JEFFREY POSNER v. CITY OF CLEVELAND
No. 95997
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 23, 2011
[Cite as Posner v. Cleveland, 2011-Ohio-3071.]
BEFORE: S. Gallagher, J., Blackmon, P.J., and Rocco, J.
JOURNAL ENTRY AND OPINION; Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-724353
Jeffrey P. Posner
Jeffrey P. Posner, LLC
3393 Norwood Road
Shaker Heights, Ohio 44122
ATTORNEYS FOR APPELLEE
Robert J. Triozzi
Director of Law
City of Cleveland
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114-1077
Mark R. Musson
Assistant Director of Law
City of Cleveland
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114-1077
SEAN C. GALLAGHER, J.:
{¶ 1} Appellant Jeffrey Posner appeals the decision of the trial court in Cuyahoga County Common Pleas Court Case No. CV-724353, affirming an administrative dеcision of the Cleveland Municipal Court‘s Parking Violations Bureau, Photo Safety Division (“PVB“). For the following reasons, we affirm the decision of the trial court.
{¶ 3} We note that Posner raised similar issues in several other cases stemming from separate automated enforcemеnt citations. Cleveland v. Posner, 188 Ohio App.3d 421, 2010-Ohio-3091, 935 N.E.2d 882 (”Posner I“); Cleveland v. Posner, Cuyahoga App. No. 94689, 2010-Ohio-5368 (”Posner II“); Cleveland v. Posner, Cuyahoga App. No. 95301, 2011-Ohio-1370 (”Posner III“). This court reversed Posner I and II based on the failure to consider his “unconstitutional as applied” arguments and Posner III for the failure to hold the required evidentiary hearing pursuant to
{¶ 4} In this case, Posner raises five assignments of error for our review.
“I. The court below erred in failing to address Appellant‘s arguments.
“II. The procedure utilized below allowed conviction upon insufficient and improperly allowed evidence.
“III. The procedure below violated appellant‘s due process rights by providing for conviction upon improperly allowed evidence without the right to confront actual witnesses and compel appearance and testimony.
“IV. Judgment should be entered for appellant pursuant to City of Cleveland v. Barnes, Cuy. Co. C.A. 94502 (12/16/10) [sic].
“V. The parking violations bureau lacked jurisdiction to enter an order of liability аnd its decision must be vacated and/or reversed.”
{¶ 5} This court reviews administrative appeals under an abuse-of-discretion standard. Cleveland v. Posner, 188 Ohio App.3d 421, 2010-Ohio-3091, 935 N.E.2d 882, ¶ 12. The standard of review is limited to reviewing the judgment of the trial court on questions of law. Id. at ¶ 11. We do not review any findings of fact or weigh the evidence in administrative appeals. Id. To the contrary, when a party appeals an administrative agency‘s decision to the trial court, that court “considers the ‘whole record,’ including any new or additional evidenсe admitted under
{¶ 6} In his first assignment of error, Posner argues that the trial court “rubber-stamped” the hearing officer‘s decision without actually determining the due process or evidentiary issues. He asks this court to remand the case to the trial court for a “real decision.” We find this assignment of error to be without merit.
{¶ 8} Posner‘s second and third assignments of error assert the single argument that the hearing officer and trial court relied on improper evidence in finding Posner liable for the civil traffic infraction. Both of these assignments of error address evidentiary rules allegedly infringing on Posner‘s due process rights. His second and third assignments of error are without merit.
{¶ 9} Posner first challenges the hearing officer‘s decision to admit the electronic evidence from the mobile unit that photographed his vehicle speeding. He argues this alone compelled the trial court to reverse the hearing officer‘s decision because the admission of evidence violated his due process rights and could not be used as a basis fоr a valid decision. He further argues that he was entitled to evidentiary and due process protections; that the evidence used against him was unsworn, unscientific, and not authenticated; and the hearing
{¶ 10} Before addressing Posner‘s substantive arguments, we note that Posner has already unsuccessfully raised these issues in Posner III. He further never clearly indicates whether his arguments challenge the constitutionality of
{¶ 11} We have previously held that
{¶ 12} Defendant argued in Posner III that there was insufficient evidence to establish liability beсause the evidence relied on by the hearing officer was inadmissible, because of its being “unsubstantiated or authenticated by any testimony” and based on hearsay. Posner further argued that there was “no evidence of the underlying reliability of the sсience and equipment” used in the automated system. The Posner III court held “[t]he evidence used against defendant at the administrative hearing was the notice of liability for speeding, the [automated traffic enforcement camera‘s] photographs, and the logbook showing the [automated traffic enforcement camera‘s] calibration. Given the relaxed standards of evidence in administrative hearings, this evidence [was] certainly probative and substantial as to whether defendant was speeding.” Id. at ¶ 28. We also found no merit to his arguments relating to the scientific reliability of the automated system. Evidentiary formalities are not required to admit expert testimony in administrative hearings. Id.
{¶ 13} In the current case, Posner recycles the arguments advanced in Posner III. Following our precedent, we again find Posner‘s arguments to be without merit. The same evidence relied on by the trial court in Posner III is present in the current case. The administrative record includes the notice of liability, pictures оf Posner‘s car from the automated camera depicting its speed, and the mobile unit‘s deployment log and certification.
{¶ 14} In addition, Posner argues that he was prohibited from calling witnesses at the PVB hearing thereby “handcuffing” his ability to present a defense. The trial court, when hearing an administrative appeal, is confined to the transcript of proceedings unless it appears on the face of the transcript or by affidavit of the appellant that one of the five following exceptions applies: (1) the transcript does not contain all information proffered at the hearing; (2) the appellant was not permitted to offer and examine or cross-examine witnesses; (3) the testimony was not given under oath; (4) the officer or agency lacked, or refused to invoke, the power of subpoena; or (5) the officer or body failed to file with the transcript, conclusions of fact supporting the final order.
{¶ 15} Even if we assume Posner was procedurally barred from calling witnesses at the administrative level,1 the language of
{¶ 16} Posner argues, in his fourth assignment of error, that we must reverse the decision of the trial court based on Cleveland v. Barnes, Cuyahoga App. No. 94502, 2010-Ohio-6164. In Barnes, this court held that Cleveland‘s mobile radar units are required to physically post warning signs ahead of the mobile unit pursuant to the plain meaning of
{¶ 17} Finally, Posner was granted leave to file a supplemental brief and assignment of error, which challenges the PVB‘s jurisdiction to find motorists liable for traffic infractions.
{¶ 18} The judgment of the trial court is 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 issue out of this court directing the common pleas court to carry this judgment into executiоn.
SEAN C. GALLAGHER, JUDGE
PATRICIA ANN BLACKMON, P.J., and KENNETH A. ROCCO, J., CONCUR