CITY OF CLEVELAND, PLAINTIFF-APPELLEE vs. DANIEL CORD, DEFENDANT-APPELLANT
No. 96312
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 25, 2011
[Cite as Cleveland v. Cord, 2011-Ohio-4262.]
BEFORE: Celebrezze, J., Stewart, P.J., and Sweeney, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-700171
Jeffrey P. Posner
ATTORNEYS FOR APPELLEE
Robert J. Triozzi Director Mark R. Musson Assistant Director of Law City of Cleveland Department of Law 601 Lakeside Avenue Room 106 Cleveland, Ohio 44114-1077
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Appellant, Daniel Cord, seeks reversal of the decision of the common pleas court in the administrative appeal of a civil notice of liability issued by the city of Cleveland (the “City“) pursuant to its automatic traffic enforcement ordinance,
{¶ 2} According to a notice issued pursuant to an automated traffic camera, on May 13, 2009, appellant was traveling 48 miles per hour in a 35-mile-per-hour zone on Chester Avenue in Cleveland, Ohio.
{¶ 4} At the hearing, appellant attempted to call the police officer who issued or reviewed the citation, but he was not present. Appellant objected to the use of the citation as evidence because it was unsworn, unauthenticated, and no testimony laid a foundation for its admittance or it accuracy. The hearing officer found that the citation and photographs of appellant‘s car were prima facie evidence of liability and that the rules of evidence did not apply to administrative hearings. The PVB officer found appellant liable for the citation.
{¶ 5} Appellant filed for an administrative appeal in the Cuyahoga County Common Pleas Court pursuant to
{¶ 6} The court also determined that appellant‘s due process arguments stemming from his inability to subpoena witnesses during the hearing were cured by his ability to augment the record on appeal through
{¶ 7} Appellant then filed the instant appeal raising four assignments of error.
“As-applied” Constitutional Challenge
{¶ 8} Appellant first argues that the reviewing court below failed to address his arguments, which were basically a recitation of the arguments embodied in his second and third assignments of error.2
{¶ 9} Appeals from administrative proceedings are governed by
{¶ 10} Appellant first attacks the validity of evidence used. This court has previously addressed this argument and held:
{¶ 11} “The Ohio Supreme Court has held that administrative agencies are not bound by the rules of evidence applied in court. Simon v. Lake Geauga Printing Co. (1982), 69 Ohio St.2d 41, 44, 430 N.E.2d 468. Evidence that is admissible in administrative hearings is defined as follows: ‘(1) “Reliable” evidence is dependable; that is, it can be confidently trusted. In order to be reliable, there must be a reasonable probability that the evidence is true. (2) “Probative” evidence is evidence that tends to prove the issue in question; it must be relevant in determining the issue. (3) “Substantial” evidence is evidence with some weight; it must have importance and value.’ Our Place, Inc. v. Ohio Liquor Control Comm. (1992), 63 Ohio St.3d 570, 571, 589 N.E.2d 1303. Furthermore, hearsay is admissible in administrative proceedings. Simon, 69 Ohio St.2d at 44.
{¶ 12} “The evidence used against defendant at the administrative hearing was the notice of liability for speeding, the [Automatic Traffic Enforcement Camera (“ATEC“)] photographs, and the logbook showing the ATEC‘s calibration. Given the relaxed standards of evidence in administrative hearings, this evidence is certainly probative and substantial as to whether defendant was speeding. Cf. HCMC, Inc. v. Ohio Dept. of Job & Family Servs., 179 Ohio App.3d 707, 2008-Ohio-6223, 935 N.E.2d 660, ¶48 (a state agency audit is admissible and prima facie evidence of what it asserts in an administrative hearing).” Cleveland v. Posner, Cuyahoga App. No. 95301, 2011-Ohio-1370, ¶27-28 (“Posner II“). This is probative evidence that appellant was speeding.
{¶ 13} Appellant further mounts certain constitutional challenges that are not justiciable by this court or the court below. It is clear from the holding in Posner I that only constitutional claims as they apply to appellant‘s specific case can properly be decided during administrative review. Id. at ¶17. Facial constitutional challenges cannot. It is also clear that so long as appellant is presented with an opportunity to call witnesses, it does not matter when this opportunity occurs in order to preserve appellant‘s due process rights. Posner II at ¶30-40.
{¶ 14} Appellants in an administrative review may supplement the record created in the administrative hearing in narrow circumstances.
{¶ 15} The notice of liability was reviewed or issued by a City police officer with badge number 901. This officer was attesting to its accuracy by issuing the notice. The hearing officer also stated that the notice was “sworn by the officer who signs the violation when it‘s sent to him.” This equates to testimony against appellant by this officer. However, this officer was not available for cross-examination. Appellant attempted to call this officer while discussing whether or not the notice was sworn. Appellant‘s attorney stated, “[t]hen we call the police officer who is the reviewing police officer for this.” The hearing officer did not acknowledge appellant‘s request, continue the hearing, or allow appellant to issue a subpoena to compel this officer to testify. Appellant also testified during the proceeding that he was not given the ability or opportunity to subpoena witnesses.
{¶ 16} In Posner II, this court remanded to give the appellant the opportunity to subpoena and call witnesses in order to supplement the record on review. What distinguishes that case from the present one is that appellant did not attempt to subpoena witnesses to testify during the administrative review. Appellant did file a motion for a case management conference and additional time to conduct discovery, but this motion did not mention
{¶ 17} In Posner v. Cleveland, Cuyahoga App. No. 95997, 2011-Ohio-3071, ¶15, fn. 1 (“Posner III“), we rejected the same due process arguments because “Posner never established a record on whether he was prohibited from calling witnesses at the PVB hearing, and there is no transcript available for our review.” This court went on to hold that Posner‘s ability to call witnesses pursuant to
{¶ 18} While the City argues that due process does not require that parties be afforded the right to call or cross-examine witnesses against them in administrative hearings where they are only subject to minimal fines,
{¶ 19} Appellant‘s due process rights were not frustrated because
Jurisdiction of the PVB
{¶ 20} In his fourth assignment of error, appellant argues that “the trial court erred in failing to reverse the decision of the parking violations bureau for lack of jurisdiction.” This argument is based on a perceived conflict between the duties exercised by the PVB in reviewing the notices of violation and affirming the issuance of civil fines for violations of traffic laws and the enabling legislation for such a body in
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MELODY J. STEWART, P.J., and JAMES J. SWEENEY, J., CONCUR