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Civil Enforcement Penalty notice, Only collected disabled children from hotel
alan260760
post Fri, 12 Oct 2018 - 23:40
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Hi all, had a ticket for overstaying pick up time presumably. Didn't park but stopped in the drop off/pick up zone to collect a bunch of disabled kids/carers, took 32 minutes to load them all with their suitcases etc and I get a PCN in the post through the hire people we had the minibus from. I have appealed to POPLA who turned it down and now I have had the letter saying to pay up or else etc A lot of the posts here are a number of years old so I am unsure if I should ignore any further or not. Thanks in advance
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post Fri, 12 Oct 2018 - 23:40
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nosferatu1001
post Sat, 13 Oct 2018 - 00:03
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Not the posts on the front page. Days old if you're lucky!

CEL yes?
Did you point out to CEL the requirement under the Equality Act 2010 for them, as a service provider, to make reasonable adjustments ? That by failing to allow additional time for those with disabilities they have broken the law, in an actionable way, as they have committed indirect discrimination?
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emanresu
post Sat, 13 Oct 2018 - 06:23
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Was the car park part of the hotel? If so what were the instructions about parking there e.g permit only, pay and display, limited time etc.

The Hotel, if it was their car park, may be able to get it cancelled if you contact them to explain the Equality Act issue suggested above.
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ostell
post Sat, 13 Oct 2018 - 07:53
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As it's a hire vehicle you may have another cause for no liability. Has the driver been identified? Most parking companies seem to make a mistake with hire vehicles and do not comply with the requirements to hold the hirer liable. Edit you first post so that the identity of the driver is not apparent. Use "the driver......" etc.

Yes contact the hotel, it would not look good if they were seen to be discrimination against disabled kids.
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alan260760
post Sat, 13 Oct 2018 - 10:01
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Hi all, I don't know if the hotel does own the car park as there are a couple of hotels side by side. The sign says permit holders, I didn't see them myself only what I picked up off google earth. It says to register with hotel at the entrance to the car park but only for permit holders. I didn't want a permit to park, just collect. I will ring the hotel to see if they do own the car park however I am not hopeful. They have assumed it was me driving but it wasn't, I am thinking if it goes to court an the photos are visible then I could get off. I hired it, drove so far and swopped over in the morning,
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Jlc
post Sat, 13 Oct 2018 - 10:08
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They are likely to issue a claim but it won’t go to a hearing.

It’s their process - don’t worry about the photo situation. For starters the claim will be for a ridiculous amount (£325) and they won’t have fully complied with PoFA to pursue the keeper (defendant).


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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ostell
post Sat, 13 Oct 2018 - 10:18
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So you weren't the driver at the time, good. Have you received your own Notice to Hirer in your own name or were you just working on the PCN that was forwarded to you by the Hire Company? CEL have 21 days from receiving the letter from the hire company naming the hirer to send a notice to hirer to the hirer. That's why I ask if you have received the Notice to Hirer.

Lets get the details and work out a plan but if you haven't identified the driver AND they haven't sent you a Notice to Hirer AND the driver was not you AND they have gone past the 21 days then it could be awkward for them. I think posting up some of the letters received, suitably redacted, would help but leave dates. Can you get a signed statement from one of the other occupants on the bus to the effect that you were not driving?

Could you point us at the site with Google Maps?


P.S. this is not a penalty it's a speculative invoice that CEL hope you won't know the difference.

This post has been edited by ostell: Sat, 13 Oct 2018 - 10:19
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alan260760
post Sat, 13 Oct 2018 - 15:04
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POPLA refusal letter below. The Operator CEL never provided a case summary.
Assessor Name
Chris Markey
Assessor summary of operator case
The notice was issued as the appellant failed to obtain an electronic permit for their vehicle.
Assessor summary of your case
The appellant states the vehicle was not parked in a bay and stopped at the drop off zone. The appellant states the car park has no signage
to explain the relevant restrictions for the drop off zone. The appellant believes that no contract can be formed with the landowner and
therefore the parking charge should not be issued. The appellant refers to signage at the entrance and refers to permit holders it does
not state a permit is required to drop off. The appellant states there were mitigating circumstances on the day in question as they were
collecting disabled passengers and they are not able to move as quickly as abled bodied passengers and amounts to discrimination under
the Disability Discrimination Act 1995. The charge is not justifiable as the landowner has not suffered any loss. In their comments to
POPLA the appellant states the signage at the entrance can only be read from the opposite side of the road and would be dangerous
place to park. The appellant states the driver did not enter the hotel and the engine was running and therefore not effectively parked.
Assessor supporting rational for decision
I am satisfied that the appellant was the driver of the vehicle on the day of the contravention.
I will therefore be considering their liability as driver of the vehicle.
The terms and conditions at the site state “Permit holders only – hotel visitors and guests must register their vehicle at reception to
obtain a permit. If you park without a valid permit, you agree to pay £100". In this instance the parking operator issued the Parking
Charge Notice (PCN) as the appellant failed to obtain an electronic permit for their vehicle. The operator has provided copies of its signage.
Further, the operator has provided photographs from its Automatic Number Plate Recognition (ANPR) cameras. These captured the vehicle
entering the site at and departing at ?? a total duration of 32 minutes. The appellant states the vehicle was not parked in a bay and
stopped at the drop off zone. The appellant states the car park has no signage to explain the relevant restrictions for the drop off zone.
The appellant believes that no contract can be formed with the landowner and therefore the parking charge should not be issued.
The appellant refers to signage at the entrance and refers to permit holders it does not state a permit is required to drop off.
The appellant states there were mitigating circumstances on the day in question as they were collecting disabled passengers and they are
not able to move as quickly as abled bodied passengers and amounts to discrimination under the Disability Discrimination Act 1995.
The charge is not justifiable as the landowner has not suffered any loss. In their comments to POPLA the appellant states the signage at
the entrance can only be read from the opposite side of the road and would be dangerous place to park. The appellant states the driver
did not enter the hotel and the engine was running and therefore not effectively parked. Given this, I must consider the signage in place
at this location to see if it was sufficient to bring the terms and conditions to the attention of the driver when entering and parking at the
location. Within Section 18.1 of the British Parking Association (BPA) Code of Practice it states that “In all cases, the driver’s use of your
land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make
it easy for them to find out what your terms and conditions are.” In addition to this, Section 18.2 of the BPA Code of Practice states that
“Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you
must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance
to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be
aware of.” Having considered the evidence provided, I am satisfied that the operator had installed a suitable entrance sign at this location
and this was sufficient to make motorists aware that the parking is managed on this particular piece of land. Furthermore, within Section
18.3 of the BPA Code of Practice, it states that: “Specific parking-terms signage tells drivers what your terms and conditions are, including
your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance
to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible,
and written in intelligible language, so that they are easy to see, read and understand.” Having considered the signage in place, I am
satisfied that the operator has installed a number of signs throughout the car park and these are sufficient to bring the specific terms and
conditions to the motorists’ attention. In my view, these are “conspicuous”, “legible and written in intelligible language, so that they are
easy to see, read and understand.” When entering onto a managed private car park, a motorist might enter into a contract by remaining
on the land for a reasonable period. The signage at the site sets out the terms and conditions of this contract. Therefore, upon entry to
the car park, the driver should have reviewed the terms and conditions before deciding to park. The minimum standard for parking signs
is set out in section 18 of the British Parking Association (BPA) Code of Practice. By the appellant’s own admission they confirm awareness
of the signs displayed. This therefore confirms the appellant’s ability to view the signs and to make a judgement as to whether to remain
on site following review of the terms and conditions. I accept that a motorist is unable to read signs whilst in motion as this would not be
safe to do so. It remains that the operator has provided signage to confirm the terms and conditions of the site. Fundamentally, it is the
motorist’s responsibility to check for any terms and conditions, and either adhere to them or choose to leave. The appellant chose to stay,
therefore accepting the terms and the parking charge that the operator has subsequently sent. The appellant states that the vehicle was
not parked. However, for the period that the vehicle remained on site, the appellant was gaining utility from the operator in using the
facilities provided, regardless of whether they considered themselves to be parked. The appellant states there are no specific terms and
conditions relating to the drop off zone. However the signage within the site is evident and therefore it is reasonable to assume the terms
and conditions refer to all areas of the private property. It is also reasonable to assume that when dropping off motorists will only be there
momentarily and leave the site within a reasonable period. I acknowledge the appellant states they were collecting nine disabled
passengers with varying degrees of disability. However I am unable to allow an appeal simply based on mitigating circumstances. It is at
the discretion of the operator to review any mitigating circumstances presented. Normally, in circumstances such as the appellants I
would refer this for a mitigation review based on the information provided. However, on review of the evidence from the operator, it
is clear that it has considered the appellants mitigating circumstances as part of the first appeal and confirmed this made no impact
on the validity of the PCN. It would be reasonable to assume the appellant would be aware they would require extra time within the car
park and ensure they comply with the terms and conditions. By not complying with the terms and conditions of parking they agree to the
parking charge they have now received. The appellant states the parking operator is discriminating against the appellant under the
Disability Discrimination Act 1995. The parking operator is using Automatic Number Plate Recognition (ANPR) cameras on site. As such
they would not be aware of the circumstances when issuing the parking charge. It is merely on the fact the vehicle is not registered on
the terminal for an electronic permit. The charge is not justifiable as the landowner has not suffered any loss. The legality of parking
charges has been the subject of a high profile court case, Parking Eye-v-Beavis. Cambridge County Court heard the case initially, handing
down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a
penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither
improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal
in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court,
which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest
in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and
efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the
running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard
to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.”
As such, I must consider whether the signage at this site is sufficient. When doing so, I must consider the minimum standards set out in
Section 18 of the BPA Code of Practice. In addition to this, I note that within the Protection of Freedoms Act 2012 it discusses the clarity
that needs to be provided to make a motorist aware of the charge. Specifically, it requires that the driver is given “adequate notice” of
the charge. The act then moved on to define “adequate notice” as follows: (3) For the purposes of sub-paragraph (2) “adequate notice”
means notice given by: a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations
under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or b) where no such requirements apply, the display
of one or more notices which: i. specify the sum as the charge for unauthorised parking; and ii. are adequate to bring the charge to the
notice of drivers who park vehicles on the relevant land. As previously stated I am satisfied that the operator has complied with S.18 of
the BPA and the signage at the site is “conspicuous”, “legible and written in intelligible language, so that they are easy to see, read and
understand.” Furthermore, I am satisfied that the signage at the site is sufficient to bring the parking charge to the “adequate notice” of
a driver entering this particular piece of land. On this basis, I am satisfied that the parking charge is acceptable after applying the
rationale adopted by the Supreme Court in the Parking Eye-v-Beavis case. POPLA is evidence based and can only assess an appeal
based on the evidence presented by both parties. The evidence supplied by the appellant in relation to this appeal is insufficient to
disprove that provided by the operator. Ultimately, it is the responsibility of the motorist to ensure that when they enter a car park, they
have understood the terms and conditions of parking. If a motorist is in disagreement with the terms and conditions offered or feels that
the terms and conditions cannot be complied with, there would be sufficient time to leave the site without entering into a contract with the
operator. By remaining parked on site and not registering their vehicle for an electronic permit, the appellant accepted the terms and
conditions offered. There is a human side to parking appeals and, like in this instance; this can make the refusal of some appeals
uncomfortable. Nonetheless, it is simply not within our remit to allow an appeal on mitigating circumstances. After considering the evidence
from both parties, I am satisfied the Parking Charge Notice (PCN) has been issued correctly. Therefore, this appeal must be refused.

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SchoolRunMum
post Sat, 13 Oct 2018 - 15:09
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Why did POPLA say this; I would complain to POPLA as it says it is a ''evidence based appeals service'' and can't make wrong assumptions:

QUOTE
I am satisfied that the appellant was the driver of the vehicle on the day of the contravention.


You'd have won this with one email (no need for POPLA at all, scam over in 3 weeks flat) had you appealed to CEL pointing out you were not the driver and there could be no hirer/keeper liability as they don't use the POFA. Next time, get the right ducks lined up.
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alan260760
post Sat, 13 Oct 2018 - 15:20
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alan260760
post Sat, 13 Oct 2018 - 15:37
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So could I still appeal or write a firm letter to CEL stating I am not the driver and as they are not members of POFA I do not have to give them
the drivers name. Or do I just ignore their letter. I did have the PCN sent to me, 19 days after the alleged incident, they obviously got the
details from the garage who hired the vehicle. I notice also that I cannot get any evidence I or CEL have offered POPLA.

This post has been edited by alan260760: Sat, 13 Oct 2018 - 16:25
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Jlc
post Sat, 13 Oct 2018 - 15:51
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Not an appeal but you could tell them you weren’t the driver. Any court claim WILL be met with a counterclaim under data protection as they have not complied with PoFA to pursue. Tell them POPLA was wrong.

A claim is likely though but play it right and you could actually make a profit!

Disabled children is bound to favour you as well...

This post has been edited by Jlc: Sat, 13 Oct 2018 - 15:52


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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SchoolRunMum
post Sat, 13 Oct 2018 - 16:01
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QUOTE (alan260760 @ Sat, 13 Oct 2018 - 16:37) *
So could I still appeal or write a firm letter to CEL stating I am not the driver and as they are not members of POFA I do not have to give them the drivers name. Or do I just ignore their letter. I did have the PCN sent to me, 19 days after the alleged incident, they obviously got the details from the garage who hired the vehicle.


Your first step is the same as this case, where the poster said ''Appeal was declined by CEL, we appealed to POPLA who also refused'':

http://forums.pepipoo.com/index.php?showtopic=123418

See my reply there in post #7. Where POPLA are dragged into agreeing they erred (and you must word the complaint properly) they must revisit the issue and can change their decision where they missed considering a point, and the POFA is VITAL.

The Assessor cannot just blindly say ''I am satisfied that the appellant was the driver of the vehicle on the day of the contravention'' if there are NO grounds to make that leap.
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alan260760
post Sat, 13 Oct 2018 - 16:56
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Thanks all so far, I have written to the hotel chain asking if they own the land, they have advised me they will help in this matter, will keep you posted.
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SchoolRunMum
post Sat, 13 Oct 2018 - 17:19
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Good, and do the emailed POPLA complaint at the same time or I am knocking my head against a brick wall...it will take you 10 minutes max.
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ostell
post Sat, 13 Oct 2018 - 18:19
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QUOTE (alan260760 @ Sat, 13 Oct 2018 - 16:37) *
So could I still appeal or write a firm letter to CEL stating I am not the driver and as they are not members of POFA I do not have to give them
the drivers name. Or do I just ignore their letter. I did have the PCN sent to me, 19 days after the alleged incident, they obviously got the
details from the garage who hired the vehicle. I notice also that I cannot get any evidence I or CEL have offered POPLA.


There are no members of POFA, that's the legislation , you mean POPLA?

Was the PCN that you received in your own name, ie from CEL or was it a copy forwarded by the garage?

If it was in your own name did it have copies of the hire agreement and the PCN to the garage included with it? If not they have not complied with section 14 (2) (a) of POFA and therefore cannot hold the hirer/keeper(you) liable for the action of the driver at the time.

There is no legal obligation to identify the driver.

If you answer the questions then I may be able to suggest a letter for you send to CEL.

QUOTE (alan260760 @ Sat, 13 Oct 2018 - 16:37) *
So could I still appeal or write a firm letter to CEL stating I am not the driver and as they are not members of POFA I do not have to give them
the drivers name. Or do I just ignore their letter. I did have the PCN sent to me, 19 days after the alleged incident, they obviously got the
details from the garage who hired the vehicle. I notice also that I cannot get any evidence I or CEL have offered POPLA.


There are no members of POFA, that's the legislation , you mean POPLA?

Was the PCN that you received in your own name, ie from CEL or was it a copy forwarded by the garage?

If it was in your own name did it have copies of the hire agreement and the PCN to the garage included with it? If not they have not complied with section 14 (2) (a) of POFA and therefore cannot hold the hirer/keeper(you) liable for the action of the driver at the time.

There is no legal obligation to identify the driver.

If you answer the questions then I may be able to suggest a letter for you send to CEL.
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alan260760
post Sun, 14 Oct 2018 - 16:12
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Hi, thanks again for the info, I will of course complain to POPLA as you are correct, the assessor made an assumption I was the driver. The hotel have been very helpful, taken the PCN number and have arranged for it to be cancelled, I shall of course await the confirmation email from CEL before counting my chickens.
The PCN was direct from CEL, nothing else other than the letter and photos of the vehicle.

I forgot to add, the POPLA assessor also included assumptions in his summary as shown below. Again, his role is to assess based on hard evidence so I daresay I will include this in my complaint.

and therefore it is reasonable to assume the terms and conditions refer to all areas of the private property. It is also reasonable to assume that when dropping off motorists will only be there momentarily and leave the site within a reasonable period.
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kommando
post Sun, 14 Oct 2018 - 16:46
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You want a copy of that cancellation request, CEL will no doubt refuse but its good for a defence to have a principle of a contract requesting the client to cancel.
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alan260760
post Sun, 18 Nov 2018 - 16:02
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Great news for the good guys, I contacted the hotel and they said they would sort it and let me know. After a month, nothing forthcoming so I wrote again via email asking them what was happening. They tried to say that because of POPLA appeal they couldn't do
anything else even after originally saying they would cancel it. After informing them I wished to know if they owned the land as I planned to write to my MP and the Press their senior executive who knows someone at CEL got the ticket cancelled. I received formal notification from CEL 3 DAYS LATER.
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Jlc
post Sun, 18 Nov 2018 - 17:39
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QUOTE (alan260760 @ Sun, 18 Nov 2018 - 16:02) *
Great news for the good guys, I contacted the hotel and they said they would sort it and let me know. After a month, nothing forthcoming so I wrote again via email asking them what was happening. They tried to say that because of POPLA appeal they couldn't do
anything else even after originally saying they would cancel it. After informing them I wished to know if they owned the land as I planned to write to my MP and the Press their senior executive who knows someone at CEL got the ticket cancelled. I received formal notification from CEL 3 DAYS LATER.

Well done. Going above their heads often works - the threat of MP/press for genuine cases works wonders!


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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