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Davis v. City of Cleveland

Court of Appeals of Ohio, Eighth District

July 3, 2013

CHEMECA DAVIS PLAINTIFF-APPELLANT
v.
CITY OF CLEVELAND, ET AL. DEFENDANTS-APPELLEES

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-639354

ATTORNEY FOR APPELLANT James G. Dawson

ATTORNEYS FOR APPELLEES Barbara Langhenry Director of Law Mark R. Musson Catherine Ma Assistant Directors of Law City of Cleveland 601 Lakeside Avenue, Room.

BEFORE: Keough, J., Stewart, A.J., and S. Gallagher, J.

JOURNAL ENTRY AND OPINION

KATHLEEN ANN KEOUGH, JUDGE

{¶ 1} On August 29, 2007, defendant-appellee, city of Cleveland, issued a notice of liability pursuant to Cleveland Codified Ordinances ("C.C.O.") 413.031 to plaintiff-appellant, Chemeca Davis, claiming that an automated camera photographed a vehicle registered in her name traveling at a speed in excess of the posted speed limit. See Davis v. Cleveland, 8th Dist. No. 92336, 2009-Ohio-4717, ¶ 1 (reversed trial court's decision dismissing administrative appeal because court did not give Davis notice of its intent to dismiss for failing to file her assignments of error).

{¶ 2} Davis appealed the notice of liability pursuant to C.C.O. 413.03 l(k). At the hearing, the hearing officer set forth the facts and allegations surrounding the issuance of the notice of liability. Davis did not testify; rather, her counsel set forth 12 "objections and arguments" by way of "Exhibit B." Following a brief overview of the objections and arguments, the hearing officer found Davis liable for the speed violation and ordered her to pay the $100 fine.

{¶3} Pursuant to R.C. 2506.01, Davis filed an administrative appeal with the court of common pleas, asserting factual challenges and alleging various procedural and constitutional violations. Davis requested a hearing pursuant to R.C. 2506.03, claiming that the testimony given before the hearing officer was not made under oath and that the hearing officer did not file with the transcript conclusions of fact. Although the trial court initially granted Davis's request for a hearing, it later denied her motion upon a request for reconsideration by the city. Accordingly, the administrative appeal was decided on by the arguments contained in the briefs submitted by both parties.

{¶ 4} The trial court issued a written decision finding that the court did not have jurisdiction to address the facial constitutional challenges made to C.C.O. 413.031, but did find that the hearing officer's decision was not unconstitutional as applied to Davis, and the decision was supported by substantial, reliable, and probative evidence.

{¶ 5} Davis now appeals, raising four assignments of error.

I. Standard of Review

{¶ 6} Appellate courts will only review the judgment of the trial court to determine if the lower court abused its discretion in finding that the administrative order was supported by reliable, probative, and substantial evidence. Cleveland v. Posner, 188 Ohio App.3d 421, 2010-Ohio-3091, 935 N.E.2d 882, ¶ 12 (8th Dist), citing Wolstein v. Pepper Pike City Council, 156 Ohio App.3d 20, 2004-Ohio-361, 804 N.E.2d 75 (8th Dist.).

The standard of review is limited to reviewing the judgment of the trial court on questions of law, and we do not review any findings of fact or weigh the evidence in administrative appeals. Posner at 11. To the contrary, when a party appeals an administrative agency's decision to the trial court, the court "considers the 'whole record, ' including any new or additional evidence admitted under R.C. 2506.03, and determines whether the administrative order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence." Id. at ¶ 10, quoting Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147, 2000-Ohio-493, 735 N.E.2d 433.

II. C.C.O. 413.031(g) — Notice Requirement

{¶ 7} Davis's first assignment of error states:

The trial court erred to the prejudice of the appellant and abused its discretion by holding that the city of Cleveland complied with the mandates of C.C.O. 413.031(g) when in fact the city failed to post a required sign on Bessermer Avenue that would have apprised the appellant that she was approaching an area where an automated camera was monitoring for speed violators.

{¶ 8} Under this assignment of error, Davis challenges both "notice" requirements under C.C.O. 413.031(g) — notice to the motorist and notice to the public. C.C.O. 413.031(g) provides, in relevant part,

The Director of Public Safety shall cause the general public to be notified by means of a press release issued at least thirty (30) days before any given camera is made fully operational and is used to issue tickets to offenders. Before a given camera issues actual tickets, there shall be a period of at least two (2) weeks, which may run concurrently with the thirty (30) day public-notice period, during which only "warning" notices shall be issued.
At each site of a red light or fixed speed camera, the Director of Public Works shall cause signs to be posted to apprise ordinarily observant motorists that they are approaching an area where an automated camera is monitoring for red light or speed violators. Mobile speed units shall be plainly marked vehicles.

{¶ 9} Davis contends that the city offered no evidence before the hearing officer that it complied with the mandatory requirements of C.C.O. 413.031(g); thus, it failed to establish a necessary element of the speeding offense. In support of her assignment of error, Davis relies on this court's decision in Cleveland v. Barnes, 8th Dist. No. 94502, 2010-Ohio-6164, which determined that the plain words of C.C.O. 413.031(g) require that all sites of a red light or fixed speed camera, whether stationary or mobile, shall have signs posted apprising motorists that they are approaching an area where an automated camera is monitoring for red light or speed violations. Id. at ¶ 25-28.

{¶ 10} However, we find the facts in Barnes distinguishable from the facts in this case. In Barnes, the issue of notice and sign placement was raised before the hearing examiner in his appeal from the notice of liability; thus, preserving the issue in his administrative appeal before the trial court and further appeal to this court.

{¶ 11} Davis, however, did not raise notice and sign placement before the hearing examiner, thus, waiving the issue on appeal. The only factual challenge to C.C.O. 413.031 Davis made before the hearing examiner was "11. The Notice of Liability issued to the Defendant failed to comply with the mandatory requirements of Cleveland Codified Ordinance [Section] 413.031(f). Accordingly, said Notice of Liability is unenforceable." No further explanation was given by Davis how the notice failed to comply with this section. And the only argument Davis made regarding "notice" was whether a speed limit sign was present "as a motorist approaches 7216 Bessemer [sic] Avenue eastbound." Davis did not make any argument before the hearing officer challenging section (g) of C.C.O. 413.031.

{¶ 12} Accordingly, we find that because Davis failed to raise this issue before the hearing examiner, she has waived the issue on appeal. See Posner v. Cleveland, 8th Dist. No. 95997, 201 l-Ohio-3071. Davis's first assignment of error is overruled.

III. C. CO. 413.031(f) — Placement of Automated Camera

{ΒΆ 13} In her second assignment of error, ...


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