[Cite as Parma v. Demsey, 2011-Ohio-6624.]



               Court of Appeals of Ohio
                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 96351


                                    CITY OF PARMA

                                                   PLAINTIFF-APPELLEE

                                             vs.

                                KENNETH DEMSEY
                                                   DEFENDANT-APPELLANT



                                         JUDGMENT:
                                          AFFIRMED


                                    Civil Appeal from the
                              Cuyahoga County Common Pleas Court
                                    Case No. CV-723874

        BEFORE: E. Gallagher, J., Boyle, P.J., S. Gallagher, J.

        RELEASED AND JOURNALIZED:                  December 22, 2011


ATTORNEY FOR APPELLANT
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Robert Troll Lynch
Lynch Legal Services
26300 Seville Drive
Suite 104
Beachwood, Ohio 44122

ATTORNEYS FOR APPELLEE

Timothy G. Dobeck
Law Director/Chief Prosecutor
Milos Veljkovic
Assistant Law Director
Michelle L. Conrad
Staff Attorney
City of Parma
6611 Ridge Road
Parma, Ohio 44129




EILEEN A. GALLAGHER, J.:

         {¶ 1} Kenneth Demsey appeals from the decision of the Cuyahoga County Court

of Common Pleas, affirming his administrative appeal of the decision of the Parma, Ohio

Photo Enforcement Program hearing officer. Demsey argues that the trial court erred

when it failed to properly recognize and apply the Home Rule Amendment to the issue of

traffic camera citations. For the following reasons, we affirm the decision of the trial

court.

         {¶ 2} In 2009, Parma City Council enacted Parma Codified Ordinances 313.035,

which created an automated school zone enforcement program. The program enacted
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civil penalties for violations of the maximum school zone speed limit and also contained

an administrative appeal process for those who wished to contest their notice of

violation.

       {¶ 3} On January 29, 2010, Officer Kevin Stasiak of the Parma Police

Department operated the mobile automated enforcement camera unit in the area around

Holy Family Grade School, 7367 York Road. At 2:47 p.m., the automated enforcement

system recorded Demsey traveling 35 m.p.h. in a 20 m.p.h. school zone through both

video and still photographs.

       {¶ 4} In accordance with Parma Codified Ordinances 313.035, Officer Stasiak

reviewed Demsey’s violation, which included the photographic and video evidence, and

issued Demsey a notice of liability for speeding in a school zone. In addition to the

violation notice, Demsey was provided with a payment coupon, an affidavit form for

Demsey’s use if he wished to aver that he was not driving the vehicle at the time of the

violation, and a hearing request form. These three options are mailed to each person

that violates the speed limit. P.C.O. 313.035.

       {¶ 5} On February 24, 2010, Demsey requested a hearing and on March 11,

2010, a hearing officer for the Parma Photo Enforcement Program conducted the

hearing.     Prior to the commencement of the hearing, the hearing officer read the

following general statement to all individuals scheduled to appear:

       “You are here because you have requested a hearing to review the facts
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       surrounding the Notice of Liability you received under Parma’s Photo
       Enforcement Program. The Notice was sent because a vehicle driven by you or
       registered under your name was found to be traveling at a speed in excess of the
       20 mph speed limit for a school zone.

       {¶ 6} “This is a civil matter and not criminal. If you are found liable, you will

forfeit the bond that you have deposited with the Program. However, this finding will

not be sent to the State of Ohio, Bureau of Motor Vehicles, and will not result in points

being added to your driving record. In addition, your insurance company will not be

notified of this violation or finding of liability.”

       {¶ 7} The hearing officer afforded Demsey the opportunity to speak on his own

behalf. Demsey stated that he was a “real” radar technician and asked the city of Parma

for proof of permission, granted by Jesus Christ to the City to set up the photo

enforcement vehicle on Church property.                Demsey argued that “without god’s

permission, the City had no right to be there and the ticket is void.”

       {¶ 8} Next, the hearing officer reviewed the video footage of Demsey’s vehicle

and the documents supplied by the city of Parma, which included the following: a copy

of the original violation notice, original written hearing request, copy of the notice to

appear, the Court Scattergram, as well as the deployment form filled out by Officer

Stasiak. Additionally, the hearing officer afforded Demsey the opportunity to review a

copy of the Statement of Technology that explained the reliability and operating nature

of the Redflex Technology Equipment.
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       {¶ 9} At the conclusion of the hearing, the hearing officer found Demsey liable

for the speeding violation. The hearing officer notified Demsey of his decision both

orally and in writing.

       {¶ 10} Demsey appealed this administrative decision to the Cuyahoga County

Court of Common Pleas on April 12, 2010. The trial court established a briefing

schedule and on January 4, 2011, the trial court affirmed the hearing officer’s opinion,

concluding:

       “The Court having reviewed the entire record and the briefs of the
       Appellant-Defendant and the Appellee-Plaintiff, the court affirms the order of the
       hearing officer of the Parma, Ohio Photo Enforcement Program. This Court
       finds said decision and order to be constitutional, supported by a preponderance
       of substantial, reliable and probative evidence, and further, that it is not illegal,
       arbitrary, capricious, or unreasonable.”

       {¶ 11} Demsey appeals, raising a sole assignment of error:

       “The trial court below erred to the prejudice of the Petitioner/Appellant in that the
       trial court failed to properly recognize and apply the ‘home-rule’ concept to the
       issue of traffic cameras.”

       {¶ 12} We find no merit to this assigned error.

       {¶ 13} Construing the language of R.C. 2506.04, Ohio courts have distinguished

the standard of review to be applied by common pleas courts and courts of appeals in

R.C. Chapter 2506 administrative appeals.        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,
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capricious, unreasonable, or unsupported by the preponderance of substantial, reliable,

and probative evidence. See Smith v. Granville Twp. Bd. of Trustees (1998), 81 Ohio

St.3d 608, 612, 693 N.E.2d 219, citing Dudukovich v. Lorain Metro. Hous. Auth. (1979),

58 Ohio St.2d 202, 206-207, 389 N.E.2d 1113.

       {¶ 14} 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 (1984), 12 Ohio St.3d 30,

34, 465 N.E.2d 848. “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. (1988), 40 Ohio St.3d 257, 261, 533 N.E.2d 264.

       {¶ 15} Although Demsey raised numerous arguments during his administrative

appeal to the trial court, his appeal to this Court focuses solely on the trial court’s failure
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to apply the Home Rule Amendment to the issue of traffic cameras. 1 As such, our

analysis of Demsey’s appeal will be so limited.             Further, while Demsey did not

specifically raise the amendment in his brief before the trial court, he referenced the

concept tangentially, enough that this court will not deem the issue waived. Having

considered the entire record on appeal, we must determine whether the trial court abused

its discretion in determining that the Home Rule Amendment did not bar Parma’s

codified Ordinances authorizing the use of traffic cameras.

           {¶ 16} Section 3, Article XVIII of the Ohio Constitution provides that

municipalities are authorized “to exercise all powers of local self-government and to

adopt and enforce within their limits such local police, sanitary and other similar

regulations, as are not in conflict with general laws.” Ohio courts apply a three-part test

to evaluate claims that a municipality has exceeded its powers under the Home Rule

Amendment. “A state statute takes precedence over a local Ordinances when (1) the

Ordinances is in conflict with the statute, (2) the Ordinances is an exercise of the police

power, rather than of local self-government, and (3) the statute is a general law.”

Canton v. State, 95 Ohio St.3d 149, 2002-Ohio-2005, 766 N.E.2d 963, ¶9.

           {¶ 17} In Mendenhall v. Akron, 117 Ohio St.3d 33, 2008-Ohio-270, 881 N.E.2d


       1
        In his reply brief, Demsey argues issues of alleged due process violations in addition to
his arguments surrounding home rule. The arguments relating to due process are outside
Demsey’s assigned error raised before this court and as such, are not properly presented to this
Court in a reply brief. App.R. 16(C). Accordingly, this Court shall disregard the arguments.
                                          8

255, the Ohio Supreme Court applied this three-part test to a City of Akron Ordinances

providing for an automated mobile speed enforcement system used to identify

speed-limit violators in school zones. In Mendenhall, the court held that “[a]n Ohio

municipality does not exceed its home-rule authority when it creates an automated

system for enforcement of traffic laws that imposes civil liability upon violators,

provided that the municipality does not alter statewide traffic violations.”       Id. at

syllabus.

       {¶ 18} In upholding Akron’s Ordinances, the court reasoned as follows:

              “Enactment of Akron’s Ordinances is not an exercise of self-government
       but of concurrent police power. The statute governing speed limits is a general
       law because it is a comprehensive statewide enactment, setting forth police
       regulations that apply uniformly to all citizens throughout Ohio. Akron
       Ordinances 461-2005, which provides for implementation of an automated mobile
       speed-enforcement system, does not conflict with state law because it does not
       alter or supersede state law. The Ordinances provides for a complementary
       system of civil enforcement that, rather than decriminalizing behavior, allows for
       the administrative citation of vehicle owners under specific circumstances.
       Akron has acted within its home rule authority granted by the Constitution of
       Ohio.”

Id.

       {¶ 19} The city of Parma’s Ordinances is substantially similar to the Akron

Ordinances upheld by the Ohio Supreme Court in Mendenhall. Like Akron Ordinances

461-2005, Parma Codified Ordinances 313.035 creates a system that Parma maintains is

purely civil in nature. The system provides for the automated traffic enforcement of

existing traffic laws and does not modify any speed limits set by the state.         The
                                            9

Ordinances authorizes the imposition of civil monetary fines when the posted speed limit

in the targeted enforcement areas has been violated. If a vehicle exceeds the posted

speed limits, the owner of the vehicle receives a “notice of liability,” which includes

photographs of the vehicle, the vehicle’s license plate, the date, time, and location of the

violation, the posted speed limit, the vehicle’s speed at the time of the violation, and the

amount owed as a civil penalty.         The criminal justice system is not involved in

penalizing violations of the speed limit captured by an automated camera. Unlike those

who receive speeding citations from a police officer who has observed the infraction,

speeders caught by the automated enforcement system do not receive criminal citations,

are not required to appear in traffic court, and do not have points assessed against their

driving records.

       {¶ 20} Because we see no substantial difference between the Akron Ordinances

upheld by the Ohio Supreme Court and Parma Codified Ordinances 315.035, we find the

reasoning enunciated by the Supreme Court in Mendenhall equally applicable to the

present case. Accordingly, in conjunction with Mendenhall, we find that Parma did not

exceed its home-rule authority in creating Ordinances 315.035. Thus, we find no error

with the trial court’s finding that the hearing officers decision was constitutional.

       {¶ 21} Demsey’s sole assignment of error is overruled.

       {¶ 22} The judgment of the trial court is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.
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          The court finds there were reasonable grounds for this appeal.

          It is ordered that a special mandate be sent to said lower 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.




          EILEEN A. GALLAGHER, JUDGE

          MARY J. BOYLE, P.J., CONCURS;
          SEAN C. GALLAGHER, J., CONCURS WITH
          SEPARATE OPINION

          SEAN C. GALLAGHER, J., CONCURRING:

          {¶ 23} I concur fully with the judgment and analysis of the majority. I write

separately to address concerns about due process and the admission of “technical”

evidence with no record that it has ever been vetted for reliability.

          {¶ 24} “There is no such thing as a perfect person, a perfect machine, or a perfect

computer operating system.”2

          {¶ 25} The use of automated technology in society is increasing.     Surprisingly,

the admission of evidence derived from these new technologies is often unchallenged in

Ohio courts.      Often, as here, there is a presumption that everything works and is


      2
            State v. Warren and Hayes (June 29, 2011), Athens M.C. Nos. 2011TRC01734 and
                                              11

reliable.

          {¶ 26} In this case, Demsey was given a copy of a document titled “Statement of

Technology” that purports to explain the reliability and operating nature of the Redflex

Technology equipment that measured his speed.

          {¶ 27} Under Parma Codified Ordinancess 313.035(D)(4), the hearing officer may

consider, as an affirmative defense, that the automated traffic enforcement camera

system “was not operating properly.”              Despite this phrase, no standards for

admissibility or reliability are outlined in the Ordinances.     There is nothing referencing

source codes for operation, margins of error, calibration (if applicable), radio

interference (if applicable), weather, or other potential considerations that may affect the

result.     If the equipment is turned on and gives a result that the operator can explain, the

motorist is liable.

          {¶ 28} Analogous to municipal governments embracing automated traffic

enforcement technology is Ohio’s reliance on technology to enforce drunk driving under

Ohio’s O.V.I. laws. R.C. 4511.19(D)(1)(b) creates a mandatory duty to follow Ohio

Department of Health regulations for admission of test results involving bodily fluids for

alcohol levels as outlined under the Ohio Administrative Code.                 Unlike O.V.I.

enforcement, automated speed technology is not subjected to any independent review



2011TRC02434 (Grimm, J.)
                                             12

prior to implementation. Apparently, in this case no independent judicial review of the

information contained in the “Statement of Technology” covering the reliability of this

technology or the equipment occurred.        Further, no administrative agency of the local

government “vetted” this technology or the equipment to ascertain its reliability.     The

city of Parma entered into a contract with a private vendor, and inherent in this contract

is the presumption that the science, the equipment, and the operator are apparently

infallible.

           {¶ 29} I am not suggesting that a Daubert hearing is required in every automated

traffic enforcement case. Daubert v. Merrill Dow Pharmaceuticals (1993), 509 U.S.

579, 113 S.Ct. 2786, 125 L.Ed.2d 469; Miller v. Bike Athletic Co. (1998), 80 Ohio St.3d

607, 687 N.E.2d 735.       Nor am I ignoring the fact that a vendor may be able to produce

test results from the manufacturer that trumpet the accuracy and reliability of the device

in question. Despite this, at some point courts cannot abdicate their responsibility to

independently determine what evidence is admissible based on some objective standards

of reliability.

           {¶ 30} Further, Ohio Evidence Rules 104 and 402 address general admissibility

and relevance questions about evidence.       Specifically, Evid.R. 702 provides even more

specific guidance.3 At section (C), the rule states:

       3
        State v. Warren and Hayes (June 29, 2011), Athens M.C. Nos. 2011TRC01734 and
2011TRC02434 (Grimm, J.)
                                           13

                “To the extent that the testimony reports the result of a procedure,
        test, or experiment, the testimony is reliable only if all of the following
        apply:

              “(1) The theory upon which the procedure, test, or experiment is
        based is objectively verifiable or is validly derived from widely accepted
        knowledge, facts, or principles;

              “(2) The design of the procedure, test, or experiment reliably
        implements the theory;

               “(3) The particular procedure, test, or experiment was conducted in
        a way that will yield an accurate result.”

        {¶ 31} No such judicial or administrative requirements are set for automated

camera enforcement as used in this case.

        {¶ 32} The Ohio Supreme Court, in a 4-3 decision, in 1984, held that an accused

did not have a constitutional right to offer expert testimony to challenge the reliability of

intoxilyzers in general.   State v. Vega (1984), 12 Ohio St.3d 185, 463 N.E.2d 1303.

Nevertheless, a defendant could still challenge the accuracy of his specific test results.

See Vega.    In either instance, the admission or denial of such evidence is predicated on

the requirement that standards are adopted and followed that support reliance on the

results received from the testing process. No such standards exist in this case.

        {¶ 33} In any event, I concur fully with the majority opinion and discuss

admissibility and reliability concerns so that they may be more fully explored at a later

date.
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