
. 37
4.2 Illegibility . . . . . . . . . . . . . . . . . . . . . . .
. 37
5.0
LATE PENALTIES
5.1 Computation of Late Penalties . . . . . . . . . . . . . .
. 38
5.2 Potential Defenses for a Late Payment . . . . . . . . . .
. 38
5.3 Unacceptable Defenses for Being Late . . . . . . . . . . .
. 39
5.4 Late Payment Penalty for a Dismissed Citation . . . . . .
. 40
5.5 Notice of Delinquent Parking Violation After Fine Paid . .
. 40
5.6 Proof of Payment . . . . . . . . . . . . . . . . . . . . .
. 40
6.0
CONTINUANCES
6.1 Pre - Hearing Continuances . . . . . . . . . . . . . . . . .
. 41
6.2 Continuances for Further Proof After Hearing Commences . .
. 41
6.3 Other Continuances . . . . . . . . . . . . . . . . . . . .
. 42
6.4 Procedure for Recording Continuances . . . . . . . . . . .
. 42
INTRODUCTION
IME purpose of this material is to provide the Hearing Examiner
with a fairly comprehensive overview of the major topics affecting
this position. It should be emphasized that this manual is not
intended to contain every detail or present every issue that will
come up in the course of the hearing examiners duties. Rather,
this manual is a primary resource for general information. The
impDrtance of studying this Adjudication Manual cannot be over -
emp asized; it is, for the purposes of the City of Moorpark
Administrative Adjudication Program, the authoritative compilation
of rhe rules, regulations and policies.
The -e are certain aspects of being a Hearing Examiner, particularly
witi respect to the manner in which hearings are to be conducted or
tes imony is to be elicited, which are not readily reduced to a
wri ten formula. Although there are general format requirements
des gned to respond to basic due process concerns, each Hearing
Examiner tends to develop his or her own personal "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 Hearing Examiner to feel free to rely on
the knowledge and experience of the staff of the Administrative
Ser ices Department; in other words, it is expected that, when in
dou t, the Hearing Examiner will consult the appropriate staff
mem er(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 Hearing Examiner may eventually be
confronted. It is hoped, however, that this manual will provide
the Hearing Examiner with a general overview of the issues most
lik ly to arise.
The mission of the Administrative Adjudication Program is to
pro ,vide for the hearing and disposition of all contested cases
inv lying violations of the California Vehicle Code (CVC), the
Moorpark Municipal Code (MMC), and the parking regulations relating
to the parking and impoundment of vehicles within the area of
juri diction of the City of Moorpark.
The intent of the AB 408 legislation authorizing administrative
adjudication is to free limited criminal justice resources for more
serf us criminal matters and to provide a more timely, convenient,
simplified and less intimidating forum for the hearing and
disp sition of contested parking violations. The City acknowledges
1
it is important that the adjudicatooy
-air, convenient, and impartial from
.esting alleged parking violations,
nistering justice in an efficient anc
process thus established
the viewpoint of those
while at the same time
uniform manner.
policies and procedures that have been, or will be established,
the operation of the Administrative Adjudication Program are
gned to be efficient and fair. It is the primary goal of the
nistrative Adjudication Program to provide all individuals
-ged with a parking violation a forum in which the facts of
.r case may be reviewed fairly and a disposition rendered in a
manner.
An affective parking enforcement program must protect and fairly
apportion scarce parking space for all legitimate users by insuring
tha 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. For repeat offenders
who fail to observe parking regulations and fail to pay outstanding
par ing fines, booting, towing and impounding and offsets against
State Tax and Lottery winnings should be expected consequences.
For those who contest a citation, the adjudication process should
be just and timely; it must contribute to the overall goal of
dis ouraging illegal parking by enforcing parking regulations, but
in i way that provides a fair and impartial hearing for all.
eTC .�1•f�lI: FI: te�`li Ii:V �i1_Y�
The following is a brief summary of those statutes which are basic
to he hearing process. Although the Hearing Officer may not be
dir ctly affected by all of the provisions within a statute, the
Hea ing Examiner should nonetheless become familiar with them by
rea ing the statutes in their entirety.
Authority: California Vehicle Code, Article 3
The establishment of the Administrative Adjudication Program is
authorized by California Vehicle Code Article 3, Sections 40200.7
and 40215, which became effective on July 1 1993, as enacted by
California Assembly Bill 408. The adjudication procedure mandated
by 408 is detailed as follows:
The issuing or processing agency must perform an
administrative review of a citation if the review is requested
within 21 days of issuance of the citation or within 10 days
,of the mailinq of the notice of delinquent parking violation.
2
iss
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tim
may
The
or
con,
*
*
*
*
*
*
Within 15 days of the mailing of the results of the
administrative review, the person may request a mail -in or in-
person review of the citation by a hearing examiner employed
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 currently requires person filing the appeal to pay a $25
filing fee plus any other applicable court charges and fees.
The appeal is heard de novo in a justice or municipal court
with the parking agency's file 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 hearing 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.
There are no provisions in the Vehicle Code, nor is the
Ling agency required, to conduct an administrative review or
!dule an appearance before a hearing examiner if the mandated
limits are not followed by a violator. However local agencies
adopt local rules.
CVC Section 40202(a)
Hearing Examiner should review each Notice of Parking Violation
:itation, or a computer printout of same, to ensure that it
ains the following statutorily required 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 VIN (only required if visible to the
parking enforcement officer)
Color of vehicle
Make of vehicle
Amount of Fine
Location where fine may be paid or contested
rcrrE: Citations lacking the information marked with an asterisk
( *) may be dismissed outright by the hearing examiner. This is
call ad a summary dismissal and occurs because the City has failed
to a equately establish its prima facie case.
CVC Section 40202(b) and
(d
ThE statute requires that a citation be affixed to the motor
ve icle or in the case that a vehicle was driven away before the
paxking enforcement officer could affix the citation, mailed to the
re istered 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
shcald never be grounds for dismissing late fee(s) which accrued
because the citation was not paid or appealed in a timely fashion.
only if the hearing examiner can ascertain that the respondent was
not mailed a delinquent notice (or equivalent) should the charges
or kccumulated penalties be dismissed.
CVC Section 40200
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
veh cle identified on the citation committed the violation. That
is, properly completed citation satisfies the City's burden to
est blish that the violation occurred. However, the prima facie
cas may be successfully rebutted by a respondent by presenting
cre ible and sufficient evidence that the citation is not valid.
Wha constitutes sufficient evidence to rebut the citation, and
war ant dismissal, is determined in a hearing by a hearing examiner
and is discussed in detail in this manual.
CVC Section 22651(i) and 22651.7
The City is authorized to seize, by immobilization (boot) or
imp and (tow), at the registered owner's expense, any vehicle
accumulating five or more parking violations over a period of five
or iRore days to which the registered owner has not responded. This
process may not be invoked against an alternate vehicle in those
cas s where an agency chooses to move a violation from one vehicle
to nother owned by the same registered owner.
CVC Sections 40206, 40207
The „alifornia Vehicle Code (CVC) requires 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
cita ion. The processing agency has satisfied the statutory
4
requirements of notice by mailing the delinquent notice to the
address of record at the DMV. Notice mail dates may be verified by
inf ormation contained in Parking Ticket System records.
CVC Sections 40209 and 41102
Wh the vehicle identified on a citation is a leased or rented
ve cle, the Vehicle Code mandates certain processing requirements
whi h are listed below:
A notice of delinquent 9 parking violation (which includes the
i vehicle license number and date of the violation) must be sent
to the registered owner.
1.0
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 mail date of the delinquent notice. If
the registered owner does not provide this information within
the 30 days allotted, 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 fine
which closes the citation or contest its validity through the
administrative hearing process.
THE ADMINISTRATIVE REVIEW
All persons contesting a citation should first receive an
Administrative Review of their citation prior to being
scheduled for a hearing with a hearing officer. Local
agencies may or may not allow the contesting, via
Administrative Hearing, of a violation that has not received
an Administrative Review.
In all cases, there should be a record of an investigation
into the claim of a missing sign, etc. A summary of the
investigation should, if possible, be entered into the on -line
Parking Citation Log as 'notes'. In many cases the
respondent's claim will be found to be accurate during the
administrative review and the citation will be dismissed. In
other cases the results of the Review will be to declare the
citation as valid and the person who received the citation to
be 'liable' for the amount currently due.
CVC Section 40200.7 and 40215 mandate that a "violator"
request an administrative review within 21 days of receiving
a citation or within 10 days of mailing date of a notice of
5
delinquent parking violation. If the request for a hearing
was not made within these time limits, the respondent has lost
the statutorily prescribed ability to contest the citation.
Assuming that a hearing was properly requested, within 15 days
after the mailing date of the results of the administrative
review, the respondent must pay the parking fine before being
scheduled for a hearing. If the person that received the
citation does not comply with these requirements, no further
review of the citation is mandated by the vehicle code (but
rather, it is subject to local option).
An administrative review 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 that both the citation and the result of the
administrative review are in error. The respondent will be
apprised of statutory entitlement to a hearing as part of the
written result of the administrative review.
2.01 THE HEARING
2.11 General Approach to Hearings
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
trial do not apply. This benefits the respondent
who is most often a lay person unfamiliar with the
intricacies of the legal process. The hearing
examiner should make this clear to the respondent
if the respondent appears confused that hearing is
not being conducted under strict "rules of
evidence ". Despite this relative informality, each
hearing is recorded on tape so that a record is
preserved of the proceedings in case an appeal is
filed. The final decision in a hearing, however,
must be rendered in writing to the respondent.
12.1.2 The Role of the Hearing Examiner
The hearing examiner may be described as wearing
three hats at once: prosecutor, defense advocate,
and judge. As the prosecutor, the hearing examiner
cross- examines the respondent, and any witnesses,
to determine the credibility of the defense and the
authenticity of any documents presented. As the
defense advocate, the hearing examiner examines the
citation for defects in the prima facie case and,
A
in some cases, helps the respondent articulate the
facts of their defense. As the judge, the hearing
examiner listens to the respondent's story, weighs
the evidence, including any discrepancies elicited
during the cross- examination, and renders a
decision based on the facts of the case and
applicable laws.
It is essential that a hearing examiner remain
independent and impartial. The hearing 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 hearing examiner must
be a neutral and objective fact finder. Vehicle
Code Section 40215 (b) in fact requires that the
amount 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 Hearing Examiner
To adequately discharge the responsibilities of a
hearing examiner demands that the examiner become
somewhat involved in each hearing. Respondents,
especially those in good faith, want most of all to
believe that they have had a full 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 hearing examiner listen
attentively and show interest. It may be, of
course, difficult to look excited about hearing, "I
was making change" for the twenty -third time. But
remember, it is presumably the only time that day
that the respondent has explained the problem. So
be patient. Let the respondent tell a complete
story and present all pertinent evidence, but at
the same time do not permit irrelevancies to
intrude on the hearing process.
Never get angry. This may be difficult sometimes,
since hearing examiners are human and some
respondents can become quite abusive. But if the
hearing examiner is able to remain calm and
professional, this will often cool down an agitated
respondent and will certainly enhance the judicial
7
aura of the proceedings.
It should be obvious, but must be emphasized
nevertheless, that a hearing examiner should not be
influenced, one way or another, by any personal
bias or animus. The hearing 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
hearing examiner must not conduct a hearing for any
relative, friend or close personal acquaintance.
If the hearing examiner knows a respondent, the
hearing examiner must inform a supervisor so that
another examiner can be assigned to the case. The
hearing examiner must abide by this rule even if
the hearing examiner truly believes that a
relationship with the respondent will not affect
his or her judgment.
The hearing examiner must always maintain control
of the hearing. This means, among other things,
being careful to observe the necessary procedural
guidelines (see the section entitled Hearing
Procedures). Although the hearing examiner should
respond to reasonable requests for information or
clarification, the hearing examiner should not be
subjected to a "cross- examination" by the
respondent. The hearing 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 hearing
examiner's function to "defend" City policies or
regulations. The hearing examiner renders a
decision within the framework of the policies and
procedures, but the hearing examiner position is in
no way that of a policy- maker.
2.1.4 Firmness
While it is of great importance to be fair, it is
also important to be firm. The hearing 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 wrong. In the first
place, the City is attempting to alleviate the
problem of illegal parking. The reduction of a
P
2.21
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 special
few who attempt to escape responsibility through a
hearing examiner's sympathy.
Quantity of Evidence Required to Sustain Case
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 meter flag hadn't gone up yet. "), 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 at a meter 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.
(2.2.1 Substantial Proof
There is no such thing as a halfway - proved defense
or explanation. If the respondent's story amounts
to a defense, the hearing examiner must decide
whether the evidence is credible and sufficient.
If not, the respondent is "liable" and should
forfeit the fine. On the other hand, if the
hearing examiner believes the respondent, and the
2
evidence presented refutes the prima facie case,
the respondent should be found "not liable ". If
the respondent has an explanation, the hearing
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 will
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 is normally no limitations
on the type of evidence that may be accepted,
except possible harmful or offensive material, with
the provision that time should not be wasted on the
immaterial. This in no way is suggesting that the
hearing 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 requirements are more specific
and inflexible; for example, if a defense is that
there were no signs at the entrance to a specific
parking lot, this can be verified by either the
results of a sign investigation or comprehensive
and accurate photographs. The hearing examiner
should take care to determine that any photographic
evidence reflects a complete record of conditions
at the time a citation was issued and not
subsequent modifications. It should be recognized
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 hearing examiner is permitted to take official
notice of facts commonly known, in the same manner
as is normally done by a judge in a court. The
10
2.3
2.4
kind of facts which may be noticed are the time the
sun rises or sets, the date on which a holiday is
observed, etc. This does not mean that the hearing
examiner may assume the existence of a parking sign
because the hearing examiner has been to the
location and has seen it.
2.2.4 General Denial
Generally speaking, a mere general denial of a
violation, unsupported by evidence, will 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 meter prior to
the expiration of the allotted time). In such
cases the hearing examiner must make a decision
based on a careful appraisal of the respondent's
credibility. It should be emphasized that these
are unusual situations and normally some sort of
documentation or substantiation is available.
Examining the Citation to Establish the Prima Facie Case
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 hearing examiner should first examine
the citation for defects in the prima facie case. The defects
which are fatal to the prima facie case are set out above
under "Governing Statutes ". If a defect is determined to be
fatal, the citation number must be read onto the taped record
and the case dismissed without further testimony.
The Respondent's Case
Once the citation has been read into the record, and examined
for obvious defects, the respondent may present his or her
case.
2.4.1 The Respondent's Stor
1 Generally, the hearing examiner should simply let
the respondent tell their story. The hearing
examiner must afford the respondent a fair
opportunity to establish their defense. The
hearing examiner must always avoid prejudgment,
remaining open- minded and attentive even when the
defense seems to be of a routine and obvious
11
hearings are relaxed, the hearing examiner
should strongly suspect such submissions as
unsworn legal documents, doctor's notes on
plain stationery, repair bills without
headings, etc. If the hearing examiner doubts
a document's authenticity, and respondent is
not able to thoroughly dispel this doubt, the
hearing examiner should accept it into
evidence but consider its legal weight to have
been severely diminished or non - existent.
b. Materiality of Documents
Sometimes respondents may attempt to
authenticate a defense with a document which
really has nothing at all 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 hearing
examiner always make sure the document being
presented is actually germane to the case.
C. 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 useful,
must orient the viewer and tell a complete
story. A close -up of a sign on a pole, for
instance, is by itself of little use since
signs might be stacked one on top of the other
or different signs may be posted on another
pole nearby.
d. Absence 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 lacking 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 hearing examiner believes that a
14
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 purposes of a
possible appeal. For the documents that the respondent must
retain, a complete copy should be made for the official file
of the hearing. If the respondent wishes to withdraw an item
from evidence, the hearing examiner should explain the
possible consequence to the defense and that the document may
not be subsequently accepted by on appeal to civil court. If
the respondent persists, be certain that the respondent
stipulates on the record the exact items that are being
withdrawn and that the respondent is withdrawing the items of
their own volition. As a matter of routine practice, the
hearing examiner should read into the record any evidence
submitted, or describe any items or objects (such as pictures,
charts, photos, invoices, etc.). No case should be continued
solely because the respondent failed to bring all of the
available documents that the respondent may consider to be
pertinent to the hearing.
2.51 The Cross Examination
Once the respondent or witness has stated their defense, the
hearing examiner should begin the cross - examination. This is
the point where skill in examination is critical.
2.5.1 Objects of Cross - Examination
There are a number of things to determine on cross -
examination. In the first place, the hearing
examiner should understand the perception of the
witness. Did the witness actually see what the
witness thinks he saw? Did the witness look, hear,
examine, etc.?
The hearing examiner must always be conscious of
semantics. A witness 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? No sign
next to the car? The witness may testify that the
15
respondent's car was properly behind the sign. How
much of the car was behind the sign - -half, one -
third, three inches? All vehicles must be fully
parked in a legal space.
The hearing examiner must question 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 mechanical
"breakdown" and produce a bill for starting the
car. The hearing examiner reviews the
circumstances and finds that the respondent
actually parked at 10:00 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 hearing examiner was that the car
was illegally parked before the mechanical 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 110" feet from
the hydrant. Under questioning, the hearing
examiner probably could determine that if the
vehicle was actually pushed, it was pushed from
about five feet away to 110" feet, and was,
therefore, illegally parked in the first place.
The hearing 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
remember 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?
And, of course, the hearing examiner must closely
question 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 put in a dime
when I park" becomes "I absolutely remember putting
in a dime ", etc. But occasionally, a respondent
may tell an outright lie. Many of the best
sounding stories may be complete fabrications. The
hearing 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 hearing examiner
believes the witness is not telling the truth, the
hearing examiner should ignore that testimony in
16
making a final ruling. The hearing examiner should
make clear in explaining 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 will understand how
someone with a defense that may sound legitimate
was found liable.
2.5.2 Some Suggested Techniques for Cross - Examining
Every lawyer develops a technique for cross -
examining a witness. It is incumbent upon each
hearing examiner to develop an effective technique
since it is the hearing examiner who must
ultimately rule on the case. Nevertheless, because
of the similarity of many of the presentations a
hearing examiner will encounter, there are a few
suggestions which may prove helpful.
a. Drawing the Witness Out
Probably the best method of cross - examination
is making the witness tell the whole story.
Because of the informality of the proceedings,
many of the defenses and explanations may be
based upon what might be called partial
truths. "There was no sign," "I was pushed,"
"I was unloading," "It was an emergency," "I
broke down," etc. All of these arguments, if
proved, might mitigate the violation, but they
should never just be accepted on their face.
The hearing examiner should encourage a
witness to go into detail. Pin the witness
down as much as possible on actual
observations, actual times, distances, etc.
Sometimes a different picture will emerge.
Thorough questioning may sometimes reveal that
a respondent and his witness are diametrically
opposed in their stories.
If a witness says that there was no sign, make
the witness reconstruct the "search" for a
sign. How far did he look? Did he walk to
each end of the block? Do his photographs
show the whole block or only part of it?
Sometimes the hearing examiner may discover
that the witness didn't happen to see a sign
that was posted near the car and assumed
17
parking was legal.
In the case of a mechanical breakdown, make
the respondent describe the whole story with a
sequence of events and times. Where was the
car repaired? When was it repaired? How did
the respondent find the repair garage? Be
suspicious of bills from garages far from the
alleged breakdown. Find out if the car was
already illegally parked before the alleged
breakdown occurred. If the respondent was
knowingly operating a defective vehicle, the
respondent may be liable if the defect caused
the breakdown.
If the issue is late fees, the "complete"
story may paint a different picture. "I never
received the ticket" may mean that a person
with the respondent removed the citation. Or
it may mean that the respondent's daughter,
who was actually driving the car, threw the
citation away. Find out if someone else was
driving the car. Even so, the respondent, as
registered owner, is still liable for the fine
and any late penalty.
Examine such stories as "I was out -of- town"
and therefore, could not respond to the
citation or late notice. Quite often, it may
turn out that the respondent was actually away
for a much shorter period of time than may
first appear.
This kind of questioning -- filling out the
story - -can often uncover the real story.
Sometimes, the hearing examiner will find that
an excuse, even if true, is inadequate for
dismissal. Often, too, the responses elicited
help to determine the credibility of a
witness. Sometimes this type of examination
will focus on a detail (e.g., actual
measurement, actually walking the entire block
looking for a sign) which the hearing examiner
can rephrase so directly that the witness must
perjure himself to answer it in his favor.
Here many witnesses will falter, allowing the
examiner to pierce the story. And,
alternatively, thoroughly checking the whole
story may sometimes enable the
M
hearing examiner to see the merit in a defense
that in its shortened form sounded inadequate
or not believable.
b. Rapid Questioning
If the hearing examiner suspects the
credibility of a witness, the examiner may
uncover inconsistencies by a series of
detailed questions in rapid succession. It
helps to have a plan, but sometimes the
hearing examiner can just proceed
instinctively by getting the witness to detail
the story with such fast questioning that the
witness doesn't have time to fabricate an
answer. Get the witness to concentrate on
recalling the event. Suddenly the witness may
remember exactly where she parked, what she
did and what she saw.
C. Look for contradictions
The hearing examiner mat detect clear
contradictions by careful questioning. A
truck driver, "never left the truck." Later,
after pursuing a different line of
questioning, the hearing examiner asks: "What
did the officer say ?" "I didn't see the
officer, the citation was there when I
returned," comes the answer.
Or perhaps a driver may tell the hearing
examiner how the officer apologized for
writing the citation. Under further
examination, the hearing examiner may get the
respondent to recall how "he told me this or
that ", and then point out to the respondent
the fact that it was a female officer that
actually wrote the citation.
d. Questioning for its Own Sake
Sometimes, where no obvious line of
questioning is evident, the hearing examiner
can just get the respondent talking about
anything that comes to mind.
During such questioning, the manner in which
the respondent answers may help the hearing
examiner determine the respondent's veracity.
19
NOTE: The above are simply examples of examination techniques that
may be useful in eliciting the truth. Hearing Examiners are
enccuraged to refer to the numerous textbooks that have been
written on the art of examination to develop the best method for
thel to use in the particular situations with which they are faced.
2.6
The Administrative Review
All persons contesting a citation should first receive an
Administrative Review of their citation prior to being
scheduled for a hearing with a hearing examiner. Local
agencies may or may not allow the contesting, via
Administrative Hearing, of a violation that has not received
an Administrative Review.
Even if the administrative review confirms the existence of
signs governing the violation 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 administrative review has determined
that the respondent's claim is without merit, is later
dismissed in a hearing because of an unsupported general
denial by the respondent. The hearing examiner should always
be careful to verify that the administrative review was
completed for the location listed on the original (not
"respondent's" copy) of the citation.
CVC Section 40200.7 and 40215 mandate that a "violator"
request an administrative review within 21 days of receiving
a citation or within 10 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 lost
the statutorily prescribed ability to contest the citation.
Assuming that a hearing was properly requested, within 15 days
after the mail date of the result of the administrative
review, the respondent must pay the parking fine before being
scheduled for a hearing. If the person that received the
citation does not comply with these requirements, no further
review of the citation is mandated by the vehicle code.
The hearing examiner must consider the results of the required
administrative review when rendering a final decision. Since
the results of the administrative review must be forwarded to
the examiner as part of the respondent's file, a hearing
cannot be scheduled until the administrative review process is
complete. The hearing examiner should routinely examine a
case file to determine whether the required administrative
review has been completed.
!An administrative review which concludes that a citation was
20
"validly issued" does not dispose of the case entirely. The
respondent is entitled by State law the option of a hearing to
demonstrate that both the citation and the result of the
administrative review are in error. The respondent will be
apprised of statutory entitlement to a hearing as part of the
written result of the administrative review.
2.7 IThe Decision
2.7.1 Determinatio
After the hearing examiner has digested and weighed
all the evidence, a ruling must be made. The
available facts must be applied to the law. The
hearing examiner must determine whether the City's
prima facie case has been sustained by a
preponderance of the evidence, or, alternatively,
has the respondent convinced the hearing examiner
of a legally sufficient defense or mitigating
explanation?
If the respondent has proven the defense to the
hearing examiner's satisfaction, the respondent
should be found "not 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.
Absent other mitigating circumstances, a
respondent found liable has forfeited the full
fine. The only exception to this would involve
circumstances pertaining to the application of late
payment penalties. Only in those cases in which
the hearing 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 manual.
Normally, the hearing examiner will not leave the
hearing room while deliberating. Once the hearing
examiner has reached a decision, it should be
announced to the respondent on the record. The
hearing examiner may announce the decision either
before or after it has been written. The hearing
examiner must never change a decision after it is
announced merely because of the respondent objects
21
to it. The hearing examiner must not vacillate.
Only if prior to the conclusion of the hearing the
hearing examiner realizes that an error has been
made should the hearing examiner reconsider a
ruling. In other words, simple, even strenuous,
disagreement over the result cannot cause the
hearing 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 hearing examiner's decision should be
final for the hearing.
A written notification of the hearing examiner's
decision will be mailed to the respondent. The
mail date of the written decision starts the clock
ticking on the respondent's 20 day time limit for
filing an appeal with the civil court.
2.7.2 Rationale for the Finding
Each decision should be accompanied by a brief
statement of the hearing examiners rationale. Of
course, every decision need not be accompanied by a
detailed history of the traffic woes and parking
problems of the city. But, where appropriate,
especially where the hearing examiner has rendered
a finding of liable in a difficult case, the
respondent should know the reasons.
Sometimes a simple mention of the fact that all
drivers benefit from turnover at parking spaces
will suffice. Sometimes the hearing 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 successful 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 relevant time of the violation. The
hearing 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 hearing 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
22
2.8
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 well 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
respondents efforts is partially dependent on the
gravity of the violation. one would be expected to
go to greater lengths to avoid public- safety type
violations, such as blocking a fire hydrant, a
handicapped zone, or parking in a red zone, etc.
Late Payment Penalties
The hearing examiner has the power to dismiss late payment
penalties which have accrued, but only 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 blown away or removed without the
respondent's knowledge), dismissal of the late payment penalty
may be warranted. But if the respondent does not take
appropriate action to pay or appeal the citation within 15
days of receipt of the mailed notice of delinquent parking
violation, dismissal of the late payment penalty would tl_4.t be
appropriate. If the citation reflected an incorrect fine, and
money was paid but not enough to close the citation, the
possibility of confusion may be considered as possible
justification for waiving a late payment 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 original
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 requested by
the Parking Violations Bureau.
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 dismissal of the late payment penalty,
does not automatically invalidate the citation itself.
23
The hearing examiner should be wary of the respondent who
claims not to have seen or received a number of original
citations. When such a claim is advanced, the hearing
examiner must be scrupulous in assessing the respondent's
credibility and powers of recollection. In most cases,
subsequent mailed notices will 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 DMV.
A respondent's attempt to file a change of address with a
processing agency will not be effective in directing future
overdue notices to the correct address and will not fulfill
the statutorily mandated responsibility to maintain a current
address with the DMV. In any case, it should always be
recognized that the postal service, if notified, routinely
forwards mail to a new address for up to one year.
2.91 Fine Amounts
The Hearing examiner does not have the power to adjust the
amount of a fine for a violation. Fine amounts are set only
by the City of Moorpark 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
i citation was issued, does not give a hearing examiner the
authority to adjust fine amounts to achieve "uniformity ".
Likewise, parking enforcement personnel do not have the power
to access a different fine by writing in an amount on the
citation. In such cases the violator must be charged the fine
amount authorized by the City at 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.
2.11) Prior Dismissals /Precedence
It is possible that a hearing 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 Violations Bureau 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.
24
With the exception of a prior dismissal, however, a prior
decision (by any hearing 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 hearing examiner must consider each case
on its own merits. A prior dismissal may, after all, have
resulted from an error or been based on a subjective judgment
of credibility or an analysis of the evidence with which
another hearing 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 hearing examiner
become aware that he /she had previously ruled on a citation,
the hearing examiner should, after consulting with a
supervisor, decline to re -hear the case.
2.1f 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, cannot be used as a basis to
conclude that the respondent is "liable" in subsequent
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 location 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 useful in judging the respondent's credibility.
25
3.0
U�LN .�
The hearing process is generally informal. Nevertheless,
there are certain rules which must be followed to insure that
a proper record of the hearing is made and maintained and to
avoid any problems or irregularities.
3.11 Pre - Hearing Procedures
3.1.1 Upon the respondent's arrival, the hearing clerk
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 hearing clerk will direct the respondent to a
waiting area.
3.1.3 The hearing clerk will prepare a file for each case
to be heard. The file must contain a facsimile
copy of the citation(s) contested that were sent
with the scheduled hearing docket, a hearing
disposition form, and documentation of a completed
administrative review.
3.1.4 The hearing clerk will escort the respondent into
the hearing area and give the case file to the
hearing examiner.
3.2' Begin the Hearing
3.2.1 The Hearing examiner will present an opening
statement, which includes:
• A short explanation of the hearing process.
• Notification that the hearing is being
recorded.
• Informing the respondent that the options for
contesting a citation are "admit liability
with an explanation" or "deny liability ".
• Notifying the respondent that a written notice
of the decision in the hearing will be mailed
to the respondents home address.
• Informing the respondent of the right to
appeal the decision in civil court and the
time limit for filing an appeal.
3.2.2 Start the tape recorder and note the beginning tape
setting on the hearing form.
26
3.2.3 State the date and time and instruct the respondent
to give his or her name and address for the record.
i 3.2.4 Ask the respondent if he or she is the registered
owner of the vehicle involved. If not, ask him or
her to state their relationship to the registered
owner or interest in the proceeding.
3.2.5 If witnesses are present ask them to give their
name and address for the record.
3.2.6 Swear in the respondent and witnesses by
instructing them 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 will suffice.
3.2.7 Recite the following oath: "Do you swear or affirm
that the testimony you give will be the truth ?" If
yes, please say "I do"."
3.2.8 Excuse all witnesses and inform them that they will
be recalled when it is their turn to testify.
3.2.9 Read the citation number, license plate number and
state of registration, date, time, location and
type of violation into the record.
3.2.10 Request that the respondent enter a plea of "admit
liability with explanation" or "deny liability" for
the record.
3.31 Review the Prima Facie Case
j
3. 3.1 Examine the citation to determine if all
statutorily required and pertinent information has
been entered by the issuing officer.
3.3.2 If any vital information is missing, dismiss the
citation.
3.3.3 If no required information is missing, follow steps
outlined in 2.4 for a plea of "admit liability with
explanation" or follow steps outlined on 2.5 for a
plea of "deny liability ".
3.41 "Admit Liability with Explanation"
3.4.1 If the respondent admits liability but desires to
submit a mitigating explanation, ask the
27
respondent to testify to the mitigating
circumstance.
a 3.4.2 Following the testimony, ask the respondent for the
record if there is any additional testimony or
evidence they wish to present.
3.4.3 If the testimony does not clearly set forth the
mitigating circumstance, ask the respondent
questions relating to the testimony.
3.4.4 Call in witnesses, if needed, one by one. Ask the
witnesses to present their testimony for the
record.
3.4.5 Review all documents and other supporting evidence.
For the record, read aloud or describe any
documents presented. Place copies of all
documentation or other supporting evidence in the
case file.
3.4.6 Ask the respondent if there is any further
testimony prior to closing the hearing.
3.51 "Deny Liability"
3.5.1 Ask the respondent to present his or her testimony
explaining the circumstances of the violation.
3.5.2 Listen carefully to the respondent's testimony. If
necessary, cross - examine the respondent to clarify
points relating to the issuance of the citation.
3.5.3 Call in witnesses, one by one. Ask the witnesses
to present their testimony.
3.5.4 Review all documents and other supporting evidence.
For the record, read aloud or describe any
documents presented. Place copies of all
documentation or other supporting evidence in the
case file.
3.5.5 Ask the respondent if there is any further
testimony prior to closing the hearing.
3.61 Render a Decision
3.6.1 Make a decision on liability based on the testimony
and evidence.
3.6.2 Enter the disposition on the hearing record. Enter
F
3.7
the total amount of fine to be forfeited.
3.6.3 Enter a brief written statement including the
rationale for the decision on the hearing record.
3.6.4 Make a brief statement to the respondent regarding
the decision and then briefly explain the rationale
for the decision.
Close the Hearing
3.7.1 Retain a copy of the hearing record and present the
respondent with copy. Direct the respondent to
the hearing clerk.
3.7.2 Turn off the recorder and note the ending tape
setting on the hearing disposition form.
3.7.3 In the event that a continuance has been granted,
the hearing examiner must complete and file the
continuance form in the continuance folder. When
the hearing that was continued is completed, the
hearing 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 hearing examiner must
render a decision on the record. The hearing
examiner must also complete the continuance no -show
form to be mailed to the respondent.
3.81 Special Situations
3.8.1 The Unruly 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
rational explanation of the decision. Respondents
should have been apprised of their right to an
appeal in civil court prior to the commencement of
the hearing. Should a respondent become abusive,
the hearing examiner can call a security officer to
escort the respondent from the room.
A hearing examiner is not required to tolerate
personal abuse as part of the position. If a
respondent becomes abusive, the hearing examiner
should warn him or her to desist, and that if such
behavior continues it will result in a termination
29
of the hearing. If a hearing must be terminated
because of a respondent's objectionable behavior or
refusal to comply with the procedural requirements
(after proper warning), the hearing examiner should
enter a decision based on the evidence to that
point. It is vital that the Hearing examiner
record the entire proceeding (including warnings
about objectionable behavior) and include an
explanation of the resulting action on the decision
form.
Again, it should be emphasized that everything,
from the moment the respondent enters the hearing
room until the announcement of the decision and
the conclusion of the hearing, must be recorded on
tape. If the hearing examiner suspects that a
problem will develop, the proceedings should
continue to be recorded until the respondent has
left the hearing room. It should be noted that
premature termination of a hearing is a radical
step and should be avoided, if possible, in all but
the most flagrant cases of misconduct.
3.8.2 The Represented Respondent
An 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
will 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.
i 3.8.3 Ethical Guidelines
If at any time a hearing examiner is confronted
with a respondent, either registered owner or
representative, and the hearing examiner believes
that there may be bias for or against, the hearing
examiner should disqualify himself or herself. If
for any reason it could be implied that the hearing
examiner would benefit from a decision favoring or
not favoring the respondent, the hearing examiner
30
3.
3.
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 hearing examiner's decisions, the
situation must immediately be brought to the
attention of the Chief of the Bureau of
Administrative Adjudication.
At no time is any hearing examiner or any other
employee of the City to suggest, arrange, or agree
that any particular respondent appear before any
particular hearing examiner. Any such request or
suggestion shall be immediately reported to the
Chief of the Bureau of Administrative Adjudication.
Failure to report such a suggestion or arrangement
may constitute grounds for disciplinary action
against all parties withholding such knowledge.
Summary of Hearing Examiner's Major Tasks
Make the pre- hearing statement.
Read the citation into the record.
Administer the oath.
Record respondent's name and address.
Record the registered owner's name and address and the
respondent's relationship to the registered owner if
applicable.
Hear and examine the respondent, any witnesses and all the
evidence.
Render and announce a decision including the rationale.
Record the disposition on the hearing disposition form.
Indigence
California Vehicle Code Section 40200.7 requires that a
request for administrative adjudication be preceded by payment
of the full amount of the parking penalty. An indigent
respondent may request 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
31
4.0
4.1
for waiver will be considered by the hearing examiner assigned
to the case.
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, payment arrangements must be made
with the Parking Violations Bureau within forty -five (45) days
from the date of the hearing.
If the request for waiver is denied, the respondent will be
notified.
THE PRIMA FACIE CASE
Requirements
The following items should be indicated on a citation in the
special boxes provided:
a. The Vehicle Code or Municipal Code Section violated
b. The approximate time of the violation
C. The location where the violation occurred
d. The license plate number of the vehicle that committed
the violation
e. The expiration date of the vehicle registration tabs
f. The last four digits of the vehicle identification number
(only if visible to the issuing officer)
g. The color of the vehicle (optional and not cause for
dismissal)
h. 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 filled in and a claim is
raised by a respondent that the citation was not issued to the
respondent's vehicle, the conflicting tab expiration date
and /or vehicle identification number (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.
32
4.2
Illegibility
Where the handwriting on a citation is so illegible as to be
indecipherable, it should be summarily dismissed. This rule
does not apply to messy, smeared or otherwise 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 a photocopy of the original
citation maintained on file at the Parking Violations Bureau
and in almost all cases will have already been considered in
the administrative review.
If the hearing examiner determines after further review that
a citation is actually unreadable or illegible, it should be
dismissed.
33
5.0
5.1
LATE PENALTIES
Computation of Late Penalties
5.1.1 Late penalties are assessed
mail date of the notice of
violation. The penalty is
original fine plus $10 plu
to DMV is applicable.
j
5.2 4 Potential Defenses for a Late Payment
5.2.1 Non - Receipt of Notice
10 days after the
delinquent parking
the amount of the
s $3 if attachment
The most common defense claimed for making a late
payment is non - receipt of the windshield copy of
the citation. Occasionally, it happens that a
citation is removed by pranksters or blown off the
windshield. If this were true, it may be a defense
to paying the original 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
delinquent parking violation, which must stand on
its own.
When a respondent claims non - receipt of a citation,
the respondent should be questioned closely. 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 mean 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 hearing 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 the operator, the
late payment penalty should always be sustained
unless it can be demonstrated that the required
notice of delinquent parking violation was not sent
to the address on file at the DMV for the
registered owner.
34
5.3
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.
Unacceptable Defenses for Being Late
5.3.1
5.3.2.
5.3.3
5.3.4
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 not acceptable mitigation if the
citation was placed on the car or mailed. 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
lack of funds, since a
preclude responding in a
be remembered that anyone
citations must be held
answering or paying them
respondent that claims a
lack of funds does not
timely manner. It should
who can afford to collect
responsible for either
on time.
Lost Notices of Parking Violation
A lost citation is not sufficient to mitigate a
late payment penalty since it indicates negligence
by the respondent.
Unseen Notices of Parking 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
A statement that the Respondent didn't realize
liability would increase because of a response
after the due date may not be accepted for any
reduction of the amount due. The notice of
delinquent parking violation gives adequate notice
that the fine may increase due to a late response.
35
5.4
5.5
5.E
6.1
M
N.
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 respondents
response.
Notice of Delinauent Parking Violation After Fine Paid
Infrequently, someone may receive a notice of delinquent
parking violation after the fine has been paid. Usually, this
results from the payment and the computer - applied late
penalties crossing paths due to the time delay in mailing a
payment. Sometimes, the respondent may not have paid the full
scheduled fine. The respondent is still liable for late
penalties in either case.
Proof of Payment
The best proof of payment is, of course, a canceled check,
money order, or a cashier's receipt, all of which should
contain the number of the citation claimed to have
CONTINUANCES
Pre - Hearing Continuances
After the required speech reminding respondents of their right
to present evidence, and under appropriate circumstances, a
continuance may be granted to those requesting for the first
time. Hearing examiners should not engage in a "pre- hearing"
to decide this. If there is doubt, grant the continuance.
Relevant considerations are:
• The reason(s) the respondent cannot 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.
Continuances for Further Proof After Hearing Commences
These are virtually never to be granted. only in the case
that the respondent convinces the hearing examiner that; (a)
there exists evidence which would be non - cumulative and
exculpatory and; (b) that the respondent was genuinely taken
M
6.3
6.4
by surprise, should a continuance be granted. This last
requirement rules out all respondents except those whom you
determine 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.
Other Continuances
Should the respondent or a witness become ill 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 10 calendar days unless the respondent proves
that he or she will be out of town, hospitalized or otherwise
unable to appear. In this case, a longer period of time may
be granted. The matter should be logged 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 Hearing examiner must complete the
continuance form and give one copy to the respondent. The
information required must also be recorded on the tape of the
hearing.
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 full amount of the fine.
They should also be instructed to bring with them to the next
hearing any late notices they receive during their
continuance.
When a hearing is re- opened, the proceedings must be recorded
on taPe whether the respondent has returned or not. The
information must, of course, also be added to the hearing
examiner disposition form.
In those cases in which the respondent does not return as
scheduled, the hearing examiner should see that copies of the
completed disposition form are mailed to the respondent's
address. The hearing examiner must also complete and mail a
continuance default form to the respondent. A copy of this
37
form should be retained with the record of the hearing.
Whenever any continuance is closed out, the hearing examiner
must make appropriate entries in the continuance log.
7.01 TYPES OF HEARINGS
7.11 Scheduled Hearings
The City of Moorpark Parking Citation Adjudication Program
conducts hearings on a scheduled basis. A hearing is
scheduled only when specifically requested, either in writing,
by telephone or in person. In order to avoid an accumulation
of late payment penalties and to exercise the right to contest
a citation, an individual must request a hearing within the
statutory time limits. Once the request for a hearing has
been received, the affected citation is placed in a temporary
suspend (hold) status, 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 10 days from the scheduled hearing date in
which to pay any additional monies owed a citation not
dismissed in a hearing. upon expiration of this period,
unpaid citations are removed from suspend status, and are
again subject to late payment penalties and DMV holds.
7.4 Hearing by Written Declaration
In lieu of an in- person face to face hearing with an examiner,
citation appeals may also be made by written declaration.
Hearing by Written Declaration forms are available from the
Department of Administrative Services - Finance Department or
may be requested by mail. Hearings by Written Declaration
will only be forwarded to a hearing examiner after payment of
the full fine due is made or, in the case of an indigent
respondent, a request to waive the fine is made. The Hearing
examiner will review the written declaration and render a
decision based on the information submitted. If the
respondent is found "not liable" the fine paid for the
citation will be refunded.
8.q DEFENSES
8 Denials
�
W 3•
8.1.1
8.1.2
8.1.3
General Denial
Denial that the offense was committed as charged
may take various forms. Initially, a respondent
may simply claim that he or she did not commit the
violation charged. More often, the allegation on
the citation may be challenged by a specific claim
such as "time was still showing on a meter ", "the
car was not in the restricted area when it was
cited ", "the regulation was not in effect at the
time stated on the citation ", etc. A thorough
review of the description of the violation on the
citation, and reference to the general standards of
proof required for a valid defense, will provide a
sufficient base from which a determination of
liability can be made.
Material Error in the Vehicle Identification
If a defense is raised that the vehicle identified
on the citation is not the respondent's vehicle,
the following guidelines should be applied:
A. When the Claim Mav be Raised
This claim must be raised after receipt of a Notice
of Delinquent Parking Violation, not on the
windshield copy of the citation Possession by
the respondent of the original citation is a
virtual negation of this claim.
B. Proof Required
The only acceptable and conclusive evidence is a
copy of the vehicle registration card issued by the
Motor Vehicle Registry of the State which issued
the license plate cited. The registration must be
carefully reviewed to verify that it was in force
on the date the citation was issued. For the case
in which a respondent claims that the vehicle
identified on the citation was sold, proof must be
provided that the vehicle was properly transferred
prior to the date of the violation occurred.
Material Error in the Allegation
The respondent may contend that the issuing officer
made an error in alleging the offense. Because a
citation is the prima facie case, the case stands
or falls as charged - -at least as to the material
elements of date, time and place. If the
93ol
respondent conclusively proves that the vehicle was
not at the place charged at the time or on the date
charged, or did not do what is charged, the
citation should be dismissed. Please note that it
is not conclusive to prove where the respondent was
on the date of the violation, the citation was
issued to a vehicle, not the respondent.
Some flexibility should be maintained in reviewing
the address on a citation (e.g., location is given
as 200 N. Main, and respondent claims he was in
front of 226) or obvious inversions of the date and
time (e.g., "21/10/92" as the date or the insertion
of 112 P.M." in the date space and "11/3/92" as the
time). This kind of error must not, without other
proof, negate the charge. Minor and subjective
differences in vehicle description (such as color)
and variations on make (such as Ford or Mustang)
should be overlooked as immaterial.
Finally, reference to an incorrect section of the
vehicle code may be overlooked as long as the
citation properly states the infraction in words or
understandable abbreviations.
8.1.4 Time of Observation Versus Time of Writing
The relevant time for any allegation of parking
violation is the time the infraction is observed,
not the time the Notice is actually written.
Therefore, where a respondent proves that a
citation was written before the prohibition came
into effect, such as a time of 3:55 PM written on a
citation for "No Stopping /Standing 4:00 PM - 6:00
PM", the citation should be summarily dismissed.
On the other hand, if an officer observed a
violation before a prohibition expired (e.g., a
citation for "No Parking 7:00 AM - 9:30 AM" written
at 9:25 AM) and notes this time on the citation,
but actually completes and affixes the citation to
the vehicle after the prohibition has expired, the
citation is technically sound. It is not a valid
defense to assert that the citation was actually
completed and placed on a vehicle after a parking
restriction had elapsed.
8.1.5 Challenge to Issuing Officer's Judgment
A Respondent may claim that the officer was
40
mistaken in his or her judgment that the car was
parked in a crosswalk, etc. Again, reference
should be made to the elements of the offense
charged, to be followed by an examination of the
respondent's proof. If, after such reference and
examination, it appears that the respondent has
proven by sufficient credible evidence that the
officer's judgment was incorrect, the citation may
be dismissed.
8.1.6 Missing Signs
i The California Vehicle Code does specify the number
of signs that must be posted to announce parking
restrictions or the minimum distance allowable
between signs. City of Moorpark policy is to post
a sign at the beginning and end of each block and
every 100 to 200 feet within a block if it is
deemed necessary because of surrounding conditions.
It is also City policy to post signs at the
entrance to a parking lot. If it is proved that
there was no sign anywhere in the block in
question, a citation may be dismissed.
To assert this defense successfully, a respondent
must, by proof, eliminate the possibility of a
sign anywhere in the parking area or block. Proof
that a bare pole existed or that there was no sign
in part of the block, is not adequate proof tc
substantiate this defense.
All evidence, photos, statements, etc. -- should
indicate clearly the location referred to. The
citation, of course, will indicate where the car
was parked. To give perspective, photos may be
"linked" to give a complete picture of the
location. Photographs which show the parking area
should, of course, be examined closely to determine
whether signs might have been hidden behind trees,
canopies, etc.
The Hearing Examiner should
notice of the findings
administrative investigation any
complaint. The investigation
staff person from the Sheriff's
virtually all cases a field
location in question.
also take special
.n the required
I review of a sign
is performed by a
Department and in
inspection of the
When the evidence presented by the respondent fails
to prove that there was no sign anywhere in the
41
parking area, the citation should be sustained.
Respondents should be reminded that they have a
duty to search a whole block for signs and that an
assumption based on the absence of signs in part of
a block does not fulfill this duty.
8.1.7 Obscured Signs
An obscure sign is not a defense unless the
respondent can prove; (1) that the sign was so
obscured that no one could read it from any angle
and; (2) that there was no other sign on the block
which indicated the restriction. The fact that a
sign is partially covered by a barrier or hidden
from certain angles by a tree or canopy is
irrelevant. All motorists have a duty to see and
obey all signs posted.
8.1.8 Defaced Signs
To successfully maintain a defense of a defaced
sign, the respondent must prove two things: (1)
that the sign was so defaced that it could not be
read; and (2) that there was no other sign in the
area indicating the same restriction. If both are
not proven, the defense should not be sustained.
The respondent should be questioned carefully about
his familiarity with the area, how often he has
been there, as well as about his knowledge of the
removal or defacement of the sign.
8.1.9 Preferential Parking - Permit Required
A valid permit is required for any vehicle parked
in an area established as a preferential parking
district and signs are posted which give notice of
the district. All preferential parking permits are
not valid in all districts. Permit holders are
required to abide by the parking regulations
adopted by the district in which they are parking
and prominently display their parking permit. The
Hearing Examiner will be provided with the rules
and regulations adopted by each district. A permit
violation shall not be dismissed because a permit
holder did not know that her permit was not valid
in the area where she was cited.
Non- display or improper display of a preferential
parking permit is a violation of district
regulations, and multiple citations for this
violation should not be dismissed.
42
8.2
Visitors who display temporary parking permits are
required to follow district regulations and
prominently display the temporary placard.
An assertion that the Respondent did not know they
were parking in a preferential parking district or
that they were required to display a parking permit
while parked is not grounds for dismissal of the
violation.
Explanations
There are certain explanations which, if proven, and under
certain circumstances, may be the basis for a dismissal.
8.2.1. Vehicle Breakdowns
If a vehicle suffers a mechanical breakdown and if
reasonable efforts are made to have the vehicle
removed from the street, a citation for illegal
parking issued while the car was incapacitated may
be dismissed.
To maintain the claim of "mechanical breakdown,"
four elements must be proven:
• The respondent must prove that the breakdown
actually occurred.
• The respondent must prove that the vehicle was
not illegally parking before the breakdown
occurred.
• The violation must have resulted from the
breakdown.
• Reasonable steps must have been taken to
remove the vehicle from the situation that
caused the violation.
NOTE: If the hearing examiner is fully convinced that
all four elements of the claim have been sustained by a
preponderance of the credible evidence, the hearing
examiner may find the respondent not liable. If
respondent's proof on any of the first three elements
fails, the hearing examiner should sustain the citation
and find the respondent liable.
8.2.2 Poverty
43
hearing examiner must also be mindful of the majority of
citizens who acknowledge their responsibility and pay their
fines. They too, had personal reasons to do as they did. But
they accepted the consequences of their actions in choosing to
pay the scheduled fine. They must not be discriminated
against in favor of those who believe that, by articulating
their plight in person, they will be granted automatic
exception.
The excuses outlined in this section should never form the
primary basis for a dismissal. Acceptable excuses and
defenses should be limited to those outlined above and others
which the hearing examiner determines are bona -fide and
legally sufficient. This list of unacceptable excuses or
defenses should not be viewed as comprehensive but are set
forth only as examples.
NOTE: It should be clear that just as defenses and
explanations that are unbelievable and without merit are to be
rejected, credible and meritorious defenses and explanations
should be accepted and given appropriate weight when rendering
a decision.
8.3.1 "Making Change"
The law requires activation of a parking meter
within the time required to park, deposit the
necessary coins, and activate the meter. The
driver must consider this before he or she decides
to park. While searching for someone to make
change, the respondent is, in effect, on a short
errand, and a citation may be properly issued.
8.3.2 "Going to the Bathroom"
This is never an adequate excuse for illegal
parking.
8.3.3 "Short Errands"
No errand, no matter how short, no matter how
important to the respondent, short of a bona -fide
medical emergency (not headache, cramps, etc.) is
an acceptable excuse for illegal parking.
The "short errand" is a very common excuse.
Running in to pick up someone or something is a
common excuse for parking illegally. It is not
legally valid, however, and should not result in
45
8.3.4
8.3.5
8.3.6
8.3.7
8.3.8
anything but a finding of liable.
"Doctor /Dentist Appointment "/Late for Class"
Like other citizens, the owner of a motor vehicle
must plan a way to arrive on time for a dentist or
doctor appointment or to a class without parking
illegally, and if this is not done he or she must
accept responsibility.
"Business or Personal Appointment"
The same applies here. The driver of a motor
vehicle must accept responsibility for planning to
arrive on time for appointments. Being late does
not bestow upon the driver the privilege of parking
illegally.
"Car Used for City Business"
Some employees are authorized to use their personal
vehicles for City business. If the respondent
claims an actual business use of the vehicle and,
therefore, requests consideration under the
regulations concerning City vehicles, the
respondent must present a letter signed by the
General Manager of his or her Department so
stating.
"I have a valid placard "
The City has adopted an administrative procedure
for a claim that a person has a valid placard but
neglected to properly display it. These cases are
screened during the initial review process and
should be sent to the hearing officer unless the
claimant failed to fulfill the City's
administrative requirements.
"The permit was in the car. The officer should
have seen it."
Special permits must be placed in the lower left
corner of the driver side windshield or hung from
the rear view mirror. Any other place is not
acceptable.
46
8.3.9 "No Place Else to Park " / "The Lot Was Full"
Rather than being a valid excuse, this in fact
confirms the respondent's liability. This excuse
also implies that if a person can't conveniently
comply with the parking laws, he or she has the
right to violate it. This, of course, is not the
case. It is every driver's responsibility to
locate legal parking.
8.3.10 "I Didn't See the Sign"
A driver is required to look for signs when
parking. This may mean checking an entire block
from corner to corner. Drivers are also required
to notice signs as they drive. That a person did
not see a sign forbidding parking is not an
acceptable excuse.
8.3.11 "I Didn't Understand the Sign"
Absent genuine confusion caused by conflicting
signs, this is no excuse. One is required to read
and understand signs to qualify for a license to
drive.
8.3.12 "The Sign was Obscured"
Unless the sign was so obscured that no one could
read it from any angle, this defense has no merit.
8.3.13 "I am doina a service for the Citv"
Many vendors believe that they should not have to
pay to park. They may being doing a service for
the City, but they are also being compensated for
the service.
8.3.14 "I had Permission"
Nobody, including a police officer, parking
enforcement officer or any other employee of the
City, has the authority to grant permission to park
illegally. A police officer may, however, order a
person to pull over to the curb, pass through a red
light, etc., in the performance of his duties.
47
8.3.15 "Only Part of my Car was Illegally Parked"
A violation is not based on a certain percentage of
a vehicle being illegally parked. If part of the
vehicle extends into a restricted area, the
violation is the same as if the entire vehicle did.
8.3.16 "I Left Someone in the Car"
"I Left my Parking Lights On or Blinking"
"I Left a Note in the Car as to my Whereabouts"
"The Motor was Running"
Many respondents seem to think that evidence of a
short stay mitigates the offense. It does not.
The purpose of parking regulations is to restrict
from certain areas, motor vehicles which are not in
motion. The presence of a passenger, a sign or
blinking lights does not satisfy this purpose and,
therefore, does not constitute a valid reason to
dismiss a violation. Blinking hazard lights
certainly do not transform an ordinary vehicle into
a bona -fide emergency vehicle.
8.3.17 "It was Only a Few Minutes"
This explanation is one of the most common claims.
"A few minutes" is a subjective term and, in fact,
can mean anything up to a few hours within a
person's own rationalization. Even if true,
parking for any length of time, where it is
prohibited, is illegal, and for this reason alone,
this excuse is unacceptable. The parking laws
would have no effect if people were allowed to park
illegally for their individual definition of a "few
minutes."
8.3.18 "Nobody Else Got a Ticket"
Sometimes this defense is phrased as
"discriminatory enforcement ". Occasionally it is
true that an officer didn't cite an entire area.
Other vehicles may or may not have been parked
illegally. The officer also may have had to leave
the area before checking all vehicles.
However, it doesn't even matter. A citation stands
on its own. Whether the respondent was properly
cited for the particular violation is the only
issue in a hearing. Therefore, even if the
►, ;1
respondent was the only person in the area cited,
the issue is, was she violating the law? If so,
the claim that she was the only one cited is
without merit both as a defense and as an
explanation in mitigation.
8.3.19 "Rushing Out with Second Coin in Hand"
It is, of course, illegal to "feed meters ". The
time restrictions applicable in an area mean that a
vehicle may park for that amount of time only, and
then it must be moved. This defense is to be
rejected.
8.3.20 "The Whole Block was Parked"
In parking situations, this excuse is usually more
a case of individual carelessness than custom or
misunderstanding. Had the respondent looked, he
would have seen the sign and realized that the
"other cars" were parked illegally too. Custom, or
the fact that others are committing the same
violation, should be rejected as a valid defense.
8.3.21 "Someone Else Had My Car"
In the absence of outright theft, the Vehicle Code
is clear that the registered owner of a vehicle is
responsible for the safe and legal operation of the
vehicle. Whether a vehicle was borrowed and parked
illegally by a relative or friend, or by a garage
attendant, etc., it remains legally in the owner's
care.
The owner is responsible for all citations gathered
by an operator and for all penalties incurred due
to the operator's lateness or failure to respond.
8.3.22 "The Officer Saw Me Park and Didn't Say Anything --
or-- Said it was O.K. for a Few Minutes, etc."
There are some misunderstandings which seem to be
based on the proposition that officer inaction
somehow implies granting an exemption. Where this
excuse is offered in good faith, it is very
important to explain that the officer that saw them
park and with whom they spoke may not have written
a citation, but that in no way implies that they
49
are exempted from the parking regulation, or
preclude the possibility that another officer may
come by and write a citation. This excuse is to be
rejected.
8.3.23 "The Officer Told Me"
i
Many people think that an officer may grant illegal
parking, if he or she wishes to do so. This is not
true. (See 8.3.22)
8.3.24 "The Officer Apologized But Wrote the Citation"
Such a statement only indicates that the officer
may not have wanted to fight about the violation.
It is easier for the officer to let the respondent
vent his or her anger on the hearing examiner.
This excuse should be rejected as meaningless and
irrelevant.
It should be noted that if the officer really
believed that a error was made, the officer has the
option of recommending to a supervisor that the
citation be dismissed.
8.3.25 "This Violation has not been Enforced in the Past"
Officers in some areas may not fully enforce all
parking laws for a variety of reasons. Simple
neglect, inadequate staffing, other higher
priorities, etc., may give rise to long -term,
widespread violations in some parts of the City.
But, nowhere may apparent failure to enforce any
parking law constitute a valid defense for a
citation.
8.3.26 "I've Done It for Years"
"Everybody Does It"
These are never a valid defense or adequate
mitigation for any violation of the parking laws.
Nobody is to be rewarded for "getting away" with
prior violations.
8.3.27 Diplomatic Immunity
According to the United States Department of State,
50
=Wl!
Consul Generals are exempt from the laws of a local
jurisdiction only with respect to criminal acts
performed in the exercise of consular functions.
Since parking citations are now civil offenses,
this defense is no longer applicable.
Appeals for Leniency
Occasionally, when all else fails, a respondent may present an
excuse which is, in effect, really an appeal for leniency.
The following are some common examples. None of these,
however, have sufficient legal weight to dismiss a violation.
8.4.1 "Out -of -Town Driver " / "Do Not Read English"
Our signs are printed in simple language. An out -
of -town driver who makes incorrect assumptions is
causing the same danger and inconvenience as any
local driver who ignores the same regulation. A
driver from out -of -town is required to obey all of
our parking laws as a condition of being granted
the privilege of operating a vehicle on our
streets.
This same reasoning applies to a respondent who
claims to not understand or read English. The
ability to understand and abide by signs regulating
the operation of motor vehicles is a condition for
being granted a license to drive.
8.4.2 "New to the City"
A new resident has the same responsibilities as
everyone else. They are required to familiarize
themselves with and abide by all parking
regulations before they park.
8.4.3 "The Fine is Too High"
Fines are set by the City of Moorpark and apply to
all motorists equally. The fines are not variable
and may not be reduced in the absence of a legally
proper reason to do so.
8.4.4 "Towed Vehicles"
When a vehicle has been towed, the amount of the
towing and any storage fees the respondent must pay
51
is not under the hearing examiner's jurisdiction.
Towing fees for Official Police Garages are set by
the Board of Police Commissioners. When a citation
is reviewed in a hearing, only the penalty for the
parking itself is subject to consideration.
The hearing examiner's standards for judging the
validity of a case where a vehicle was towed should
never vary from other cases.
NOTE: The above are simply some examples of the cases that we
anticipate in our hearing rooms and are meant only as
suggestions. The Hearing Examiner must decide each case on
its merits.
9.01 SPECIAL CLASSES OF VEHICLES
9.1
Commercial Vehicles
A commercial vehicle is defined by the State of California as
any "vehicle of a type required to be registered as commercial
or maintained for the transportation of persons for hire,
compensation, or profit or designed, used, or maintained
primarily for the transportation of property ". The State of
California issues a distinctive type of license plate to
commercial vehicles. The plate is identified by a number
followed by a letter followed by five numbers, for instance
2B12345. Some commercial vehicles are issued personalized
plates as indicated on the vehicle registration. Commercial
vehicles registered out -of -state are also subject to the
special conditions listed below.
Commercial vehicles are exempt or partially exempt from
certain rules or types of violations. The following are
several common local code sections that allow special
treatment of commercial vehicles. The examples are from the
Los Angeles Municipal Code but the sections are common:
Commercial vehicles are allowed to park for thirty
(30) minutes will actively engaged in loading or
unloading in all posted loading zones (yellow
curbs).
Commercial vehicles are allowed to 6naduntoad for
thirty (30) minutes in an alley way.
Commercial vehicles are allowed to load and unload
for thirty (30) minutes in a "No Parking" zone.
52
Commercial trailers in excess of twenty -two (22)
feet are allowed to be parked on City streets only
while actively engaged in loading or unloading.
Commercial vehicles may park in residential areas
for a maximum of three (3) hours and only while
actively loading or unloading property. For the
purposes of this section a commercial vehicle is
defined as: (1) a truck tractor; (2) a motor
vehicle with commercial plates and exceeding
twenty -two (22) feet in length; or (3) any vehicle
with commercial plates with the name of a business
or a sign advertising a product painted or attached
to the exterior.
Commercial vehicles may only park in a preferential
parking district while actively engaged in loading
or unloading or when parked in connection with the
performance of a service to property located in the
block in which the vehicle is parked.
"Automobiles for hire" or taxicabs may park in
special zones reserved for taxis or sightseeing
buses but only while waiting employment or actively
engaged in employment. An "automobile for hire" is
defined in MMC as any automobile or motor propelled
vehicle, other than taxicabs, used for the
transportation of passengers over the streets of
the City and not over a defined route.
It should be emphasized that commercial vehicles are subject
to all other rules and regulations whether or not they are
loading or unloading. For example, they must pay for metered
spaces, they cannot park in "No Stopping /Standing" zones or
within 30 feet of intersections. They are not allowed to
double park, although some drivers will maintain that
individual enforcement officers tend to give them some leeway.
Such allowances are not in accord with the rules and
regulations of the City and do not afford a respondent an
effective defense when a double parking citation (or any
citation for a valid violation) is issued.
When a commercial vehicle is cited for exceeding the allowable
time in a zone, the officer that writes the citation must
indicate in the remarks section the time he or she began to
observe the vehicle and another time when the vehicle became
in violation. The two times must be more than 30 minutes
apart.
Several problems tend to characterize hearings involving
commercial vehicles. The issue of identification as a valid
commercial vehicle is sometimes raised. If the license plates
53
9.2
are personalized or issued by another jurisdiction and the
respondent provides a valid DMV commercial registration card,
the vehicle should be considered a commercial vehicle for the
purpose of the hearing.
A respondent may try to appeal to a hearing examiner's
sympathy by arguing that certain parking practices are
essential to the conduct of his business, or necessary for his
livelihood. However, if a practice (such as overtime parking)
is illegal, a hearing examiner must not create a special
exemption to the parking laws because of a desire to alleviate
the respondent's hardship. It would be improper for a hearing
examiner to dismiss a validly issued citation for such a
reason. A hearing examiner does not have the authority to
effect such a policy change.
A problem sometimes arises when the respondent claims that,
although two times are listed on the citation which are over
30 minutes apart for a Loading Zone violation, he had, within
that time, moved the vehicle and returned, and, therefore, had
not exceeded the allowable time limit for the particular zone.
In any event, the burden is on the respondent to establish
that the vehicle was not at the location in question for the
period stated on the citation. To the extent that he is able
to do this (through the presentation of invoices, delivery
logs and the like), the hearing examiner may exercise some
discretion, bearing in mind that the purpose of these time
restrictions is to encourage turnover and discourage vehicles
from occupying spaces for long periods to the exclusion of
other vehicles.
It should be noted that no one "owns" "their" loading zone.
Although a loading zone may be established at the request of
a certain business and may be located immediately adjacent to
the business, no one is entitled to exclusive or unique
parking privileges. Loading zones are established for the use
of all qualified commercial vehicles.
Government Vehicles
Government vehicles are defined as those owned or leased by
the United States Government, the State of California, or any
city, county or other political subdivision within the State.
These vehicles are generally identified by a distinctive
Government or "E" plate. The vehicles also usually display
government seals or other special markings. Leased or rented
vehicles must display an official government vehicle placard.
In general, all emergency vehicles are exempt from all parking
54
9.3
10.
10.
10.
regulations, but only while actively engaged in emergency
work. This includes police and fire vehicles, and public and
private ambulances.
Employees driving private vehicles with official placards and
on official business are not required to pay to park, but must
park legally.
City Vehicles
Vehicles registered to the City of Moorpark are exempt from
many parking regulations. They may park in permit and meter
areas but are not exempt from no stopping, fire access, or
disabled zones. City vehicles are identified by an "E"
license plate and a four digit shop number somewhere on the
vehicle.
DISABLED PARKING: CVC Section 22507.8, etc.
Following is a summary of rights and responsibilities of
disabled drivers along with potential problems associated with
disabled parking.
Requirement To Obtain California Disabled Plate AndlOr Placard
The Department of Motor Vehicles requires an applicant for a
disabled plate or placard to submit a certificate signed by
a physician, chiropractor, ophthalmologist, optometrist or
surgeon stating the disability. Loss of limbs or any other
limiting disability that can easily be seen if the disabled
person applies in person at the Department of Motor Vehicles
does not require a doctor's certificate.
Description
The placard's size and color are determined by the DMV.
Permanent placards are renewed bi- annually, with an expiration
date of June 30th, during odd numbered years. Temporary
placards have an exact expiration date (month- day - year).
Placards have no grace period.
The dimensions of the present permanent disabled placard is 5"
x 811. The placard is red with white printing and border, and
is made of plastic. The dimensions of the present temporary
disabled placard is 6" x 12 ". The placard is blue with black
printing and border, and made of thick construction paper.
The temporary placard states "Temporary Parking Placard."
Xerox copies of either placard are not valid; therefore, they
are not acceptable.
55
10.
A disabled license plate is identified by the letters DP or DV
appearing before the numbers on the plate (DP= Disabled
Person, DV= Disabled Veteran).
Environmental /personalized license plates will have a "DP"
sticker affixed on the license plate, to the right of the
month indicating disabled person. This sticker indicates that
the vehicle owner is entitled to disabled parking privileges.
All disabled person placards have an identification number,
and each recipient of a placard issued by California is given
an identification card with the corresponding number. Each
person issued a placard must carry his or her identification
card and, if requested by a peace officer, he or she must
present it.
Most disabled persons choose the disabled placard as their
means of identification. With the placard there is more
flexibility, since the placard can be placed in any vehicle
that the disabled person will be riding in or driving. The
Department of Motor Vehicles does not have a preference on
placard versus license plate. DMV informs the applicant of
the correct location to place the placard, so that it can be
clearly visible to all law enforcement officers. The placard
shall be placed on the dashboard on the driver's side of the
vehicle.
Issuance
The Department of Motor Vehicles tries to assure the issuance
of one placard per person. The exception is: organizations
and agencies responsible for transportation of disabled
persons may have a placard for each vehicle for the purpose of
transporting the disabled persons.
NOTE: There is no difference in the disabled person vehicle
license plates that are issued to passenger vehicles and the
disabled person vehicle license plates that are issued to
commercial vehicles. Further, when a commercial vehicle
displays either a disabled plate or the disabled person
placard, the vehicle is entitled to all parking privileges
permitted under California State law.
10.1 Parking Privileges
Disabled persons /veterans whose vehicle displays a qualifying
disabled person plate or placard shall be allowed to park in:
a. any metered space without being required to pay any meter
fees
56
b. specially reserved disabled person parking spaces
C. green zones for an unlimited time
d. time limit zones for unlimited times
NOTES:: Only the person to whom the disabled person placard
was issued or someone transporting the disabled person may
legally use the placard. Proof that a person was engaged in
transporting a disabled individual while properly displaying
the disabled plate or placard would constitute a valid defense
for the above mentioned exempted violations. Without such
proof the citation may not be dismissed.
Vehicles displaying distinguishing disabled license plates or
placards issued by jurisdictions outside of the State of
California are allowed the same parking privileges as disabled
persons or veterans of the State of California. These
individuals are also subject to the same requirements of proof
to dismiss a citation.
Disabled persons cannot park in zones in which the stopping,
standing, or parking of all vehicles is prohibited.
With the exceptions just noted, vehicles with the disabled
designation may receive an citation for failing to adhere to
parking regulations. In such a case, the hearing examiner
must use discretion in determining whether the particular
handicap of the respondent, in conjunction with the
surrounding circumstances, warrants dismissal of the citation.
These vehicles are not exempt from disabled person ramp
violations. The ramp is designed for access to all persons
requiring its use. Any vehicle parked in front of a disabled
person ramp denies access of the ramp to others and should be
cited.
i
11.0 TYPE OF VIOLATION
Parking citations may be classified as either a public safety
or a non - public safety violation. The Hearing examiners'
decisions may consider this distinction.
11.1 Public Safety
Public Grounds
Red Curb
Outside of Marked Stall
Parked on a Crosswalk
Parked on Sidewalk
Double Parking
57
11.
12.
12.
12.
Parked in Front of Wheelchair Access Ramp
Parked on Wrong Side of Street
Disabled Permit /License Plate Not Displayed
Parked in Alley
Non - Public Safety
White Curb
Yellow Curb
Expired Meter
Parked Without Valid Permit Displayed
License Plate Missing
Current License Tab Not Displayed
NOTE: Public safety violations are classified as such because
they may pose a significant hazard to the general public.
Accordingly, a public safety violation should not be dismissed
unless it was precipitated by a bona -fide emergency situation.
The circumstances surrounding the emergency should be such
that it would not be reasonable to expect the driver to search
for a legal parking space.
SEIZING OR BOOTING A VEHICLE
Vehicle Code Sections 22651(i) and 22651.7 allow the City to
seize or immobilize (boot) any vehicle that has been issued
five or more parking citations over a period of five or more
days and have not been resolved by the responsible party.
Partially paid citations are also included in determining
whether a vehicle is eligible for seizure. Citations issued
to vehicles with an out -of -state registration count toward
eligibility for seizure 30 days after the issue date.
Citations issued to vehicles with a California registration
count toward eligibility 50 days after issuance.
Tow and Storaae Fees
The owner of a vehicle that has been impounded for unpaid
parking citations will incur a towing charge and may also
incur storage fees.
Hearings on Seized Vehicles
A few options are available to an individual whose vehicle has
been seized and who wants to contest the validity of parking
citations:
He or she may decide to pay all of the citations owed on
the vehicle and schedule a hearing in the future for
those citations he or she wishes to contest. The vehicle
M.
12.
13.1
will be released after the fines are paid and the
respondent will be given the opportunity to challenge the
validity of citations at a scheduled hearing. The
respondent will be entitled to a refund of the fine paid
for any citation that is dismissed as a result of the
hearing. However, since the towing and storage fees are
not subject for review in a hearing, the fees will not be
refunded even if the citations are dismissed.
He or she also has the option of contesting the citations
before obtaining a release of the vehicle. It is the
policy of the City to expedite the scheduled hearing date
for anyone whose vehicle has been seized. In a great
many cases, the responsible party will be scheduled for
a hearing the next day.
Release of Seized Vehicles
No vehicle will be released once it has been seized until all
of the outstanding citations charged to the seized vehicle,
and any other vehicle registered to the registered owner of
the seized vehicle, have been resolved by payment or
administrative adjudication. Payment can be made in any
manner except by personal check. If the vehicle is towed to
an Official Police Garage (OPG) , it will only be released when
the responsible party presents a release form obtained from
the PVB which indicates that all outstanding citations have
been resolved, and upon settlement of the fees charged by the
garage.
RENENTALILEASED VEHICLES: CVC Section 40200 and 40209
An individual who leases or rents rather than owns a vehicle
is jointly liable with the owner for citations issued to that
vehicle. The following is a brief summary of the special
procedures for rented or leased vehicles.
When a citation has not been resolved or a hearing scheduled,
the processing agency mails a notice of delinquent parking
violation to the registered owner of the vehicle as identified
by the Department of Motor Vehicles. The lease or rental
company that owns the vehicle has 30 days (as mandated by the
California Vehicle Code) to supply the name, address and
driver's license number of the person that is leasing or
renting the vehicle to the processing agency. If this
information is supplied within the 30 -day time limit,
liability is transferred to the lessee or renter and a notice
of delinquent parking violation is mailed. If the 30 -day time
limit is not met, there is no statutory requirement to
transfer liability. Therefore, responsibility remains with
em