State of North Carolina s39

State of North Carolina

Office of Administrative Hearings

County of Haywood

JERRY V. STERNBERG, Petitioner,

CITY OF ASHEVILLE, Respondent.

08 MIS 1152

Decision Date: November 4, 2008

DECISION

THIS MATTER comes before Selina M. Brooks, administrative law judge on November 4, 2008.

APPEARANCES

For Petitioner: Jerry V. Sternberg, pro se Asheville, NC 28814

For Respondent: Curtis W. Euler, Assistant City Attorney Asheville, NC 28802

EXHIBITS

Petitioner’s Exhibit 1 – Letter to Jerry Sternberg dated July 10, 2008 and copy of City of Asheville Code of Ordinance Appendix B Petitioner’s Exhibit 2 – Blank Parking Citation Petitioner’s Exhibit 3 – Printout of Municode Website for the City of Asheville Respondent’s Answers to Petitioner’s Second Request for Respondent’s Response to Petitioner’s Request for Admissions dated September 2, 2008 Respondent’s Response to Petitioner’s Third Set of Interrogatories dated September 2, 2008

Respondent’s Exhibit A – Parking Citation issued 08/27/07 and associated documents Respondent’s Exhibit B – Parking Citation issued 08/15/07 and associated documents

Respondent’s Exhibit C – City of Asheville Code of Ordinance Sec. 19-165 Respondent’s Exhibit D – City of Asheville Ordinance No. 2586 Respondent’s Exhibit E – City of Asheville Ordinance No. 3007 Respondent’s Exhibit F – City of Asheville Administrative Policy Number 51 Respondent’s Exhibit G - City of Asheville Ordinance No. 3054 Respondent’s Exhibit H – Debt Set Off Correspondence between the City of Asheville and Jerry v. Sternberg Respondent’s Exhibit I – City of Asheville Parking Ticket Payment Reminder Respondent’s Exhibit J - Parking Citation issued 09/07/05 and associated documents Petitioner’s Answers to Respondent’s Admissions dated July 24, 2008 Petitioner’s Answers to Respondent’s Second Set of Admissions dated August 22, 2008

WITNESSES

Billy Cagle – City of Asheville Parking Enforcement Officer Rayford Loggins – City of Asheville Parking Enforcement Officer Harry Brown – City of Asheville Manager of Parking Services Beverly Evans – City of Asheville Accounting Technician James Lee – City of Asheville Administrative Assistant

Whether Respondent is entitled to submit Petitioner’s debt to the Setoff Debt Collection Program of the State of North Carolina and withhold Petitioner’s state income tax refund until the debt is paid.

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. Chapter 105A

FINDINGS OF FACT

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing and the entire record in this proceeding, the undersigned makes the following findings of fact. In making the findings of fact, the undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interest, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case. From the sworn testimony of witnesses, the undersigned makes the following:

1. On September 7, 2005, a vehicle registered to Petitioner was parked in violation of Sec. 19-165 of the Asheville Code of Ordinances and issued a citation in the amount of $10.00.

2. Petitioner never paid the September 7, 2005 parking citation and as a result of his non- compliance, Respondent assessed three late penalties of $25.00 as set forth in Appendix B of the City of Asheville Code of Ordinance resulting in a total civil penalty of $85.00.

3. On August 15, 2007, a vehicle to Petitioner was parked in violation of Sec. 19-165 of the Asheville Code of Ordinances and issued a citation in the amount of $10.00.

4. Petitioner never paid the August 15, 2007 parking citation and as a result of his non- compliance, Respondent assessed three late penalties of $25.00 as set forth in Appendix B of the City of Asheville Code of Ordinance resulting in a total civil penalty of $85.00.

5. On August 27, 2007, a vehicle registered to Petitioner was parked in violation of Sec. 19-165 of the Asheville Code of Ordinances and issued a citation in the amount of $10.00.

6. Petitioner never paid the August 27, 2007 parking citation and as a result of his non- compliance, Respondent assessed three late penalties of $25.00 as set forth in Appendix B of the City of Asheville Code of Ordinance resulting in a total civil penalty of $85.00.

7. Petitioner never appealed the three (3) parking citations to Respondent as set forth in City Code Sec. 19-15 and City of Asheville Administrative Policy 51.

8. On January 2, 2008, Respondent notified Petitioner by letter that his outstanding debt to Respondent in the amount of $255.00 from the three parking citations and associated late penalties was being turned over to the Setoff Debt Collection Program of the State of North Carolina.

10. On January 10, 2008, Petitioner requested a hearing.

11. Respondent scheduled a hearing for February 13, 2008 and gave Petitioner notice of the hearing by a letter dated February 5, 2008.

12. On February 7, 2008, Petitioner requested a continuance in that he was out of town and could not attend the February 13, 2008 hearing.

13. In a letter dated March 20, 2008, Respondent rescheduled the hearing for April 9, 2008. Petitioner did not request any continuance prior to the April 9, 2008.

14. On April 9, 2008, Respondent held a hearing which Petitioner did not attend. The Debt Setoff Hearing Officer determined that the debt was valid and sent a letter to Petitioner, dated April 9, 2008, informing Petitioner of the Hearing Officer’s decision.

15. Petitioner appealed the action on April 28, 2008, and on May 2, 2008, the Office of Administrative Hearings (OAH) accepted Petitioner's petition for a contested case hearing.

16. On June 9, 2008, Petitioner submitted his prehearing statement.

17. On June 11, 2008, Respondent submitted its prehearing statement.

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Chapter 150B of the North Carolina General Statues.

2. All parties have been correctly designated and there is no question as to misjoinder or nonjoinder.

3. Respondent issued three overtime parking citations to the Petitioner on September 7, 2005, August 15, 2007 and August 27, 2007.

4. Petitioner failed to pay the citations as required and was issued three late penalties for each citation.

5. Based on Petitioner’s failure to pay the three parking citations, Petitioner owed Respondent $255.00.

6. Petitioner has presented no evidence to show that Respondent did not have legal authority to issue the parking citations and assess late penalties.

7. Petitioner presented no evidence to show that Respondent or its agents improperly issued the parking citations.

8. Petitioner presented no evidence to show that the parking meters in question did not work or that the parking citation blew off his car due to wind or other weather.

DECISION

The Respondent is entitled to submit Petitioner’s debt in the amount of $255.00 to the Setoff Debt Collection Program and have said funds withheld from Petitioner’s State income tax refund pursuant to the Setoff Debt Collection Act.

NOTICE

The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in G.S. 150B-36(b), (b1) and (b2). The agency making the final decision is required to give each party an opportunity to

file exceptions to the decision of the Administrative Law Judge and to present written argument to those in the agency who will make the final decision. G.S. 150B-36(a),

The agency that will make the final decision in this contested case is the City of Asheville.

IT IS HEREBY ORDERED that the agency review this decision in accordance with North Carolina General Statute 150B-36(d) and serve a copy of the Final Decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714 in accordance with North Carolina General Statute 150B-36(b3).

This the 2nd day of December 2008.

______The Honorable Selina M. Brooks, Administrative Law Judge