[Cite as Shaker Hts. v. Rosenberg, 2013-Ohio-1182.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 98531



                          CITY OF SHAKER HEIGHTS

                                                            PLAINTIFF-APPELLEE

                                                      vs.

                             VICTOR R. ROSENBERG
                                                            DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            REVERSED


                                      Criminal Appeal from the
                                   Shaker Heights Municipal Court
                                      Case No. 12 TRD 01302

        BEFORE: Stewart, A.J., Kilbane, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                           March 28, 2013
FOR APPELLANT

Victor R. Rosenberg, Pro Se
1909 Revere Road
Cleveland Heights, OH 44118


ATTORNEY FOR APPELLEE

C. Randolph Keller
Chief Prosecutor
City of Shaker Heights
3400 Lee Road
Shaker Heights, OH 44120
MELODY J. STEWART, A.J.:

       {¶1} The Shaker Heights Municipal Court found defendant-appellant Victor

Rosenberg guilty of disobeying a traffic control device by merging left from a lane

designated right turn only.     Rosenberg conceded that he made the lane change as

charged, but argued that the lane he traveled in was marked by a single, white line, which

under the law did not forbid the lane change, but merely “discouraged” it. On appeal, he

claims that the court erred by refusing to accept his interpretation of the lane marking.

       {¶2} The city of Shaker Heights charged Rosenberg with violating Shaker Heights

Codified Ordinances 1113.01. That section states: “No pedestrian or driver of a vehicle

shall disobey the instructions of any traffic control device placed in accordance with the

provisions of this Traffic Code, unless at the time otherwise directed by a police officer.”

       {¶3} The uncontested facts show that Rosenberg received his ticket while driving

around Fairmount Circle. Fairmount Circle is a multi-lane traffic circle that radiates

eight points. The traffic circle is intersected north-south by Warrensville Center Road.

The other major artery, Fairmount Boulevard, runs east-west around the circle. Two

other streets, University Boulevard and North Park Boulevard, radiate outward at 45

degree angles from the center of the circle. The basic design of the traffic circle is

shown in the following diagram:
       {¶4} Rosenberg was traveling east on Fairmount Boulevard as he approached the

traffic circle. He entered the traffic circle and crossed the intersection at Warrensville

Center Road in the outside lane. As he approached the intersection with University

Boulevard, markings in his lane allowed either forward travel or a right turn. However,

just past the intersection with University Boulevard, approaching Fairmont Boulevard

eastbound, his lane became a right turn only lane. The lane to the left of Rosenberg

allowed both a right turn and forward travel continuing around the circle. In other

words, there were two lanes of traffic that could turn right onto Fairmount Boulevard

traveling eastbound: the one Rosenberg used allowed a right turn only; the other allowed

either a right turn or through traffic.
(Last visited Feb. 26, 2013.)

       {¶5} Realizing that he did not wish to turn right onto Fairmount Boulevard,

Rosenberg changed lanes to his left to continue around the traffic circle. A police officer

witnessed this lane change and issued Rosenberg a traffic citation.

       {¶6} Section 3B.04 of the Ohio Manual of Uniform Traffic Control Devices states

that “[w]hen used, lane line pavement markings delineating the separation of traffic lanes

that have the same direction of travel shall be white.” That same section also states that
“[w]here crossing the lane line markings is discouraged, the lane line markings shall

consist of a normal solid white line.” Id. Finally, the manual states: “Where crossing

the lane line is prohibited, the lane line markings shall consist of two normal solid white

lines.”

          {¶7} Rosenberg argues that the lanes were marked with a single, white line, thus

“discouraging” lane changes rather than prohibiting them.           The court rejected this

argument, noting that Rosenberg was not charged with improper lane usage, but with

failure to obey a traffic control device.

          {¶8} R.C. 4511.01(QQ) defines “traffic control devices” as, among other things, a

“sign, signal, marking, or other device used to regulate, warn, or guide traffic, placed on,

over, or adjacent to a street * * *.” The guidance to section 3B.09 of the Ohio Manual of

Uniform Traffic Control Devices states:

          Lane drop markings used in advance of lane drops at intersections should
          begin a distance in advance of the intersection that is determined by
          engineering judgment as suitable to enable drivers who do not desire to
          make the mandatory turn to move out of the lane being dropped prior to
          reaching the queue of vehicles that are waiting to make the turn.

          {¶9} The lane markings and signs posted in the area of Fairmount Circle that is the

subject of this appeal fail to give motorists sufficient advance notice to enable them to

move out of the lane being dropped (a “dropped lane” is a through lane that becomes a

mandatory turn lane).

          {¶10} The lane Rosenberg traveled in as he passed the southern intersection of

Fairmount Circle and Warrensville Center Road, proceeding to University Boulevard,
was painted with arrows showing that he could either proceed straight or make a right

turn. A sign placed before the intersection of Fairmount Circle and University, however,

indicated that that same lane was right turn only. Although the ticketing officer testified

that the sign and lane markings on the road are the same, they are not. They directly

contradict each other at the point where the officer testified the violation occurred.

       {¶11} In addition, although the lane markings between Warrensville Center Road

and University Boulevard indicate that a motorist can travel either straight or make a right

turn, that lane becomes a right turn only lane immediately after the intersection at

University Boulevard. This transition from the lane being a through lane to a mandatory

right turn lane is made without any advance warning to the driver. This change occurs

just after the University Boulevard southeast bound intersection — a minuscule distance

given the posted speed limit. So when a motorist who had been led to believe that he

was traveling in a through lane discovered that the lane had transitioned to a right turn

only lane, it would be too late to change lanes. This near instantaneous transition from a

combination through lane-right turn lane is done with no advance notice to the motorist.1

       {¶12} Finally, we note that because of Fairmount Circle’s lane markings,

motorists traveling northwest on University Boulevard to Fairmount Circle are technically

not permitted to enter the traffic circle and are required to immediately turn right onto


           It appears that the confusion caused by the lane markings and the signage could easily be
       1


rectified by clearly stating to motorists who are in the right lane after proceeding past Warrensville
Center Road that they must turn right on University Boulevard, southeast bound, or Fairmount
Boulevard, eastbound.
Fairmount Boulevard eastbound; at least under the argument presently made by the city.

The city argues that Rosenberg violated Shaker Heights Codified Ordinances 1113.01 by

failing to turn right from a right turn only lane. However, any traffic moving from

University Boulevard into the traffic circle would necessarily enter into that same lane

and be required to turn right or would have to cross the right turn only lane to enter the

continuing circle lane: similar to what Rosenberg did to avoid having to make the

mandatory right turn.

      {¶13} Rosenberg’s changing lanes to the left from a lane marked for a right turn

only, was brought about by traffic signs and lane markings that conflict and lane drop

markings that failed to give him, and any motorist using the circle, sufficient notice that

the lane was being dropped. The court erred by finding Rosenberg guilty.

      {¶14} Judgment reversed.

      It is ordered that appellant recover of appellee his 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 Shaker

Heights Municipal 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.




MELODY J. STEWART, ADMINISTRATIVE JUDGE
MARY EILEEN KILBANE, J., and
EILEEN T. GALLAGHER, J., CONCUR
