[Cite as Dawson v. Cleveland, 2014-Ohio-500.]
[Vacated opinion. Please see 2014-Ohio-1636.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99964
DARRELL E. DAWSON
PLAINTIFF-APPELLANT
vs.
CITY OF CLEVELAND, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
REVERSED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-792131
BEFORE: Blackmon, J., S. Gallagher, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: February 13, 2014
ATTORNEY FOR APPELLANT
James G. Dawson
4881 Foxlair Trail
Richmond Heights, Ohio 44143
ATTORNEYS FOR APPELLEES
Barbara Langhenry
Director of Law
By: John Mills
Assistant Director of Law
City of Cleveland
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114
Parking Violations Bureau
City of Cleveland
Photo Safety Division
1200 Ontario Street, 2nd Floor
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Darrell E. Dawson (“Dawson”) appeals the trial court’s order
affirming the City of Cleveland Parking Violations Bureau’s (“the City”) imposition of
civil liability upon Dawson for a speeding offense. For the reasons that follow, we
reverse the trial court’s decision.
{¶2} On June 17, 2012, the City issued a notice of liability pursuant to Cleveland
Codified Ordinances (“C.C.O.”) 413.031 to Dawson, alleging that an automated camera
photographed a vehicle registered in his name traveling at 49 m.p.h. in a 35 m.p.h. zone.
Dawson appealed the notice of liability pursuant to C.C.O. 413.031(k).
{¶3} On August 28, 2012, at the administrative hearing, the hearing officer set
forth the facts and allegations surrounding the issuance of the notice of liability. Dawson
did not attend, the hearing officer offered to continue the hearing, but Dawson’s counsel
declined the offer. Instead, counsel offered “Exhibit A,” detailing nine assignments of
error to be made part of the record. Thereafter, the hearing officer found Dawson liable
for the speed violation and ordered him to pay the $100 fine.
{¶4} On September 25, 2012, pursuant to R.C. 2506.01, Dawson filed an
administrative appeal with the court of common pleas, asserting factual challenges and
alleging various procedural and constitutional violations. Dawson also 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.
{¶5} On March 5, 2013, the trial court denied the motion, ruling that the hearing
officer filed sufficient conclusions of fact and that Dawson had waived the right to argue
that the hearing officer’s testimony was not given under oath. Accordingly, the
administrative appeal was decided by the arguments contained in the briefs submitted by
both parties.
{¶6} On May 9, 2013, the trial court issued a written opinion finding that the
hearing officer’s decision was supported by substantial, reliable, and probative evidence.
{¶7} Dawson now appeals, raising among other things, facial constitutional
challenges to C.C.O. 413.031.
{¶8} At the outset, we acknowledge that the instant matter involves an appeal
from an administrative decision pursuant to R.C. Chapter 2506, and “[t]he proper vehicle
for challenging the constitutionality of an ordinance on its face is a declaratory judgment
action.” Cappas & Karas Inv., Inc. v. Cleveland Bd. of Zoning Appeals, 8th Dist.
Cuyahoga No. 85124, 2005-Ohio-2735, citing Martin v. Independence Bd. of Zoning
Appeals, 8th Dist. Cuyahoga No. 81340, 2003-Ohio-2736. See also Grossman v.
Cleveland Hts., 120 Ohio App.3d 435, 439-441, 698 N.E.2d 76 (8th Dist.1997).
{¶9} However, because this appeal presents yet another challenge to the
constitutionality of a city’s automated camera civil traffic enforcement system, we will
follow this court’s most recent decision in Jodka v. Cleveland, 8th Dist. Cuyahoga No.
99951, 2014-Ohio-208. In Jodka, we found that C.C.O. 413.031 unconstitutionally
usurps the authority of the Cleveland Municipal Court to adjudicate certain traffic
infractions. As such, we sustain Dawson’s facial challenges to C.C.O. 413.031 and
reverse the trial court’s decision.
{¶10} Judgment reversed.
It is ordered that appellant recover from appellees his 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.
PATRICIA ANN BLACKMON, JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
SEAN C. GALLAGHER, P.J., CONCURS
IN JUDGMENT ONLY