Opinion
16-P-261
03-23-2017
Donnie MYERS v. CITY OF BOSTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The facts relevant to this appeal are not in dispute. The plaintiff drove home and parked his car in front of his own driveway. A Boston (city) police officer issued him a parking ticket, presumably unaware that the plaintiff was simply blocking his own driveway. The plaintiff took the ticket to the city's parking clerk office requesting a so-called "walk-in" hearing and explained that he was in front of his own garage. The plaintiff's request for such a hearing was denied and he subsequently requested and received a scheduled hearing. In these circumstances it would not have been an abuse of discretion for the hearing officer to dismiss the ticket with a warning to the plaintiff. This occurred neither at the time he requested a walk-in hearing nor at the subsequent scheduled hearing. The plaintiff's appeal to the Superior Court pursuant to G. L. c. 30A, § 14, was dismissed pursuant to the city's motion for judgment on the pleadings, and this appeal ensued. We affirm because the deferential standard of review applicable to administrative decisions requires it.
Among the uncontested facts is the plaintiff's assertion that he was "not blocking anyone's access to the sidewalk or street."
"Appellate review under G. L. c. 30A, § 14, is limited to determining whether the agency's decision was unsupported by substantial evidence, arbitrary and capricious, or otherwise based on an error of law." Arlington Contributory Retirement Bd . v. Contributory Retirement Appeal Bd ., 75 Mass. App. Ct. 437, 441 (2009).
On appeal, Myers focuses his arguments on evidentiary issues: (1) the hearing officer's refusal to admit exculpatory evidence, and (2) the inclusion of irrelevant evidence in the administrative record submitted to the Superior Court.
The exculpatory evidence that Myers complains was wrongly excluded consists of photographs showing the location of his car when it was ticketed. One such photograph was admitted. Additionally, the city does not contest that the car was in front of Myers's driveway. Accordingly, any error in any exclusion of additional photographs was harmless. See Zabin v. Picciotto , 73 Mass. App. Ct. 141, 152 (2008) (error in exclusion of evidence is harmless if court is substantially confident error would not have made material difference).
As to the second issue, the plaintiff claims that the defendant's inclusion of some of the city's parking regulations and records regarding his earlier parking violations was improper because they were not admitted in the administrative proceeding. Any error in their inclusion in the record is without consequence, because we have not considered those materials in resolving this appeal. See Gennari v. Reading Pub. Schs ., 77 Mass. App. Ct. 762, 765 n.3 (2010) ("Since the challenged affidavit has no bearing on our analysis, we need not reach this claim of error").
The plaintiff, however, did not move to strike those materials from the administrative record, and the issue could be deemed waived. See Wooster v. Abdow Corp ., 46 Mass. App. Ct. 665, 666 (1999) (failure to move to strike inadmissible portions of affidavit).
The occurrence of the parking violation is supported by the prima facie effect of the citation itself, see G. L. c. 90, § 20A1/2, fifth par., and by the plaintiff's admission that he was parked in front of a driveway, albeit his own. The plaintiff has not established that the hearing officer's decision is arbitrary and capricious or based on an error of law.
We have not considered the city's parking regulations or the plaintiff's prior parking ticket history, as discussed supra . See Russell v. New Bedford , 74 Mass. App. Ct. 715, 722 (2009). If the city intends to rely on its parking regulations or a previous history of citations or warnings, that evidence should be admitted at the hearing.
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Judgment affirmed .