[Cite as Dawson v. Cleveland, 2014-Ohio-1636.]
                      [Please see vacated opinion at 2014-Ohio-500.]


                 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:
                                            AFFIRMED


                                      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:                       April 17, 2014
ATTORNEY FOR APPELLANT

James G. Dawson
4881 Foxlair Trail
Richmond Hts., Ohio 44143


ATTORNEYS FOR APPELLEE

Barbara Langhenry
Director of Law
City of Cleveland

John S. Mills
Assistant Director of Law
City Hall-Law Department, Room 106
601 Lakeside Avenue
Cleveland, Ohio 44114

Parking Violations
Bureau of the City of Cleveland
Photo Safety Division
1200 Ontario St., 2nd Floor
Cleveland, Ohio 44113
ON RECONSIDERATION1

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 (“PVB”) imposition of civil

liability upon Dawson for a speeding offense.       Dawson assigns the following errors for

our review:

      I. 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 when in fact the city failed to present any competent
      evidence that the elements of C.C.O. §413.031 were proven by a
      preponderance of substantial, reliable and probative evidence on the whole
      record.

      II. The trial court erred to the prejudice of the appellant and abused its
      discretion by affirming the decision of the parking violations bureau where
      both the trial court and parking violations bureau lacked subject matter
      jurisdiction to render a decision relative to the notice of liability issued to the
      appellant.

      III. The trial court erred to the prejudice of the appellant and abused its
      discretion by affirming the decision of the parking violations bureau where
      the City of Cleveland failed to present any competent evidence with respect
      to the construction of the alleged speed measuring device, its method of
      operation and whether the device was in good working condition for
      accurate measurement.

      IV. The trial court erred to the prejudice of the appellant and abused its
      discretion by affirming the decision of the parking violations bureau where
      violations of C.C.O. §413.031 are being unconstitutionally adjudicated by
      the Cleveland Parking Violations Bureau.

      1
        The original announcement of decision, Dawson v. Cleveland, 8th Dist.
Cuyahoga No. 99964, 2014-Ohio-500, released February 13, 2014, is hereby vacated.
This opinion, issued upon reconsideration, is the court’s journalized decision in this
appeal. See App.R. 22(C); see also S.Ct.Prac.R. 7.01.
       V. The trial court erred to the prejudice of the appellant and abused its
       discretion by denying the appellant a requested hearing pursuant to R.C.
       2506.03.

       {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

decision. The apposite facts follow.

       {¶3} 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).

       {¶4} 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.

       {¶5} 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.
       {¶6} 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.

       {¶7} On May 9, 2013, the trial court issued a written decision finding that the

hearing officer’s decision was supported by substantial, reliable, and probative evidence.

Dawson now appeals.

                                   Standard of Review

       {¶8} In Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142,

2000-Ohio-493, 735 N.E.2d 433, the Ohio Supreme Court distinguished the standard of

review to be applied by common pleas courts and appellate courts in R.C. Chapter 2506

administrative appeals. The court stated:

       The common pleas 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.

       ***

       The standard of review to be applied by the court of appeals in an R.C.
       2506.04 appeal is more limited in scope. Kisil v. Sandusky, 12 Ohio St.3d
       30, 465 N.E.2d 848, 852 (1984). This statute grants a more limited power
       to the court of appeals to review the judgment of the common pleas court
       only on “questions of law,” which does not include the same extensive
       power to weigh “the preponderance of substantial, reliable and probative
       evidence,” as is granted to the common pleas court. Id. at fn. 4. “It is
       incumbent on the trial court to examine the evidence. Such is not the charge
       of the appellate court. * * * The fact that the court of appeals, or this court,
       might have arrived at a different conclusion than the administrative agency is
       immaterial. Appellate courts must not substitute their judgment for those of
       an administrative agency or a trial court absent the approved criteria for
       doing so. Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd.,
       40 Ohio St.3d 257, 261, 533 N.E.2d 264, 267 (1988). Henley at 147.

       {¶9} Thus, this court will only review the judgment of the trial court to determine

whether the lower court abused its discretion in finding that the administrative order was

supported by reliable, probative, and substantial evidence. See Wolstein v. Pepper Pike

City Council, 156 Ohio App.3d 20, 2004-Ohio-361, 804 N.E.2d 75 (8th Dist.)

       {¶10} C.C.O. 413.031 authorizes the use of an automated camera system to impose

civil penalties on the owners of vehicles that have been photographed committing a red

light violation or speeding violation. In July 2005, the city council enacted and the mayor

approved C.C.O. 413.031, which is titled “Use of Automated Cameras to Impose Civil

Penalties upon Red Light and Speeding Violators.” C.C.O. 413.031(a) provides:

       Civil enforcement system established. The City of Cleveland hereby adopts
       a civil enforcement system for red light and speeding offenders
       photographed by means of an “automated traffic enforcement camera
       system” as defined in division (p.) This civil enforcement system imposes
       monetary liability on the owner of a vehicle for failure of an operator to stop
       at a traffic signal displaying a steady red light indication or for the failure of
       an operator to comply with a speed limitation.

       {¶11} Under C.C.O. 413.031, the city will mail a notice of liability to the owner of

a vehicle photographed by the automated traffic enforcement system for red light or

speeding violations. A party who receives a notice of liability may contest the ticket by

filing a notice of appeal within 21 days from the date listed on the ticket.

                            Affirming Administrative Decision
       {¶12} In the first assigned error, Dawson argues the trial court abused its discretion

in affirming the administrative decision, because the City failed to present competent

evidence that the elements of C.C.O. 413.031 were proven by a preponderance of

substantial, reliable, and probative evidence.

       {¶13} Within this assigned error, Dawson argues the City was required to prove a

number of mandatory elements before it could find him liable. Specifically, (1) the City

was required to prove that his vehicle was operated at a speed in excess of the limitations

set forth in C.C.O. §433.03, (2) that the placement of the automated cameras are based on

sound professional traffic engineering and law enforcement judgments, (3) that the

Director of Public Safety had notified the general public by means of a press release as to

the locations of the automated cameras, (4) that the Director of Public Services had caused

signs to be posted where an automated camera monitoring speed violators was located, (5)

that the speeding citation had been reviewed by a Cleveland Police Officer, and (6) that

the Notice of liability had been reviewed by the vendor of the automated traffic

enforcement camera system.

       {¶14} However, our review indicates that Dawson, who failed to appear at the

administrative hearing, failed through counsel, to raise the above issue before the hearing

examiner. As such, he has waived the issue on appeal. See Posner v. Cleveland, 8th

Dist. Cuyahoga No. 95997, 2011-Ohio-3071.

       {¶15} In the instant case, the hearing officer, relying on the notice of liability, set

forth the basic facts of the violation in pertinent part as follows:
      This is a speed on green, this is not a radar violation. There are loops buried
      in the pavement that triggers the camera. Yours is G003478329 on 6-17-12
      at 3:56 p.m. Chester Ave. West bound at East 71st Street. This Toyota was
      doing 49 miles an hour in a 35 mile an hour zone. With a plate number
      3124DT state department of motor vehicles indicated that he is the owner.

After setting forth the above, the following exchange took place between the hearing

officer and Dawson’s attorney:

      Hearing Officer:     You can go ahead and present your case.

      Attorney:            You can present your case.

      Hearing Officer:     Sir you want to present your case. I’m asking do you
                           want to tell me what happen? Do you have a case?

      Attorney:            I wasn’t there I don’t know.

      Hearing Officer:     Okay then where is your party then?
      Attorney:            He couldn’t make it today.

      Hearing Officer:     Okay then you want to reschedule until he can come?

      Attorney:            No no no no I mean there is no evidence that [has] been
                           presented that he’s been speeding.
                           Tr. 1.

      {¶16} Here, a review of the above excerpt and elsewhere in the record, reveals that

Dawson, through counsel, failed to mount any factual challenges to the notice of liability,

despite the hearing officer’s offer to continue the hearing to allow Dawson to personally

appear.

      {¶17} Liability for a speeding offense under C.C.O. 413.031 arises “when a vehicle

is operated at a speed in excess of the limitations set forth in [C.C.O.] 433.03.” As such,
it is prima facie unlawful for a vehicle to exceed the posted speed limit. C.C.O. 433.03(c)

and (k).

        {¶18} Consequently, absent any evidence or argument to the contrary, the trial court

did not abuse its discretion in finding that the hearing officer’s decision finding Dawson

civilly liable for the speeding infraction was supported by         a   preponderance    of

substantial,   reliable,   and   probative   evidence.   Accordingly, we overrule the first

assigned error.

                            Lack of Subject Matter Jurisdiction

        {¶19} In the second assigned error, Dawson argues that both the trial court and the

PVB lacked subject matter jurisdiction to render a decision relative to the notice of

liability.

        {¶20} 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 R.C. 4521.04

and 4521.05.      However, this is a facial constitutional challenge of the ordinance

establishing the duties of the PVB and is unsuitable for determination in an administrative

appeal.      Cleveland v. Cord, 8th Dist. Cuyahoga No. 96312, 2011-Ohio-4262.

Accordingly, we overrule the second assigned error.

                           Accuracy of Speed Measuring Device

        {¶21} In the third assigned error, Dawson argues the City presented no evidence

that the measuring device was in proper working condition.
       {¶22} However, Dawson did not attempt to introduce any evidence before the

hearing officer that the automated camera system used was unreliable, not properly

calibrated, unscientific, or inaccurate.   As such, we find he has waived this challenge on

appeal. Cord, 8th Dist. Cuyahoga No. 96312, 2011-Ohio-4262, ¶ 19.               Absent any

evidence or argument to the contrary, the trial court did not abuse its discretion in finding

that the hearing officer’s decision finding Dawson civilly liable for the speeding infraction

was supported by a preponderance of substantial, reliable, and probative evidence.

Accordingly, we overrule the third assigned error.



                                     Unconstitutionality

       {¶23} In the fourth assigned error, mounting a facial constitutional challenge to the

City’s ordinance, Dawson argues that C.C.O. 413.031 is being unconstitutionally

adjudicated by the PVB.

       {¶24} However, Dawson is not permitted within a Chapter 2506 appeal to challenge

the facial constitutionality of an ordinance. See Davis v. Cleveland, 8th Dist. Cuyahoga

No. 99187, 2013-Ohio-2914, citing Roy v. Cleveland Bd. of Zoning Appeals, 145 Ohio

App.3d 432, 437, 763 N.E.2d 240 (8th Dist.2001). “[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.
       {¶25} Here, Dawson appealed from the order of the trial court that affirmed the

decision of the PVB. Yet throughout Dawson’s brief to the common pleas court and to

this court, he argues that C.C.O. 413.031 was unconstitutional on its face.         In an R.C.

Chapter 2506 appeal, this is improper. Grossman v. Cleveland Hts., 120 Ohio App.3d

435, 439-441, 698 N.E.2d 76 (8th Dist.1997).        As such, the trial court properly rejected

this argument. Accordingly, we overrule the fourth assigned error.



                              Denial of R.C. 2506.03 Hearing

       {¶26} In the fifth assigned error, Dawson argues the trial court erred and abused its

discretion by denying the hearing required by R.C. 2506.03.

       {¶27} With the trial court, Dawson’s request for a hearing was made pursuant to

R.C. 2506.03(A)(3) and (5) — the testimony was not given under oath and the hearing

officer failed to file with the transcript conclusions of fact supporting the decision.

       {¶28} R.C. 2506.03 provides, in pertinent part,

       (A) The hearing of an appeal taken in relation to a final order, adjudication,
       or decision covered by division (A) of section 2506.01 of the Revised Code
       shall proceed as in the trial of a civil action, but the court shall be confined
       to the transcript filed under section 2506.02 of the Revised Code unless it
       appears, on the face of that transcript or by affidavit filed by the appellant,
       that one of the following applies:

       ***

       (3) The testimony adduced was not given under oath.

       ***
        (5) The officer or body failed to file with the transcript conclusions of fact
        supporting the final order, adjudication, or decision.

        (B) If any circumstance described in divisions (A)(1) to (5) of this section
        applies, the court shall hear the appeal upon the transcript and additional
        evidence as may be introduced by any party. At the hearing, any party may
        call, as if on cross-examination, any witness who previously gave testimony
        in opposition to that party.

        {¶29} Dawson argues that the trial court abused its discretion in denying him a

hearing under R.C. 2506.03(B) because the hearing officer’s “testimony” was not given

under oath. See 2506.03(A)(3). First, we note that Dawson, through counsel, did not

object to the hearing officer presenting the facts at the hearing. Further, the record shows

that the hearing officer only read into the record the allegations contained in the notice of

liability.

        {¶30} Moreover, the record reflects that no other testimony was provided by the

hearing officer, and Dawson does not identify what “testimony” was given by the hearing

officer beyond the notice of liability. No witnesses testified, including Dawson, who did

not appear at the hearing. As such, we find no merit in this argument.

        {¶31} Dawson also argues that the trial court should have conducted a hearing

pursuant to R.C. 2506.03(A)(5) because the hearing officer failed to file with the transcript

any conclusions of facts supporting the decision. Dawson presents this court with no case

authority supporting his argument, and a review of his motion with the trial court reveals

the same.

        {¶32} R.C. 2506.03(A)(5) does not require the conclusions of fact to take any

specific form, and an administrative agency “is not required to file a separate document
entitled ‘Conclusions of Fact.’” Concerned Richfield Homeowners v. Planning & Zoning

Comm., 9th Dist. Summit No. 25033, 2010-Ohio-4095, ¶ 10; see also CBS Outdoor, Inc. v.

Cleveland Bd. of Zoning Appeals, 8th Dist. Cuyahoga No. 98141, 2013-Ohio-1173, ¶ 37.

“Instead, the trial court was required to look at the ‘face of that transcript’ to determine if

the [hearing officer] failed to include its reasons in support of its final decision.” Id. at ¶

10, citing R.C. 2506.03(A).

       {¶33} In the instant case, the trial court issued a written decision stating its reasons

for denying Dawson’s motion for an R.C. 2506.03 hearing. The court reasoned: “[a]fter

reviewing the record and the parties’ briefs, the court finds [the city] filed sufficient

conclusions of fact with the administrative record and [Dawson] waived the right to argue

that the hearing officer’s testimony was not given under oath.”

       {¶34} “Obviously, parties should be informed of the reasons for decisions, and

courts should have something to review.” Concerned Richfield Homeowners at ¶

11, quoting Shelly Materials v. Daniels, 2d Dist. Clark No. 2002-CA-13, 2003-Ohio-51, ¶

23. However, Dawson fails to set forth any explanation why the “face of that transcript”

does not inform him of the reasons for the hearing examiner’s decision and the trial court

with something to review, thus, not constituting conclusions of fact.

       {¶35} Here, the transcript reveals that the trial court’s decision was not in error. The

hearing officer stated on the record the notice of liability, which is considered prima facie

evidence. Although Dawson’s counsel offered “Exhibit A” to be made part of the record,

our review indicates that assigned errors contained therein are primarily constitutional
challenges to C.C.O. 433.031, and thus were insufficient to rebut the prima facie evidence.




       {¶36} Consequently, we conclude the transcript contained sufficient facts and

conclusions to enable the trial court to make a decision.     Accordingly, we overrule the

fifth assigned error.

       {¶37} 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.



PATRICIA ANN BLACKMON, JUDGE

EILEEN A. GALLAGHER, J., CONCURS;
SEAN C. GALLAGHER, P.J., CONCURS
IN JUDGMENT ONLY WITH ATTACHED
OPINION.


SEAN C. GALLAGHER, P.J., CONCURRING IN JUDGMENT ONLY:

       {¶38} I concur in judgment only.      In Jodka v. Cleveland, 8th Dist. Cuyahoga No.

99951, 2014-Ohio-208, this court held that
       [b]ased upon the plain meaning of the words used in R.C. 1901.20(A)(1), in
       purporting to label moving violations as “parking infractions” so as to
       deprive the municipal court of jurisdiction over violations of “any
       ordinance,” the procedure set forth in CCO 413.031(k) and (l) violates the
       Ohio Constitution.

Id. at ¶ 33.   It is only because an appeal from an administrative decision is limited to

facial constitutional challenges that I concur in judgment only with the majority opinion.
