                           Illinois Official Reports

                                    Appellate Court



                  Gernaga v. City of Chicago, 2015 IL App (1st) 130272



Appellate Court       BOHDAN GERNAGA, Plaintiff-Appellee, v. THE CITY OF
Caption               CHICAGO, a Municipal Corporation; THE CITY OF CHICAGO
                      DEPARTMENT OF ADMINISTRATIVE HEARINGS, Defendants-
                      Appellants.


District & No.        First District, Sixth Division
                      Docket No. 1-13-0272


Filed                 May 8, 2015


Decision Under        Appeal from the Circuit Court of Cook County, No. 11-M1-625329;
Review                the Hon. Patrick Rogers, Judge, presiding.



Judgment              Circuit court reversed. Administrative agency’s decision affirmed and
                      reinstated.


Counsel on            Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth
Appeal                Solomon, Myriam Zreczny Kasper, and Justin A. Houppert, Assistant
                      Corporation Counsel, of counsel), for appellants.

                      Patrick J. Keating, of Simmons Browder Gianaris Angelides &
                      Barnerd LLC, of Chicago, for appellee.



Panel                 JUSTICE HALL delivered the judgment of the court, with opinion.
                      Presiding Justice Hoffman and Justice Rochford concurred in the
                      judgment and opinion.
                                                  OPINION

¶1       This appeal arises from administrative review of a decision by the City of Chicago’s
     department of administrative hearings (DOAH). Plaintiff, Mr. Bohdan Gernaga, sought
     administrative review of a decision issued by the DOAH finding him liable for violating
     section 9-102-020(a) of the Chicago Municipal Code (Municipal Code) (Chicago Municipal
     Code § 9-102-020(a) (added July 9, 2003)), for entering an intersection against a red traffic
     light. In July 2003, the City of Chicago (the City) enacted an ordinance under the Municipal
     Code referred to as the “Automated Red Light Camera Program,” which established penalties
     and fines for registered owners of vehicles used in violation of red light traffic signals. See
     Keating v. City of Chicago, 2013 IL App (1st) 112559-U, appeal allowed, No. 116054 (Ill.
     Sept. 25, 2013).1 Pursuant to the ordinance, the City installed “red light” cameras at various
     traffic intersections throughout Chicago. The cameras automatically record photographs of
     cars that either enter an intersection against a red traffic light or make a turn in the face of a red
     light when turning is prohibited. Idris v. City of Chicago, No. 06 C 6085, 2008 WL 182248, at
     *1 (N.D. Ill. Jan. 16, 2008) (citing section 9-102-020(a)). These photographs are prima facie
     evidence of traffic violations and the registered owner of the vehicle is, in general, liable for a
     monetary fine. Chicago Municipal Code § 9-102-020(c) (added July 9, 2003)2; Idris, 2008 WL
     182248, at *1; Keating, 2013 IL App (1st) 112559-U, ¶ 2.
¶2       Here, plaintiff was issued red light traffic citation No. 7002962715 for an incident that
     occurred on September 21, 2010, at the intersection of North Avenue and Halsted Street,
     Chicago, Illinois. He was also issued red light traffic citation No. 7003059115 for an incident
     that occurred on November 10, 2010, at the same intersection.
¶3       Plaintiff contested the traffic citations and the case proceeded to a hearing before the
     DOAH’s administrative law judge (ALJ) on April 14, 2011. At the hearing, the ALJ reviewed
     the City’s photographs and videos, which showed plaintiff’s vehicle entering the intersections
     after the traffic light turned red. Plaintiff did not deny that his vehicle entered the intersections
     against the red light. Instead, he called an expert witness, Mr. Barnet Fagel, a certified forensic
     video analyst, who presented a time-coded version of the City’s video which he claimed
     showed that the yellow light at the intersection in question had a duration of only 2.8 seconds
     on September 21, 2010, when plaintiff’s vehicle entered the intersection and only 2.903
     seconds on November 10, 2010, when his vehicle entered the intersection. Mr. Fagel

         1
          Keating was affirmed, per curiam, by our supreme court after two justices recused and those
     remaining split their vote. Keating v. City of Chicago, 2014 IL 116054.
         2
          The current version of section 9-102-020 of the Code, now entitled “Automated traffic law
     enforcement system violation,” provides in relevant part:
              “(a) The registered owner of record of a vehicle is liable for a violation of this section and the
         fine set forth in Section 9-100-020 when the vehicle is used in violation of Section 9-8-020(c) or
         Section 9-16-030(c) and a recorded image of the violation is recorded by an automated traffic law
         enforcement system.
                                                     ***
              (d) A recorded image of a violation obtained by the automated traffic law enforcement system
         that has been reviewed in accordance with Section 11-208.3(b)(3) of the Illinois Vehicle Code, 625
         ILCS 5/11-208.3 shall be prima facie evidence of a violation of subsection (a).” Chicago Municipal
         Code § 9-102-020 (added July 9, 2003).

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       maintained that the short durations of the yellow light were not in compliance with “city, state
       and federal regulations.”
¶4         After reviewing Mr. Fagel’s video analysis and hearing his testimony, the ALJ determined
       that the City had made out prima facie cases of liability for each red light traffic citation. The
       ALJ concluded, “after reviewing all of the evidence and testimony given today, I’m going to
       give greater weight to the City and find that the City did prove its case.” The ALJ imposed a
       $100 fine for each traffic citation.
¶5         On May 18, 2011, plaintiff filed a complaint for administrative review with the circuit
       court. Plaintiff, acting pro se, filed a motion appealing the ALJ’s decision and petitioning the
       court to vacate the decision. After plaintiff retained counsel, he filed a motion entitled
       “Supplemental Specification of Errors” pursuant to section 3-108(a) of the Illinois Code of
       Civil Procedure (735 ILCS 5/3-108(a) (West 2008)), pointing to alleged errors concerning the
       following: the record on review; the DOAH hearing; and the violations of notice. Plaintiff also
       challenged the ordinance on the alleged ground that the City did not have the power under its
       home rule authority to operate the “Automated Red Light Camera Program.” The circuit court
       heard arguments on the case on February 9, 2012, but reserved its ruling.
¶6         At a follow-up hearing on February 16, 2012, the circuit court remanded the case to the
       DOAH to supplement the record with a copy of plaintiff’s time-coded version of the City’s
       video and Mr. Fagel’s curriculum vitae. Plaintiff agreed to withdraw red light traffic citation
       No. 7002962715 from administrative review because the citation had already been paid.
¶7         On December 14, 2012, after the record had been supplemented, the circuit court held a
       hearing at which it reviewed the time-coded version of the video. After reviewing the video
       and hearing argument from counsel, the court determined that the City had not sustained its
       prima facie case of liability with respect to red light traffic citation No. 7003059115 because
       Fagel’s expert testimony concerning the short duration of the yellow light at the subject
       intersection was sufficient to rebut the City’s prima facie case. The court also determined that
       the City had failed to establish its prima facie case because the violation notice was defective
       where it inaccurately stated the duration of the yellow light.
¶8         The circuit court issued an order reversing the ALJ’s decision and vacating her findings,
       decision and order. The City appealed. For the reasons that follow, we reverse the judgment of
       the circuit court and affirm and reinstate the decision of the ALJ in favor of the DOAH.

¶9                                             ANALYSIS
¶ 10        As this matter comes to us as an appeal from a judgment of the circuit court rendered in an
       administrative review action, we review the decision of the administrative agency rather than
       the determination of the circuit court. Swanson v. Board of Trustees of the Flossmoor Police
       Pension Fund, 2014 IL App (1st) 130561, ¶ 27. The applicable standard of review depends
       upon whether the issue on appeal is one of fact, one of law, or a mixed issue of fact and law.
       Kouzoukas v. Retirement Board of the Policemen’s Annuity & Benefit Fund, 234 Ill. 2d 446,
       463 (2009).
¶ 11        Here, the issue on appeal is whether the ALJ’s factual finding that plaintiff was liable for
       red light traffic citation No. 7003059115, for the incident that occurred on November 10, 2010,
       at the intersection of North Avenue and Halsted Street, was against the manifest weight of the
       evidence. An administrative agency’s findings on questions of fact are deemed prima facie


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       true and correct and will not be overturned unless they are against the manifest weight of the
       evidence. Wilson v. Municipal Officers Electoral Board, 2013 IL App (1st) 130957, ¶ 10. A
       finding is against the manifest weight of the evidence only if the opposite conclusion is clearly
       evident. Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 88
       (1992).
¶ 12       The City argues on appeal that the ALJ’s finding of liability was not against the manifest
       weight of the evidence because the finding was amply supported by photographic and video
       evidence showing plaintiff’s vehicle entering the intersection after the traffic signal turned red.
       The City claims that although plaintiff presented Fagel’s expert testimony in an attempt to
       rebut the City’s prima facie case of liability, the ALJ evaluated the testimony and chose not to
       credit it. The City argues that the circuit court did not have the authority to reassess Fagel’s
       credibility or reweigh the evidence and therefore the ALJ’s finding of liability should be
       reinstated.
¶ 13       “On administrative review, neither this court nor the circuit court can reweigh the evidence
       or the determination of the credibility of the witnesses, which is to be made by the agency.”
       Haynes v. Police Board, 293 Ill. App. 3d 508, 511-12 (1997). Determinations as to the weight
       of evidence and the credibility of witnesses are matters within the province of the agency
       (O’Neill v. Rodriguez, 298 Ill. App. 3d 897, 903 (1998)), and “[t]he mere fact that a conclusion
       opposite to the one reached by the agency is reasonable or that the reviewing court might have
       ruled differently will not justify the reversal of administrative findings.” Terrano v. Retirement
       Board of the Policemen’s Annuity & Benefit Fund, 315 Ill. App. 3d 270, 274 (2000). If the
       record contains competent evidence to support the agency’s decision, it should be affirmed.
       Terrano, 315 Ill. App. 3d at 274; O’Neill, 298 Ill. App. 3d at 903.
¶ 14       With these principles in mind, we find the ALJ’s finding of liability was not against the
       manifest weight of the evidence. The undisputed photographic and video evidence revealed
       that plaintiff’s vehicle entered the intersection after the traffic signal turned red. This evidence
       was prima facie evidence of a red-light traffic violation under section 9-102-020(d) of the
       Code. See Idris, 2008 WL 182248, at *1; Keating, 2013 IL App (1st) 112559-U, ¶ 2.
¶ 15       While plaintiff attempted to rebut this prima facie case with Fagel’s expert testimony, the
       ALJ apparently did not find the testimony to be reliable. Fagel testified that based on his
       analysis of the time-coded version of the video, the yellow light remained illuminated for only
       2.903 seconds, rather than 3.07 seconds as stated on the violation notice. After viewing the
       video, the ALJ disagreed with Fagel as to the precise time the traffic light changed from yellow
       to red, and she challenged his methodology of calculating the duration of the yellow light,
       stating, “[plaintiff’s] witness is alleging that the amber light is too short, and he’s measuring
       the time just from the amber, not when it switched to red.”
¶ 16       Moreover, in a red-light traffic violation case like this involving such minuscule time
       frames, the reliability of Fagel’s expert testimony regarding the 2.903 seconds was called into
       question by the fact that it conflicted with his affidavit in which he averred that the yellow
       lights on the individual signals at the intersection were respectively illuminated for 2.969
       seconds, 2.970 seconds, and 2.970 seconds. More importantly, Fagel’s affidavit contained a
       mathematical error where he averred that one of the yellow signals was illuminated at the
       1.969 mark and terminated at the 4.905 second mark, for a net time of 2.969 seconds; however,
       4.905 minus 1.969 equals 2.936, not 2.969. An expert’s testimony is only as reliable as the
       facts upon which it is based. R.J. Management Co. v. SRLB Development Corp., 346 Ill. App.

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       3d 957, 969 (2004). In sum, the evidence supports the ALJ’s finding that plaintiff committed
       the red-light traffic violation at issue and that an opposite conclusion is not clearly evident.
¶ 17        Plaintiff raises various alternative arguments as to why we should affirm the circuit court’s
       ruling. At the outset, we note that plaintiff’s reminder to us of the principle that we can affirm
       the circuit court’s ruling on any reasonable basis in the record has no application here because
       the only decision before this court on administrative review is that of the administrative
       agency.
¶ 18        In any event, plaintiff argues the following: (1) the City failed to prove he was the
       registered owner of the vehicle at issue; (2) the City’s violation notice was not signed as
       required by section 11-208.3 of the Illinois Vehicle Code (625 ILCS 5/11-208.3 (West 2008));
       (3) the technician’s certificate certifying the technician had reviewed the video and
       photographic evidence and determined that plaintiff did not come to a full stop at a red traffic
       light before entering the intersection was defective in that the technician’s signature was not
       “notarized, sworn under oath or made under penalty of perjury” and therefore it failed to
       comply with the City’s own rules requiring that a City administrative case be presented by
       “live sworn testimony and/or by sworn signed prima facie documentation” (City of Chicago
       General Rules and Regulations § 9.2 (eff. July 14, 1997); Aich v. City of Chicago, 2013 IL App
       (1st) 120987, ¶ 16); and (4) in reaching her decision, the ALJ improperly relied on the speed of
       plaintiff’s vehicle.
¶ 19        Plaintiff’s alternative arguments were never presented at the administrative hearing and are
       consequently waived. Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228
       Ill. 2d 200, 212-13 (2008); Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d 262,
       278-79 (1998). Moreover, even if plaintiff had preserved these issues for our review, he would
       not have been entitled to any relief because our review of the record and the arguments
       advanced by the parties in their appellate briefs leads us to conclude that his claims are without
       merit.
¶ 20        Finally, we reject plaintiff’s contention that the City failed to provide an adequate record
       on appeal. The record contains a full transcript of the administrative hearing, including
       documentary evidence supporting the ALJ’s liability finding. In regard to purported
       inadequacy of the record of the circuit court proceedings, the City remedied the absence of
       transcripts from the circuit court by supplementing the record on appeal with a stipulated
       bystander’s report pursuant to Illinois Supreme Court Rule 323(c) (eff. Dec. 13, 2005).
¶ 21        Plaintiff argues that the stipulated bystander’s report “is a woefully inadequate substitute
       for a real record of what took place” in the circuit court. However, plaintiff had an opportunity
       to review the proposed bystander’s report and thereafter he stipulated that it “accurately
       summarizes the proceedings that occurred in the circuit court on December 14, 2012.” He
       cannot now complain that the bystander’s report is incomplete or inaccurate. A party cannot
       complain of an error which he induced or to which he consented. McMath v. Katholi, 191 Ill.
       2d 251, 255 (2000).
¶ 22        For the foregoing reasons, we reverse the judgment of the circuit court of Cook County and
       affirm and reinstate the decision of the ALJ in favor of the DOAH.

¶ 23      Circuit court reversed. Administrative agency’s decision affirmed and reinstated.



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