Monday, April 28, 2008

Not a Marked Parking Stall?

Part I: The Citation
Citation#: 30235037
Vehicle Lic#: 5AJZ932
Owner: David W. Floren

My story begins with a simple question: Does the blue sedan in these photographs appear to be parked in "marked" parking stall # 1151?

Reason dictates a quick and simple "yes" reply. But the BART police answered this question with a strong "no" when issuing a parking citation against my blue sedan on Feb. 11, 2008. Two undisputed facts were conspicuously overlooked by BART police that night:

(1) that I parked in a marked stall, and
(2) that I paid for said stall at the Dublin/Pleasanton BART station parking fee kiosk.

I arrived at the lot rather late in the day (around 11 a.m.) and the parking situation was bleak. However, much to my delight I spotted and parked in the only available spot I could see, spot #1151 in the northwest lot. Like a lone sentinel of hope bobbing on a vast sea of imminent disappointment (I would have missed my train had I been forced to park off-site), spot #1151 lured me into its safe harbor, pulling my vehicle into its crisp white lines, the clear yellow numbers offering themselves for commitment to memory so I could type them into the BART parking machine and pay my $1.00 parking fee.

Upon my return to the vehicle around 6 p.m. that night, I noticed that the sedan parked immediately to my right in spot #1152 was gone and no longer totally obscured a red curb. A red curb generally indicates no parking. But because BART parking management failed to remove the paint defining spot #1152, a vehicle was lured into it (even though that vehicle's owner should have seen the red curb and realized his mistake). Because this vehicle completely blocked my view of the red curb and because I approached the spot from the left, I had no visual warnings of anything being out of the ordinary. Spots #1150 and 1151 are unique in this respect. Whenever a car is parked in spot #1152, that makes spots 1150 and 1151 seem completely normal as parking spots.

Then I noticed a citation under my windshield wiper blade. The citation indicated that I was being fined $25.00 for parking in an area "not marked for parking." Imagine my incredulity when I read this. Continuing to scan the citation for relevant information, I lingered on the BART police officer's sketched depiction of the area in which my sedan was parked. What struck me as odd about this sketch was the fact that it depicted my sedan parked in the middle of an aisle for traffic with no marked stalls.

In fact, the only marked stall indicated on the sketch was spot #1149. Marked spots #1150-1152 were not depicted in the sketch. It was as if the BART officer had sketched DaVinci's "Last Supper," but forgot to include the Christ figure, perhaps intentionally in a moment of nihilistic fervor, leaving a large empty space in the center of the painting devoid of the dining plate, bread loaves and other items that are splayed out in front of Him in DaVinci's work. The blatant omission jarred me and sparked in my breast the murmurings of a suspicion that something else was at work here (perhaps something related to wrongful generation of income through a mechanism of a deceptive stall markings?).

Another clue that might have notified me of the existence of an aisle for traffic atop the same physical space occupied by the well-marked parking stalls was the section of diagonal white lines painted at the end-corner of the parking row on the opposite side of my row (as seen in the officer's sketch above stall #1149).

The truck to my left in spot #1150 totally obscured any view I might have had of those diagonal lines. By the way, this truck was ticketed with a citation, just like my sedan.

Now, had it been the case that I was the first vehicle to park in any of the spots 1150-1152, I then would have had several visual clues with which to make a reasonable inference that something was amiss with these marked stalls. But because mine was the middle car and the last to arrive, and the vehicles to in the stalls bordering mine were completely obscuring any view I might have had of these visual clues, I was prevented from noticing any evidence of an aisle for traffic occupying the same physical space as my marked parking stall.

The citation mentioned that I was "blocking traffic," but the existence of a very wide aisle just 10 parking spots to my left allowed for easy and quick egress and ingress by any and all vehicles.

Thus my vehicle posed no threat of blocking or preventing vehicular egress and ingress. Here you see my photo of that large open aisle.

Part II: The Appeals Process

My next step was to appeal the citation, which I did but to little effect. Today is April 27, 2008 and more than two and a half months after the initial citation I have received no indication from BART's Office of the Hearing Examiner ("Office") that this third-party privately held company used by BART to streamline it's citation dispute process has either read or understood any of the several unique circumstances mentioned above and documented in minute detail in repeated communications with the Office of the BART Hearing Examiner. Furthermore, this entity has made representations to me that do not comport with actual reality. In my initial request for an administrative hearing, I included some of the photos appearing above and made prominent mention of the inapplicability under the circumstances of the code provision underlying my auto's citation. Here is the initial request document:

Later, after I had mailed in a fully-compliant Request for a Written Hearing ("Request"), the Office represented to me by mail that my Request had been denied and that the balance due had gone up from $25.00 to $45.00 for the stated reason that they did not think it had been received by the April 11th deadline. There was no indication whether the "balance due" included or excluded the $25.00 check I had been required to enclose with my Request. The "Payment History" section is blank and does not account for what they did with my $25.00 check. Additionally, there was a glaring typo on this rather cryptic notice from the Office, one which was confusing to any reasonable reader and indicates a lack of attention being paid by the Office to the accuracy and/or integrity of the contents of its official notifications. The typo reads: "The results displayed above reflect the status of Upheld due to your reschedule requesting being received." I remain mystified as to what a "reschedule requesting" might be or what the Office means by this. This cryptic notice appears below:

The curious fact here is that I went to the post office well before the cut-off time on April 10, 2008 and had USPS employees send my Request and check by Express Mail for noontime delivery on April 11, 2008 to the USPS P.O. Box maintained by the Office in Huntington Beach, CA. Under any measure of reasonableness, a determination that my Express Mail package arrived "late" is unconvincing, even under a regime of deadline-driven, strict liability. Assuming the Office of the Hearing Examiner did not fail to check its P.O. Box at the end of the business day on April 11, 2008 and did not obstruct delivery of my package, it is entirely clear that the only cause of "lateness" here is a failure on the part of the USPS to keep its contractual commitments. So I have written a letter to the Office with a copy of my Express Mail mailing label requesting clarification on its dubious determination of "lateness." Until I receive clarification from the Office, I am reluctant to request a refund from the USPS because I am not sure whether the USPS is entirely at fault here. Below appears the mailing label and receipt for the Express Mail delivery.

I have sent letters to the BART Director representing my district (District 5), to BART's main office and to the Office of the Hearing Examiner run by the private, outsourced company heretofore mentioned in this article. Although it may be in vain for me to hope for help from my BART Director in a matter seemingly as inconsequential as this, I do wish to draw attention to the fact that this poorly marked aisle in the northwest lot at the Dublin/Pleasanton station is one that lends itself to repeated and continuous violation by BART customers who are lured into parking in stall #1151 and consequently, wrongly ticketed for having parked in an area purportedly devoid of parking stalls.

Part III: Follow-up Research

I took some photos more than 2 months later on April 22, 2008 showing that parking stalls 1150-1152 still appear on the asphalt. It seems as if the lines and the numbers are still intact and that nothing has been done on the part of BART parking management to remove the evidence of stalls here:

Here you can see that someone, perhaps a frustrated BART customer, has weakly spray-painted an "X" over the yellow numbers indicating stall #1152:

Part IV: Action Alternatives

My preferred action alternative would be to quash my citation and have done with the whole affair. Yet I think something should be done to completely remove the offending "marked" parking stalls that lure unsuspecting BART customers into financial liability for an imaginary violation of the rules. The easy solution, and one I have advanced in my communications thus far with the BART Citation Processing Center, would have been to chip away or cover over the paint indicating the stall numbers and crisp, clean lines. Here is an example, (taken from other areas of the northwest parking lot) of what BART parking management has done to remove a different stall number:

For some reason, BART parking management has not gotten around to taking these steps with regard to stalls 1150-1152. I do not want to speculate as to the reason or reasons for such negligence, but I will make note of the fact that as long as these parking stalls remain visible to BART customers, vehicles will continue to park in spot #1151 and BART will continue to generate marginal increases in fresh income from vehicle owners who have been essentially trapped into wrongful liability.

I also recommend changes to the contents of the notifications sent from the Office of the Hearing Examiner. First, I recommend that the typo be fixed. Second, I recommend that the "Balance Due" and "Payment History" sections indicate precisely what the Office has done to checks they have received and whether the amount of such received checks is included in the "balance due." Third, I recommend that the "Balance Due" section indicate whether a late fee has been applied and if so the dollar amount of said late fee. Implementation of these recommendations will definitely help BART customers understand and comply with requests from the BART Office of the Hearing Examiner.

Part V: Beating the Ticket with Help from a Bart District Director

Great News! I beat that Bart ticket.

5 months, 130 days, 9 mailings, 8 emails, 4 levels of bureaucracy, and well over $25.00 spent on certified postage later, I finally busted through a Siegfried Line of inanity and got my citation dismissed, with a promise to ship a refund check.

"Dear Mr. Floren:

I am responding to your e-mail re parking citation 30235037. Joel Young, the BART Police Department's administrative traffic officer, reviewed your appeal and the photo that you submitted. The citation has been dismissed and we apologize for the inconvenience to you. Your refund is forthcoming..


Gary Gee
Chief of Police"

This email (and the refund check I received today, June 30, 2008) was the product of (1) my attempt to communicate with my Bart District Director by sending a polite and concise email, (2) a fortuitous and genuine interest in my situation as evidenced by the Bart Director's sharing my situation with his peers at a meeting of all Directors, and (3) the Bart Director's communication with the Chief of Bart Police.

If I had to do it all over again, I might have just bit the bullet and paid the Piper. But I've read too much Orwell and Kafka to inure myself to the machine's machinations.

Effort yields results.
Labor omnia vincet.

Best Regards,
David W. Floren, Esq.