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Municipal Technical Advisory Service (MTAS)

Original Author: Hemsley, Sid
Date of Material: 12/07/2007

Traffic--Parking meters
Disabled--Laws and regulations
Americans with Disabilities Act of 1990
Parking--Laws and regulations

Handicapped Parking at City Parking Meters

Reviewed Date: 05/01/2020
MTAS was asked whether TCA permits disabled and handicapped persons who display the appropriate license plate and/or placard to park in handicapped parking spaces beyond the time limits prescribed by a city ordinance for the parking space.

December 7, 2007

Dear City Judge:

You have the following question: Does Tennessee Code Annotated, '55-21-105 permit disabled and handicapped persons who display the appropriate license plate and/or placard to park in handicapped parking spaces beyond the time limits prescribed by a city ordinance for the parking space?

The answer is no.

But that question also contains the seeds of another question: Is the failure of the city to provide the disabled persons in question with free parking at parking meters a violation of the Americans With Disabilities Act (ADA)?

The answer is probably no.

However, I doubt that the answer to that question either way imposes any judicial responsibility on the city judge. As far as I can determine, any ADA complaint arising from handicapped parking at public parking places would involve the city but would not directly involve the city court.
Analysis of Question 1

Tennessee Municipalities Have Authority
To Regulate Parking with Parking Meters

The right of Municipalities in Tennessee to install and operate parking meters is well established as a police power function. In Porter v. City of Paris, 201 S.W.2d 688 (Tenn. 1947), the Tennessee Supreme Court considered the questions of whether the city had the authority to enter into a contract to purchase parking meters, and whether the Afees charged for parking rights were a municipal tax which the city had no authority to levy. On the question of whether the charges for parking at a parking meter were fees or taxes, the Court pointed to the heavy weight of authority in other states that had held that such charges were fees not taxes. Citing numerous cases, including City of Phoenix v. Moore. 57 Ariz. 350, 113 P.2d 935, 937, City of Columbus v. Ward, 65 Ohio App. 522, 31N.E.2d 142, 144, Ex parte Duncan, 179 Okl. 355, 65 P.2d1015, 1017, and Foster's Inc. V. Boise City, 63 Idaho 210, 118 P.2d 721, the Court reasoned that the regulation of parking on city streets in general, and that the regulation of parking on city streets by parking meters in particular, were done in the exercise of the police power, and that the parking meter fees were not charged for the purpose of raising revenue, but to pay the cost of the parking program. The Court concluded with respect to the parking meters in the City of Paris, that:

In the present case the chancellor found that the resolution was intended as a means for the regulation of traffic and parking; that it was not intended for the purpose of raising revenue for the general fund and for the use of the city; and that the amounts collected are not disproportionate to the expenses involved....We therefore conclude that the contract entered into by the City of Paris with the Meter Corporation was not contrary to public policy. We further conclude that the fees imposed are proper for the installation and maintenance of the parking meters and do not constitute a tax. [At 691]

Citing Porter, above, the Court reached the same conclusion in Baumgartner v. Town of South Pittsburg, 256 S.W2d 705 (Tenn. 1953).

Your City's Parking Regulations On Handicapped Drivers
Are Consistent With State Law, Neither Of Which Authorize
Handicapped Drivers Free Overtime Parking at Parking Meters

It was said in City of Chattanooga v. Tennessee Electric Power Company, 112 S.W.2d 385 (1938), that the power to control municipal streets rests primarily in the state, which power the legislature can delegate to the municipalities. It has also been said that Avery broad power of regulation, and wide discretion, in the exercise of the police power, are held to be vested in municipalities touching the use of its streets, and that those police powers also extend to state highways running through cities. [Steil v. City of Chattanooga, 152 S.W.2d 624, 626 (Tenn. 1941), Collier v. Baker, 27 S.W.2d 185 (1930); Blackburn v. Dillon, 225 S.W.2d 47 (Tenn. 1949).]

But it is was also said in Nichols v. Tullahoma Open Door, 640 S.W.2d 13 (Tenn. Ct. App. 1982), that, generally, a municipality must exercise the police power delegated to it by the legislature in the manner directed by the legislature. For that reason, the City is bound by the Tennessee Code Annotated, '55-21-105 governing the charging of parking fees to handicapped drivers.

Tennessee Code Annotated, '55-21-105(a) provides that:

No state agency, county, city, town or other municipality or any agency thereof shall exact any fee for parking on any street or highway or in any metered parking space or in parking lots municipally owned or leased, or both municipally owned and leased, or a parking space owned or leased, or both owned and leased, by a municipality parking utility or authority. No state postsecondary education institution or any agent thereof shall exact any fee from any visitor to such institution, or from any visitor attending programs of the institution not for credit, for parking on any parking lot owned and leased by a state postsecondary education institution....

The Municipal Code, Article VI, contains the parking regulations of the city. Article VI, Division 2, governs metered parking in the city, except that the last section in Division 1, '17- 306, entitled " Free parking for handicapped drivers," provides that:

A handicapped driver or qualified operator in the presence and acting under the express direction of handicapped driver may park in a municipally owned or leased parking lot or in any metered parking space for the maximum allowed time without charge. [Emphasis is mine.]

In addition, the Municipal Code, '17-330(a) contains the prohibition on parking at parking meters without depositing the appropriate coins, but provides that " The provisions of this subsection shall not apply to handicapped drivers or to qualified operators acting under the express direction of a handicapped driver."

Tennessee Code Annotated, '55-21-105(a) and the Municipal Code provisions governing parking generally, and parking meter parking in particular, appear plain on their faces and do not appear to be in conflict, unless it can be argued that a fine for illegal parking is a " fee" within the meaning of Tennessee Code Annotated, '55-21-105(a). But if we assume that it is elementary that a fine is not a " fee" for that purpose, that statute plainly prohibits the state or any of its political subdivisions from exacting a parking fee, but it does not proscribe any local government from imposing a fine for overtime parking at parking meters:

- On any street or highway or any metered parking space;

- In parking lots owned or leased by a municipality or

- In parking spaces owned or leased by a municipal parking utility or an authority;

That is the limit of that statute. Nothing in it prohibits a political subdivision of the state from setting time limits on parking in parking spaces designed by political subdivisions of the state. Nothing in it, nor any other provision of the handicapped parking law, suggests that persons who qualify to park in handicapped parking spaces are entitled to ignore time limits established for parking spaces established by municipalities; those political subdivisions simply cannot charge handicapped persons a fee for parking.

Under the rules of statutory construction, where a statute is plain, clear and ambiguous, the rules of statutory construction will not be triggered, and the statute will be enforced as written. [AT&T Corp. v. Johnson, 148 S.W.3d 74 (Tenn. Ct. App. 2004); Graham v. Gen. Sessions Court, 15 S.W.3d 790 (Tenn. Ct. App. 2004); Coke v. Coke, 560 S.W.2d 631 (Tenn. Ct. App. 1977).]

A Fine Is Not A Fee Within The Meaning
Of Tennessee Code Annotated, '55-20-105

However, I have found some cases that make an issue of whether a fine is a fee for various purposes, including parking meter violations. For that reason, in analyzing Tennessee Code Annotated, '55-20-105, let us make two assumptions:

- That a disabled person charged a fine for exceeding the time limits on a parking meter in the city argues that Tennessee Code Annotated, '55-20-105 does not allow a fine for overtime parking because the fine is a fee, and that handicapped drivers are exempt from parking fees under that statute, and that

- . That statute is ambiguous on the question of whether a " fine" is a " fee" within the meaning of that statue.

Given those assumptions, how would that ambiguity be resolved?

The Tennessee courts have said a good deal about the nature of parking meter charges. Porter and Bumgartner, above, stand for the proposition that the monies put into parking meters are fees charged in the exercise of cities'police powers to regulate traffic, but they have said little to distinguish parking meter fees and parking meter violation fines. Common sense tells us fines are a separate " animal." But because the express question of whether fines are fees has come up in other jurisdictions, common sense may not be enough. But here let us first examine the nature of fines under Tennessee law, which points to the prospect that fines are clearly distinguishable from fees, including in the context of Tennessee Code Annotated, '55-21-105. .
In City of Chattanooga v. Davis, 54 S.W.3d 248 (Tenn. 2001), the Tennessee Supreme Court in painstaking detail outlined the distinction between a punitive fine and remedial fines for the purpose of answering the question of whether a fine levied by a municipal court was governing by the $50 limitation contained in Article VI, '14 of the Tennessee Constitution. The Court said in that case:

...we hold that a monetary sanction imposed for a municipal ordinance violation falls within the scope of Article VI, section 14 when: (1) the legislative body creating the sanction primarily intended that the sanction punish the offender for the violation of an ordinance; or (2) despite evidence of remedial intent, the monetary sanction is shown by the " clearest proof: to be so punitive in its actual purpose or effect that it cannot legitimately be viewed as remedial in nature. [At 264]
Further, said the Court:

However, a monetary penalty often stands in sharp contrast to other remedial measures because a monetary penalty can serve but a few truly remedial purposes. Some examples of truly remedial purposes served by monetary penalties include those that (1) compensate for loss; (2) reimburse for expenses; (3) disgorge " ill-gotten" gains; (4) provide restitution for harm; and (5) ensure compliance with an order or directive, either through the execution of a bond, or as discussed below, through a prospectively coercive fine. Importantly, however, to the extent that a monetary penalty is not designed to serve these or similar goals, it will appear more likely to predominately serve the purpose of general and specific deterrence. Although we agree that some level of deterrence is present in all remedial measures, when the predominant [The court's emphasis] purposes served by the penalty are to provide general and specific deterrence and to ensure overall further compliance with the law, then the monetary penalty should be deemed as serving punitive purposes for analysis under Article VI, section 14. [At 270]

The Municipal Code, '17-72 provides that:

(a) Violations of the various parking regulations set out in this chapter shall be punishable by the following fines:

(1) Violation of the meter ordinance $10.00
(2) Overtime parking $10.00

There seems little, if any, dispute that under the language of '17-72 itself, the purpose of the fines in parking violation in general, let alone parking meter violations specifically, are punitive under the Davis analysis; violations are " punishable" by the fines indicated in the fine schedule in '17-72. Persistent parking meter violations are also punitive from another perspective. Under the Municipal Code, '17-331(a)-(c), if a person gets three parking tickets for overtime parking in the same space, he or she is subject, under (d) to have his vehicle towed and impounded. It can be argued that remedy is remedial in the sense that it gets the illegally parked vehicle out of the parking space, but as to the defendant, it is totally and purely punitive.

Based on that treatment of fines in Davis, fees one pays to park at a parking meter, are unquestionably distinguishable from fines for parking beyond the time allowed by ordinance to park at a parking meter. But the courts in other states have also distinguished fines from fees based on their purpose. In Thomson v. City of Dearborn, 79 N.W.2d 841 (Mich. 1956), it is said that:

A fine imposed on one convicted of such [parking meter] violation is not in any proper sense of the term a charge or fee for service rendered. The purpose of the penal provisions of the ordinance, is enforce, for the benefit of the public generally, the regulations imposed by the city for the use of the facility. The fine is imposed by way of punishment rather than as a charge for the service that has been rendered...[At 846-47]

Similarly, in School District of McCook v. City of McCook, 81 N.W.2d 224 (Neb. 1957), the question was whether money collected for parking meter violations constituted " fines," " penalties," or" license moneys" under a provision of the Nebraska Constitution, which provided that all such revenues became the property of the school district. The Court held that:

The placing of coins in a parkingmeter (sic) is an integral part of the [traffic] regulation. The payment of money after the violation within a fixed time to avoid a prosecution under the ordinance is penal in character. The differences are basic and controlling. The payment of the moneys here involved is in no sense remedial or compensatory to the city. Nothing is owed the city as rent or as a toll for the use of the parking space. The payment of money into parkingmeters (sic) is not compensation but regulation to discourage overtime parking. [Citation omitted by me.] The money here involved is no different than if it had been collected to purge oneself from overparking in violation of a police regulation where parkingmeters (sic.) were not used. [At 228]

Finally, it is in said in University Park Cinemas, Inc. v. Borough of Winder, 59 Pa. D. & C.2d 726 (Ct. Common Pleas Pa. 1972), quoting Pennsylvania Supreme Court in Mastrangelo v. Buckley, 250 A.2d 447, both of which go to great length to distinguish between taxes, assessments, license fees and fines and penalties, that:

A fine or penalty is not a tax, or assessment or charge for services sold, and differs substantially from a license fee. The purpose of the fine is to punish violators and to deter future violations, and the amount thereof may be fixed at whatever sum will effectively accomplish those objects irrespective of the cost of the municipality of enforcement and collection. [Citation omitted by me.] [At 732] .

Cases In Other Jurisdictions Support Proposition That
Special Rights Of Handicapped Drivers To Park Overtime in
Municipal Public Parking Spots Must be Supported by State
LawOr Municipal Ordinance Consistent With State Law

A threshold question in the analysis of Question 1 is whether local governments can even make overtime parking by handicapped drivers a municipal violation. There are surprisingly few cases on the handicapped parking time limitations under state law, although, as might be expected, some state statutes clearly prescribe the time limitation that apply to handicapped parking. Pennsylvania and Michigan cases stand for the proposition that states can prescribe parking time limits that apply to handicapped drivers, and that municipal ordinances adopted under the authority of state law can reflect such limits.

In Commonwealth v. Geigley, 650 A.2d 1224 (Pa.1994), a state statute authorized handicapped drivers to park one hour past the time limits prescribed for the parking place. The defendant, a handicapped driver, parked his car in excess of three hours on two occasions,

violations for which he was fined under a Gettysburg city ordinance restricting parking to two hours in a residential area unless the driver had a residential parking permit. The defendant did not have a residential permit. The defendant made two arguments:

- That because he was handicapped, the city had an obligation to provide him with a handicapped parking permit as near to his home as possible. The Court rejected that argument, declaring that " From our interpretation of the provision in question, the Borough is neither compelled nor mandated to reserve a handicapped parking space for individuals with a handicapped license in the residential area in which they live." [At 1225]

- That the ordinance authorized him to park for 24 hours, and because he was handicapped, for an additional 60 minutes. The court also rejected that argument declaring that " While we agree that the Code authorizes a handicapped person to park an additional hour beyond the legal parking period, here the parking restriction was two hours in the residential area in which Gaggle was issued a citation. The stipulated facts indicate he was parked for over three hours on both occasions..." [At 1225]

In Geigley, the Court also pointed to the rules of statutory construction in Pennsylvania under which, " When words of a statute or ordinance are clear and free from ambiguity, a court may not disregard the letter of the statute or ordinance under the pretext of pursuing its spirit." [At 1225] [Citations omitted by me.]

Also see Commonwealth v. Robbins, 34 Pa.D& C.3d 440 (Ct. Common Pleas Pa. 1985), in which the municipal fine on a handicapped defendant under an ordinance prohibiting parking beyond the legal time limit was upheld because he had parked beyond the extra hour allowed for handicapped parkers under Pennsylvania law.

Probably the most important case with respect to both the first and second question is the Michigan case of City of Monroe v. Jones, 674 N.W.2d 703 (Mich. App. 2004). In that case, the city cited a handicapped person 203 times for violating the one-hour parking time limit in downtown Monroe, Michigan. Judgment was entered against her with reduced fine in the district court, and on appeal the circuit court affirmed the convictions and reinstated the full amount of the fines. The Michigan Court of Appeals overturned the convictions.

But the case would clearly have gone the other way in the Michigan Court of Appeals, but for the wording of the state law that governed parking violations against disabled persons. The Court pointed to the rules of statutory construction as the basis for analyzing this case:

Our supreme Court in Roberts v. Me costa Cop. Gen. Hosp., 466 Mich. 57, 63, 642 N.W.2d 663 (2002), recently emphasized the following rules concerning statutory construction:
An anchoring rule of statutory construction, is that courts are to effect the intent of the Legislature. [Citation omitted by me.] To do so, we begin with an examination of the language of the statute. [Citation omitted by me.] If the statute's language is clear and unambiguous, then we assume that the Legislature intended its plain meaning and the statute is enforced as written. [Citation omitted by me.] A necessary corollary of these principles is that a court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself. [Citation omitted by me.] [At 674 S.W.2d 706]

The Court applied those rules to the Michigan State Vehicle Code, '257.675(6), which provided that disabled persons who had the appropriate identification were

entitled to courtesy in the parking of a vehicle. The courtesy shall relieve the disabled person or the person transporting the disabled person from liability for a violation with respect to parking, other than in violation of this act. A local authority may by ordinance prohibit parking on a street or highway to create a fire lane or to provide for the accommodation of heavy traffic during morning and afternoon rush hours and the privileges extending to veterans and physically disabled persons under this subsection do not supercede this ordinance. [At 706] [The Court's emphasis.]

Section 257.674 of the Michigan Vehicle Code provided that among parking violations by disabled persons, it was illegal to park " in violation of an official sign restricting the period of time for or manner of parking." The Court conceded that Jones had " possibly violated" '674(1)(w) " on numerous occasions." However, Jones was charged with ordinance violations with respect to the one-hour parking restrictions rather than violations of '674(1)(w) of the Michigan Vehicle Code. Section '675(6) of that Code" clearly and unambiguously precludes plaintiff from citing defendant, a disabled person, for a time-restriction parking violation under the local ordinance," because under '257.675(6) a municipality could only enact ordinances prohibiting parking on a street or highway to create a fire lane or to provide for the accommodation of heavy traffic during morning and afternoon rush hours. [At 707]

But as pointed out above, assuming the city had posted the official signs restricting the period of time persons could under '257.674(1)(w) of the Michigan Vehicle Code, and had the city charged Jones with violations of the Michigan Vehicle Code rather than municipal ordinance

violations, the charges against her would have withstood challenge. Indeed the Court observes several times in this case, including in its last paragraph, that the problem in this case was that the defendant was not cited under the state law.

Analysis Of Question 2

The case of Jones v. City of Monroe , which appeared in the answer to Question 1 in the first section entitled Can Local Governments Generally Prohibit...,appears again, this time in the U.S. Sixth Circuit Court of Appeals, in the style of Jones v. City of Monroe, Michigan, 341 F.3d 474 (6th Cir. 2003). In the Sixth Circuit that case was in the posture of a claim that the City of Monroe's traffic scheme was in violation of the Americans With Disabilities Act (ADA). That case is instructive with respect to any claim that the ADA entitles handicapped drivers to unlimited parking privileges at the city's parking meters downtown, or at any other city parking areas.

In that case, Ms. Jones sought a preliminary injunction requiring the City of Monroe to modify its parking program to grant her free all day parking adjacent to her place of employment. The Sixth Circuit upheld the District Court's denial of Ms. Jones petition for a preliminary injunction, on the ground that Ms. Jones did not stand a likelihood of success at trial. (The history of that case does not indicate it went any further in the federal courts, although, as the answer to Question 1 indicates, it appeared in the Michigan state courts.)

The City of Monroe had several free parking areas downtown, some of which provided free all day parking, some of which provided only one hour parking, and all of which provided some handicapped parking spaces. One of the parking areas that provided one-hour parking was next door to Ms. Jones work. She argued that she could not walk the distance from the parking areas that provided all day free parking to her work. The legal basis of Ms. Jones complaint was Title II of the ADA, which provides that, " no qualified individual with a disability shall by reason of such disability be excluded for participation in or denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such activity." 42 U.S.C. '12132.

The district court did not address whether Ms. Jones was disabled, or whether she otherwise qualified for the parking benefit. It concluded that the City of Monroe did not exclude Ms. Jones from participating in or denying her the benefits of the parking system. The Court reasoned that:

Access to the one-hour and all-day parking places is facially neutral. The one-hour limit applies to individuals with disabilities and those without disabilities. Similarly, both disabled and able- bodied persons may park in all-day parking. Both one-hour and all day parking areas have spaces for disabled and no disabled individuals. The parking limitations do not affect disabled and nondisabled individuals differently in any respect... [At 478]

Ms. Jones requested a " reasonable accommodation" on the part of the city in the form of the right to park in one of the 11 parking spaces adjacent to her office. Apparently the district court never discussed the question of whether that accommodation was reasonable, but the Sixth Circuit took it upon itself to discuss it. " The essence of Ms. Jones's position," declared that Court, " is that the ADA requires Monroe to provide her with an all-day parking place in the exact location she requires." [at 480] The city was required to make a " reasonable accommodation" to Ms. Jones under the ADA, declared the Court, but the Court rejected her requested accommodation on the ground that it was unreasonable:

Jones described her requested accommodation as " allowing her to park in one of the 11 parking spaces adjacent to her office by contract" Monroe describes Jones's requested accommodation as " immunity from prosecution for her violations of Monroe's neutral parking and enforcement ordinances." Any accommodation on the part of the entity only needs to be " reasonable." [Citation omitted by me.] Any accommodation is not reasonable if it imposes a fundamental alteration in the nature of the program. See 28 C.F.R. '35.130. The public entity bears the burden of proving that the accommodation would fundamentally alter the program. [Citation omitted by me.] In cases involving waiver of applicable rules and regulations, the overall focus should be on " whether waiver of the rule in the particular case would be so at odds with the purposes behind the rule that it would be a fundamental and unreasonable change." [Citations omitted.] [At 480].
" The purpose of the one-hour limitation," reasoned the Court:

Is to encourage patrons to shop at downtown businesses. Waiver of the ordinance limiting parking to one hour in the business district would be " at odds" with the fundamental purpose of the rule. By its very nature, the benefit of one-hour free public parking cannot be altered to permit disabled individuals to park all day without jeopardizing the availability of spaces to other disabled and nondisabled individuals. Such a waiver would also require Monroe to cease enforcement of an otherwise valid ordinance, which by its very nature requires a fundamental alteration of the rule itself. [At 480]

However, Jones, 3541 F.3d 474, also turned partly on the availability of downtown city parking areas for handicapped drivers. I have no idea what facilities are available in your downtown for such persons. But whatever the situation there, the Sixth Circuit not only held the handicapped driver's requested accommodation unreasonable, it also clearly determined that neutral time limitations on parking were legal under the ADA.

But I do not think that Jones in its Sixth Circuit posture imposes any duty on a city judge in Tennessee hearing parking meter violations involving handicapped drivers. A handicapped driver's remedy under the ADA on the grounds that the city had discriminatory or perhaps otherwise inadequate handicapped parking, including in the form of a reasonable accommodation.


Sidney D. Hemsley
Senior Law Consultant