[Cite as Cleveland v. Cord, 2011-Ohio-4262.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                           JOURNAL ENTRY AND OPINION
                                    No. 96312



                              CITY OF CLEVELAND
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                      DANIEL CORD
                                                     DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CV-700171


        BEFORE: Celebrezze, J., Stewart, P.J., and Sweeney, J.

    RELEASED AND JOURNALIZED:                           August 25, 2011
ATTORNEY FOR APPELLANT
Jeffrey P. Posner
Jeffrey P. Posner, L.L.C.
3393 Norwood Road
Shaker Heights, Ohio 44122


ATTORNEYS FOR APPELLEE

Robert J. Triozzi
Director
Mark R. Musson
Assistant Director of Law
City of Cleveland
Department of Law
601 Lakeside Avenue
Room 106
Cleveland, Ohio 44114-1077



FRANK D. CELEBREZZE, JR., J.:

      {¶ 1} Appellant, Daniel Cord, seeks reversal of the decision of the

common pleas court in the administrative appeal of a civil notice of liability

issued by the city of Cleveland (the “City”) pursuant to its automatic traffic

enforcement ordinance, Cleveland Codified Ordinances (“C.C.O.”) 413.031.

After a thorough review of the record and based on the following law, we

affirm.

      {¶ 2} According to a notice issued pursuant to an automated traffic

camera, on May 13, 2009, appellant was traveling 48 miles per hour in a

35-mile-per-hour zone on Chester Avenue in Cleveland, Ohio.
      {¶ 3} Appellant was issued a notice of liability on June 9, 2009

informing him of the date, time, and location of his vehicle when the

automated camera system recorded him violating the posted speed limit.

The notice, reviewed by a City police officer, informed appellant of a $100 civil

fine and his right to request a hearing, which he did.          A hearing was

conducted on July 9, 2009 before the Cleveland Parking Violations Bureau

(“PVB”).

      {¶ 4} At the hearing, appellant attempted to call the police officer who

issued or reviewed the citation, but he was not present. Appellant objected

to the use of the citation as evidence because it was unsworn,

unauthenticated, and no testimony laid a foundation for its admittance or it

accuracy.   The hearing officer found that the citation and photographs of

appellant’s car were prima facie evidence of liability and that the rules of

evidence did not apply to administrative hearings. The PVB officer found

appellant liable for the citation.

      {¶ 5} Appellant filed for an administrative appeal in the Cuyahoga

County Common Pleas Court pursuant to R.C. 2506.01. On December 20,

2010, after extensive briefing by the parties, the court overruled appellant’s

objections and affirmed the determination of the PVB hearing officer. The

court found that much of appellant’s arguments constituted a facial challenge
to the City’s automatic traffic enforcement ordinance and were not properly

justiciable in an administrative appeal.

       {¶ 6} The     court    also   determined      that    appellant’s     due    process

arguments stemming from his inability to subpoena witnesses during the

hearing were cured by his ability to augment the record on appeal through

R.C. 2506.03, but that appellant had not taken advantage of this provision

and did not try to properly supplement the record on appeal.1

       {¶ 7} Appellant then filed the instant appeal raising four assignments

of error.




         Appellant did attach various newspaper articles to his briefs, which the trial court
       1


determined were improperly included.
                                         Law and Analysis

                          “As-applied” Constitutional Challenge

       {¶ 8} Appellant first argues that the reviewing court below failed to

address his arguments, which were basically a recitation of the arguments

embodied in his second and third assignments of error.2

       {¶ 9} Appeals from administrative proceedings are governed by R.C.

2506.01, et seq. Under these provisions, a party may appeal the decision of an

administrative tribunal to the common pleas court in that jurisdiction. R.C.

2506.01.      The common pleas court then “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.” Cleveland v. Posner, 188 Ohio

App.3d 421, 2010-Ohio-3091, 935 N.E.2d 882, ¶10 (“Posner I”). This court

then reviews that determination for an abuse of discretion.

       {¶ 10} Appellant first attacks the validity of evidence used.                   This court

has previously addressed this argument and held:



         Assignments of error: I. “The court below erred in failing to address appellant’s
       2


arguments”; II. “The procedure utilized below allowed conviction upon insufficient and improperly
allowed evidence”; and 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.”
      {¶ 11} “The Ohio Supreme Court has held that administrative agencies

are not bound by the rules of evidence applied in court.       Simon v. Lake

Geauga Printing Co. (1982), 69 Ohio St.2d 41, 44, 430 N.E.2d 468. Evidence

that is admissible in administrative hearings is defined as follows:          ‘(1)

“Reliable” evidence is dependable; that is, it can be confidently trusted. In

order to be reliable, there must be a reasonable probability that the evidence

is true. (2) “Probative” evidence is evidence that tends to prove the issue in

question; it must be relevant in determining the issue.       (3) “Substantial”

evidence is evidence with some weight; it must have importance and value.’

Our Place, Inc. v. Ohio Liquor Control Comm. (1992), 63 Ohio St.3d 570, 571,

589 N.E.2d 1303.     Furthermore, hearsay is admissible in administrative

proceedings. Simon, 69 Ohio St.2d at 44, 430 N.E.2d 468.

      {¶ 12} “The evidence used against defendant at the administrative

hearing was the notice of liability for speeding, the [Automatic Traffic

Enforcement Camera (“ATEC”)] photographs, and the logbook showing the

ATEC’s   calibration.     Given   the   relaxed   standards   of   evidence    in

administrative hearings, this evidence is certainly probative and substantial

as to whether defendant was speeding. Cf. HCMC, Inc. v. Ohio Dept. of Job

& Family Servs., 179 Ohio App.3d 707, 2008-Ohio-6223, 903 N.E.2d 660, ¶48

(a state agency audit is admissible and prima facie evidence of what it asserts

in an administrative hearing).”    Cleveland v. Posner, Cuyahoga App. No.
95301, 2011-Ohio-1370, ¶27-28 (“Posner II”). This is probative evidence that

appellant was speeding.

        {¶ 13} Appellant further mounts certain constitutional challenges that

are not justiciable by this court or the court below.                         It is clear from the

holding in Posner I that only constitutional claims as they apply to appellant’s

specific case can properly be decided during administrative review. Id. at

¶17. Facial constitutional challenges cannot. It is also clear that so long as

appellant is presented with an opportunity to call witnesses, it does not

matter when this opportunity occurs in order to preserve appellant’s due

process rights. Posner II at ¶30-40.

        {¶ 14} Appellants in an administrative review may supplement the

record created in the administrative hearing in narrow circumstances. R.C.

2506.03(A).3 This statute provides, in part, that if appellant was “unable to

present evidence by reason of a lack of the power of subpoena by the officer or

body appealed from[,]” then “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



           This statute states: “The hearing of an appeal taken in relation to a final order, adjudication,
        3


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[.]”
previously gave testimony in opposition to that party.” R.C. 2506.03(A)(4)

and 2506.03(B).

      {¶ 15} The notice of liability was reviewed or issued by a City police

officer with badge number 901. This officer was attesting to its accuracy by

issuing the notice. The hearing officer also stated that the notice was “sworn

by the officer who signs the violation when it’s sent to him.” This equates to

testimony against appellant by this officer. However, this officer was not

available for cross-examination.     Appellant attempted to call this officer

while discussing whether or not the notice was sworn. Appellant’s attorney

stated, “[t]hen we call the police officer who is the reviewing police officer for

this.” The hearing officer did not acknowledge appellant’s request, continue

the hearing, or allow appellant to issue a subpoena to compel this officer to

testify. Appellant also testified during the proceeding that he was not given

the ability or opportunity to subpoena witnesses.

      {¶ 16} In Posner II, this court remanded to give the appellant the

opportunity to subpoena and call witnesses in order to supplement the record

on review.    What distinguishes that case from the present one is that

appellant did not attempt to subpoena witnesses to testify during the

administrative review. Appellant did file a motion for a case management

conference and additional time to conduct discovery, but this motion did not

mention R.C. 2506.03 or demonstrate a right to conduct full discovery under
R.C. 2506.03.     The trial court denied appellant’s request noting, “R.C.

2506.03 establishes the procedure for admitting additional evidence into the

record and the court will hold a hearing upon such if necessary.” The trial

court was directing appellant to introduce additional evidence and witnesses

based on R.C. 2506.03, but appellant did not take that direction. Appellant

did nothing further to attempt to supplement the record other than attaching

various items to his brief.

      {¶ 17} In   Posner      v.   Cleveland,   Cuyahoga   App.   No.   95997,

2011-Ohio-3071, ¶15, fn. 1 (“Posner III”), we rejected the same due process

arguments because “Posner never established a record on whether he was

prohibited from calling witnesses at the PVB hearing, and there is no

transcript available for our review.” This court went on to hold that Posner’s

ability to call witnesses pursuant to R.C. 2506.03 preserved his due process

rights.

      {¶ 18} While the City argues that due process does not require that

parties be afforded the right to call or cross-examine witnesses against them

in administrative hearings where they are only subject to minimal fines, R.C.

2506.03 bestows a right to do just that during administrative review.

Therefore, the federal cases cited by the City do not properly address the

issues before this court.      The City also argues that PVB hearing officers

“readily grant violators continuances to allow for preparation to contest a
Notice of Liability[,]” and that a public records request is an adequate avenue

to obtain much of the information appellant seeks.            However, a records

request would not allow appellant to cross-examine the officer who reviewed

the notice. Further, the hearing officer did not continue the hearing to give

appellant the opportunity to call this officer or to file a public records request,

as the city intimates.

      {¶ 19} Appellant’s due process rights were not frustrated because R.C.

2506.03 left an avenue open for him to call witnesses and present additional

evidence that he was prevented from utilizing during the PVB hearing.

Appellant never attempted to issue subpoenas during the administrative

review   hearing.        As   applied   to   appellant,   C.C.O.   413.031   is   not

unconstitutional. As explained above, appellant’s arguments challenging the

ordinance on its face will not be addressed.

                                Jurisdiction of the PVB

      {¶ 20} In his fourth assignment of error, appellant argues that “the trial

court erred in failing to reverse the decision of the parking violations bureau

for lack of jurisdiction.”     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. Posner III at ¶17, citing Posner II at ¶16. Therefore, appellant’s

final assignment of error is overruled.

      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.



FRANK D. CELEBREZZE, JR., JUDGE

MELODY J. STEWART, P.J., and
JAMES J. SWEENEY, J., CONCUR
