counselfor nestor c iu^...throughout ohio. (akron's ordinance section 79.01, cleveland's...

IN THE SUPRF,ME COURT OF OHIO

KELLY MENDENHALL, et al.

-vs

Petitioners

NESTOR TRAFFIC SYSTEMS, INC.,

et al.

Defendants

Case No. 06-2265

On Question Certified by the U.S.

District Court for the Northern

District of Ohio, Case No.

5:06 Cv 0139 and 5:06 CV 0154

MERIT BRIEF OF PETITIONERS, SIPE, ET AL. & POTENTIAL CLASS

Tony Dalayanis, #0068595

Attorney at Law

12 E. Exchange Street, 5"' Floor

Akron, OH 44308Petitioners' Counsel (Sipe, et al)

and

Jacquenette S. Corgan, #0072778

Warner Mendengall, #0070165

190 N. Union St., Suite 201

Akron, OH 44304

Petitioner's Counsel (Mendenhall, et al)

Stephen Fallis, #0021568Michael J. Definbaugh, #0072683

The City of Akron Law Department

161 S. High Str., Suite 202, Akron, OH 44308

Counsel for City ofAkron

and

Richard Gurbst, #0017672Heather Tonsing, #0069606

4900 Key Tower

127 Public Square

Cleveland, OH 44114

Counselfor Nestor c iu^ ---MAR 16,[0^7

MARCIA J iVikIVGEL CLERK ISUPREIRT OF ^p,i(;

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT AND LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

PROPOSITION OF LAW

A MUNICIPALITY DOES NOT HAVE THE POWER UNDERHOME RULE TO ENACT CIVIL PENALTIES FOR THEOFFENSE OF VIOLATING A TRAFFIC SIGNAL LIGHT ORFOR THE OFFENSE OF SPEEDING, BOTH OF WHICH ARECRIMINAL OFFENSES UNDER THE OHIO REVISED CODE.

CONCLUSION ...................................................... 16

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

APPENDIX

1. Federal Certification Order

2. Akron's Ordinance

3. Dayton's Ordinance

4. Columbus's Ordinance

5. Stuebenville's Ordinance

6. Cleveland's Ordinance

7. Attorney General Opinion Michigan - (Mike Cox - 1/30/07)

8. Office of the Majority Leader - U.S. House of Representatives (May 2001)

TABLE OF AUTHORITIESBreaker v. State (1921), 103 Ohio St. 670,134 N.E. 479 . : . . . . . . . . . . . . . . . . . . . 8Burke v. Foueht (1978), 64 Ohio App. 2d 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

California v. Green. 399 U.S. 149 (1970) . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . 12

City of Cleveland v. Keah,157 Ohio St. 331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

City of Niles v. Howard (1984),12 Ohio St. 3d 162 .. . . . . . . . . . . . . . . . . . . . . . . . 8Crawford v. Washington, 541 U.S. 36,124 S.Ct. 1354 (2004) . . . . . . . . . . . . . . . . . 11Coy v. Iowa, 487 U.S. 1012 (1988) . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Gardner v. Columbus (6`" Cir.1988), 841 F.2d 1272 . . . . . . . . . . . . . . . . . . . . . . . 15

Linndale v. State (1999), 85 Ohio St.3d 52, 54, 706 N.E.2d 1227 . . . . . . . . . . . . . . 7

McNary v. State (1934),128 Ohio St. 497,191 N.E. 733 . . . . . . . . . . . . . . . . . . . . 8North Ridgeville v. Munkascsy (1965), 4 Ohio App.2d 389 . . . . . . . . . . . . . . . . . 7

Pointer v. Texas, 380 U.S. 400 (1965) . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11Schneiderman v. Sesanstein (1929), 121 Ohio St. 80 . . . . . . . . . . . . . . . . . . . . . . . 6

Stanton v. Tax Conunissioner (1926),114 Ohio St. 658 .. . . . . . . . . . : . . . . . . . . . . 10State v. Rosa (1998),128 Ohio App.3d 556, 561, 716 N.E.2d 216 . . . . . . . . . . . . . 8Struthers v. Sokol (1923), 108 Ohio St. 263 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Ward v. City of Monroeville (1972), 409 U.S. 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

ORC/Misc.

Akrori s Ordinance Section 79.01 ........................................ 1

Civ.R.53 ............................................................ 10

Cleveland's Codified Ordinance 413.031 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Columbus City Code Chapter 2115 . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Crim. R. 1 (A) ......................................................... 13

Crim.R.1(B) .......................................................... 13

Crim.R.4.1 .:.......................................................... 13

Crim.R.12(A) ......................................................... 14

Crim. R. 5 ............................................................ 14

Crim.R.7(A) ........................................:................ 14

Crim.R.9(A) ......................................................... 14

Crim. R. 9(B) ......................................................... 14

Crim.R.16(A) ........................................................ 14

Crim.R.16(B) ................:....................................:.. 14

Crim.R.17 ........................................................... 14

Crim.R.19 ........................................................... 10

Crim.R.29 ......................................................... 14

Dayton Ordinance Section 70.121 ....................... ................ 1

Ohio Constitution, Article XVIII §§ 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9

Evid. R. 601(C) ......................................................... 13

Evid. R. 602 ........................................................... 13

O.R.C. § 2901.02 .................................. ..................... 8,14

O.R.C. § 2901.03 .................................. ............. ....... 8,14

O.R.C. § 2901.04 ....................................................... 8,14

O.R.C. § 2901.05 .................................. ........... ........ 9,14

O.R.C.§ 4511.06 .............................................. ..... ... 9

O.R.C. § 4510.036(B) ........................................... ..... ... 10

O.R.C. § 4511.21 ...................................................... 6,9

O.R.C. § 4511.21(J) .................................................... 7

O.R.C.§ 4521 ......................................................... 9,15

16 Ohio Jur. 3d, Constitutional Law, §§ 172 . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . 6

O.Jur. 3d Automobiles Sections 73, 84, 122 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Steubenville Ordinance No. 2005-67 ..................................... I

Traf.R.3 ............................................................ 10

Traf. R. 14 .........................................................:.. 10

STATEMENT OF THE FACTS

In essence, the civil ordinances, detect moving violations under the Ohio Traffic

Laws through the use of photographs taken by automated cameras at various locations

throughout Ohio. (Akron's Ordinance Section 79.01, Cleveland's Codified Ordinance

413.031, Columbus City Code Chapter 2115, Steubenville Ordinance No. 2005-67,

Dayton Ordinance Section 70.121, Middletown, Northwood, Springfield, Toledo, as

well as Sylvania Township.)

The violation/liability is assessed to the registered owner of the vehicle, whom

may or may not be the driver at the time of the alleged violation/liability. See

Stipulations and each respective ordinance/code. Evidence of ownership is prima facie

evidence of operation on said date and time. See Stipulations and each respective

ordinance/code. No police officer is present in a marked uniform or marked cruiser.

See Stipulations and each respective ordinance/code. No citation is issued for said

violation at the time of the alleged violation. See Stipulations and each respective

ordinance/code. No criminal infraction is ever filed for said alleged conduct. See

Stipulations and each respective ordinance/code.

A civil citation is issued in the mail with a presumption of liability. See

Stipulations and each respective ordinance/code. The burden of proof is not criminal

in nature as to beyond a reasonable doubt. 'See Stipulations and each respective

ordinance/code. No defenses, marital privilege or the like are provided in response to

admission or denial of ownership setting forth liability. See Stipulations and each

respective ordinance/code. No police officer in a uniform at the time of the offense or a

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marked cruiser ever testifies as to any violation or authentication. See Stipulations and

each respective ordinance/code.

No points are ever assessed for the moving violation. See Stipulations and each

respective ordinance/code. The civil penalty varies per municipality. (City of Akron's

program went from in excess of $150/ citation to under $35/citation to $100/citation,

said amount being discretionary for modification by the municipality). See Stipulations

and each respective ordinance/code. Furthermore, each program has a compensation

arrangement with a private corporation, which may or may not be located in Ohio. See

Stipulations and each respective ordinance/code. No funds are forwarded to victims of

crime or any such organization or entity.

(City of Akron and Nestor Traffic Systems, Inc. (a Rhode Island Corporation)

entered into contract on October 6, 2005, with citations being issued thereafter on a fee

share basis ($19/citation). Nestor not having registered to do business in Ohio, until

after initiation of the action below and issuance of thousands of citations while

administering automated traffic citations throughout the City of Akron. No criminal

action has ever been initiated against a violator from Akron nor was there any legal

action initiated via counterclaim or civil complaint on a single allegation of over 11,000

+ citations as of the writing of this Brief. Furthermore, of the documented 17,163

events, 11,740 citations have been issued (error rate of approx. 32%). Neither the City of

Akron nor Nestor authenticate the accuracy of the machines and further go on to

present that they are sold as-is with no warranties)

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(City of Cleveland has initiated collection proceedings, thereby affecting parties by

placing the civil judgment on the parties credit report, a stay has been issued pending

this Court's findings dismissal for failure to exhaust administrative remedies denied in

Michael McNamara v. City of Cleveland, et al. CV 06 582364.)

(City of Toledo has contracted with Redlfex Traffic Systems based out of

Scottsdale, AZ).

STATEMENT OF THE CASE

Pursuant to S. Ct. Rule XVIII, the Supreme Court of Ohio may answer a question

a law certified to it by a court of the U.S. when "there is a question of Ohio law that may

be determinative of the proceeding and for which there is no controlling precedent in

the decision of this Supreme Court."

This Court, pursuant to entry dated February 7, 2007, accepted for review the

following, "Whether a municipality has the power under home rule to enact civil

penalties for the offense of violating a traffic signal light or for the offense of speeding,

both of which are criminal offenses under the Ohio Revised Code." (Emphasis added.)

Petitioners, Janice Sipe, Wayne H. Burger, Joanne L. Lattur, and the other parties

similarly situated and/or potential class timely file their brief herein in response to said

request presenting that a municipality does not have the power under home rule to act

as set forth in the certified question.

ARGUMENT AND LAW

A MUNICIPALITY DOES NOT HAVE THE POWER UNDER HOME RULE TO ENACTCIVIL PENALTIES FOR THE OFFENSE OF VIOLATING A TRAFFIC SIGNAL LIGHTOR FOR THE OFFENSE OF SPEEDING, BOTH OF WHICH ARE CRIMINALOFFENSES UNDER THE OHIO REVISED CODE.

Pursuant to S. Ct. Rule XVIII, the Supreme Court of.Ohio may answer a question

a law certified to it by a court of the U.S. when "there is a question of Ohio law that may

be determinative of the proceeding and for which there is no controlling precedent in

the decision of this Supreme Court."

This Court, pursuant to entry dated February 7, 2007, accepted for review the

following, "Whether a municipality has the power under home rule to enact civil

penalties for the offense of violating a traffic signal light or for the offense of speeding,

both of which are criminal offenses under the Ohio Revised Code." (Emphasis added.)

Petitioners, Janice Sipe, Wayne H. Burger, Joanne L. Lattur, and the other parties

similarly situated and/or potential class timely file their brief herein in response to said

request presenting that a municipality does not have the power under home rule to act

as set forth in the certified question.

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I. Violate Article XVIII §§ 3 of the Ohio Constitution.

Article XVIII §§ 3 of the Ohio Constitution provides that: "Municipalities shall

have authority 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." [Emphasis added.]

Ohio's laws regulating vehicle speeds and traffic signal lights (formerly GC §§

12603, now O.R.C. §§ 4511.21) are general laws, and any municipal ordinance that

conflicts with them is unconstitutional. Schneiderman v. Sesanstein (1929),121 Ohio St.

80.

An unconstitutional law is void from the date of enactment - not merely from the

time it is judicially declared unconstitutional. It is a nullity, as inoperative as if,it had

never been enacted. 16 Ohio Jur. 3d, Constitutional Law, §§ 172.

A) Conflict Exists When a Municipal Ordinance Prohibits That Which StateLaw Permits

One test to determine whether an ordinance conflicts with a general law is if the

ordinance prohibits something that state law allows, or vice versa. Struthers v. Sokol

(1923),108 Ohio St. 263.

Driving faster than the speed limits set forth in O.R.C. §§ 4511.21(B) is only

prima-facie unlawful, and if driving above that speed is not unreasonable "having due

regard to the traffic, surface, and width of the street or highway and other conditions"

existing at the time, then it is not a speeding violation under the basic rule set forth in

subdivision (A) of the statute. A speed greater than that specified does not establish the

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commission of an offense or constitute unlawful conduct per se, but establishes only a

prima facie case under Ohio Law. Such a provision as to speed is merely a rule of

evidence raising asebuttable presumption which may be overcome by evidence

showing that in the circumstances the speed was neither excessive nor unreasonable.

See Citv of Cleveland v. Keah.157 Ohio St. 331, North Ridgeville v. Munkascsy (1965), 4

Ohio App.2d 389.

But under Automated Enforcement ordinances if the camera records a vehicle

exceeding the posted speed limit or traffic violation, then the vehicle owner is strictly

liable, regardless of the reasonableness of the speed iinder the conditions existing at the

time or proof as set forth under Ohio Rules of Criminal Procedure and Traffic Rules.

This is clearly unconstitutional, for the ordinances prohibit something that is not

necessarily prohibited under state law. It also violates the express language of O.R.C.

§§ 4511.21(J), which provides that "local authorities shall not modify or alter the basic

rule set forth in division (A) of this section."

"A municipality may regulate in an area such as traffic whenever its regulation is

not in conflict with the general laws of the state." Linndale v. State (1999), 85 Ohio

St.3d 52, 54, 706 N.E.2d 1227.

B) Conflict Exists When a Municival Ordinance Changes the Class of anOffense

This High Court has previously held that where an ordinance only changes the

penalty for an offense, it is not in conflict with a state law that imposes a different

penalty for the same conduct, but if an ordinance changes the degree of an offense from

a misdemeanor to a felony, it violates Ohio's constitution. City of Niles v. Howard

(1984),12 Ohio St. 3d 162. When a municipal ordinance changes conduct that is a civil

offense under state law to a criminal offense under city law, it is likewise

unconstitutional.

The municipalities, by changing the classification of a speeding violation from a

criminal offense under state law to a civil violation under local law, have violated

Ohio's constitution, and also made the municipalities' burden for profit substantially

less.

When a matter is taken in light most favorable to the accused, an Ohio traffic

violation is criminal in nature. See R.C. 2901.03, McNary v. State (1934),128 Ohio St.

497,191 N.E. 733; Breaker v. State (1921),103 Ohio St. 670,134 N.E. 479 (A violation of a

municipal ordinance which regulates the operation of a motor vehicle is in fact a

criminal violation.) State v. Rosa (1998),128 Ohio App.3d 556, 561, 716 N.E.2d 216 (an

ordinance that "changed the classification of the offense of committing deceptive acts

from civil to criminal violation held unconstitutional). See also O.Jur. 3d Automobiles

Sections 73, 84,122.

It is also undisputed that any offense not specifically classified in the Ohio

Revised Code is a minor misdemeanor as set forth in O.R.C. 2901.02 effective 1/1/2004

and thereby abrogating all common law offenses per O.R.C. 2901.03 and construing same

liberally in favor of Petitioners and the potential Class pursixant to O.R.C. 2901.04 and

incorporating therein all laws per O.R.C. 2901.04(D) and/or the burden of proof not

-8-

being incumbent upon Petitioners and the potential Class and/or the burden being that

of proof against Petitioners and the potential Class of beyond a reasonable doubt as

contained in O.R.C. 2901.05.

C) Violates Ohio's Uniform Traffic Laws.

Article XVIII "§§ 3 of the Ohio Constitution and O.R.C. §§ 4511.06 expressly

prohibits local governments from enacting any law in conflict with the uniform traffic

laws contained in §§§§ 4511.01 to 4511.78, with certain limited exceptions: (1) it allows

those local laws listed in §§ 4511.07 (none of which gives the authority to enact

automated traffic enforcement ordinances), and (2) it authorizes local governments to

enact laws making parking violations civil rather than criminal offenses in accordance

with O.R.C. Chapter 4521.

There is no enabling statute allowing Ohio cities to change speeding and red

light violations from criminal to civil offenses.

If, as municipalities contend, they do not need an enabling statute to change

speeding and red light violations from criminal to civil offenses, why did the legislature

have to pass the enabling statutes contained in Chapter 4521 to allow cities to make

parking violations civil offenses? The answer should be obvious - cities cannot pass

laws that change traffic offenses from criminal to civil unless there is enabling

legislation by the state allowing them to do so.

IL The Ordinance Violates Procedural Due Process GuaranteedUnder the Ohio and U.S. Constitutions.

The only "hearing" provided by the Automated Traffic Enforcement ordinances

are conducted by a person selected by the very agency that issued the citation. Akron's

Ordinance is per someone hand selected by the Mayor. Cleveland's ordinance allows

for appeal to the Parking Violations Bureau, via administrative process, not criminal.

Cleveland's ordinance further does not require that the person overseeing the appeals

arising from the notices of liability need not be a judge or magistrate, thereby further

failing against Traf. R. 14, Civ. R. 53, Crim. R. 19.

Furthermore, the notices are inadequate to comply with Traf. R. 3.

Also, any civil finding for traffic offense (other than parking) which expressly

prohibits assessing points in contrary to law because R.C. 4510.036(B) and (C)(11)

require that a court hearing a traffic offense assess points.

At this hearing, of which only the options listed on the civil citation being

available, was set forth as being final providing only to Defendants the right to collect

and/or initiate proceedings for collection on said alleged judgment, and there is no

right to further review. Fifth amendment rights permitting remaining silent are

discarded. Marital privilege does not apply.

Due process of law is violated when there is no provision for judicial review of a

decision made by an administrative body affecting the rights of persons or property.

Stanton v. Tax Conunissioner (1926),114 Ohio St. 658. A municipal ordinance which

gives the employees of a city regulatory depaitment the right to both investigate and

-10-

adjudicate whether the ordinance was violated, with no further right of review by a

court of law, violates due process. Burke v. Fou¢ht (1978), 64 Ohio App. 2d 50.

The U.S. Supreme Court has recognized that it is not constitutionally permissible

to allow a hearing procedure in which the fact finder has an "incentive to convict."

Ward v. City of Monroeville (1972), 409 U.S. 57. In Ward, the Court held that a

"situation in which an official perforce occupies two practically and seriously

inconsistent positions, one partisan and the other judicial," is a denial of due process. Id.

at 60. (Even though no the mayor did not receive direct financial compensation from

convictions, the Supreme Court found that mayor's executive responsibilities for village

finances may have made him "partisan to maintain the high level of [revenue]

contribution from the mayor's court," and thus it was a violation fo due process.

Even in an administrative proceeding, due process still requires a fair

opportunity to be heard, and a fair hearing includes the right to produce testimony, the

right to cross examine witnesses, and the right to be informed of the evidentiary facts

on which the tribunal bases its decision. The civil ordinances, however, provide none of

these basic safeguards.

The police do not have to produce any evidence other than a photograph, and no

witness is required to authenticate what that photograph purports to show. See

Crawford v. Washington, 541 U.S. 36,124 S.Ct. 1354 (2004). (Confrontation Clause of

the 6' Amendment guarantees an accused the right to be confronted with the witnesses

against him, U.S. Supreme Court overruled Ohio v. Roberts, divorcing Confrontation

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Clause and hearsay rule because of irreconcilable breakdown of the relationship.) U.S.

Const. Amend. VI. The provision is applicable to the states under the 14r'' Amendment.

Pointer v. Texas, 380 U.S. 400 (1965). The Ohio Constitution provides its citizens even

greater protection than that of the Federal Constitution. See Mapp v. Ohio. No

evidence is required to establish that the speed-measuring instrument or traffic device

was properly calibrated, or even that the device is reliable or accurate. No judicial

notice has ever been taken of the devices in a proper Court.

A photograph cannot authenticate itself. One cannot effectively cross-examine a

machine. The right of confrontation is essential to a fair trial in that it promotes

reliability per evidence/testimony which can be challenged at trial. California v. Green,

399 U.S.149 (1970). The Confrontation Clause guarantees the accused the right to

confront those testifying against him in court and further defines the scope of the

admissibility of statements against him made by witnesses out of court. Coy v. Iowa,

487 U.S. 1012 (1988). A party exercises his right of confrontation through cross-

examination which is described as the, "greatest legal engine ever invented for the

discovery of truth." Green, 399 U.S. at 158.

While an administrative tribunal, of which the undersigned does not agree

municipalities have the right to set up and accordingly do not properly exist herein,

must still hear evidence. Fundamental due process requires that a decision be based on

facts, not conjecture. A speed reading obtained from a metal box or a red light

infraction cannot be competent evidence of speed without proof that the metal box can

-12-

accurately measure speed or is otherwise competent and can comply with Ohio Rules of

Evidence. See Evid. R. 601(C) (An officer while on duty to enforce traffic laws must be

in a properly marked vehicle and wearing a legally distinctive uniform as defined by

statute to be competent) and Evid. R. 602 (A witness may not testify to a matter unless

evidence is introduced sufficient to support a finding that he has personal knowledge of

the matter).

In Ohio, the construction and accuracy of a new radar device must be established

by expert testimony at least once, in some evidentiary forum, somewhere, before other

tribunals can take judicial notice of its accuracy. The reliability and accuracy of the

radar device used by the municipalities has never been addressed by expert testimony

in any tribunal.

Furthermore, Ohio Rules of Criminal Procedure, are applicable in Ohio in all

criminal cases pursuant to Crim. R. 1 (A) and are intended to provide for the just

determination of every criminal proceeding pursuant to Crim. R. 1(B), but are not

applied herein, including require that a law enforcement office issue a citation stating

therein the law enforcement officer who issued the citation, sign same, serve a copy of

the completed form, and without delay, swear to and file the original with the Court.

Crim. R. 4.1.

Also, Ohio Rules of Criminal Procedure being applicable require that all

pleadings in criminal proceedings "shall" be the complaint, and the indictment or

information, and the pleas of not guilty, not guilty by reason of insanity, guilty, no

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contest, thereby abolishing the use of an Automated Mobile Speed Enforcement

Citation or Civil Penalty Citations pursuant to Crim. R. 12(A).

Also, the Ohio Rules of Criminal Procedure being applicable grant rights to

Petitioners and the potential Class to demand discovery pursuant to Crim. R. 16 (A) and

require disclosure of evidence by the prosecuting attorney pursuant to Crim. R. 16 (B),

none of those rights being afforded Petitioners.

The Ohio Rules of Criminal Procedure being applicable in Ohio in all criminal

cases also provide for, but areri t limited to, the following: initial appearance pursuant

to Crim. R. 5, indictment pursuant to Crim. R. 7(A), summons and/or warrant

pursuant to Crim. R. 9(A) and 9(B), subpoena pursuant to Crim. R. 17, and motion for

acquittal pursuant to Crim. R. 29. Again, none of the aforesaid procedural safeguards

were offered Petitioners.

Further, any offense not specifically classified in the Ohio Revised Code is a

minor misdemeaxior as set forth in O.R.C. 2901.02 effective 1/1/2004 and thereby

abrogating all common law offenses per O.R.C. 2901.03 and to be construed liberally in

favor of Petitioners and the potential Class pursuant to O.R.C. 2901.04 and

incorporating therein all laws per O.R.C. 2901.04(D) and/or the burden of proof not

being incumbent upon Petitioners and the potential Class and/or the burden being that

of proof against Petitioners and the potential Class of beyond a reasonable doubt as

contained in O.R.C. 2901.05. Again, none of the aforesaid are afforded Petitioners.

The further due process defects in the ordinance are strikingly clear when

-14-

compared to the procedures required for prosecuting civil parking offenses under

O.R.C. Chapter 4521. Heaiings for parking violations must be conducted by an

administrative body established by a court having territorial jurisdiction. O.R.C.

4521.04(A)(1). The hearing officer must be either an attorney or a former law

enforcement officer. O.R.C. 4521.05(A). All testimony must be under oath; the city has

the burden of proving the violation; and the person charged with the violation has the

right to demand the appearance of the law enforcement officer who issued the parking

ticket. O.R.C. 4521.08(A). Finally, the hearing officer's decision can be appealed to the

municipal court. O.R.C. 4521.08(D). All of these procedural safeguards helped to save a

Columbus parking ordinance from a due process challenge in Gardner v. Columbus (641

Cir. 1988), 841 F.2d 1272.

None of these protections exist under the local civil ordinances for speeding and

traffic signal lights.

The Michigan Attorney General, Mike Cox, issued an opinion setting forth that

Michigari s ordinances adopted by a city pursuant to its alleged authority under Home

Rule for issuance of civil infractions for disobeying traffic control signals based on

unmanned traffic monitoring devices conflicts with Michigan Code, and thus was also

invalid. Appendix - Opinion No. 7199,January 30, 2007.

III: CONCLUSION

A municipality does not have the power under home rule to enact civil penalties

for the offense of violating a traffic signal light or for the offense of speeding, both of

which are criminal offenses under the Ohio Revised Code.

Per U.S. House of Representatives Office of Majority Leader, "There's a hidden

tax being levied on motorists today...the game has been rigged. And we're all at risk."

Appendix - Office of House Majority Leader - Pg. 2.

"In short, the only documented benefit to red light cameras is to the pocketbook

of local governments who use the devices to collect millions in revenue." Office of

House Majority Leader - Pg. 3.

"Transportation officials and engineers know that the yellow signal timing is

essential to safety. The data showing this to be the case are found in their studies.

Nonetheless, some have systematically and intentionally ignored the inescapable

engineering fact that longer yellows would solve the so-called crisis...It's hard to fix a

'problem that brings in millions in revenue. In other words, red light cameras areri t

fizing a safety problem, they're creating one. And...state and local government are

undermining the vital constitutional protections our Founders put in place. The right to

face one's accuser in court and the presumption of innocence from the bedrock of our

judicial system. Camera-based law enforcement can only work when these principles

are ignored." Office of House Majority Leader - Pg. 21 (Emphasis added).

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Fax (800) 787-4089Tdalayanisftahoo. comwww.OhioTrialLaw.com

CERTIFICATE OF SERVICE

Iereby certify that a copy of the foregoing was served via regular U.S. mail on1 t' day of March, 2007, upon the following:

Stephen Fallis, #0021568Michael J. Definbaugh, #0072683The City of Akron Law Department161 S. High Str., Suite 202, Akron, OH 44308Counsel for City of Akron

and

Jacquenette S. Corgan, #0072778 Richard Gurbst, #0017672Warner Mendengall, #0070165 Heather Tonsing, #0069,G06190 N. Union St., Suite 201 4900 KAy TowerAkron, OH 44304 127Petitioners' Counsel

APPENDIX

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Case 5:06-cv-00139-DDD Document 59 Filed 11/30/2006 Page 1 of 22

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Kelly Mendenhall,Plaintiff, ) CASE NO. 5:06 CV 0139

(Case 1)V.

The City of Akron, et al.,Defendants.

Janice A. Sipe, et al., ) CASE NO. 5:06 CV 0154Plaintiffs, ) (Case 2)

Nestor Traffic Systems, Inc., et al.,Defendant(s).

ORDER OF CERTIFICATION

Pursuant to Ohio Supreme Court Rule of Practice XVIII, the undersigned District Judge

of the United States District Court for the Northern District of Ohio, Eastern Division, hereby

certifies a question of state law to the Ohio Supreme Court.

No controlling precedent of the Ohio Supreme Court answers this question, which is

potentially dispositive of the two above-captioned cases.

Pursuant to Rule XVIII. & 2(Al, the names of the cases are stated in the caption above.

Pursuant to Rule XVIII. & 2B1, the nature of the cases, the circumstances fromwhich the question of law arises, the question of law to be answered, and anyother information the certifying court considers relevant to the question of law tobe answered are:


(5:06 CV 0139; 5:06 CV 0154)

Nature of the Cases

These two cases are attacks by the plaintiffs on Akron Ordinance 481-2005, codified at

Akron Municipal Code § 79.01, which authorizes implementation of an automated mobile speed

enforcement system (using cameras in mobile units to identify violators) and assesses civil

penalties for speeding violations in school zones.

Both suits are against the City of Akron and Nestor Traffic Systems, Inc. (a Rhode Island

Corporation which has contracted to provide equipment, personnel, and services in connection

with the installation, operation and maintenance of the system) by individuals on behalf of

themselves and purported classes of similarly situated individuals who have all been assessed

civil penalties under this system because vehicles registered in their names have allegedly

exceeded the speed limit in school zones, as detected by the cameras. Plaintiffs assert that the

City Ordinance converts speeding from a criminal to a civil violation akin to a parking ticket,

thereby depriving citizens of the protections afforded in criminal proceedings.

Circumstances From Which the Question of Law Arises

In a Memorandum Opinion filed on May 17, 2006, the undersigned ruled in these two

cases that the City of Akron has the power under Home Rule to adopt legislation calling for civil

penalties for speeding violations detected by the Automated Mobile Speed Enforcement System

because the challenged ordinance "neither permits or licenses that which the laws of the Ohio

General Assembly either forbid or prohibit and vice versa." The undersigned concluded that

2


(5:06 CV 0139; 5:06 CV 0154)

"Akron City Ordinance 461-2005 is a proper exercise of the powers bestowed on the City of

Akron by Article XVIII, Section 3 of the Ohio Constitution."'

The undersigned has now been made aware of a contrary opinion by at least one Ohio

court which has held that a similar municipal ordinance violates the Ohio Constitution. In Daniel

Moadus. Jr., et al. v. City of Girard, et al., Case No. 05-CV-1927, the Court of Common Pleas of

Trumbull County held that Girard Ordinance No. 7404-05, which created a civil enforcement

system for speeding violations within the City utilizing a camera and radar device, violated

Article XVIII, Section 3 of the Ohio Constitution because it "transform[ed] what the State has

defined as criminal conduct into merely a civil wrong." In so ruling, the Court of Common Pleas

expressly rejected the undersigned's prior ruling, which relied on Gardner v. City of Columbus,

841 F.2d 1272 (6th Cir. 1988) (a case involving civil penalties for parking violations), that there

was no Ohio Constitutional violation. The Common Pleas Judge concluded that the statutory

scheme in O.R.C. Chapter 4521, upon which Gardner relied, has never been extended from

parking tickets to speeding. The Court of Common Pleas ordered the City of Girard to "cease

and desist in using cameras for enforcement of speeding laws unless done so under the general

criminal laws of Ohio" and further ordered the City "to not attempt collection of any fines

claimed by said city under the `civil' ordinance drafted by said city."

The undersigned believes that a related original action in mandamus has been filed. See

State of Ohio ex rel. Michael A. Bernard Girard Municipal Court Judge v. James J . Melfi

' This May 17 ruling was interlocutory and, as such, was not a final appealable order.The undersigned has now, by separate order, vacated that ruling believing it may have been inerror. See Case 1, Doc. No. 58; Case 2, Doc. No. 44.

3


(5:06 CV 0139;5:06 CV 0154)

Mayor of Girard. City of Girard City Council. Sam Zirafi, Girard Auditor, and John Moliterno.

Girard Treasurer, Case No. 2006-2157 (filed November 21, 2006).

The undersigned does not have access to the documents filed in the mandamus action;

however, since it is highly probable that the question raised herein for certification may be

addressed in the mandamus action, the undersigned is of the view that it should defer to the

action of the Ohio Supreme Court.

The undersigned also takes note of the fact that there are similar lawsuits in different

cities which have challenged automated traffic enforcement systems and which are in various

stages of their respective proceedings. Seee.e., Michael McNamara v. City of Cleveland, et al.,

No. 06-582364 (Cuyahoga County, filed Jan. 20, 2006); Ann Lewicki v. City of Toledo, et al.,

No. G-4801-CI-200604524 (Lucas County, filed July 13, 2006); April Stern v. City of

Steubenville, et al., No. 05CV524 (Jefferson County, filed Nov. 23, 2005). In the Stem case,

Common Pleas Judge David Henderson invalidated all speeding tickets issued under

Steubenville's ordinance because the defendants had failed to comply with the mandatory notice

requirements in the ordinance. The judge declined to rule on the constitutionality of the

ordinance?

Z It does not appear that this ruling was ever appealed. However, a second lawsuit hasbeen filed by the Steubenville Bakery and Louis Tripodi against the City of Steubenvillechallenging the constitutionality of the ordinance and claiming loss of business. Seehttp://www.wtov9.com/ news/9418939/detail.html.

4


(5:06 CV 0139; 5:06 CV 0154)

Finally, the undersigned notes that a bill has been introduced in the Ohio legislature

which would establish conditions for the use of photo-monitoring devices such as the one at issue.

in these two cases. See Sub. H.B. 56 (2005).

In view of all of the above, the undersigned believes that the question certified below is a

matter peculiarly within the province of the State courts.

Question of Law to be Answered

Question:

Whether a municipality has the power under home rule to enact civil penalties forthe offense of violating a traffic signal light or for the offense of speeding, both ofwhich are criminal offenses under the Ohio Revised Code.

Other Information Relevant to the Question of Law to be Answered

The parties to these two actions have filed two sets of jointly stipulated facts. Since these

fact stipulations shed some light on the issues, they are incorporated herein in their entirety to

assist the Ohio Supreme Court.

The first twenty fact stipulations, set forth below, apply to both cases:

1. After a hit and run accident resulting in the death of a child in a school crosswalk, the Akron City Council passed Ordinance 461-2005 enacting Chapter 79"Automated Mobile Speed Enforcement System" and Section 79.01 entitled"Civil Penalties for Automated Mobile Speed Enforcement System Violations" onSeptember 12, 2005. Said ordinance having been approved and signed by theMayor of the City of Akron on September 19, 2005.

2. The stated purpose of the legislation was that "it is desirable to reduce thedanger from vehicle operators speeding in and around school zones;" and because"frequent incidents of speeding create a substantial risk to the safety of children in

5


(5:06 CV 0139; 5:06 CV 0154)

school zones and crosswalks;" and "an automated mobile speed enforcementsystem will assist the Akron Police Department by alleviating the need forconducting extensive conventional traffic enforcement in and around schoolzones."

3. The City of Akron and Nestor Traffic Systems, Inc. entered into a contract onOctober 6, 2005, wherein Nestor Traffic Systems, Inc. would install and assist themunicipality in the administration and operation of a mobile speed violationdetection system within the City of Akron.

4. The Akron ordinance provides for civil enforcement imposing monetaryliability upon the owner of a vehicle for the vehicle's failure to comply with theposted speed limits in school zones and streets or highways within the City ofAkron including crosswalks used by children going to or leaving school duringrecess and opening and closing hours.

5. The criminal justice system is not involved, the offender is not issued acriminal traffic citation by a police officer, the offender is not summoned to thetraffic court in the Akron Municipal Court, nor are points assessed against thedriver or owner's driving record by the Bureau of Motor Vehicles.

6. The Akron Ordinance, Section 79.01 entitled "Civil Penalties for AutomatedMobile Speed Enforcement System Violations" did not change the speed limitsset by the State of Ohio.

7. If a vehicle's rate of speed exceeds the posted speed limit, the owner of thevehicle is issued a "notice of liability." The notice includes photographs of thevehicle, the vehicle's license plate, the date, time, and location of the violation,the posted speed, the vehicle speed, and the amount of the civil penalty.

8. The violation is assigned a civil violation number and a notice of liability isissued to the owner of the vehicle via regular U.S. Mail. Also included is aremittance form stating the amount of the civil penalty and the address where thecheck or money order is to be mailed. The form also explains that the owner hasthree options: 1) to pay the amount due; 2) to sign an affidavit that the citedvehicle is leased or stolen; or 3) to exercise the right to an administrative appeal.

9. If the owner of the vehicle wishes to have an administrative appeal pursuant toSection 79.01(F) of the Code of Ordinances of the City of Akron, the owner isinstructed to complete and mail the notice of appeal section of the violation formwithin 21 days of the date listed on the civil citation,

6


(5:06 CV 0139; 5:06 CV 0154)

10. The photographs of the vehicle and license plate are reviewed by techniciansof Nestor Traffic Systems, Inc. for purposes of clarity and to make certain theautomobile in the photograph is the same as the automobile registered to thatlicense plate.

11. The photographs of the civil violation are also reviewed by a member of theAkron Police Department for clarity and to make certain that the automobile is thesame as the automobile registered to that license plate.

12. If the vehicle and the license plate do not match, the civil violation isdismissed.

13. The ordinance provides that the Mayor of the City of Akron shall appoint ahearing officer as an independent third party to hear administrative appealsthrough an administrative process established by the City of Akron. OnDecember 7, 2005, the Mayor appointed Pam Williams to hear the administrativeappeals.

14. Pursuant to the ordinance, failure to give notice of appeal or failure to pay thecivil penalty within 21 days constitutes a waiver of the right to contest the citationand is considered an admission of a violation of the ordinance.

15. If the civil penalty is not paid, the City must institute a separate civil action tocollect the debt.

16. he vehicle owner is the person or entity identified by the Ohio Bureau ofMotor Vehicles as the registered owner of the vehicle and is civilly liable for thepenalty imposed for excessive speed. By the terms of the Ordinance, the owner ofa vehicle shall not be responsible for the civil penalty if within 21 days from thedate listed on the notice of liability the owner signs an affidavit stating the nameand address of the person or entity who leased the vehicle in a lease of 6 monthsor more, or if the owner produces a law enforcement incident report from a stateor local law enforcement agency or record bureau stating that the vehicle involvedwas reported stolen before the time of the violation.

17. If the vehicle owner requests an administrative appeal by mailing in therequest for an administrative hearing, they are notified of a hearing date before theadministrative hearing officer.

18. The following explains the administrative hearing process:• the independent hearing officer tape records the entire

proceeding to preserve the record;

7


(5:06 CV 0139; 5:06 CV 0154)

• an Akron Police officer is present to verify theinformation provided;

• the hearing officer explains the appeal process, indicatingthat the hearing is civil not a criminal or traffic trial and explainsthat there will be no traffic record or points on the driver's license,that the hearing officer's responsibility is to determine whether shecan clearly identify the vehicle, license plate and to whom thelicense plate is issued, that she will determine whether apreponderance of the evidence establishes if a violation of Section79.01 of the Codified Ordinances of City of Akron occurred and ifthe owner is liable;

• the computer generated recorded images of the vehicles,license plates of the vehicles, ownership of the vehicles, the dateand speed of the vehicles are admissible in the administrativeappeal process, are available for review by the appealing party, andare considered prima facie proof of the civil violation;

• any witness wishing to testify is sworn in by the hearingofficer.

19. If the independent hearing officer sustains the appeal, the civil citation isdismissed and no civil penalty is assessed.

20. If the independent hearing officer denies the appeal, the civil fine is assessed.

The following agreed stipulations, Nos. 21 through 49, apply only to Case 1:

21. On November 2005, Plaintiff Kelly Mendenhall, resident of the City ofAkron, Ohio, received an automated mobile speed enforcement citation for going39 mph in a 25 mph speed zone on Copley Road in the City of Akron, Ohio nearErie Island Elementary School.

22. Plaintiff Mendenhall exercised her right to request an administrative hearingand appeared before the independent hearing officer with counsel, her husband,Attorney Warner Mendenhall.

23. Plaintiff Mendenhall's administrative appeal was sustained by theindependent hearing officer based upon facts that in early November 2005, and onthe date she received the civil speeding citation, the 25 mph speed sign was eithervandalized or missing for east bound traffic and her civil speeding citation wasdismissed. No civil penalty was assessed and the citation was dismissed.

8


(5:06 CV 0 139; 5:06 CV 0154)

24. On December 13, 2005, Plaintiff Mendenhall filed a complaint and classaction for declaratory judgment, injunctive relieve and for a money judgmentagainst City of Akron and all of its City Council Members in their officialcapacity and Nestor Traffic Systems, Inc. of Providence, Rhode Island.

25. Defendant City of Akron and Nestor Traffic Systems, Inc. removed the caseto the United States District Court for the Northern District of Ohio, EasternDivision.

26. Plaintiff subsequently dismissed the City Council Members.

27. Plaintiff Mendenhall claims the Akron ordinance is invalid. She claims it isin violation of her due process rights guaranteed by the Ohio and United StatesConstitutions; that the Akron ordinance violates Article XVIII Section 3 of theOhio Constitution commonly referred to as the Home Rule Amendment in thatshe alleges Ohio Revised Code Section 4511.07 is a general law of the laws of theState of Ohio and that the Akron ordinance is in conflict therewith; that the Akronordinance violates public policy of the State of Ohio regarding due process byimplication of a conflict with Revised Code Sections 4521.02 through 4532.08;and that the Akron ordinance forces individuals challenging citations to waivetheir rights under the Fifth Amendment to the United States Constitution in orderto defend themselves.

28. The City of Akron is a Charter municipality pursuant to Section 7 of ArticleXVIII of the Ohio Constitution.

29. Nestor contracts nationwide with government entities, referred to as"customers," to provide Automatic Traffic Enforcement Services ("Services").These Services are intended to document speeding vehicles.

30. Nestor sets up its technology in areas designated by the customer and collectsdata, identifying potential cars speeding. Within Nestor, the potential speedingviolation is referred to as an "event."

31. Nestor has its own internal coding and computer terminology which it uses toorganize its data. Though necessary to organize data for a customer, the actualterminology is not necessarily customer driven.

32. Some of Nestor's other customers, however, specifically indicate that Nestorshould not process certain categories of vehicles. For instance, some customersdo not want Nestor to process emergency vehicles, funeral processions, orvehicles photographed where an officer is directing traffic. Nestor's computer

9


(5:06 CV 0139; 5:06 CV 0154)

language refers to these vehicles as "exempt " Thus, when an "exempt" vehicle isdocumented as an event, it is categorized in Nestor's computer system as a"discretionaYy discard" and Nestor does not process the event.

33. On October 6, 2005, Nestor and the City entered into a pilot program, a fixedterm contract for the provision of Services designed to detect mobile speedviolations within the City. The pilot program remained in effect through June 8,2005.

34. Under the pilot program contract, Nestor "processed" events for the City bysubmitting the vehicle license plate information to the Bureau of Motor Vehicles("BMV").

35. Some events, however, cannot be submitted to the BMV because of technicalissues, for instance, the vehicle image is obstructed or blurry, the scene image isinsufficiently illuminated or otherwise unclear, or there are multiple vehicles inone image. These events are "discarded."

36. After receiving the vehicle registration information from the BMV, Nestorverifies that the information is accurate by comparing the registration informationagainst the actual photograph. If the information does not match, for instance, theevent photograph depicts a 2002 Subaru Forester yet the registration informationindicates that the registered vehicle is a 2003 Audi A4, Nestor will make sure thatthe vehicle plate information was correctly typed and will resubmit the request forinformation to the BMV.

37. The vehicle registration information received from the BMV is forwarded tothe Akron Police Department where a police officer reviews the information andissues the citation by directing Nestor to mail the civil violation notice.

38. During the pilot program, Nestor documented 17,163 events. Some of theseevents were "discarded" because there was no violation, i.e. the vehicle was notspeeding, Nestor was testing its system, or Nestor was unable to determinewhether an actual violation occurred. The remaining 15,766 events weresubmitted to the BMV. Of those events, 11,740 citations were issued by the City.

39. There were 4,035 violations that were not issued citations. Nestor's internalsoftware categorized the non-issued citations into the following three categories:

a. The first category, is termed "discretionary" by Nestor'scomputer system. Nestor discarded events under this category ininstances where the vehicle registration information was "not in

10


(5:06 CV 0139; 5:06 CV 0154)

file" with the BMV and the BMV did not return vehicleregistration infonnation to Nestor. This category was also usedwhen Nestor was unable to obtain registration information forout-of-state vehicles. Although some states release vehicleregistration information to Nestor, other states do not. There werea total of 72 "discretionary" discards: 59 were out-of-statevehicles; i l were "not in file," which were either vehicles with agovernment plate, or an ambulance, fire/rescue or police cruiser;and 2 resulted from system testing. The BMV did, however, returninformation on one school bus, and other vehicles registered topublic entities such as the University of Akron, the AkronMetropolitan Housing Authority, and the Akron Zoo. All of thesepublic vehicles were issued citations and paid the civil violations.

b. The second category, termed "uncontrollable" by Nestor'scomputer system, totaled 2,288. Citations were not issued forthese vehicles because of an obstruction in the photograph of thevehicle or license plate.

c. The third category, termed "controllable" by Nestor's computersystem, totaled 1,666. Citations were not issued for these vehiclesbecause of technical problems with the Nestor software, forinstance, the Nestor camera was out of focus, the lighting wasinsufficient to secure an image, or the vehicle framing wasimproper, i.e. there was only a portion of the vehicle in the image.

40. The "discretionary discards" were not the result of any direction by the Cityof Akron. To the contrary, Lieutenant Hanley and Sergeant Garro, of the AkronPolice Department, instructed Nestor to process all events without exception. Thebox "Current Status" uses the term "Discarded" to mean a citation was not issued.The box "Disposition Reason" uses the computer term "Exempt Vehicle." Anexempt vehicle does not mean the City of Akron instructed Nestor to exclude anyclass of vehicle. The City's instruction was that all vehicles are to be treated thesame and there were to be no exceptions. The use of the term "exempt vehicle" todescribe the reason for a discretionary discard is Nestor's computer language thatis used when the event was not forwarded by Nestor to the City because the OhioBMV reported to Nestor that the vehicle was "not in file," or vehicle registrationinformation was not available from another state, or an event was the result ofsystem testing, or if it was a discretionary discard by the reviewing police officeras described in the example in paragraph #42 below.

11

Case 5:06-cv-001 39-DDD Document 59 Filed 11/30/2006 Page 12 of 22

(5:06 CV 0139; 5:06 CV 0154)

41. There were no exceptions for Nestor to process all events and forwardwhatever information they received from the BMV to the Akron PoliceDepartment. After the first review by Nestor, the Akron Police review the BMVregistration information prior to authorizing the issuance of the citation. Thepolice review requires the exercise of discretion in certain cases. For example, seeNTS 0066 - "Citation Discarded by dgarro REASON: Exempt Vehicle - 21March 2006.°' In that instance, the event was processed by Nestor and theregistration information was sent by the BMV indicating that the van wasregistered to American Medical Response, a private non-government ambulanceservice. Sergeant Garro, in reviewing the information and photo, could not discernwhether or not the ambulance was on an emergency call and used his discretionnot to issue the citation. This would be similar to a police officer in a cruiserstopping a motorist, and for good reason, using his or her discretion to issue awarning and not a citation. Although Nestor's computer language refers to thestatus as "Discarded" and the reason as "Exempt Vehicle" (as is done with "not infile" government vehicles) this was actually a discretionary non-citation by thereviewing police sergeant.

42. As indicated in Agreed Stipulation [39(a)], in some instances, "discretionarydiscards" occurred because Nestor was unable to obtain the registrationinformation from the BMV. In fact, the BMV is prohibited by the federal Driver'sPrivacy Protection Act from disclosing information about certain government andpolice vehicles. Nestor only receives vehicle registration information from theBMV that the BMV is permitted to disclose. When Nestor submitted a request forinformation to the BMV for govemment vehicles, the BMV would return therequested information to Nestor with a notation that the vehicle registrationinformation was "not in file." These violations were therefore termed"discretionary discards" by Nestor in the "Current Status" box and as "ExemptVehicle" in the "Disposition Reason" box. They were discarded by Nestor and notforwarded to the Akron Police Department for review. When Nestor was told bythe BMV that a vehicle was "not in file," Nestor had no registration informationto forward to the City. The City was unaware of the "discretionary discards" untildiscovery commenced in this lawsuit.

43. Nestor processed and the City of Akron issued citations for all vehicles thatwere owned by rental car companies provided there was a clear picture of thevehicle and license plate, and provided the registration information was returnedby the BMV. For instance, citations were issued and violations were paid by thefollowing companies: a rental car company, "U Save It Auto Rental," located at449 West Avenue, Tallmadge, Ohio; a car leasing company, "Car Lease, Inc.,"located at 650 Holmes Ave., Akron, Ohio; a truck leasing company "PenskeTruck Leasing, Co.," located at 3000 Fortuna Drive, Akron, Ohio; Enterprise

12


(5:06 CV 0139; 5:06 CV 0154)

Capital (which may be Enterprise rental company); and a Ford dealership (whichalso may be a rental car). There were certainly other citations issued for rentalvehicles but each of the 11,740 citations have not been reviewed for thisdisclosure. Other paid citations include the Boy Scouts of America, towingcompanies that contract with the City of Akron, United Disability, WaikemMotors (likely a lease), several Yellow Cabs, and the Visiting Nurse Service.

44. On August 16, 2006, Nestor and the City agreed to a letter of intent to enterinto a new contract for the provision of Services. The Services will continue tofocus on school zone speeding violations; Services under the new agreementbegan on August 30, 2006, coinciding with the commencement of the City ofAkron's 2006-2007 school year.

45. Nestor and the City are in the process of finalizing the new contract, thewritten Policies and Procedures ("P&P"), and implementing the Services for thenew contract. Under the new agreement, there are no exempt vehicles.

46. Under the pilot program contract, from October 28, 2005 through December12, 2005, the amount of the civil violation was originally $150.00 for vehiclesexceeding the posted speed within 15 miles per hour, and $250.00 for vehiclesexceeding the posted speed by 15 or more miles per hour. On December 12,2005, the civil violation for the pilot program was changed to $35.00. The vehicleowners that were cited and paid prior to December 12, 2005 at the higher amountseach received a refund of all amounts paid in excess of $35.00.

47. Under the pilot program contract, the City deposited $418,960.02 in civilviolations (having subtracted $1,860 in NSF checks). From that amount, the Cityrefunded $122,872 to violators, and paid Nestor $188,399. The balance remainingwith the City was $107,689.02. (These figures include all pilot program paymentswith the exception of one Nestor invoice for August not yet received and paid inthe approximate amount of $1,300.)

48. Under the new agreement, during the first two weeks of the school year(August 30, 2006 through September 12, 2006), the civil violation remained at thelower level of $35.00 as a warning period. Civil violations occurring on or afterSeptember 13, 2006 are $100.00 from which Nestor will be paid $19 per paidcitation.

49. The City has not yet instituted collection proceedings to recover any of theunpaid civil violations.

13


(5:06 CV 0139; 5:06 CV 0154)

The following agreed stipulations, Nos. 21a through 49a and 50 through 56, apply only to

Case 2:

21 a. It is the position of the Defendants that the right to appeal the decision of theindependent hearing officer's decision to the Court of Common Pleas is governedby Chapter 2506 of the Ohio Revised Code. It is the position of the Plaintiffs thatthe right to appeal the decision of the independent hearing officer's decision to theCourt of Common Pleas is not govemed by Chapter 2506 of the Ohio RevisedCode.

22a. Ohio Revised Code Chapter 2506: "Appeals From Orders OfAdministrative Officers and Agencies" is the chapter of the Ohio Revised Codeestablishing the right to appeal every frnal order, adjudication, or decision of anyofficer, tribunal, authority, board, bureau, commission, department or otherdecision of any political subdivision of the state to be reviewed by the Court ofCommon Pleas of the county in which the principal office of political subdivisionis located.

23a. [Not used]

24a. On November 18, 2005, Plaintiff Janice A. Sipe was issued a civil speedingviolation for going 45 mph in a 35 mph zone on Newton Street.

25a. On November 4, 2005, Plaintiff Joanne L. Lattur was issued a civil speedingviolation for going 30 mph in a 20 mph school zone on Fouse Street in the City ofAkron, Ohio.

26a. On October 31, 2005, Plaintiff Wayne H. Burger was issued two civilspeeding violations twenty minutes apart for going 29 mph in a 20 mph schoolzone and for going 31 mph in the same 20 mph school zone on Fouse Street in theCity of Akron, Ohio.

27a. Plaintiff Janice A. Sipe did not exercise her right to request anadministrative hearing within 21 days nor has she requested an administrativehearing at any time from the date of her civil citation to present nor has she paidthe assessed civil fine.

28a. Plaintiff Joanne L. Lattur did not exercise her right to request anadministrative hearing within 21 days nor has she requested an administrativehearing at any time from the date of her civil citation to present nor has she paidthe assessed civil fine.

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Case 5:06-cv-001 39-DDD Document 59 Filed 11/30/2006 Page 15 of 22

(5:06 CV 0139; 5:06 CV 0154)

29a. Plaintiff Wayne H. Burger exercised his right to request an administrativehearing on one of his violations. An administrative hearing was scheduled onDecember 29, 2005, and Plaintiff Wayne H. Burger was notified of theadministrative hearing date, however, he failed to appear at the administrativehearing. Plaintiff Wayne H. Burger made no contact with the City of Akron, theAkron Police Department, or Nestor Traffic Systems, Inc. before or after theDecember 29, 2005 hearing date to reschedule the matter or request a new hearingdate. The independent hearing officer denied the appeal based on his failure toappear at the hearing. Plaintiff Burger has not paid his assessed civil penalty forthat violation. The City of Akron dismissed Burger's second violation as it didothers who received two tickets in the same day at the beginning of the program.

30a. On December 9, 2005, Plaintiffs Sipe, Lattur and Burger filed an action inSummit County Common Pleas Court entitled "Class Action Complaint VerifiedFor Injunctive Relief' naming as Defendants Nestor Traffic Systems, Inc. ofProvidence, Rhode Island, four officers of Nestor Traffic Systems, Inc. namedindividually, the City of Akron, Ohio and ten unnamed John Does. Plaintiffsrequested that the Clerk of Courts withhold service on the Complaint.

31a. On December 12, 2005, Plaintiffs Sipe, Lattur, and Burger filed their FirstAmended Complaint. Said Complaint was served on the City of Akron onDecember 30, 2005, and served on Nestor Traffic Systems, Inc. on January 3,2006. On December 13, 2005, Plaintiffs Sipe, Lattur, and Burger filed a Motionfor Temporary Restraining Order and a Motion for Preliminary Injunction but theyhave not attempted service on any of the Defendants nor have the Defendants everbeen served with these Motions. Defendants obtained a copy of the Motions fromthe Summit County Common Pleas Court website.

32a. On December 16, 2005, Plaintiffs Sipe, Lattur, and Burger filed a SecondAmended Complaint, which has never been served upon any of the Defendants.Defendants obtained a copy of the Second Amended Complaint from the SummitCounty Common Pleas Court website.

33a. Defendants City of Akron and Nestor Traffic Systems, Inc. removed the caseto the United States District Court for the Northern District of Ohio EasternDivision. The case was originally assigned to Judge James S. Gwinn [sic] andsubsequently transferred to the docket of Judge David D. Dowd, Jr. pursuant toLocal Rule 3.1(b)(3).

34a. Plaintiffs Sipe, Lattur, and Burger filed an eleven count, 121 paragraphComplaint alleging as follows: Count I - Fraud, Count II - Civil Conspiracy,Count III Common Plan/Design to Commit Fraud, Count IV - Negligence, Count

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(5:06 CV 0139; 5:06 CV 0154)

V - Negligence Per Se, Count VI - Consumer Sales Practices Act, Count VII -Negligence/Nuisance, Count VIII - Conversion, Count IX - Invasion of Privacy,Count X- Injunctive Relief, Count XI - 42 U.S.C. Sections 1983 and 1988, andthe Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United StatesConstitution/Abuse of Process.

35a. The City of Akron is a Charter municipality pursuant to Section 7 of ArticleXVIII of the Ohio Constitution in that Akron having established a Charter form ofgovernment may adopt an amended a Charter for its government and subject tothe provisions of Section 3 of Article XVIII of the Ohio Constitution may exerciseunder the Charter all powers of local self government.

36a. Nestor contracts nationwide with government entities, referred to as"customers," to provide Automatic Traffic Enforcement Services ("Services").These Services are intended to document speeding vehicles.

37a. Nestor sets up its technology in areas designated by the customer andcollects data, identifying potential cars speeding. Within Nestor, the potentialspeeding violation is referred to as am"event "

38a. Nestor has its own internal coding and computer terminology which it usesto organize its data. Though necessary to organize data for a customer, the actualterminology is not necessarily customer driven.

39a. Some of Nestor's other customers, however, specifically indicate that Nestorshould not process certain categories of vehicles. For instance, some customersdo not want Nestor to process emergency vehicles, funeral processions, orvehicles photographed where an officer is directing traffic. Nestor's computerlanguage refers to these vehicles as "exempt." Thus, when an "exempt" vehicle isdocumented as an event, it is categorized in Nestor's computer system as a"discretionary discard" and Nestor does not process the event.

40a. On October 6, 2005, Nestor and the City entered into a pilot program, afixed term contract for the provision of Services designed to detect mobile speedviolations within the City. The pilot program remained in effect through June 8,2005.

41 a. Under the pilot program contract, Nestor "processed" events for the City bysubmitting the vehicle license plate information to the Bureau of Motor Vehicles("BMV")•

16


(5:06 CV 0139; 5:06 CV 0154)

42a. Some events, however, cannot be submitted to the BMV because oftechnical issues, for instance, the vehicle image is obstructed or blurry, the sceneimage is insufficiently illuminated or otherwise unclear, or there are multiplevehicles in one image. These events are "discarded."

43a. After receiving the vehicle registration information from the BMV, Nestorverifies that the information is accurate by comparing the registration informationagainst the actual photograph. If the information does not match, for instance, theevent photograph depicts a 2002 Subaru Forester yet the registration informationindicates that the registered vehicle is a 2003 Audi A4, Nestor will make sure thatthe vehicle plate information was correctly typed and will resubmit the request forinformation to the BMV.

44a. The vehicle registration information received from the BMV is forwarded tothe Akron Police Department where a police officer reviews the information andissues the citation by directing Nestor to mail the civil violation notice.

45a. During the pilot program, Nestor documented 17,163 events. Some of theseevents were "discarded" because there was no violation, i.e. the vehicle was notspeeding, Nestor was testing its system, or Nestor was unable to determinewhether an actual violation occurred. The remaining 15,766 events weresubmitted to the BMV. Of those events, 11,740 citations were issued by the City.

46a. There were 4,035 violations that were not issued citations. Nestor's internalsoflware categorized the non-issued citations into the following three categories:

a. The first category, is termed "discretionary" by Nestor'scomputer system. Nestor discarded events under this category ininstances where the vehicle registration information was "not infile" with the BMV and the BMV did not return vehicleregistration information to Nestor. This category was also usedwhen Nestor was unable to obtain registration information forout-of-state vehicles. Although some states release vehicleregistration information to Nestor, other states do not. There werea total of 72 "discretionary" discards: 59 were out-of-statevehicles; 11 were "not in file," which were either vehicles with agovernment plate, or an ambulance, fire/rescue or police cruiser;and 2 resulted from system testing: The BMV did, however, returninformation on one school bus, and other vehicles registered topublic entities such as the University of Akron, the AkronMetropolitan Housing Authority, and the Akron Zoo. All of thesepublic vehicles were issued citations and paid the civil violations.

17


(5:06 CV 0139; 5:06 CV 0154)

b. The second category, termed "uncontrollable" by Nestor'scomputer system, totaled 2,288. Citations were not issued forthese vehicles because of an obstruction in the photograph of thevehicle or license plate.

c. The third category, termed "controllable" by Nestor's computersystem, totaled 1,666. Citations were not issued for these vehiclesbecause of technical problems with the Nestor software, forinstance, the Nestor camera was out of focus, the lighting wasinsufficient to secure an image, or the vehicle framing wasimproper, i.e. there was only a portion of the vehicle in the image.

47a. The "discretionary discards" were not the result of any direction by the Cityof Akron. To the contrary, Lieutenant Hanley and Sergeant Gan•o, of the AkronPolice Department, instructed Nestor to process all events without exception. Thebox "Current Status" uses the term "Discarded" to mean a citation was not issued.The box "Disposition Reason" uses the computer term "Exempt Vehicle." Anexempt vehicle does not mean the City of Akron instructed Nestor to exclude anyclass of vehicle. The City's instruction was that all vehicles are to be treated thesame and there were to be no exceptions. The use of the term "exempt vehicle" todescribe the reason for a discretionary discard is Nestor's computer language thatis used when the event was not forwarded by Nestor to the City because the OhioBMV reported to Nestor that the vehicle was "not in file," or vehicle registrationinformation was not available from another state, or an event was the result ofsystem testing, or if it was a discretionary discard by the reviewing police officeras described in the example in paragraph #[49a] below.

48a. There were no exceptions for Nestor to process all events and forwardwhatever information they received from the BMV to the Akron PoliceDepartment. After the first review by Nestor, the Akron Police review the BMVregistration information prior to authorizing the issuance of the citation. Thepolice review requires the exercise of discretion in certain cases. For example, seeNTS 0066 -"Citation Discarded by dgarro REASON: Exempt Vehicle - 21March 2006." In that instance, the event was processed by Nestor and theregistration information was sent by the BMV indicating that the van wasregistered to American Medical Response, a private non-government ambulanceservice. Sergeant Garro, in reviewing the information and photo, could not discemwhether or not the ambulance was on an emergency call and used his discretionnot to issue the citation. This would be similar to a police officer in a cruiserstopping a motorist, and for good reason, using his or her discretion to issue awarning and not a citation. Although Nestor's computer language refers to thestatus as "Discarded" and the reason as "Exempt Vehicle" (as is done with "not in

18


(5:06 CV 0139; 5:06 CV 0154)

file" government vehicles) this was actually a discretionary non-citation by thereviewing police sergeant.

49a. As indicated in Agreed Stipulation [46a(a)], in some instances,"discretionary discards" occurred because Nestor was unable to obtain theregistration information from the BMV. In fact, the BMV is prohibited by thefederal Driver's Privacy Protection Act from disclosing information about certaingovernment and police vehicles. Nestor only receives vehicle registrationinformation from the BMV that the BMV is permitted to disclose. When Nestorsubmitted a request for information to the BMV for government vehicles, theBMV would return the requested information to Nestor with a notation that thevehicle registration information was "not in file." These violations were thereforetermed "discretionary discards" by Nestor in the "Current Status" box and as"Exempt Vehicle" in the "Disposition Reason" box. They were discarded byNestor and not forwarded to the Akron Police Department for review. WhenNestor was told by the BMV that a vehicle was "not in file," Nestor had noregistration information to forward to the City. The City was unaware of the"discretionary discards" until discovery commenced in this lawsuit.

50. Nestor processed and the City of Akron issued citations for all vehicles thatwere owned by rental car companies provided there was a clear picture of thevehicle and license plate, and provided the registration information was retumedby the BMV. For instance, citations were issued and violations were paid by thefollowing companies: a rental car company, "U Save It Auto Rental," located at449 West Avenue, Tallmadge, Ohio; a car leasing company, "Car Lease, Inc.,"located at 650 Holmes Ave., Akron, Ohio; a truck leasing company "PenskeTruck Leasing, Co.," located at 3000 Fortuna Drive, Akron, Ohio; EnterpriseCapital (which may be Enterprise rental company); and a Ford dealership (whichalso may be a rental car). There were certainly other citations issued for rentalvehicles but each of the 11,740 citations have not been reviewed for thisdisclosure. Other paid citations include the Boy Scouts of America, towingcompanies that contract with the City of Akron, United Disability, WaikemMotors (likely a lease), several Yellow Cabs, and the Visiting Nurse Service.

51. On August 16, 2006, Nestor and the City agreed to a letter of intent to enterinto a new contract for the provision of Services. The Services will continue tofocus on school zone speeding violations; Services under the new agreementbegan on August 30, 2006, coinciding with the commencement of the City ofAkron's 2006-2007 school year.

19


(5:06 CV 0139; 5:06 CV 0154)

52. Nestor and the City are in the process of finalizing the new contract, thewritten Policies and Procedures ("P&P"), and implementing the Services for thenew contract. Under the new agreement, there are no exempt vehicles.

53. Under the pilot program contract, from October 28, 2005 through December12, 2005, the amount of the civil violation was originally $150.00 for vehiclesexceeding the posted speed within 15 miles per hour, and $250.00 for vehiclesexceeding the posted speed by 15 or more miles per hour. On December 12,2005, the civil violation for the pilot program was changed to $35.00. The vehicleowners that were cited and paid prior to December 12, 2005 at the higher amountseach received a refund of all amounts paid in excess of $35.00.

54. Under the pilot program contract, the City deposited $418,960.02 in civilviolations (having subtracted $1,860 in NSF checks). From that amount, the Cityrefunded $122,872 to violators, and paid Nestor $188,399. The balance remainingwith the City was $107,689.02. (These figures include all pilot program paymentswith the exception of one Nestor invoice for August not yet received and paid inthe approximate amount of $1,300.)

55. Under the new agreement, during the first two weeks of the school year(August 30, 2006 through September 12, 2006), the civil violation remained at thelower level of $35.00 as a warning period. Civil violations occurring on or afterSeptember 13, 2006 are $100.00 from which Nestor will be paid $19 per paidcitation.

56. The City has not yet instituted collection proceedings to recover any of theunpaid civil violations.

Pursuant to Rule XVIII. S 2(C), the names of the parties are:

In Case 1: In Case 2:

Plaintiff: Kelly Mendenhall Plaintiffs: Janice A. SipeJoanne L. LatturWayne H. Burger

In Both Cases:

Defendants: City of Akron, OhioNestor Traffic Systems, Inc.

20


(5:06 CV 0139; 5:06 CV 0154)

Pursuant to Rule XVIII, § 2(D), the names, addresses, and telephone numbers of

counsel for each party are:

COUNSEL FOR KELLY MENDENHALL:Jacquenette S. CorganSte. 201190 North Union StreetAkron, OH 44304330-535-9160Fax: 330-762-9743Email: [email protected]

COUNSEL FOR THE CITY OF AKRON:Stephen A. FallisCity of Akron Law Department161 South High Street, Ste. 202Akron, OH 44308330-375-2030Fax: 330-375-2041Email: [email protected]

and

Warner MendenhallSte. 201190 North Union StreetAkron, OH 44304330-535-9160Fax:330-762-9743Email: [email protected]

and

Richard GurbstSquire, Sanders & Dempsey - Cleveland4900 Key Tower127 Public SquareCleveland, OH 44114216-479-8607Fax:216-479-8777Email: [email protected]

21


(5:06 CV 0139; 5:06 CV 0154)

COUNSEL FOR JANICE A. SIPEJOANNE L. LATTUR AND WAYNE H.BURGERAntoni Dalayanis5th Floor12 East Exchange StreetAkron, OH 44308330-315-1060

Fax: 800-787-4089Email: [email protected]

COUNSEL FOR NESTOR TRAFFICSYSTEMS. INCDonald W. HerbeSquire, Sanders & Dempsey - Cleveland4900 Key Tower127 Public SquareCleveland, OH 44114216-479-8312Fax: 216-479-8777Email: [email protected]

Heather L. TonsingSquire, Sanders & Dempsey - Cleveland4900 Key Tower127 Public SquareCleveland, OH 44114216-479-8500Fax: 216-479-8780Email: [email protected]

Richard GurbstSquire, Sanders & Dempsey - Cleveland4900 Key Tower127 Public SquareCleveland, OH 44114216-479-8607Fax: 216-479-8777Email: [email protected]

Pursuant to Rule XVIII. & 2(E), the party designated at the "moving party" is Kelly

Mendenhall.

Respectfully submitted,

November 29. 2006 s/Davfd D. Dowd. Jr.Date David D. Dowd, Jt.

U.S. District Judge

22

2

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,f&Ra&90139-D;R;F?!Pffvment 1 Filed M1N2PA i8W9 otp1?0

Mli/EBDlkeh 09-12-05

Offaedby CONTI

OItD1NANCE NO. .2005 amending andlor supplomenting tho Code of Otdinmoesof ths City of Akron by enacting T'ttJe 7"Tfaffie Codd', Chapter 79, "Automatod Mobiic SpeedFtiforeement System"; and deciaring an emergency.

WHEitR4S, it::s desirable to zeduce the danger from vehicle operawrs speeding in aodaroundachoolzones;and

WHERPJtiS, fiequent incidents of speeding croate a substantial ri.sir to the sefety ofcbildren in school zones and orosawaiks, as weli as cit:zens on and within the madway; end

WIIEREAS, an automaled mobile speed enforcement system will assist tha AIQOn PoliaDeparttnord by alleviating the need for eonducting exter:sive conventionai tcaf6e enforoement inand around school zones.

NOW,IHEREFORB, BE IT ENACTED by the Council of the City of Akron:

4e 'caon 1. That Title 7 "Traffic Code" of thc Codo of Ordinaacee of the City ofAl¢on be, and is hereby, amended and/or supplemented by enaoting Chapter 79, "AutometedMobile Speed Enforcoment System" sad Seetion 79.01 entitled "Civil Penalties for AutomatedMobiie Speed $nforoament system Nriolations" what shali reed as follows:

Seedon 79.01 Civil Penaltles for AtUmated Mobile Soped Frd'rmement SvstamV:aladone.

A. ` StSIlSId►

(1) Notwithstanding any other provision of this Traffic Code, the Cityof Altron heoeby adopts a civil onfoDcAment system for automated mobila apnadenforcement system violations as oufllned in this Section. Said system imposeamonetary liability on the owner af a vehicle for f8iluro of an apesator thoteof tostricdy comply with the posted speed limit In school zones or streets or higbwayswithin the City of Akron that lnelude oeosswallm used by children going to orteavtng a ecnool ourmg rooess and opeamg ane otoaung noura.

(2) Tlte Aiqon Police Depattment slull be responsible foradmfnistssing the Atuomated Mobile Speed Enforoement Syatem SpociBeally,the Akron Police Department ahai] be empowered to install and opatate t6eAutomatad Mobile Speed Hnforcemont Syatem within the City of Akron usingtnined technicâeas who may be poGoe offioots, Potlee Depattanent employees, orother tnined techniolaos who are not employees of the Alaon Polloe Departmaat

(3) Any citation for an Autometed Mobile Speed.System violatlonpunuwmt to this Seation, lanown as a"Nodco of Liabillty" shall:

Case 5:06-cv-00139-DDD Document I Filed p 1/19/^pp^ P e 10 fCITYPI^LAUIDEPT Fax:3752041 (kc 143DD5 10 ^ ^

,

(a) Be processed by officials or agents of the City of/kron; amd

(b) Be fonvarded by ftret-claca mail or persotul savice to titevohicle's registered owmar't addresa ea given oa the epate's motor vehicleregictration; and

(c) ' Clearly stau the mannor in which the violadoa may be appealed.

B. Deflnidom.

(1) Automated Mobile Speed Enforcement Sysem is a system wAona or more aenaon workiag In oonjuecdon with a speed mearorrngdevice toproduce raoarded imagea of motor vehicles ttaveictg ar a prohibitad rabe of speed.

Mayor.(2) "Hearing OffioeY' is the independent thitd patty appoirrted by the

(3) "Vehicle owact" is tho parson or eatity identified by the OhioBnresa of Motor Vehicles, or rog'it6xed with any other State vehicle registtaticmo8'ice, as the reg,9stered owner of a vehicle or a lessee of a motor vebicle tmder alease of six mont}w or mocn.

C. Qffmaa.

(1) Ibe owner. of a vehicla shall be liable for a pena'Ity imposedpursoent to this Sectioa if such vehicle Is operated at a speed in excess ofthoee aetforth in Section 73.20,

(2) It is prima faoie evideaca that the person registeead as the owner ofthe vehicle with the Ohio Bureau of Motor Vehicles (or wlth any other Stafevebicle reyismation offiee), was optrsting the veitiele at tha time qf tho offanea aetout in S1ubeecdon (C)(1).

(3) Notwtdtatanding subsection (C)(2) above, the ovrner of the vehieleshall not be reaponaible for the violation if, wtthin twenty-one (21) days 8mm theduw tiewd un tlav'Tfatioo of Ydcbtllry,,' uo aet forth in au6o.cbon (D)(2pb.tew, h.fiunishes the Hearing Officer:

(a) An affidavit by tho vehiole owner, stating the name and addreaa ofthe pcseoa or ontity who loased the vohiele in a leeae of six months or more at thetime of the vio ladon; or

(b) A law enforcetnent incident reportlganeteg offease roport from aqystata or local law enforcameat agency/record bueean sfating thct the vehicleinvo)ve3 waA reported as atolen before dia ttcne of the vioiadon.

Case 5:06-cv-00139-DDD Document 1 Filed 01/19/2006 Page 11 of 12CITfPoCimNAWDIPT Fax:3752041 Dee 14 2005 10:58 P.12

(4) Nething in this Section sball be ooaatrued to limit thc Iia` ility of an'owner of a vebicle for any violation of Subsection (C)(I) or (C)(2)

h

D. Civil Penaltiea

(1) Unless the operator of the motor vehiele mceived a citation from apolice officer at the tirrie of tha vioiation, the owner of the motor vehicle is subjectto a civii penalty if the motor vehicl.e is reconkd by an Automated Mobile SpeedEnforocmcnt System whlle being operated In violalion of this ordinanca

(2) . Any viola6on of this Sedibn aball be deemed a nonccimiadviolation for which a civil penalty of $1,S0 shall be assessed to the owner fcrspeed in excess of 20 niilcs per hour and less then 35 roiles per honr in a schoolzoaa during restricted bours ind a civil penalty of S250 shhall be asseased inrspeeds of 35 miles por hour or greater in a scbooi sono during reetrieted hotus. Acivilponaity of $150 shall be easeseed for speeds in exceas of the posted iimite,but less tliaa IS nilles per how over the posted limit, an stzsets and highways notin school zuaes that iaciude crosswalks used by childron going to or leavingschool. A oivil penalty of S250 shali be. assassed for apeeds that exceed thepostod spmd limit by 15 milee par hour or gieatrr on streeta and highways not inschool zones that includa crosswalks used by children going to or leaving sohool.

(3) A violation for which a ctvii penalty is imposed under Oiisordinance is not a moving violation for the purpose of assessing points tmdetOirio Revised Code Seation 4507.021 for moving tr•affic offenses and may not betsoorded on the driving reoord of the owner of the vohiole and sball not bereported to the Bureau of Motor Vehioles.

E Colleetion of Civil Penaltv

If the civil penalty is not paia, the civil penalty imposed under theprovisions of this ordtnance shall be collecn'ble, togeiher witb any intoreat andpenalties thertoA, by civil suit pursuant to procedures establishod by the City ofAkron for the collection of dabia.

A notice of appesi shali be filed within twenty-ane (21) days t4om the datelisted on the °Notice of Liability" with the Hearing Officer appo"unted by theMayor of the City of Ahron. Tbe failusn to give nofice of appesi or pay the oivilpanalty within this time period shdl cwnstitute a waiver of the right to eontast thgcitation and will be cwnsidered an admiasion of a vloledon of this Seotion,Administradve Appesia shall be heard throvgb an administrative processestabiished by the City of Alaon. Aefeaision In tavur uf tbc City of Akron maybe enfoeced by meaas of e civil aotion or any other means'provided by the OhioRevised Coda.

Case 5:06-cv-00139-DDD Document 1 Filed 01/^^/^6 l.^e 12^f^^2CITYFKRtI.ihNEPT Faxc3752041 Dec

Saptlo 2. Tbnt this ordiswwe I. hereby dxlered to be ut emergcnoy m¢eetaoaeeessary for the imuxdieto presavation of publio paoeo, heetth, safdy md welfine for t3roreesoa that these meaaurea orc neceseary to heippreaerve snfe attd wmfoAable etlioymatR of lifemad px,Perry in the Chy'e naighbaboods imd immediete enforeemeet sfiall pmbeot eIv7dsen amtheir way to aad fxom acbool, and provided this oidinance rceeivas the eftimWtive vote of two-thirds of the membecs eleatod or appoittted m Connci'l, It shap tairo effed and be In forcaimmediately upon its Passage and epProval by tiio Mayor; otbetwise, It aheII tako elfbot end be rafotee ai ihe earlieat lima allowed by law. .

Paseed ?.0Q5

Clerk of Couaoil Prasident of Council

APptoved .2005

MAYOR

3

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CHAPTER 70. GENERAL PROVISIONS Page 10 of 15

the street or highway.

(Ord. 26390, passed 12-9-81)

Secs. 70.21--70.98. Reserved.

Sec. 70.99. General penalty for Title VII.

(A) Whoever violates any provision of this title, for which no penalty is otherwise provided, isgiailty of a minor misdemeanor on a first offense; on a second offense within one year after thefirst offense, such person is guilty of a misdemeanor of the fourth degree; on each subsequentoffense within one year after the first offense, such person is guilty of a misdemeanor of thethird degree. When any person is found guilty of a first offense for a violation of § 71.50 upon afinding that he operated a motor vehicle fas'ter than 35 miles an hour in a business district, orfaster than 50 miles an hour in other portions, or faster than 35 miles an hour while passingthrough a school zone during recess or while children are going to or leaving school during theopening or closing hours, such person is guilty of a misdemeanor of the fourth degree.

(B) Notwithstanding § 130.99, upon a finding that a person operated a motor vehicle in aconstruction zone where a sign was then posted in accordance with R.C. § 4511.98, the court,in addition to all other penalties provided by law, shall impose a fine of two times the usualamount imposed for the violation. No court shall impose a fine of two times the usual amountimposed for the viblation upon an offender who alleges, in an affidavit filed with the court prior tothe offender's sentencing, that the offenderis indigent and is unable to pay the fine imposedpursuant to this subsection, provided the court determines that the offender is an indigentperson and is unable to pay the fine.

(Am. Ord. 29857-00, passed 9-6-00; Am. Ord. 30114-02, 6-12-02)

Secs. 70.100--70.120. Reserved.

Sec. 70.121. Civil penalties for automated traffic control photographic system.

(A) Applicability.

(1) Notwithstanding any other provision of the traffic code, the city hereby adopts a civilenforcement system for red light camera system violations as outlined in this section.The automated traffic control photographic system (ATCPS) imposes monetary liabilityon the owner of a vehicle, for failure of an operator thereof to comply with traffic controlindications in the city in abcordance with the provisions of this section.

(2) The city shall be responsible for administering the ATCPS. Specifically, the DaytonPolice Department or its designee shall be empowered to install and operate anautomated traffic control signal photographic system within the City of Dayton.

(3) This section applies whenever traffic is controlled by traffic control signals exhibitingdifferent colored lights, or colored lighted arrows, successively one at a time or incombination. Only the colors green, red and yellow shall be used, except for specialpedestrian signals carrying a word legend, and said lights shall indicate and apply todrivers of Vehicles and trackless trolleys, as follows:

(a) Green indication means the same as defined in §§ 70.13(b)(1)(a), (b), and(c).

(b) Steady yellow indication means the same as defined in §§ 70.13(b)(2)(a),

http://library2.municode.com/mcc/DocView/13723/1/113/114 3/15/2007


(b).

(c) Steady red indication means the same as defined in §§ 70.13(b)(3)(a), (b),(c), and (d).

(4) Intersections in which an ATCPS is installed shall have visible postings uponapproach of the intersection that the intersection is equipped with an automated trafficcontrol signal monitoring system.

(5) The City of Dayton Police Department or its designee shall administer the ATCPSprogram and shall maintain a list at each Police District of system locations within thecity limits where traffic-control photographic systems are installed.

(6) Whenever a Dayton Police Officer witnesses a violation of § 70.13(b)(3) or OhioRevised Code Section 4511.13, and has issued a citation pursuant to those sections,this section does not apply. However the recorded image may be used as evidence for aviolation of Section 70.13(b)(3) or Ohio Revised Code Section 4511.13. Any citation for aviolation of Section 70.13(b)(3) or Ohio Revised Code Section 4511.13 issued personallyby an officer of the City of Dayton Police Department at an ATCPS location shall notbeissued in the manner described under this section. The citation shall be treated in thesame manner as prescribed by Dayton Police Department Policy 3.03-4 IV.

(7) This section shall not apply to violations involving vehicle or pedestrian collisions.

(B) Definitions. For purposes of this section, the following words and phrases shall have themeanings indicated:

Owner. The registered owner of a motor vehicle as identified by the Bureau of Motor Vehiclesfor the state registered or a lessee of a motor vehicle under a lease of six months or more.

Recorded images. Images recorded by an automated traffic control signal photographic systemon any of the following:

(a) Two or more photographs; or

(b) Two or more microphotographs; or

(c) Two or more electronic images; or

(d) Two of more digital images; or

(e) Videotape; or

(f) Any other medium; and

(g) Showing the front or rear of a motor vehicle and on at least one image orportion of tape, clearly identifying the license plate number of the motor vehicle.

Automated Traffic Control Signal Photographic System. A device with one or more motorvehicle sensors, installed to work in conjunction with a traffic control signal, to produce recorded imagesof motor vehicles entering an intersection against a red signal indication.

In operation. Operating in good working condition.

Hearrng officer. An independent third party, not employed by the City of Dayton PoliceDepartment or its designee.

System location. The approach to an intersection toward which a photographic,microphotographic, electronic image, digital image, videotape, or any other medium is directed and is inoperation. It is the location where the automated traffic control photographic system is installed tomonitor offenses under this section.

Responsible party. The person who was operating the vehicle at the time of the violation or theperson who had care, custody, and control of the vehicle at the time of the violation.



(C) Violation.

(1) It shall be unlawful for a vehicle to cross the stop line at a system location when thetraffic controls signal for that vehicle's direction of travel is emitting a steady red light.The owner of the vehicle shall be responsible for a violation under this section, exceptwhenthe owner can provide evidence that the vehicle was in the care, custody, andcontrol of another person at the time of the violation, as described in subsection (C)(2).

(2) The owner of the vehicle shall not be responsible for the violation if, within 15calendar days after notification of liability, the owner furnishes the City of Dayton PoliceDepartment or its designee with:

(a) The name and address of the person who leased, rented, or otherwise hadthe care, custody, and control of the vehicle at the time of the violation; or

(b) An affidavit by the owner stating that at the time of the violation, the vehicleor the license plates of the vehicle involved were stolen or were in the care,custody, or control of some person who did not have the owner's permission touse the vehicle, or that the motor vehicle or registration plates of vehicle werestolen before the violation occurred and were not under the control or possessionof the owner at the time of the violation. In order to demonstrate that the vehicleor the license plates werestolen before the violation occurred and were not underthe control or possession of the owner at the time of the violation, the owner mustsubmit proof that a police report about the stolen motor vehicle or license plateswas filed prior to the violation or within 48 hours after the violation occurred.

(3) A certified copy of the notice of liability alleging the violation of this section occurred,sworn to or affirmed by a duly authorized police officer of the City of Dayton, with therecorded images produced by an automated traffic control signal photographic systemshall be prima facie evidence of the facts contained therein and shall be admissible in aproceeding •alleging a violation under this section.

(4) If the vehicle involved in the violation is a commercial vehicle and the notice ofliability is issued to a corporate entity, the corporate entity must provide to the DaytonPolice Department or its designee an affidavit, sworn to or affirmed by the statutoryagent of the corporate entity, that:

(a) States that the person/entity named in the notice of liability was not inoperation of the vehicle at the time of the violation; and

(b) Provides the name, address, and driver's license identification number of theperson who was in operation of the vehicle at the time of the violation.

(D) Notice of Liability.

(1) The notice of liability shall be processed by the City of Dayton Police Department orits designee, and shall be served by ordinary mail to the owner's address as given on themotor vehicle registration from the Bureau of Motor Vehicles of the state registered. Thenotice of liability shall include:

(a) The name and address of the registered owner of the vehicle;

(b) The license plate number of the motor vehicle involved in the violation;

(c) The violation charged;

(d) The location of the intersection;

(e) The date and time of the violation;

(f) A copy of the recorded image(s);



(g) The amount of the civil penalty imposed and the date by which the civilpenalty should be paid and where the payment should be made;

(h) A signed statement by a Dayton Police Officer that based on inspection ofrecorded images, the motor vehicle was being operated in violation of subsection(C)(1) of this section, and a statement that the recorded images are prima faciaevidence of a violation of subsection (C)(1) of this section;

(i) Information advising the person alleged to be liable of the options asprovided in subsection (E)(1) of this section;

0) The time, place, and manner in which an administrative appeal can beinitiated and a warning that failure to exercise the options provided undersubsection (E)(1) of this section in a timely manner is an admission of liability.

(2) The City of Dayton or its designee may mail, by ordinary mail, a warning notice inlieu of notice of liability under this section.

(3) Except as provided in subsection (E)(3)(b), a notice of liability issued under thissection shall be mailed no later than 15 calendar days after the alleged violation.

(4) Except as provided under subsections (E)(3)(a) of this section, the Dayton PoliceDepartment or its designee may not mail a notice of liability to a person who is not theowner of the vehicle.

(E) Administrative Appeal.

(1) An owner or responsible party who receives a "notice of liability", under this sectionmay do one of the following:

(a) Pay the civil penalty, in accordance with instructions on the notice of liability;or

(b) Within 15 calendar days provide the Dayton Police Department or itsdesignee information as to the driver of the vehicle, at the time of the violation; or

(c) Contest the notice of liability by filing a written request for review of thenotice of liability with payment in the amount equal to the amount of the civilpenalty to the City of Dayton Police Department or its designee. An individualdesiring a hearing must post payment equal to the amount of the civil penaltybefore an appeal hearing will be scheduled. A written notice of request for reviewmust be filed within 15 days after receipt of the notification of liability. The failureto give notice of requestfor review within this time period shall constitute a waiverof the right to contest the notice of liability. A Hearing Officer shall hear reviews.A hearing shall be held within ten business days of the receipt of the request forreview; this time may be extended upon a written request for additional time.

(i) The Hearing Officer shall determine whether a preponderance ofevidence establishes that a violation of this section occurred and theperson requesting the review is liable. A certified copy of the notice ofliability alleging the violation of this section occurred, sworn to or affirmedby a duly authorized Police Officer of the City of Dayton, with therecorded images produced by a traffic control photographic system shallbe prima facie evidence of the facts contained therein and shall beadmissible in aproceeding alleging a violation under this section:Adjudication of liability shall be based on a preponderance of theevidence.

(ii) If the Hearing Officer finds sufficient evidence of a violation, but theowner or the responsible party is not liable, the Hearing Officer shall, in


CHAPTER 70. GENERAL PROVISIONS Page 14 ot 1 S

writing, issue a decision finding the individual not liable and submit it tothe City of Dayton Police Department or its designee.

(2) If the owner or responsible party chooses to contest the notice of liability, theHearing Officer may consider any of the following as an affirmative defense of aviolation:

(a) That the driver of the vehicle passed through the intersection in order toyield the right-of-way to an emergency vehicle in accordance with Ohio RevisedCode Section 4511.45; or to a funeral procession in accordance with § 71.13.

(b) That the motor vehicle or registration plates of the motor vehicle were stolenbefore the violation occurred and were not under the control or possession of theowner at the time of the violation. In order to demonstrate that the motor vehicleor the registration plates were stolen before the violation occurred and were notunder the control or possession of the owner at the time of the violation, theowner must submit proof that a police report about the stolen motor vehicle orregistration plates was filed prior to the violation or within 48 hours after theviolation occurred.

(c) That this section is unenforceable because at the time and place of thealleged violation, the traffic control signal was not operating properly or the trafficcontrol signal monitoring system was not in proper position and the recordedimage is not legible enough to determine the information needed.

(d) Evidence, other than that adduced pursuant to subsection (E)(2)(b) of thissection, that the owner or person named in the notice of liability was notoperating the vehicle at the time of the violation. To satisfy the evidentiary burdenunder this subsection, the owner or person named in the notice of liability shallprovide to the Hearing Officer evidence showing the identity of the person whowas operating the vehicle at the time of the violation, including, at a minimum, theoperator's name and current address, and any other evidence that the HearingOfficer deems pertinent.

(3) If the Hearing Officer finds that the person or entity named in the notice of liabilitywas not operating the vehicle at the time of the violation or receives evidence undersubsection (E)(2)(d) identifying the person driving the vehicle at the time of the violation,the Hearing Officer shall provide to the City of Dayton Police Department or its designeewithin five calendar days, a copy of any evidence substantiating who was operating thevehicle at the time of the violation. .

(a) Upon the receipt of evidence of the responsible party pursuant to thissubsection or pursuant to subsection (C)(2)(a), the City of Dayton PoliceDepartment or its designee may issue a notice of liability, with the name andaddress of the responsible party and the information required by subsection (D)(1)(b), (c), (d), (e), (f), (g), (h), (i), and 0) of this section, to the person that theevidence indicates was operating the vehicle at the time of the violation.

(b) A notice of liability issued under this subsection (E)(3) shall be sent byordinary mail no later than five business days after receipt of the evidence fromthe Hearing Officer or the owner.

(F) Civil Penalties.

(1) Unless the driver of the motor vehicle received a citation from a police officer at thetime of the violation, the owner or responsible party for the motor vehicle is subject to acivil penalty if the motor vehicle is recorded by an automated traffic control photographicsystem while being operated in violation of this section.

(2) A civil penalty under this section may not exceed $250.00. Persons who choose to

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CHAPTER 70. GENERAL PROVISIONS Page 15 ot 15

pay the civil penalty without appearing before a Hearing Officer may do so in the mannerindicated on the notice of liability.

(3) A violation for which a civil penalty is imposed under this section is not a movingviolation for the purpose of assessing points under Ohio Revised Code Section4507.021(16) for minor misdemeanor moving traffic offenses and may not be recordedon the driving record of the owner or operator of the vehicle and shall not be reported tothe Bureau of Motor Vehicles.

(G) Collection of Civil Penalty. If the civil penalty is not paid, the civil penalty imposed underthe provisions of this section shall be collectible, together with any interest and penaltiesthereon, by civil suit.

(Ord. 30114-02, passed 6-12-02)


4

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l;napter 21 1J YriU 1 U 1 KAl k1l; Ir;N YUKl;LM1~:N I J Y J 1hM

Title 21 TRAFFIC CODE

Chapter 2115 PHOTO TRAFFIC ENFORCEMENT SYSTEM

2115.01 Definitions.

2116:02 Adoktion_and_enforcement,.

2115.03Notice.of liability_

211M04 Appeal of notice of liability_

2115.05 Penalties.

2115.01 Definitions.

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As used in this chapter:(A) "Photo traffic enforcement system" means any photographic equipment linked to a violationdetection system that synchronizes the taking of a photograph, video or digital image with theoccurrence of a traffic signal violation.(B) "Photographic equipment" means a system that may include, but is not limited to, deviceswhich link a camera, computer, and traffic signal, alone or in combination with other devices, todetect vehicles which have violated the traffic signal and to record an image of the motor vehicle."Photographic equipment" may also include, but is not limited to, devices that combine a camera,and computer, alone or in combination with other devices, to measure the speed of a motorvehicle or other object and to record an image of the motor vehicle, or other objects. The resultsof photographic, video or digital imaging equipment means the images, and any other data orinformation produced by the photo traffic enforcement system.(C) A "violation" means that a vehicle has crossed the stop line in a system location when thetraffic control signal for that vehicle's direction of travel is emitting a steady red light. (Ord. 958-05§ 1 (part).)

2115.02 Adoption and enforcement.

(A) The city of Columbus hereby adopts a photo traffic enforcement system for the purpose ofusing photographic, video or digital imaging equipment to record visual images of vehiclesentering intersections in violation of Section 2115.03 of this chapter, and using said images asthe basis for issuing a notice of liability to the owners of such vehicles within thirty (30) days ofthe violation.(B) The director of public safety or his or her designee(s) shall be responsible for implementingthe photo traffic enforcement system for traffic signals. The director or his or her designee ishereby empowered to designate the intersections to be monitored by the photo trafficenforcement system, to issue notices of liability for persons who commit violations at suchintersections, to select a hearing officer for the purpose of hearing appeals of notices of liability,and to promulgate any rules and regulations deemed to be necessary for the enforcement of thischapter.(C) The intersections selected for photo enforcement under this chapter must display a yellowtraffic control signal for a time that complies with the Ohio Department of Transportation's Manualof Uniform Traffic Control Devices. (Ord. 958-05 § 1 (part).)

2115.03 Notice of liability.

(A) Prior to the activation of a photo traffic enforcement system at an intersection, the director ofpublic safety or his or her designee shall erect a sign in a conspicuous location that provides

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l;napterLll-)t'nvlv lt(Hrr1l;^lvrVxl;bMb1V1 6YJlh1v1 rageLoIJ

notice that a photo traffic enforcement system is being used to monitor traffic.(B) For thirty (30) days after the activation of a photo red light traffic enforcement system at anintersection, no notices of liability will be issued based upon the images produced by the system.Warnings may be issued during this thirty (30) -day period.(C) A police officer employed by the Columbus division of police shall examine the imagerecorded by the photo traffic enforcement system to determine whether a violation as defined inSection 2115.01 of this chapter has occurred. If the image recorded by the photo trafficenforcement system shows a violation, contains a date and time of the violation, and shows thevehicle's license plate number as well as the state in which the license was issued, the officermay use any lawful means to identify the vehicle's owner.(D) The fact that a person is registered as the owner of a vehicle with the vehicle registrationoffice of the state that issued the license plate displayed on the vehicle shall be prima facieevidence that said person was operating the vehicle at the time of a violation recorded by a phototraffic enforcement system.(E) Within thirty (30) days of the violation and upon identification of the registered owner of thevehicle, the director of public safety or his or her designee may issue a notice of liability, chargingthe owner with a violation. The notice of liability shall be sent by regular U.S. mail and must statethe date on which the notice of liability was issued, the date, time, and location of the violation,the time in which an answer must be made by the vehicle owner, and the manner in which thenotice of liability may be appealed. In addition, a copy of the image(s) that served as a basis forthe violation must accompany the notice of liability.(F) A person who receives a notice of liability pursuant to this section shall be required to respondin one of the following methods:(1) By paying the administrative fine as directed on the notice of liability within thirty (30) days ofthe date the notice was issued; or(2) By submitting evidence of one of the exceptions to liability listed in division (G) of this sectionwithin thirty (30) days of the notice's issue date; or(3) By submitting to the address listed on the notice of liability, a request for a hearing within thirty(30) days of the notice's issue date.(G) The owner of the vehicle shall not be liable for a penalty under this section if the director ofpublic safety his or her designee determines that sufficient evidence of either of the followingconditions exist:(1) At the time of the violation, the vehicle was in the custody of someone other than its ownerpursuant to a written lease or rental agreement and the owner submits, to the address listed onthe ticket, a copy of the lease or rental agreement along with the name and address of the lesseeor rentec(2) At the time of the violation, the vehicle or the license plate depicted in the image which servedas the basis for the notice of liability was stolen and the owner submits, to the address listed onthe ticket, a copy of the police report stating the vehicle or license plate had been reported stolenat the time.(H) Nothing in this chapter shall be construed to limit the liability of an operator of a motor vehiclefor any violation of the Ohio Revised Code or the Columbus Traffic Code. (Ord. 958-05 § 1(part).) -

2115.04 Appeal of notice of liability.

(A) A person who received a notice of liability pursuant to this section may appeal the notice ofliability by making a written request for a hearing to the address listed on the notice of liability.Said request shall be accompanied by a monetary deposit in an amount equal to the amount ofthe administrative fine listed on the notice of liability.(B) Within thirty (30) days of the receipt of the request for a hearing, a hearing officer appointedby the director of public safety or his or her designee shall hold a hearing. The hearing officershall determine whether the city has demonstrated by a preponderance of the evidence that aviolation occurred and that the person who received the notice of liability is liable for the penaltyset forth in Section 2115.05 of this chapter.(C) A certified copy of the notice of liability alleging the violation, alor g with a copy of the imagethat served as a basis for the notice of liability, shall be prima facie evidence of the factscontained therein, and shall be admissible in a proceeding alleging a violation under thisordinance.(D) In considering whether the'person is liable, the hearing officer shall consider any of the

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Chapter 2115 PHOTO TRAFFIC ENNOKCEMEN'1' S Y 51 EM rage s or o

following as an affirmative defense of a violation:(1) That the notice of liability was issued and sent more than thirty (30) days after the date of theviolation recorded by the photo traffic enforcement system.(2) That the driver of the vehicle passed through the intersection or had increased speed in orderto yield the right of way to an emergency vehicle, in accordance with R.C. 4511.45 or to a funeralprocession, in accordance with R.C.4511.451.(3) That either the vehicle or the license plate depicted on the image, which served as the basisfor the notice of liability, was stolen before the violation occurred and was not in possession ofthe owner at the time of the violation. To qualify as an affirmative defense under this provision,the owner must submit proof that a police report about the stolen vehicle or license plate wasfiled prior to or within forty-eight (48) hours after the violation.(4) That this section is unenforceable because the photo traffic enforcement system was notoperating properly, or the automated traffic enforcement system was not in a proper position, orthat the image that served as the basis for the notice of liability is not legible enough to show theletters and numbers or the state that issued the license plate on the vehicle.(5) That the driver of the vehicle entered the intersection as part of a funeral procession or at thedirection of a police officer.(6) That the owner or person named in the notice of liability was not operating the vehicle at thetime of the violation. To satisfy the evidentiary burden under this provision, the owner or personnamed in the notice of liability shall provide the hearing officer with evidence of the identity of theperson who was operating the vehicle at the time of the violation, including, at a minimum, theoperator's name and current address.(E) The hearing officer shall issue a written decision within ten (10) days of the hearing and servethe person named on the notice of liability and the issuing police officer with a copy of saiddecision. If the hearing officer concludes that the testimony and/or exhibits presented at thehearing shows by a preponderance of the evidence that someone other than the person namedin the notice of liability was operating at the time of the violation, the hearing officer shall forwardto the department of public safety all evidence provided to him at the hearing as to the operator'sidentity.(F) If the hearing officer determines that the city has demonstrated by a preponderance of theevidence that the person named in the notice of liability committed the violation, the hearingofficer shall enter judgment against the person requiring him or her to pay the appropriate fineand any additional penalties, fees and costs. Such judgment shall be entered into the records ofthe department of public safety.(G) If the hearing officer does not determine, by a preponderance of the evidence, that a personcommitted the violation named in the notice of liability, the hearing officer shall enter judgmentagainst the city of Columbus, shall dismiss the notice of liability against the person and shallenter the judgment and dismissal into the records of the department of public safety.(H) Within ten (10) business days of receiving evidence from the vehicle owner indicating that heor she was not operating the vehicle at the time of the violation, the director of public safety or hisor her designee may issue a notice of liability to the person whom the evidence indicates wasoperating the vehicle at the time of the violation.(I) Any person against whom a judgment or default judgment is entered pursuant to this sectionmay appeal the judgment or defaultjudgment to the Franklin County Municipal Court by filingnotices of appeal to the Columbus Division of Police and the Municipal Court within thirty (30)days of the date of entry of the judgment and by the payment of such reasonable costs as thecourt requires.(J) Upon the filing of the appeal, the court shall schedule a hearing date and notify the parties ofthe date, time, and place of the hearing.(K) The hearing shall be held by the court in accordance with local court rules.(L) Service of a notice of appeal under this division does not stay enforcement and collection ofthe judgment or default judgment from which appeal is taken by the person unless the personwho files the appeal posts bond with the court in the amount of the judgment, plus costs, at orbefore the service of the notice of appeal.(M) Notwithstanding any other provision of law, the judgment on appeal by the municipal court isfinal, and no other appeal may be taken. (Ord. 958-05 § 1(part).)

2115.05 Penalties.

(A) Unless the operator of a vehicle receives a traffic citation from a police officer at the time of

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Chapter 211:) YHUlU 1KAb'r'1C; i3NN'UKCEMEN"1' SYS'1'EM Page 4 of 5

the violation, an administrative fine in the amount of ninety-five dollars ($95.00) shall be assessedagainst the vehicle owner for the commission of a violation as defined in Section 2115.01 of thischapter.(B) A violation for which an administrative fine is imposed under this section shall not beconsidered a traffic offense or a moving violation for the purpose of assessing points under OhioRevised Code 4507.021 and shall not be reported to the Bureau of Motor Vehicles of any state.(C) Upon receipt of a notice of liability pursuant to the method described in Section 2115.03(E),the vehicle owner shall have thirty (30) days to pay the administrative fine without additionalmonetary penalty.(D) If the vehicle owner does not respond to the notice of liability within this period, the followingaction shall be taken by the director of public safety or his or her designee:(1) A notice of default judgment shall be sent by regular U.S. mail to the recipient of the notice ofliability indicating that payment is due within thirty (30) days after receipt of the notice of defaultjudgment.(2) The notice of default judgment shall contain the following information:(a) An identification of the violation with which the person was charged and the time and date ofthe violation, which identification may be a copy of the notice of liability charging the violation thatwas served upon the person;(b) An identification of the amount of the administrative fine, late fees and costs arising out of theviolation that is due;(c) A warning that the person must answer the notice of liability within thirty (30) days or a defaultcivil judgment in the amount of the fine, penalties and costs due may be entered against theperson;(d) A description of the allowable answers that may be made and notification that the person willbe afforded a hearing before the hearing officer if the vehicle owner denies in his or her answerthat he committed the violation;(e) An identification of the manners in which and the entity to which an answer may be made;(f) A warning that if the person fails to appear at a requested hearing, a default civil judgment inthe amount of the fine, penalties and costs due may be entered against the person.(3) If a person who is issued a notice of default judgment fails to timely answer, the failure toanswer shall be considered an admission that the person committed the violation and a defaultjudgment, in the amount of the fine, penalties and costs due may be entered against the personby the hearing officer. Failure to timely answer the notice of liability identified in the notice ofdefault judgment may result in the imposition of an additional penalty of twenty-five dollars($25.00).(4) A person who receives a notice of default judgment pursuant to this section may answer theviolation with which he is charged that is identified in the notice of default judgment in any of themanners provided in division (F) of Section 2115.03 for answers to violations charged in a noticeof liability. An answer under this section shall be made within thirty (30) days after the date onwhich the notice of default judgment was mailed in accordance with the methods provided inSection 2115.03(G), except that if the answer consists solely of payment of the administrativefine arising out of the notice of liability any penalty arising out of failing to timely answer shall alsobe imposed.(5) If a person for whom a hearing is to be conducted under Section 2115.04 of this chapter failsto appear at the scheduled hearing and fails to submit evidence the hearing officer shall, upon adetermination from any testimony or exhibits presented at the hearing that the city demonstratedby a preponderance of the evidence that the person committed the violation, enter a defaultjudgment against the person and require the person to pay the appropriate fine and anyadditional penalties, fees and costs. A default judgment entered under this division shall beentered in the records of the department of public safety and filed with the clerk of the FranklinCounty municipal court.(6) The hearing officer may vacate a default judgment entered under this section if all of thefollowing apply:(a) The person against whom the default judgment was entered files a motion with thedepartment of public safety within one (1) year of the date of entry of the default judgment; and(b) The motion sets forth a sufficient defense to the violation out of which the judgment arose;and(c) The motion sets forth excusable neglect as to the person's failure to attend the hearing oranswer the notice of default judgment.(7) Payment of any judgment or defaultjudgment entered against a person pursuant to thissection shall be made to the department of public safety within ten (10) days of the date of entry

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l:hapter L 115 YriU 10 11tAN'P K: !~;N t''UKI;l~;MKN 1 8 Y S 1EM Page 5 of 5

by the hearing officer. The director of public safety or his or her designee shall create andmaintain a record of all money paid in satisfaction of a judgment or default judgment. If paymentis not made within this time period, the judgment or default judgment shall be filed with the clerkof the Franklin County municipal court and when so filed, shall have the same force and effect asa money judgment in a civil action rendered in that court. (Ord. 958-05 § 1 (part).)

« prev_ious lnext?>

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5

-19-

Speed Camera Ordinance

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PART FOUR - TRAFFIC CODE

Title III - Streets And Traffic Control Devices

Chapter 413 - Traffic Control Devices

Complete to June 30, 2006

CROSS REFERENCES

See sectional$istories for similar State law.

Designation of through streets or stop intersections, RC 4511.07, 4511.65

Uniform system of traffic control devices, RC 4511.09, 4511.11

Placing and maintaining local traffic control devices, RC 4511.10, 4511.11

Traffic control devices defined, CO 401.67

413.01 Obedience to Traffic Control Devices

No pedestrian or driver of a vehicle shall disobey the instructions of any traffic control device placedin accordance with the provisions of this Traffic Code, unless at the time otherwise directed by apolice officer. When both traffic control signals and stop signs are erected at intersections, trafficshall be governed by the traffic control signal while it is in operation.

No provisions of this Traffic Code for which signs are required shall be enforced against an allegedviolator if at the time and place of the alleged violation an official sign is not in proper position andsufficiently legible to be seen by an ordinarily observant person. Whenever a particular section doesnot state that signs are required, such section shall be effective even though no signs are erected or inplace.(RC 4511.12; Ord. No. 1684-76. Passed 6-29-76, eff. 7-6-76)

413.02 Through Streets; Stop and Yield Right-of-Way Signs

(a) All State routes are hereby designated as through streets or highways, provided that stop signs,

http://caselaw.lp.findlaw.com/clevelandcodes/cco_part4_413.html 3/15/2007


yield signs or traffic control signals shall be erected at all intersections with such through streets orhighways by the Ohio Department of Transportation as to streets or highways under its jurisdictionand by the City as to streets or highways under its jurisdiction, except as otherwise provided in thissection. Where two or more state routes that are through streets or highways intersect and no trafficcontrol signal is in operation, stop signs or yield signs shall be erected at one or more entrancesthereto, except as otherwise provided in this section.

Whenever the Director of the Ohio Department of Transportation determines on the basis of anengineering and traffic investigation that stop sigins are necessary to stop traffic on a throughhighway for safe and efficient operation, nothing in this section shall be construed to prevent suchinstallations. When circumstances warrant, the Director also may omit stop signs on roadwaysintersecting through highways under his jurisdiction. Before the Director either installs or removes astop sign under this division, he shall give notice, in writing, of that proposed action to the City atleast thirty days before installing or removing the stop sign.

(b) Other streets or highways, or portions thereof, are hereby designated through streets or highways,if they are within the City, if they have a continuous length of more than one mile between the limitsof such street or highway or portion thereof, and if they have "stop" or "yield" signs or traffic controlsignals at the entrances of the majority of intersecting streets or highways. For purposes of thissection, the limits of such street or highway or portion thereof, shall be a municipal corporation line,the physical terminus of the street or highway or any point on such street or highway at whichvehicular traffic thereon is required by regulatory signs to stop or yield to traffic on the intersectingstreet, provided that in residence districts the City may by ordinance designate such street orhighway, or portion thereof, not to be a through street or highway and thereafter the affectedresidence district shall be indicated by official traffic control devices. Where two or more throughstreets or highways designated under this subsection (b) intersect and no traffic control signal is inoperation, stop signs or yield signs shall be erected at one or more entrances thereto by the City,except as otherwise provided in this section.

(c) Stop signs need not be erected at intersections so constructed as to permit traffic to safely enter athrough street or highway without coming to a stop. Signs shall be erected at such intersectionsindicating that the operator of a vehicle shall yield the right of way to or merge with all trafficproceeding on the through street or highway.

(d) Council may designate additional through streets or highways whereupon the appropriateexecutive officers shall erect stop signs, yield signs or traffic control signals at all streets andhighways intersecting such through streets or highways, or may designate any intersection as a stopor yield intersection and shall erect like signs at one or more entrances to such intersection. (RC4511.65)

(e) The following are additional through streets or highways designated by Council:

Bellaire Rd., from West 130th St. to Puritas Ave.

Berea Rd., from Detroit Ave. to Triskett Rd.

Carnegie Ave.

Columbus Rd.

http://caselaw.lp.findlaw.com/clevelandcodes/cco_part4_413.htm1 3/15/2007


East Blvd.

Fairhill Rd.

Fulton Rd.

Independence Rd.

Jennings Rd.

Lake Ave., from Detroit Ave. to Clifton Rd., and from West Blvd. to West 117th St.

Lee Rd.

Liberty Blvd.

Nottingham Rd., from East 185th St. to southerly City limits.

Scranton Rd.

Train Ave., from Scranton Rd. to West 47th St.

Triskett Rd., from West 117th St. to Lorain Ave.

Turney Rd.

West I 17th St.

West Blvd.(Ord. No. 91-96. Passed 3-18-96, eff. 3-26-96)

413.03 Traffic Control Signal Terms and Lights

Whenever traffic is controlled by traffic control signals exhibiting different colored lights, or coloredlighted arrows, successively one at a time or in combination, only the colors green, red and yellowshall be used except for special pedestrian signals carrying words or symbols. The lights shallindicate and apply to drivers of vehicles and pedestrians as follows:

(a) Green Indication.

(1) Vehicular traffic facing a circular green signal may proceed straight through or turn right or leftunless a sign at such place prohibits either such turn. But vehicular traffic, including vehicles turningright or left, shall yield the right of way to other vehicles and pedestrians lawfully within theintersection or an adjacent crosswalk at the time such signal is exhibited.

(2) Vehicular traffic facing a green arrow signal, shown alone or in combination with anotherindication, may cautiously enter the intersection only to make the movement indicated by sucharrow, or such other movement as is permitted by other indications shown at the same time. Suchvehicular traffic shall yield the right of way to pedestrians lawfully within an adjacent crosswalk and

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to other traffic lawfully using the intersection.

(3) Unless otherwise directed by a pedestrian control signal as provided in Section 413.05,pedestrians facing any green signal, except when the sole green signal is a turn arrow, may proceedacross the roadway within any marked or unniarked crosswalk.

(b) Steady Yellow Indication.

(1) Vehicular traffic facing a steady circular yellow or yellow arrow signal is thereby warned that therelated green movement is being terminated or that a red indication will be exhibited immediatelythereafter when vehicular traffic shall not enter the intersection.

(2) Pedestrians facing a steady circular yellow or yellow arrow signal, urnless otherwise directed by apedestrian control signal as provided in. Section 413.05, are thereby advised that there is insufficienttime to cross the roadway before a red indication is shown, and no pedestrian shall then start to crossthe roadway.

(c) Steady Red Indication.

(1) Vehicular traffic facing a steady red signal alone shall stop at a clearly marked stop line, but ifnone, before entering the crosswalk on the near side of the intersection, or if none, then beforeentering the intersection, and shall remain standing until an indication to proceed is shown except asprovided in subsections (c)(2) and (3) hereof.

(2) Unless a sign is in place prohibiting a right turn as provided in subsection (c)(5) hereof, vehiculartraffic facing a steady red signal may cautiously enter the intersection to make a right turn afterstopping as required by subsection (c)(1) hereof. Such vehicular traffic shall yield the right of way topedestrians lawfully within an adjacent crosswalk and to other traffic lawfully using the intersection.

(3) Unless a sign is in place prohibiting a left turn as provided in subsection (c)(5) hereof, vehiculartraffic facing a steady red signal on a one-way street that intersects another one-way street on whichtraffic moves to the left may cautiously make a left turn into the one-way street after stopping asrequired by subsection (c)(1) hereof, and yielding the right of way to pedestrians lawfully within anadjacent crosswalk and to other traffic lawfully using the intersection.

(4) Unless otherwise directed by a pedestrian control signal as provided in Section 413.05,pedestrians facing a steady red signal alone shall not enter the roadway.

(5) Council may by ordinance, as provided in Sections 413.09 and 413.10, prohibit a right or leftturn against a steady red signal at any intersection, which shall be effective when signs giving noticethereof are posted at the intersection.

(d) Signals; Locations Other than Intersections. In the event an official traffic control signal iserected and maintained at a place other than an intersection, the provisions of this section shall beapplicable except as to those provisions which by their nature can have no application. Any stoprequired shall be made at a sign or marking on the pavement indicating where the stop shall bemade, but in the absence of any such sign or marking the stop shall be made at the signal.(RC 4511.13; Ord. No. 91-96. Passed 3-18-96, eff. 3-26-96)

413.031 Use of Automated Cameras to Impose Civil Penalties upon Red Light



and Speeding Violators

(a) Civil enforcement system established. The City of Cleveland hereby adopts a civil enforcementsystem for red light and speeding offenders photographed by means of an "automated trafficenforcement camera system" as defined in division (m). This civil enforcement system imposesmonetary liability on the owner of a vehicle for failure of an operator to stop at a traffic signaldisplaying a steady red light indication or for the failure of an operator to comply with a speedlimitation.

(b) Red light offense - liability imposed. The owner of a vehicle shall be liable for the penaltyimposed under this section if the vehicle crosses a marked stop line or the intersection plane at asystem location when the traffic signal for that vehicle's direction is emitting a steady red light.

(c) Speeding offense - liability imposed. The owner of a vehicle shall be liable for the penaltyimposed under this section if the vehicle is operated at a speed in excess of the limitations set forthin Section 433.03.

(d) Liability does not constitute a conviction. The imposition of liability under this section shall notbe deemed a conviction for any purpose and shall not be made part of the operating record of anyperson on whom the liability is imposed.

(e) Other offenses and penalties not abrogated. Nothing in this section shall be construed as alteringor limiting Sections 433.03 or 413.03 of these Codified Ordinances, the criminal penalties imposedby those sections, or the ability of a police officer to enforce those sections against any offenderobserved by the officer violating either of those sections. Nothing in this section shall be construedto limit the liability of an operator of a vehicle for any violation of division (b) or (c) of this section.

(f) Selection of camera sites. The selection of the sites where automated cameras are placed and theenforcement of this ordinance shall be made on the basis of sound professional traffic engineeringand law enforcement judgments. Automated cameras shall not be placed at any site where the speedrestrictions or the timing of the traffic signal fail to conform to sound professional trafficengineering principles.

(g) Locations. The following are the locations for the Automated Traffic Enforcement CameraSystem:

Locations

Shaker Boulevard at Shaker Square

Chester Avenue at Euclid Avenue

West Boulevard at North Marginal Road

Shaker Boulevard at East 116th Street

West Boulevard at 1-90 Ramp

Chester Avenue at East 71st Street

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East 55th Street at Carnegie Avenue

East 131st Street at Harvard Avenue

Camegie Avenue at East 30th Street

Cedar Avenue at Murray Hill Road

Grayton Road at 1-480 Ramp

Euclid Avenue at Mayfield Road

Warren Road at 1-90 Ramp

Prospect Avenue at East 40th Street

East 116th Street at Union Avenue

Pearl Road at Biddulph Road

Carnegie Avenue at East 100th Street

Carnegie Avenue at Martin Luther King Jr. Drive

Memphis Avenue at Fulton Road

Lakeshore Boulevard at East 159th Street

St. Clair Avenue at London Road

Clifton Boulevard between West 110th Street and West 104th Street

Chester Avenue between East 55th Street and East 40th Street

Woodland Avenue between East 66th Street and East 71st Street

West Boulevard between 1-90 Ramp and Madison Avenue

Broadway between Harvard Avenue and Miles Avenue

Lee Road between Tarkington Avenue and 1-480 Ramp

1-90 and West 41st Street

1-90 and West 44th Street

The Director of Public Safety shall cause the general public to be notified by nieans of a pressrelease issued at least thirty days before any given camera is made fully-ope.rational and is used toissue tickets to offenders. Before a given camera issues actual tickets, there shall be a period of at



least two weeks, which may run concurrently with the 30-day public-notice period, during whichonly "warning" notices shall be issued.

At each site of a red light or fixed speed camera, the Director of Public Service shall cause signs tobe posted to apprise ordinarily observant motorists that they are approaching an area where anautomated camera is monitoring for red light or speed violators. Mobile speed units shall be plainlymarked vehicles.

(h) Notices of liability. Any ticket for an automated red light or speeding system violation under thissection shall:

(1) Be reviewed by a Cleveland police officer;

(2) Be forwarded by first-class mail or personal service to the vehicle's registered owner's address asgiven on the state's motor vehicle registration, and

(3) Clearly state the manner in which the violation may be appealed.

(1) Penalties. Any violation of division (b) or division (c) of this section shall be deemed anoncriminal violation for which a civil penalty shall be assessed and for which no points authorizedby Section 4507.021 of the Revised Code ("Point system for license suspension") shall be assignedto the owner or driver of the vehicle.

(j) Ticket evaluation, public service, and appeals. The program shall include a fair and sound ticket-evaluation process that includes review by the vendor and a police officer, a strong customer-servicecommitment, and an appeals process that accords due process to the ticket respondent and thatconforms to the requirements of the Ohio Revised Code.

(k) Appeals. A notice of appeal shall be filed with the Hearing Officer within twenty-one (21) daysfrom the date listed on the ticket. The failure to give notice of appeal or pay,the civil penalty withinthis time period shall constitute a waiver of the right to contest the ticket and shall be considered anadmission.

Appeals shall be heard by the Parking Violations Bureau through an administrative processestablished by the Clerk of the Cleveland Municipal Court. At hearings, the strict rules of evidenceapplicable to courts of law shall not apply. The contents of the ticket shall constitute a prima facieevidence of the facts it contains. Liability may be found by the hearing examiner based upon apreponderance of the evidence. If a finding of liability is appealed, the record of the case shallinclude the order of the Parking Violations Bureau, the Ticket, other evidence submitted by therespondent or the City of Cleveland, and a transcript or record of the hearing, in a written orelectronic form acceptable to the court to which the case is appealed.

Liability shall not be found where the evidence shows that the automated camera captured an eventis not an offense, including each of the following events and such others as may be established byrules and regulations issued by the Director of Public Safety under the authority of division (n) ofthis section:

1) The motorist stops in time to avoid violating a red light indication;

2) The motorist proceeds through a red light indication as part of funeral procession;



3) The motorist is operating a City-owned emergency vehicle with its emergency lights activatedand proceeds through a red light indication or exceeds the posted speed limitation;

4) The motorist is directed by a police officer on the scene contrary to the traffic signal indication.

Liability shall also be excused if a vehicle is observed committing an offense where the vehicle wasstolen prior to the offense and the owner has filed a police report;

The Director of Public Safety, in coordination with the Parking Violations Bureau, shall establish aprocess by which a vehicle owner who was not the driver at the time of the alleged offense may, byaffidavit, name the person who the owner believes was driving the vehicle at the time. Upon receiptof such an affidavit timely submitted to the Parking Violations Bureau, the Bureau shall suspendfarther action against the owner of the vehicle and instead direct notices and collection efforts to theperson identified in the affidavit. If the person named in the affidavit, when notified, denies beingthe driver or denies liability, then the Parking Violations Bureau shall resume the notice andcollection process against the vehicle owner, the same as if no affidavit had been submitted, and ifthe violation is found to have been committed by a preponderance of evidence, the owner shall beliable for any penalties imposed for the offense.

A decision in favor of the City of Cleveland may be enforced by means of a civil action or any othermeans provided by the Revised Code.

(1) Evidence of ownership. It is prima facie evidence that the person registered as the owner of thevehicle with the Ohio Bureau of Motor Vehicles, or with any other State vehicle registration office,was operating the vehicle at the time of the offenses set out in divisions (b) and (c) of this section:

(m) Program oversight. The Director of Public Safety shall oversee the program authorized by thisSection. The Director of Public Service shall oversee the installation and maintenance of allautomated cameras. An encroachment permit shall be authorized in the legislation in whichlocations are selected.

(n) Rules and Regulations. The Director of Public Safety may issue rules and regulations to carry outthe provisions of these sections, which shall be effective thirty (30) days after publication in the CityRecord.

(o) Establishment of Penalty. The penalty imposed for a violation of division (b) or (c) of thissection shall be follows:

413.031(b) All violations $100.00 413.031(c) Up to 24 mph overthe speed limit $100.00 25 mph or more overthe speed limit $200.00 Any violation of a schoolor construction zonespeed limit $200.00

Late penalties

For both offenses, if the penalty is not paid within 20 days from the date of mailing of the ticket tothe offender, an additional $20.00 shall be imposed, and if not paid with 40 days from that date,another $40.00 shall be imposed, for a total additional penalty in such a case of $60.00.



(p) Definitions. As used in this section:

(1) "Automated traffic enforcement camera system" means an electronic system consisting of aphotographic, video, or electronic camera and a vehicle sensor installed to work alone or inconjunction with an official traffic controller and to automatically produce photographs, video, ordigital images of each vehicle violating divisions (b) or (c).

(2) "System location" is the approach to an intersection or a street.toward which a photographic,video or electronic camera is directed and is in operation. It is the location where the automatedcamera system is installed to monitor offenses under this section.

(3) "Vehicle owner" is the person or entity identified by the Ohio Bureau of Motor Vehicles, orregistered with any other State vehicle registration office, as the registered owner of a vehicle.(Ord. No. 1284-05. Passed 7-13-05, eff. 7-20-05)

413.04 Lane-Use Control Signals Over Individual Lanes

When lane-use control signals are placed over individual lanes of a street or highway, such signalsshall indicate and apply to drivers of vehicles as follows:

(a) A Steady Downward Green Arrow. Vehicular traffic may travel in any lane over which a greenarrow signal is shown.

(b) A Steady Yellow 'X" Vehicular traffic is warned to vacate in a safe manner any lane over whichsuch signal is shown to avoid occupying that lane when a steady red "X" signal is shown.

(c) A Flashing Yellow 'X". Vehicular traffic may use with proper caution any lane over which suchsignal is shown for only the purpose of making a left turn.

(d) A Steady Red 'X". Vehicular traffic shall not enter or travel in any lane over which such signal isshown.(RC 4511.131; Ord. No. 1684-76. Passed 6-29-76, eff. 7-6-76)

413.05 Pedestrian Control Signals

Whenever special pedestrian signals exhibiting the words "walk" or "don't walk," or the symbol of awalking person or an upraised palm are in place, such signals shall indicate the followinginstructions:

(a) "Walk" or the symbol of a walking person: Pedestrians facing such signal may proceed across theroadway in the direction of the signal and shall be given the right of way by the operators of allvehicles.

(b) "Don't walk" or the symbol of an upraised palm: No pedestrian shall start to cross the roadway inthe direction of the signal. Nothing in this section shall be construed to invalidate the continued useof pedestrian control signals utilizing the word "wait" if those signals were installed prior to March28, 1985. (RC 4511.14)

(c) "Don't walk" flashing illumination. No pedestrian shall start to cross the roadway in the direction

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of the signal, but any pedestrian who has partly completed his crossing during the walk indicationshall proceed to a sidewalk or safety island.(Ord. No. 755-A-86. Passed 10-27-86, eff. 10-31-861

413.06 Flashing Traffic Signals

Whenever an illuminated flashing red or yellow traffic signal is used in a traffic signal or with atraffic sign, it shall require obedience as follows:

(a) Flashing Red Stop Signal. Operators of vehicles shall stop at a clearly marked stop line, but ifnone, before entering the crosswalk on the near side of the intersection, or if none, then at the pointnearest the intersecting roadway where the driver has a view of approaching traffic on theintersecting roadway before entering it, and the right to proceed shall be subject to the rulesapplicable after making a stop at a stop sign.

(b) Flashing Yellow Caution Signal. Operators of vehicles may proceed through the intersection orpast such signal only with caution.

This section shall not apply at railroad grade crossings. Conduct of drivers of vehicles approachingrailroad grade crossings shall be governed by Sections 431.39 and 431.40.(RC 4511.15; Ord. No. 1684-76. Passed 6-29-76, eff. 7-6-76)

413.07 Unauthorized Signs and Signals; Hiding from View; Advertising

(a) No person shall place, maintain or display upon or in view of any street any unauthorized sign,signal, marking or device which purports to be or is an imitation of or resembles a traffic controldevice or railroad sign or signal, or which attempts to direct the movement of traffic, or which hidesfrom view or interferes with the effectiveness of any traffic control device or any railroad sign orsignal, and no person shall place or maintain, nor shall any public authority permit, upon any streetany traffic sign or signal bearing thereon any commercial advertising. This section does not prohibitthe erection upon private property adjacent to streets of sigps giving useful directional informationand of a type that cannot be mistaken for traffic control devices or the erection upon private propertyof traffic control devices by the owner of real property in accordance with RC 4511.211 and RC4511.32.

(b) Every such prohibited sign, signal, marking or device is a public nuisance, and the Director ofPublic Safety is authorized to remove the same or cause it to be removed. (RC 4511.16)

(c) No person shall stick, post or attach any advertisement, poster, sign, handbill or placard of anykind or description upon any portion of a traffic control device or pole, post or stanchion upon whichsuch device is placed or to which such device is attached, except such as may be required orpermitted by the State laws or City ordinances.(Ord. No. 91-96. Passed 3-18-96, eff. 3-26-96)

413.08 Tampering with Traffic Control Devises Prohibited

No person, without lawful authority, shall do any of the following:

(a) Knowingly move, deface, damage, destroy, or otherwise improperly tamper with any traffic



control device, any railroad sign or signal, or any inscription, shield, or insignia on the device, sign,or signal, or any part of the device, sign, or signal;

(b) Knowingly drive upon or over any freshly applied pavement marking material on the surface of aroadway while the marking material is in an undried condition and is marked by flags, markers,signs, or other devices intended to protect it;

(c) Knowingly move, damage, destroy, or otherwise improperly tamper with a manhole cover.(RC 4511.17; Ord. No. 91-96. Passed 3-18-96, eff. 3-26-96)

413.09 No Right Turns on Red

(a) Pursuant to RC 4511.13, Council does hereby prohibit right turns against a steady red signal atvarious intersections in the City as listed in schedules on file with the Clerk of Council as File No.107-76, pursuant to this section.

(b) When signs have been erected giving notice thereof, no driver of any vehicle facing a steady redsignal shall make a right turn at any of the following intersections:

Aetna Rd., Fleet Ave. and East 75th St., eastbound and southbound.

Addison Rd., Linwood Ave. and E. 79th St., southeastbound Addison Rd.

Baltic Rd. and West Blvd., eastbound.

Berea Rd. and Lakewood Heights Blvd., eastbound.

Berea Rd. and Triskett Rd., northbound.

Bridge Ave. and West 25th St., eastbound and westbound.

Bridge Ave. and West 44th St., southbound.

Broadview Rd. and Valley Rd., westbound.

Broadway, Ackley Rd. and Union Ave., northbound and westbound.

Broadway and Aetna Rd., northwestbound Broadway.

Broadway and Blanche Ave., northeastbound Blanche Ave.

Broadway, Miles Ave. and Warner Rd., westbound.

Broadway and E. 55th St., northbound and westbound.

Buckeye Rd., Steinway Ave. and E. 93rd St., northwestbound Buckeye Rd.

Buckeye Rd., Woodhill Rd. and Shaker Blvd., northwestbound Buckeye Rd.



Clifton Blvd. and Baltic Rd., eastbound and westbound Clifton Blvd.

Castlewood Ave. and E. 123rd St., eastbound.

Carnegie Ave. and E. 21st St., eastbound.

Chester Ave. and E. 12th St., eastbound and westbound.

Detroit Ave. and Berea Rd., northeastbound Berea Rd.

Detroit Ave. and W. 65th St., all directions.

Detroit Ave. and W. 110th St., westbound.

Detroit Ave. and W. 101 st St., northbound.

Detroit Ave. and Lake Ave. and W. 75th St., eastbound and westbound.

Detroit Ave. and W. 25th St., northbound.

Dolloff Ave. and Hamm Ave., eastbound.

Euclid Ave., and E. Roadway (Public Square), westbound:

Euclid Ave. and Chester Ave., westbound.

Euclid Ave. and E. 4th St., northbound.

Euclid Ave. and E. 13th St., southbound.

Euclid Ave., Huron Rd. and E. 14th St., eastbound Euclid Ave. and northeastbound Huron Rd.

Euclid Ave. and E. 17th St., southbound.

Euclid Ave. and E. 46th St., eastbound.

E. 55th St., S. Marginal Rd. and exit ramp from 1-90, eastbound from the exit ramp.

Fairfield Ave. and W. 14th St., westbound.

Fulton Rd., Bush Ave. and W. 41 st St., southbound Fulton Rd.

Fulton Rd., Denison Ave. and Brookside Pk. Dr., eastbound Denison Ave. and northeastboundBrookside Pk. Dr.

Fulton Rd. and 1-71 southerly ramp, northbound.

Fulton Rd., Bridge Ave. and W. 32nd St., northeastbound Fulton Rd. and northbound W. 32nd St.



Fleet Ave. and E. 49th St., southbound.

Grand Ave. and E. 75th St., southbound.

Holton Ave. and E. 79th St., all directions.

Kinsman Rd. and E. 93rd St., northbound.

Lake Ave. and West Blvd., westbound.

Lakeshore Blvd. and E. 152nd St., southbound.

Lee Rd. and McCracken Rd., eastbound.

Lorain Ave. and Groveland Ave., westbound.

Lorain Ave. and W. 73rd St., westbound.

Loraiv Ave. and W. 90th St., eastbound and northbound.

Lorain Ave., Denison Ave. and W. 101st St., westbound and southbound.

Lorain Ave., Groveland Ave. and Riveredge Rd., eastbound Lorain Ave.

Lorain Ave. and Rocky River Dr., eastbound.

Lorain Ave. and Warren Rd., southbound.

Lakeview Rd. and Moulton Ave., eastbound.

Liberty Blvd. and ramp from E. 82nd St., eastbound.

Lucknow Ave. and E. 152nd St., northbound.

Marble Ave. and E. 78th St., southbound.

Ontario St. and Huron Rd., eastbound.

Pearl Rd., State Rd., Henritze Ave. and Altoona Ave., northbound State Rd. and westbound AltoonaAve.

Pearl Rd. and Broadview Rd., northbound.

Platt Ave. and E. 79th St., westbound.

Prospect Ave. and E. 21 st St., eastbound.

Prospect Ave. and Prospect Rd., eastbound.

http://caselaw.lp.findlaw.com/clevelandcodes/cco_patt4_413.html 3/15/2007

FindLaw for Legal Professionals - Case Law, Federal and State Resources, Forms, and .:. Page 14 of 19

Quincy Ave. and E. 79th St., eastbound.

Ridge Rd. and Russell Lane, southbound.

Storer Ave. and W. 58th St., eastbound.

Scranton Rd., Fairfield Ave. and Train Ave., northbound Scranton Rd.

Shaker Blvd. and E. 103rd St., eastbound and westbound.

Shaker Blvd. and East Blvd., eastbound and westbound.

Shaker Blvd. and E. 116th St., eastbound and westbound.

Shaker Blvd. and E. 121st St., eastbound and westbound.

Shaker Blvd. and Van Aken Blvd., eastbound.

Shaker Blvd. at Shaker Square, eastbound and westbound.

Shaker Square at Shaker Blvd., northbound and southbound.

St. Clair Ave., Ivanhoe Rd. and E. 152nd St., eastbound, northbound and northwestbound IvanhoeRd.

St. Clair Ave., Herrick Rd. and Yale Ave., northwestbound Herrick Rd., and eastbound.

St. Clair Ave. and Nottingham Rd., eastbound.

St. Clair Ave., Arbor Rd. and E. 131 st St., westbound.

Superior Ave., Columbus Rd., Huron Rd. and W. 9th St., eastbound, southbound andnortheastbound Columbus Rd.

Superior Ave. and E. 18th St., southbound.

Triskett Rd. and Warren Rd., northbound.

W. 25th St. and 1-71 southerly ramp, northbound.

W. 33rd St. and Denison Ave., northbound and southbound.

W. 33rd St. and Denison Ave., eastbound and westbound.

Woodland Ave., Kinsman Rd. and E. 55th St., northwestbound Kinsman Rd.

Wade Park Ave., Ansel Rd. and ramp from Liberty Blvd., westbound and southwestbound out of theramp.

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FindLaw for Legal Professionals - Case Law, Federal and State Resources, Forms, and ... Page 15 of 19 .

Woodland Ave., Larchmere Blvd., N. Moreland Blvd. and Kemper Rd., northeastbound N.Moreland.

West Blvd., Parkhurst Ave. and W. 105th St., southwestbound West Blvd. and northbound W. 105thSt.



East Blvd. and Fairhill Rd., westbound:

Puritas Ave. and RTA Roadway, southbound.

Lorain Ave. and W. 98th St., eastbound, westbound, northbound and southbound.

(c) Violations of this section shall be punishable under the penalty provided for violations of Section413.01.(Ord. No. 1684-76. Passed 6-29-76, eff. 7-6-76; Ord. No. 1396-76. Passed 6-29-76, eff. 7-6-76)

Note: Pursuant to RC 4511.13 and Codified Ordinance Section 413.09, File 107-76 has beenamended. The amendments are contained in File 107-76 in the office of the Clerk of Council.

413.10 No Right Turns on Red During Certain Hours

(a) Pursuant to RC 4511.13, Council does hereby prohibit right turns against a steady red signal atvarious intersections in the City as listed in schedules on file with the Clerk of Council, as File No.106-76, pursuant to this section. .

(b) When signs have been erected giving notice thereof, no driver of any vehicle facing a steady redsignal shall make a right turn between the hours of 8:00 a.m. and 4:00 p.m. Monday through Fridayat any of the following intersections:

Almira Ave. and West Blvd., northbound.

Almira Ave. and W. 98th St., all directions.

Broadway and Marble Ave., westbound.

Broadview Rd. and Schaaf Rd., northbound and westbound.

Broadview Rd., Searsdale Ave. and Valley Rd., northbound and westbound.

Broadview Rd. and Oak Park Ave., southbound.

Broadview Rd., Montclair Ave., and Spring Rd., northbound.

Broadview Rd. and Cook Ave., northbound.

Bridge Ave. and Fulton Rd., southbound and westbound.


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Bailey Ave. and W. 41st St., westbound.

Bosworth and Thrush, eastbound, northbound and westbound.

Bellaire Rd., Jasper Ave. and W. 105th St., northeastbound Bellaire Rd.

Bellaire Rd., W. 117th St. and Memphis Ave., northeastbound Bellaire Rd. and southbound W.117th St.

Barber Ave. and W. 25th St., northbound.

Bridge Ave. and W. 58th St., northbound and westbound.

Buckeye and E. 116th St., eastbound, southbound and westbound.

Buckeye Rd., Steinway Ave. and E. 93rd St., northwestbound Buckeye Rd., westbound SteinwayAve. and southbound E. 93rd St.

Chester Ave. and E. 101st St., eastbound and southbound.

Clark Ave. and W. 14th St., northbound and westbound.

Clark Ave. and W. 56th St., westbound.

Corlett Ave. and E. 131st St., eastbound.

Denison Ave. and W. 54th St., westbound.

Denison Ave. and W. 65th St., westbound.

Detroit Ave. and W: 65th St., northbound.

Detroit Ave. and Lake Ave., westbound.

East Blvd., Farrington and E. 116th St., eastbound.

Fleet Ave. and E. 65th St., westbound.

Fulton Rd. and Biddulph, all directions.

Fulton Rd. and Memphis Ave., all directions.

Fulton Rd. and Walton Ave., northbound and westbound.

Fulton Rd., Bush Ave. and W. 41 st St., eastbound Bush Ave.

Fulton Rd. and Ira Ave., eastbound and northbound.

Holmes Ave. and E. 156th St., southbound and westbound.



Harvard Ave. and E. 71 st St., eastbound, northbound and southbound.

Hough Ave. and E. 71st St., all directions.

Hough Ave. and E. 79th St., all directions.

Hough Ave. and E. 82nd St., eastbound and westbound.

Kinsman Rd. and Grand Ave., eastbound and northbound.

Lee Rd. and Miles Ave., eastbound, southbound and westbound.

Lexington Ave. and E. 66th St., all directions.

Lexington Ave. and E. 71 st St., eastbound, northbound and southbound.

Lorain Ave. and West Blvd., southbound.

Lorain Ave. and W. 24th St., southbound.

Lorain Ave. and W. 44th St., eastbound.

Lorain Ave. and W. 130th St., eastbound, westbound and northbound.

Lorain Ave. and Berea Rd., westbound.

Lorain Ave. and W. 134th St., eastbound.

Memphis Ave. and W. 41 st St., eastbound.

Memphis Ave, and W. 47th St., eastbound.

Memphis Ave. and W. 60th St., eastbound.

Puritas Ave. and CTS roadway (W. 154th St., to north), southbound.

Puritas Ave. and Rocky River Dr., all directions.

Puritas Ave. and W. 140th St., westbound.

Puritas Ave. and W. 150th St., southbound.

Sprecher Ave. and W. 130th St., southbound.

Spring Rd. and South Hills, eastbound and northbound.

Scranton Rd. and Castle Ave., northbound and westbound.

State Rd. and Montclair Ave., northbound.



St. Clair Ave. and Lakeview Rd., eastbound.

St. Clair Ave. and Eddy Rd., northbound, southbound and westbound.

St. Clair Ave., Ivanhoe Rd. and E. 152nd St., southbound and westbound.

St. Clair Ave. and E. 146th St., westbound.

State Rd. and Dawning Ave., eastbound and southbound.

Union Ave. and E. 93rd St., all directions.

Union Ave. and E. 116th St., all directions.

West Ave. and W. 130th St., eastbound.

Woodland Ave. and East Blvd., northbound, southbound and westbound.

Waterloo Rd. and E. 156th St., southbound.

West Blvd. and Western Ave., southbound and eastbound.

Kinsman and E. 147th St., all directions.

(c) Violations of this section shall be punishable under the penalty provided for violations of Section413.01.(Ord. No. 1684-76. Passed 6-29-76, eff. 7-6-76; Ord. No. 1395-76. Passed 6-29-76, eff. 7-6-76)Note: Pursuant to RC 4511.13 and Codifaed Ordinance Section 413.10, File 106-76 has beenamended. The amendments are contained in File 106-76 in the office of the Clerk of Council.

413.11 Driver's Duties Upon Approaching Ambiguous or Non-Working TrafficSignal

The driver of a vehicle who approaches an intersection where traffic is controlled by traffic controlsignals shall do all of the following, if the signal facing him either exhibits no colored lights orcolored lighted arrows or exhibits a combination of such lights or arrows that fails to clearly indicatethe assignment of right of way:

(a) Stop at a clearly marked stop line, but if none, stop before entering the crosswalk on the near sideof the intersection, or, if none, stop before entering the intersection;

(b) Yield the right of way to all vehicles in the intersection or approaching on an intersecting road, ifthe vehicles will constitute an immediate hazard during the time the driver is moving across orwithin the intersection or junction of roadways;

(c) Exercise ordinary care while proceeding through the intersection.(RC 4511.132; Ord. No. 2822-89. Passed 3-19-90, eff. 3-22-90)

http://caselaw.lp.findlaw.com/clevelandcodes/eco_part4_413.htm1 3/15/2007


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7

-19-

Opinion #7199 Page 1 of 6

The following opinion is presented on-line for informational use only and does notreplace the official version. (Mich Dept of Attorney General Web Site -www.ag.state.mi.us)

STATE OF MICHIGAN

MIKE COX, ATTORNEY GENERAL

CITIES:

HOME RULE CITY ACT:

MICHIGAN VEHICLE CODE:

TRAFFIC RULES AND REGULATIONS:

Legality of ordinance allowing use of unmannedtraffic monitoring device to support citation for civilinfraction

An ordinance adopted by a city pursuant to its authority under the Home Rule CityAct, 1909 PA 279, MCL 117.1 et seq, that allows the city to issue citations for civilinfractions for disobeying a traffic control signal based on the photograph or videoproduced by an unmanned traffic monitoring device at a location other than a railroadgrade crossing conflicts with the Michigan Vehicle Code, 1949 PA 300, MCL 257.1 etseq, and, thus, is invalid.

Opinion No. 7199

January 30, 2007

Honorable Barbara A. FarrahState RepresentativeThe CapitolLansing, MI 48909

You ask if an ordinance, adopted by a city, pursuant to its authority under the HomeRule City Act, 1909 PA 279, MCL 117.1 et seq (Act), to allow the city to issuecitations for civil infractions for disobeying a traffic control signal (red light) based onthe photograph or video produced by an unmanned traffic monitoring device is valid.

The Constitution reserves to local units of government the authority to exercisereasonable control over streets and highways. Const 1963, art 7, § 29 provides inpertinent part:

Except as otherwise provided in this constitution the right of all counties, townships,

http://www.ag.state.mi.us/opinion/datafles/2000s/op10275.htm 3/15/2007

Vpinion #7199 Page 2 of 6

cities and villages to the reasonable control of their highways, streets, alleys and publicW

places is hereby reserved to such local units of government.1 I

Thus, the authority reserved to local units of government to exercise reasonable controlover streets and highways is expressly made subject to other provisions of theConstitution. One such provision is Const 1963, art 7, § 22 in which cities and villagesenjoy broad powers to adopt ordinances relating to municipal concerns, "subject to theconstitution and law." AFSCME v Detroit, 468 Mich 388, 410; 662 NW2d 695(2003).

Similarly, section 4j(3) of the Act, MCL 11 7.4j(3), authorizes home rule cities to adoptordinances relating to their municipal concerns subject to the Constitution and law:

Each city may in its charter provide:

[F] or any act to advance the interests of the city, the good government and prosperityof the municipality and its inhabitants and through its regularly constituted authority topass all laws and ordinances relating to its municipal concerns subject to theconstitution and general laws of this state.

Although home rule cities may adopt a code by passing an ordinance under theirgeneral police powers, a municipality is precluded from enacting an ordinance if theordinance directly conflicts with the state statutory scheme addressing that subject or ifthe state statutory scheme pre-empts the ordinance by occupying the field of regulationwhich the municipality seeks to enter, to the exclusion of the ordinance, even wherethere is no direct conflict between the two schemes of regulation. People v Llewellyn,401 Mich 314, 322; 257 NW2d 902 (1977).

Section 41(1) of the Act, MCL 117.41(1), provides in pertinent part:

Consistent with any of the following statutes and whether or not authorized bythecity charter, the legislative body of a city may adopt an ordinance that designates aviolation of the ordinance as a civil infraction and provides a civil fine for thatviolation:

(a) The Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923.

In similar vein, the Revised Judicature Act, 1961 PA 236, MCL 600.101 et seq,provides in section 113, MCL 600.113:

(1) As used in this act:

(a) "Civil infraction" means an act or omission that is prohibited by a law and is

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Opinion #7199 Page 3 of 6

not a crime under that law or that is prohibited by an ordinance and is not acrime under that ordinance, and for which civil sanctions may be ordered. Civilinfraction includes, but is not limited to, the following:

(i) A violation of the Michigan vehicle code, Act No. 300 of the Public Acts of1949, being sections 257.1 to 257.923 of the Michigan Compiled Laws, designated asa civil infraction.

(ii) A violation of a city, township, or village ordinance substantiallycorresponding to a provision of Act No. 300 of the Public Acts of 1949, if theordinance designates the violation as a civil infraction.

Accordingly, a city operating under the Home Rule City Act may enact ordinances thatare consistent with the Michigan Vehicle Code (the Code), 1949 PA 300, MCL 257.1et seq.

The city in question has adopted an ordinance that allows a police officer or personappointed by a local district judge to issue a citation for a civil infraction for drivinginto an intersection after the traffic signal has turned red based on a review ofphotographic evidence obtained by an unmanned camera. Section 741 of the MichiganVehicle Code, MCL 257.741, provides:

A civil infraction action is a civil action in which the defendant is alleged to beresponsible for a civil infraction. A civil infraction action is commenced upon theissuance and service of a citation as provided in section 742.

Section 742 of the Code, MCL 257.742, provides for the issuance of citations for civilinfractions:

(1) A police officer who witnesses a person violating this act or a localordinance substantially corresponding to this act, which violation is a civil infraction,may stop the person, detain the person temporarily for purposes of making a record ofvehicle check, and prepare and subscribe, as soon as possible and as completely aspossible, an original and 3 copies of a written citation, which shall be a notice toappear in court for 1 or more civil infractions. If a police officer of a village, city,township, or county, or a police officer who is an authorized agent of a county roadcommission, witnesses a person violating this act or a local ordinance substantiallycorresponding to this act within that village, city, township, or courity and thatviolation is a civil infraction, that police officer may pursue, stop, and detain theperson outside the village, city, township, or county where the violation occurred forthe purpose of exercising the authority and performing the duties prescribed in thissection and section 749, as applicable.

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Opinion #7199 Page 4 ot-6

.(3) A police officer may issue a citation to a person who is a driver of a motorvehicle involved in an accident when, based upon personal investigation, the officerhas reasonable cause to believe that the person is responsible for a civil infraction inconnection with the accident. A police officer may issue a citation to a person who isa driver of a motor vehicle when, based upon personal investigation by the policeofficer of a complaint by someone who witnessed the person violating this act or alocal ordinance substantially corresponding to this act, which violation is a civilinfraction, the officer has reasonable cause to believe that the person is responsible fora civil infraction and if the prosecuting attorney or attorney for the politicalsubdivision approves in writing the issuance of the citation.

(5) The officer shall infonn the person of the alleged civil infraction orinfractions and shall deliver the third copy of the citation to the alleged offender.

(6) In a civil infraction action involving the parking or standing of a motorvehicle, a copy of the citation need not be served personally upon the defendant butmay be served upon the registered owner by attaching the copy to the vehicle.

Section 605 of the Code, MCL 257.605, requires uniformity throughout the State forobedience to, the effects of, and the penalties for violating the traffic laws:

Ll I31(1) [Chapter VI^ and chapter VIII' apply uniformly throughout this state

and in all political subdivisions and municipalities in the state. A local authority shallnot adopt, enact, or enforce a local law that provides lesser penalties or that isotherwise in conflict with this chapter or chapter VIII.

(2) A local law or portion of a local law that imposes a criminal penalty for anact or omission that is a civil infraction under this act, or that imposes a criminalpenalty or civil sanction in excess of that prescribed in this act, is in conflict with thisact and is void to the extent of the conflict.

Those requirements are in contrast to section 667a of the Code, MCL 257.667a, whichprovides for the installation and use of unmanned traffic monitoring devices at railroadgrade crossings, the use of a sworn statement of a police officer based upon inspectionof photographs or videotape images produced by an unmanned traffic monitoringdevice, and service of the citation by first-class mail on the owner of the vehicle:

(1) The ... local authority having jurisdiction over a highway or street may


Opinion #7199 Page 5 ot 6

authorize the installation and use of unmanned traffic monitoring devices at arailroad grade crossing with flashing signals and gates on a highway or street undertheir respective jurisdictions.. . .

(2) Beginning 31 days after the installation of an unmanned traffic monitoringdevice at a railroad grade crossing described in subsection (1), a person is responsiblefor a civil infraction as provided in section 667 if the person violates a provision ofthat sectiomon the basis of evidence obtained from an unmanned traffic monitoringdevice.. . .

(3) A sworn statement of a police officer from the state or local authorityhaving jurisdiction over the highway or street upon which the railroad grade crossingdescribed in subsection (1) is located, based upon inspection of photographs,microphotographs, videotape, or other recorded images produced by an unmannedtraffic monitoring device, shall be prima facie evidence of the facts contained therein. .

**+

(5) Notwithstanding section 742, a citation for a violation of section 667 on thebasis of evidence obtained from an unmanned traffic monitoring device may beexecuted by mailing by first-class mail a copy to the address of the owner of thevehicle as shown on the records of the secretary of state.

It is a well-established canon of legislative construction that the expression of onething implies the exclusion of others not expressed - "expressio unius est exclusioalterius:" Taylor v Michigan Public Utilities Comm, 217 Mich 400, 402-403; 186 NW485 (1922); Sebewaing Industries Inc v Village of Sebewaing, 337 Mich 530, 548; 60NW2d 444 (1953).

It is my opinion, therefore, that an ordinance adopted by a city pursuant to its authorityunder the Home Rule City Act, 1909 PA 279, MCL 117.1 et seq, that allows the city toissue citations for civil infractions for disobeying a traffic control signal based on thephotograph or video produced by an unmanned traffic monitoring device at a locationother than a railroad grade crossing conflicts with the Michigan Vehicle Code, 1949PA 300, MCL 257.1 et seq, and, thus, is invalid.

Mike CoxAttorney General

1See also MCL 117.4h(1), which provides that each city may in its charter provide "[fJor the use, regulation,

improvement and control of the surface of its streets, alleys and public ways, and of the space. above and beneath them."


Opinion #7199 Yage 6 ot b

[21 Chapter VI addresses obedience to and effect of traffic laws and includes MCL

257.605.

3Chapter VIII addresses the penalties provided in the Code.

hftp://opinion/dataflies/20OOs/opl0275.htmState of Michigan, Department of Attorney GeneralLast Updated 03/15/2007 15:03:22


8

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The Red Light Running CrisisIs it Intentional?

Office of the Majority LeaderU. S. House of Representatives

May 2001

.The Red Light Running CrisisIs it Intentional?

Executive Summary

There's a hidden tax being levied on motorists today. In theory, this tax is only levied onthose who violate the law and put others in danger. But the reality is that the game has beenrigged. And we're all at risk.

We are told to accept the idea that our laws should be administered by machines-nothuman beings-because it is a matter of safety. We must accept this expansion of governmentand this Orwellian threat to our privacy because cameras are the solution to the so-called redlight running crisis.

This is a federal issue, not just a local one. The federal govemment is promoting andoffering funding for this "solution", because the safety benefits are supposed to be indisputable.

After all, who's going to object? Nobody likes a red light runner. They endangerthemselves and othvrs. They must be penalized.

But why have so many people become wanton red light runners all of a sudden? Theanswer seems to be that changes made to accommodate camera enforcement have producedyellow light times that, in many cases, are sbortened to the point that they are inadequate. Andwhen people come upon an intersection with inadequate yellow time, they are faced with thechoice either of stopping abruptly on yellow (risking a rear end accident) or accelerating. Theoptions for those confronting such circumstances are limited and unsafe. But each time a driverfaces this dilemma, government increases its odds for hitting the jackpot.

This report suggests there is something that can be done to address this hazard. It citesexamples of problem intersections where yellow times have been raised by about 30 percent andthe number of people entering on red fell dramatically. It cites, in addition, controlled scientificstudies that confirm the hypothesis that longer yellows are better. The following reductions inred light entries are documented:

Mesa, ArizonaGeorgiaVirginia site 1Virginia site 2Virginia site 3Maryland

73%75%79%77%Problem "virtually eliminated"Problem "virtually eliminated"

It is no coincidence that each of the "problem" intersections mentioned above happenedto have yellow times that fell short by about 30 percent. Today's formula for calculating yellowtimes yields yellow times that can in some cases be about 30 percent shorter than the olderformula.

Office of the House MajorityLeader 2

. And one shouldask the question, if there's a problem with an intersection, why don'tsafety engineers in the field just go out and fix the timing?

In fact, before red light cameras arrived in the United States, that's exactly what ourregulations instructed them to do. If too many people enter on red at an intersection, engineerswere supposed to lengthen its yellow time. But in the year that red light cameras first startedcollecting millions in revenue on our shores, those entrusted with developing our traffic safetyregulations dropped the requirement to fix signal timing, instructing engineers to "useenforcement" instead.

Indeed, according to the Federal Highway Administration, these problem intersectionsserve as a great location to hold a press conference. The agency offers a script for local officialsto exploit a tragically mistimed intersection to call for the installation of additional red lightcameras and tout their safety benefits.

But none of the reports that are supposed to tell us that red light cameras are responsiblesafety benefits actually say that. First, they dismiss increases in rear-end collisions associatedwith red light cameras as "non-significant," despite evidence to the contrary. Second, they donot actually look at red light intersection accidents. The latest accident study in Oxnard,California, for example, only documents accident reductions "associated with"-not caused by-red light cameras. Although that statement has little scientific value, it does have greatmarketing appeal if you don't look too closely.

Every study claiming red light cameras increase safety is written by the same man.Before joining the Insurance Institute for Highway Safety (IIHS), he was a top transportationofficial in New York City at the time the city began looking into becoming the first jurisdictionin the country to install red light cameras. In other words, the father of the red light camera inAmerica is the same individual offering the "objective" testimony that they are effective.

A similar conflict of interest affects those entrusted with writing safety regulations forour traffic lights. The Institute of Transportation Engineers is actively involved in lobbying for,and even drafting legislation to implement, red light cameras. They are closely tied to theInsurance Institute for Highway Safety (IIHS), which in turn is funded by companies that standto profit handsomely any.time points are assessed to a driver's license.

In short, the only documented benefit to red light cameras is to the pocketbook of localgovernments who use the devices to collect millions in revenue.

We traded away our privacy for this. We gave up our constitutional protections for this.In return, we are less safe. That is the red light camera scam, and it has gone on for far too long.

All documents cited in this report are available online at www.freedouz.gov/auto

Offlce of the House Majority Leader

I. Something Funny is Going On

A local television station in Beaverton, Oregon (KOIN-TV) discovered the effects ofinadequate yellow light times when investigating the red light camera controversy in its area.The following is excerpted from a newscast broadcast February 14, 2001:

ELAINE MURPHY (reporting): So it got us to wondering just how this program is working.About how many people are getting tickets and, most importantly, is theresomething funny about how this is set up?

MURPHY: So we took out the stopwatch. The yellow here [where there is a red lightcamera] is three seconds and a fraction. It's a big intersection-we measured 111feet across. Yet a few blocks away at 107th and Beaverton-Hillsdale at anintersection measuring a mere 75 feet, the yellow lasts almost a second longer.yyhy?

LINDA ADLARD (Beaverton City Official): I really don't know why that would have adifferent timing.

MURPHY: We kept checking. The intersection with a camera, a little over three seconds foryellow. The next intersection to the east, four seconds. The one after that, fourseconds. And the one after that, and the one after that.

ADLARD: I think probably this is timed this way because of the volume of traffic.

MURPHY: By the way another red light running camera goes into service next Tuesday atLombard and Allen. The length of yellow? Three seconds. Just thought you'dlike to know.

It is clear from this example that there is something funny going on. This jurisdiction hasbeen caught red-handed playing with signal timing on lights that have red light cameras. Butthat's just the beginning of the story.

To understand why a jirisdiction would do something like this, one needs to know a littlemore about the incentives behind red light cameras.

Office of the House Majority Leader 4

II. Red Light Cameras and Revenue

Red light cameras raise a tremendous amount of money for the jurisdictions that usethem. It is easier to set up a camera than it is to employ a human being to enforce the law.Consequently, about 50 cities across the country in ten states issue tickets to motorists with redlight cameras. And the number of cameras continues to grow.

It's not surprising that local and state govemments are jumping at the opportunity tocollect revenue from motorists with these devices. Consider the examples below:

Rs.esWashington, D.C. A single camera collected $1 million in revenue. A line item in thecity's FY2001 budget assumed there would be $16 million in fines collected from the 37cameras deployed throughout the city. The Washington Post, May 19, 2000.

vsesSan Diego, CA. A single camera collected $6.8 million in revenue in 18 months. The 19camera program as a whole has brought in nearly $30 million in the same period. SanDiego Union Tribune, May 5, 2001.

.es.eSacramento, CA. The program collects an estimated $800,000 a year. Sacramento Bee,April 16, 2001.

.K.®'Ventura, CA. The program will collect an estimated $3.2 million during its first 12months. Ventura County Star, March 29, 2001.

.KzWest Hollywood, CA. The program collects an estimated $4.9 million a year. LosAngeles Times, March 25, 2001

.es.eflaltimore County, MD. The program has collected $6 million as of January 7001.Baltimore Sun, January 28, 2001.

.es.rsHoward County, MD. The program has collected $4 million from more than 70,000tickets issued between 1998 to 2000. Baltimore Sun, January28, 2001.

.es.eCharlotte, NC. The program will collect over $1 million. Minneapolis Star Tribune,Apri14, 2001.

,rsANew York, NY. In its first full year of operation, the 15 red-light cameras racked up168,471 tickets, collecting $5,435,815 in fines. Car & Driver, May 1999. "The city lastyear sent out more than 400,000 tickets to drivers caught on camera running red lightsand collected $9 million in revenue, said city Department of Transportation spokesmanThomas Cocola." New York Post, May 9, 2001.


The fines are trending upward

Consider how fee structures are changing:

.K.e^California. The highest in the nation fme of $271 is collected from motorists and onepoint is assessed against the driver's license.

.e.aMontgomery County, 1VID. "Local officials have asked the state Legislature to approvea fine increase to $250. Cuffent fines in the county are $75 if caught on camera." USAToday, February 6, 2001.

.@!^.G,Arizona. The legislature is considering a bill to raise the fine statewide to $250. Phoenixraised a $125 fine to $175, plus two points against the driver's license. Arizona Republic,January 16, 2001.

,e.#Delaware. The fine was raised from $25 to $75 in July 2000. USA Today, February 6,2001.


III. The Theory: If There's a Problem, Lengthen theYellow

There is no doubt that red light cameras present an attractive option for those interested incollecting additional revenue. But there may be another way to solve the red light running"crisis"-lengthening yellow times.

A little yellow makes a lot of difference

A case study of two intersections entitled "The Influence of the Time Duration of YellowTraffic Signals on Driver Response" (1980), reported that a 30 percent increase in yellow timeyielded substantial safety benefits. "The Results in Table 3 show that the extension of yellowduration reduced the frequency of potential conflicts in all cases studied," (page 27). .

The first site studied found an extra second and a fraction of yellow had an immediateand definitive safety pay-off: "An increase of 1.4 seconds or about 30 percent in yellow durationvirtually eliminated all potential conflicts at the Maryland site," (page 27, emphasis added).

Similarly, the second site in Georgia realized a 75 percent reduction in potential conflictsfollowing a 32 percent increase in yellow time. These figures agree with. those found in Section 4of this report, below.

The yellow light's purpose

To understand why an increase in yellow has such a significant safety impact, one mustconsider the traditional purpose of the yellow traffic light. The yellow indication is designed towarn a motorist approaching an intersection that the signal is about to turn red. The yellow lightshould be long enough for the approaching motorist to either, (a) come to a safe stop before theintersection, or (b) continue clear through the intersection before the red light appears.

An inadequate yellow time will either prevent motorists from coming to a safe stop orforce them to enter the intersection on a red light. Neither option should be consideredacceptable.

Office of the HouseMajority Leader 7

The diagram above illustrates what happens when an automobile approaching anintersection sees the yellow light. Drivers who are in the "Can't Go" zone as the light tumsyellow know they are too far back and won't be able to reach the intersection before the lightturns red-they must stop. Drivers who are in the "Can't Stop" zone know they're too close tothe intersection to stop safely-they must proceed. But when the yellow time is inadequate,there is place in between both zones where the driver can neither proceed safely, nor stop safely.Engineers call this the "Dilemma Zone."

A properly timed signal will have enough yellow time that driver's will neyer be facedwith the impossible choice presented by the dilemma zone. By determining the stopping andclearing distances for a given approach speed, one oan always calculate a safe yellow time thatoffers drivers a safe option, by design, every time.

What if there's a problem?

Still, an engineering formula may not perfectly account for all the variables that mightexist at an intersection. hz such cases, the engineer has a tool, known as a countermeasure, thathe must employ to remedy the situation. Namely, the engineer must lengthen the amount ofyellow time. Even the 1985 ITE proposed recommended practice provides for this yellow time"measure of effectiveness":

When the percent of vehicles that are last through the intersection which enter onred exceeds that which is locally acceptable (many agencies use a value of one tothree percent), the yellow interval should be lengthened until the percentageconforms to local standards. (Page 6.)

It is the duty of an engineer to double-check his work and make sure that there is not aproblem with redlight entries at each intersection.

Office of the HouseMajority Leader 8

Red Light Camera proponents agree

This truth is not dispited. Even in literature intended to promote the use of red light onefinds the inescapable truth that lengthening the yellow can be the appropriate thing to do ifthere's a problem. In the study "Red Light Running and Sensible Countermeasures", authorRichard Retting agrees that longer yellow times can often substantially reduce accidents and red-light running:

Signals that provide insufficient yellow intervals cause some drivers to run redlights inadvertently. However, many drivers who run red lights are providedadequate opportunity to stop safely but choose instead to proceed through a redlight signal.... (Page 1.)

Increases in the length of the yellow signal toward values associated with the ITE-proposed recommended practice significantly decreased the chance of red-lightrunning. (Page 2.)

What is surprising is that the author, despite acknowledging that insufficient yellowcauses red light running, considers red light cameras as the only solution. In the first citationgiven above, he makes an effort to blame motorists for running lights, even when the yellow timeis inadequate. Furthermore, in the report's "summary and conclusion" (page 4), "signalmodification" rates only a passing mention in half of a sentence-he devotes the rest of thediscussion to the virtues of red light cameras. Note that the signal modification he refers to is thealready shortened ITE practice, not the longer yellow times a properly timed intersection woulduse,(see Section 5, below).

`Longer yellow signals reduce red light running, there is no question about it,'said Richard Retting, senior transportation engineer at the Insurance Institute forHighway Safety. `I can't say with any certainty if that has any effect on crashes,but there is some evidence that longer yellows can cut down on crashes.' (LasVegas Review Journal, October 20, 2000.)

Eighty percent of entries occur during the first second of red

The relation between yellow time and red light running is most clearly found in theInsurance Institute for Highway Safety's study of red light running entitled "Red Light Runningand Sensible Countermeasures" (1998). Although the report's intention is to prove the need forred light camera enforcement, the data in the report provides additional insight into the red lightrunning question. A chart found on page 2 of the report (summarized below) indicates quiteclearly that almost 80 percent of red light entries occur within the first second of the red lightindication.


This strongly suggests that inadequateyellow time is the major cause of red-lightentries. If the vast majority of red light entriesoccur in the first second after the yellow lightexpires, it is reasonable to assume anadditional second of yellow time on that lightwill yield a nearly 80 percent decrease in redlight entries.

HourlyAverage

Hourly Avg.(after one

second of red)

HourlyAverage

Hourly Avg.(a8er one

second of red)

79% entered on first 77% entered on firstsecond of red second of red


IV. The Fact: Longer Yellow Reduces Red Entry

Mesa, Arizona

When yellow times are lengthened at intersections, red light entries plunge. Mesa,Arizona found a 73 percent drop in citations after the yellow light was extended.

Mesa increased the left-tum yellow arrow duration to four seconds, from threeseconds, on Nov. 14, after complaints from drivers who felt the time was too shortto safely complete their turns. The change was made at 30 intersections with dualleft-turn lanes and left-tum arrows. In November, the city issued 1,639 left-turnarrow citations at the six intersections patrolled by cameras. In December, themonth after the change, the number fell to 716. In October, the month prior to thechange, Mesa issued 2,645 citations. (Arizona Republic, February 6, 2001.)

To most, this decrease in red-light running violations would be most welcome news. Butit was not welcome news to the city of Mesa. That's because once yellow signal timing changeswere made, the camera went from a money- maker to a $10,000 money-loser. The response ofthe local bureaucracy was typical:

Meanwhile, the department will propose eliminating the three-tenths of a secondgrace period that [the camera] allows from the time a light turns red to the timethe camera flashes. `We want to establish a zero tolerance policy for red lightrunning in Mesa,"' [Mesa police Commander Richard] Clore said. (ArizonaRepublic, February 6, 2001.)

Some of Mesa's red-light cameras are working so well that police are talkingabout disconnecting them... In some cases, it's only catching one person a day.[Mesa police Commander Richard] Clore said that may be because the cityrecently lengthened its yellow lights by a second. (4rizona Republic, May 22,2001.)

Fairfax County, Virginia.

Like Arizona, Virginia, has also seen outstanding results from increased yellow times. Intestimony before the Kentucky State Senate, IIHS study author Richard Retting reported that, onaverage, someone runs the red light at US50 in Arlington, Virginia every 12 minutes.

Yet just a few miles down the road at the intersection of westbound US50 and Fair Ridge,the Virginia Department of Transportation (VDOT) raised the yellow to 5.5 seconds from 4.0seconds last summer. Since the change, red light running has almost disappeared at the location.

This is very significant and substantial evidence to show that increased yellow timesreduce entries on red at problem intersections.

Office of the House MajorityLeader I I

V. Changes in the Safety Codes

Where do the problem intersections come from? We've seen that experience tells us thatif there's a red light running problem, yellow light times should be increased. And the theorytells us the same. So why have yellow signal times decreased? The answer is that theorganizations responsible for maintaining our intersection safety codes have altered theregulations specifically to accommodate camera enforcement and decrease yellow ximes.

The chart below provides the theoretical minimum yellow clearance signa I times based onspeed and intersection width from the 1976 edition of the Institute of Transportation Engineers(ITE) handbook. Note that the 100-foot intersection in Beaverton, Oregon had a 3.1 secondyellow signal time in a 30MPH zone, as mentioned in Chapter 1 above. As one can see from thechart, that time would be inadequate for any condition. But it's quite profitable for the red lightcamera installed at that location.

Approach WidthSpeed

(mph)30' 50' 70' 90' 110'

20 3.8 4.4 5.6 5.7 6.430 3.6 4.1 4.5 5.0 5.540 3.9 4.2 4.5 4.9 5.250 4.1 4.4 4.7 5.0 5.260 4.5 4.7 4.9 5.1 5.4

ource: 1976 Transportation & Traffic Engineering Handbook

To understand more fully the extent of changes to the signal timing codes, one must firstexamine the prior formula used for calculating yellow times.

The 19761TE Handbook

In 1976, yellow time was known as the "yellow clearance interval." This was thetheoretical minimum amount of time needed for an automobile to clear the far side of theintersection from a given distance away, or come to a safe stop. This was calculated by addingthree variables:

(1) Reaction time: How long it takes, on average, to recognize the situation anddecide whether to stop or continue through the intersection. Usually this is 1.0seconds.Stopping time: This figure is calculated based upon the length of the intersectionand the average deceleration rate for automobiles.Time needed to clear the intersection: Based on the approach speed, how long itwould take an automobile to traverse the length of the intersection.


The 1985 ITE Proposed Recommended Practice

By 1985, ITE had begun to change the way signal times were calculated in the past. Thefirst modifications were published in their "Proposed Recommended Practice" a mere three yearsafter New York City began researching how it would implement the first red light cameras in theUnited States.

These changes were further explained in the 1989 ITE Journal article, "DeterminingVehicle Signal Change Intervals." This report begins by clearly stating that the ITE's intent is tochange laws across the country because, "adopting a uniform method cannot precede adoption ofuniform laws" (page 27). In other words, for red light cameras to be adopted nationwide, thelaws must change nationwide. And they provide at least three methods that have as their result areduction, in most cases, of yellow signal time as well as easy adoption of camera enforcement.

1. Their goals are not entirely safety related

The goals and objectives of the 1985 and 1989 documents are clearly related to red lightcamera enforcement. Consider:

Goal: Recommend legal definitions for the various aspects of the change intervaland a defensible methodology for calculating and evaluating change intervals.(1985, page 5; 1989 page 27.)

And the second signal timing objective listed:

Allow easy identification of violators by law enforcement agents. (1985, page 5;1989, page 28.)

This is a strange goal for someone who wants to design safer intersections. Yet it is a perfectgoal for one whose true intent is not safety but rather the convenient installation of a red lightcamera.

2. Reduced Yellow I.• Ignore the Actual Speed of Traffic

The first method for reducing yellow time is found on page 29 (1989) where thedocument states, "It may be possible to use the posted speed as the approach speed."

What that means is that signal times would be determined by the speed limit rather thanthe actual speed 85 percent of traffic is traveling, known as the `85th percentile speed." Theresult of this change in practice would be an underestimate of the actual speed of vehicles at theintersection. And this factor alone can result in yellow time shortfalls of 20 percent or more.

The laws of physics dictate that the distance required to stop your car is based entirely onthe speed at which you are traveling, not what is printed on a sign on the side of the road. No


rational safety consideration would lead one to choose posted speed over actual speed. But itdoes allow for a reduction in yellow light time.

3. Reduced Yellow II.• Replace yellow time with "all-red clearance"

Take the traditional definition and formula for calculating the duration of the yellow lightsignal. You might need three seconds of yellow to warn approaching motorists that they need tostop, and two more secondsof yellow on top of that toallow vehicles enough timeto clear before opposingtraffic is given the greenlight. The total yellow timefor such an intersectionwould be five secon3s.

On page 30 of the1989 report, the ITEproposes to take that fiveseconds of yellow in thehypothetical intersectionabove and reduce it to threeseconds of yellow, and twoseconds in which all sidesof the intersection are given

1976 &earlier

1982-1985

1999-present

parison o.f rild and ne,

Yellow time: Reaction time + Stopping time + Clearance timeClearance time: htcluded in yellow tinie, plus all-red of 1-2

The result:seconds at the option of the engineer.Entries on red happen, but are rare.

Yellow time: Reaction time + Stopping timeClearance time: Has changed from yellow to all-red.The result: Yellow is reduced by a third from '76

values, and more red entries occur.Yellow time: Reaction time + Stopping timeClearance time: All-red clearance time is now optional.The result: Yellow time is the same as '85, but

opposing traffic gets the green whilepeople going the other way are enteringand clearing the intersection against theirown red signal.

the red light (this is known as the "all-red period"). Eliminating that much yellow time, again, isof questionable safety value. But there is no question that in practice this method would yield anincrease in the number of vehicles that enter the intersection on red, given the two secondreduction in the amount of time one would have to clear the intersection legally. Again, it isunlikely that a rational safety consideration would lead you to choose this method. But it doesallow for a reduction in yellow light time. And it will increase red light running. Why? Becausethe light turns red faster.

Changes were made to the code speciftcally for camera enforcement .

These changes are significant. But if it was not clear enough in the above documents thatITE had cameras in mind in 1985, they make it explicit a few years later. The 1994 ITE"Determining Vehicle Signal Change and Clearance Interval" states:

When the percentage of vehicles that entered on a red indication exceeds thatwhich is locally acceptable, the yellow change interval may be lengthened (orshortened) until the percentage conforms to local standards, or enforcement canbe used instead. (Page 5, emphasis added).

In other words, if too many people are running red lights, jurisdictions need not addressdeficiencies in intersection design or signal timing. Instead, they can simply "use enforcement"

Oflice of the House Majority Leader 14

by putting up a red light camera. They are suggesting creation of an intersection that will have aperpetually high level of red light runners by design. Since enforcement by police officerswouldn't be 24-hours a day, it is hard to conceive that they had anything other than 24-hour redlight cameras in mind.

Changes in the yellow light formula linked to red light running

The changes in the yellow signaltiming regulations have resulted in theinadequate yellow times. And theseinadequate yellow times are the likelycause of almost 80 percent of red lightentries, as discussed above.

If we look closely at one of the.

yeliovx.l ^mes c;ampa^,cieea,sa Jkiirat..y^^^atu: ^seet. teralle

1976 ITE Formula

4.64 seconds('round up to 5)

1999 ITE Formula

3.8 seconds(round up to 4

intersections Retting studied, the signal at Columbia Pike at Greenbrier in Arlington, Virginia,we find that it has a measured yellow time of 4.0. seconds. This location was the second sitestudied in his "Red Light Running and Sensible Countermeasures." Using the 1999 formularesults in a one second (20 percent) decrease in the yellow time compared to the 1976 formula.And, as mentioned above, according to Retting's study, 77 percent of red light entrie.s happenedin that first second the light was red instead of yellow.

Thus, if the old formula had been employed, the red light entry problem Retting studiedwould have been substantially reduced.

Elimination of the vehicle change interval, a chronology

It'may be useful to consider the following excerpts from signal timing regulations that,when presented in chronological order, show a clear progression toward lowering yellow timesto accommodate red light cameras:

1985-ITE, "Determining Vehicle Change Intervals: A Proposed Recommended Practice,"states, "When the percent of vehicles that are last through the intersection which enter on redexceeds that which is locally acceptable (many agencies use a value of one to three percent), theyellow interval should be lengthened until the percentage conforms to local standards."

1988-Federal Highway Administration, "Manual on Traffic Control Devices" (MUTCD) states,"Signal Operation Must Relate To Traffic Flow" (Section 41320). Note that red light camerapromoters use the opposite principle: they wish to use signals to modify traffic flow.

1994-ITE, "Determining Vehicle Signal Change and Clearance Intervals" states, "When thepercentage of vehicles that enter on a red indication exceeds that which is locally acceptable, theyellow change interval may be lengthened (or shortened) until the percentage conforms to localstandards, or enforcement can be used instead. "


1999-ITE, "Traffic Engineering Handbook: Fifth Edition" states, "The red clearance interval isan optional interval that follows a Yellow Change Interval and precedes the next conflictinggreen interval. The red clearance interval is used to provide additional time following the YellowChange Interval before conflicting traffic is released" (page 482).

2000/2001-Federal Highway Administration, "Manual on Traffic Control Devices" (MUTCD)states, "47. Red Clearance Interval: an optional interval that follows a yellow change interval andprecedes the next conflicting green interval" (page 4A-5, Part 4, Highway Traffic Signals).Yellow time is calculated from "E. The posted speed or statutory speed limit or the 85rhpercentile speed on the uncontrolled approaches to tlr intersection" (page 4C-3).

In all the above citations, emphasis is added to the key changes. The words in italicsmark the differences between the old and new codes. Namely:

1. The "should" in 1985 was changed to "may" in 1994.2. "Or shortened" was added to the formulation in 1994.3. "Or enforcement can be used, instead" was added in 1994.4. "Optional" was added to the definition of red clearance interval in 1999.5. Finally, the Federal Highway Administration endorses all these changes in the December

2000 editeon of the MUTCD.

OHlce of the House Majority Leader 16

VI. Why Have Reports Shown Cameras to be Effective?

Overview of U.S. Red Light Camera Studies

Jurisdictions that wish to claim safety as their motive for installing red light cameras willinvariably cite studies that show the devices reduce red light running and the intersectioncollisions. it causes. To date, the only case studies of red light running and camera use in theUnited States have taken place in Arlington, Virginia, City of Fairfax, Virginia and Oxnard,Califomia.

The studies performed at these locations share a lot in common, mostly because theywere all performed by the same researcher. Consequently, they also share many of the sameflaws in methodology.

How to do a proper study: Australia

One can see the flaws more clearly when they are contrasted with the 1995 AustralianRoad Research Board report, one of the most comprehensive looks at the effect of red lightcameras to date.

The report's conclusion is the most striking, particularly considering the Americancoverage of this issue: "There has been no demonstrated value of the RLC as an effectivecountermeasure" (page 1). And when one considers the study's methodology, one must alsowonder why the same thoroughness is not found in Retting's American studies:

a.,_-Comprehensive, ten-year study. The report examined accidents five years before and fiveyears after the installation of red light cameras.

.ez0bjective. On pages 2-3, the report points out how prior Australian studies convenientlyomitted crucial data that might have undermined any pro-red light camera conclusions.

.e.esUses actual accident reports. Prior Australian studies merely used accident databases togenerate results and statistics. All accidents in the database marked with certain codeswere deemed to relate to red light running. Unfortunately, that method assumed theaccidents were always properly coded. Of the 6,200 accident report forms examined, 960(15 percent) were found to be unrelated to the intersections studied, despite their coding.For example, accidents at an adjacent McDonalds parking lot were coded as if they tookplace in the nearby intersection. This shows that conclusions based merely on accidentcodes can be significantly misleading.

zszSignal Timing Considered. Although ultimately unsuccessful, the study at leastattempted to document any changes in signal timing that may hav.e occurred during thestudy period:


Inquiries were made of VicRoads traffic signals group about thechanges at signals and it seems that the historical records havebeen archived. From the data that was obtained for threeintersections... it was apparent that a number of changes had takenplace. These changes included... changes in phases as well asphase and cycle times and provisions for green arrows. Thechanges to the intersections were apparent; but the dates thesechanges took effect was not. For this reason the changes could notbe related back to subsequent changes in accident frequency.Further investigation into signal changes would be worthwhile toexplain some of the abrupt changes at individual RLC sites. (Page9)

Red Light Cameras and Rear-end Accidents

The Australian study goes on to conclude that redlight cameras tend to cause rear-end accidents. "Thisstudy suggests that the installation of the RLC at thesesites did not provide any reduction in accidents, ratherthere have been increases in rear end and adjacentapproaches accidents on a before and after basis..." (Page20).

This should come as no surprise. The goal of a redlight camera is to make people fear being ticketed if theyenter a camera-controlled intersection on red. Commonsense dictates that if the desired effect of red light camerasis achieved, there will be an increase in rear-end accidents. This is because motorists fearing aticket will panic and slam on their brakes to avoid entering an intersection. This suddenmaneuver can surprise cars and trucks behind, causing a collision.

The 2001 IIHS Oxnard accident study admits a connection between red light cameras andrear end accidents:

Some additional rear-end crashes might result from non•uniform changes in driverbehavior. For example, if drivers stop more often for red lights, they may bestruck from behind by drivers not intending to stop. (2001 Oxnard study, page 2.)

One wonders if Retting considers perhaps thatthose same individuals are unable to stop, because ofinadequate yellow time. The increase in rear-endaccidents in this report are passed off as insignificant.But are they?

These photos, found on the Oxnard, Californiapolice department website, were taken by red light

unice dr ine nEut€^ ma^oriry`^ °eaei "^ ' 18

cameras. They illustrate rear end collisions apparently caused by motorists panic-stopping.

Yellow Light Timing

As we have seen, yellow signal timing is fundamentally linked to red light entries. The1999 Oxnard study concludes that since red light cameras were installed that there was a 40percent reduction in red light violations at intersections with cameras, and a 50 percent reductionat intersections without cameras. But the study did nothing to document whether signal times,including yellow light times, were held constant throughout the duration of the research. Thereis reason to believe, based on the Australian findings, that the signal timings did in fact changeduring the study. Despite this, the author merely says that the times were "checked" and"deemed adequate":

The duration of yellow traffic signal timing has been found to influence red lightrunning at urban intersections (Retting and Greene, 1997). Therefore, yellowsignal times at the camera sites were checked against an Institute ofTransportation Engineers (1985) proposed recommended practice and were foundto be adequate. (1999 Oxnard study.)

The same language is used in the 1999 Fairfax and 2001 Oxnard studies. But, asdiscussed in Chapter 5 above, the 1985 proposed ITE yellow times can often be inadequate. It isreasonable to suspect they played a significant role in the red light entries that are documented inthe report.

But the 1985 proposed recommended practice was not followed. The proscribedcountermeasure for excessive red light entries is an increase in the yellow signal time (page 6 ofthe 1985 ITE guidelines). This was not performed. And if it had been implemented, it is likelythat the pro-camera conclusion of the reports would have been undermined.

Moreover, if indeed the yellow time in the three studies was set to the numeric amountsresulting from the 1985 ITE practice, the excessive red light running that resulted tends toconfirm the inadequacy of the yellow time from the practice itself.

Actual red light accidents not studied in 2001 Oxnard report

Incredibly, the 2001 IIHS Oxnard study did.not actually study any accidents caused byred light running. "...the crash data did not contain sufficient detail to identify crashes that werespecifically red light running events.:." (2001 Oxnard report, page 1). Nor did it even studyaccidents at intersections that have red light cameras.

Instead, the study's author, Retting, merely looked at accident codes from a database overa 2 and a half-year period to claim that accidents throughout the Oxnard area dropped by about30 percent as a result of the red light cameras. The connection between area accidents and redlight cameras is only an implied connection. There is no scientific evidence in the reportshowing any demonstrable connection between the two.

Office of fhe HouseMajority Leader 19

That is why the 2001 report is entitled "Crash Reductions Associated With Red LightCamera Enforcement in Oxnard, California." Notice that it does not say, `caused by.' But,nonetheless, the report is still used as a marketing tool to sell red light cameras. -

Drops in "violations" are no measure ofsuccess

At times, jurisdictions that IIHS did not study will find other ways to "prove" the successof their red light camera program, particularly when they wish to order additional camera units.They simply cite the number of "citations" or "violations" at intersections. And they claim redlight cameras are a success if there are any rediGtions. Of course, they fail to note that thenumber of both citations and violations given is entirely within the control of the cameraoperators.

It's easy, for example, to tum off the camera for a period of time to achieve the desirednumber. The camera can be loaded with half a roll of film. Shifting the cameras around will afterthe data. Cameras malfunction and are taken out of service for repairs. Signal timings, includinglengthening the yellow, can happen without being reported. These are just a few of the many"tricks" or potential oversights available.

It is clear, then, that the justifications given for red light camera installations arequestionable.

Office of the House MajorltyLeader 20

VII. Conclusion

The subject of signal timing can be difficult and obscure. And for that reason, theproponents of red light cameras have been able to escape close scrutiny.

Transportation officials and engineers know that the yellow signal timing is essential tosafety. The data showing this to be the case are found in their studies. Nonetheless, some havesystematically and intentionally ignored the inescapable engineering fact that longer yellowswould solve the so-called crisis caused by shortened yellows.

Red light cameras present a perverse disincentive for local jurisdictions to fixintersections with excessive red light entries. It's hard to fix a "problem" that brings in millionsin revenue.

In other words, red light cameras aren't fixing a safety problem, they're creating one.

And, with the federal goveniment's assistame, state and local governments areundermining the vital constitutional protections our Founders put in place. The right to faceone's accuser in court and the presumption of innocence form the bedrock of our judicial system.

Camera-based law enforcement can only work when these principles are ignored.

We should never have allowed the personal privacy of our citizens to be undermined bythese Big Brother devices. In the name of safety, we sacrificed our privacy. But now it is clearthat we have been asked to relinquish our cherished freedoms for an entirely empty promise.

Office qf the HouseMajority Leader 21

VIII. References(all documents available at www,freedom.gov/auto)

Signal Timing Documents

Institute of Traffic Engineers, "Traffic Engineering Handbook," Institute of Traffic Engineers,1965.

Institute of Transportation Engineers, "Transportation and Traffic Engineering Handbook,"

Prentice-Hall, 1976.

William A. Stimpson, Paul L. Zador, and Philip J. Tarnoff, "The Influence of the Time Durationof Yellow Traffic Signals on Driver Response," ITE Journal, November 1980.

Institute of Transportation Engineers, "Transportation and Traffic Engineering Handbook,"Prentice-Hall, 1982.

Institute of Transportation Engineers, "Determining Vehicle Change Intervals: A ProposedRecommended Practice," Institute of Transportation Engineers, 1985.

ITE Technical Committee 4A- 16, "Proposed Recommended Practice: Determining VehicleSignal Change Intervals," ITE Journal, July 1989.

ITE Technical Council Task Force 4TF-1, "Determining Vehicle Signal Change Intervals,"Institute of Transportation Engineers, August 1994.

Richard A. Retting, Allan F. Williams, Michael A. Greene, "Red Light Running and SensibleCountermeasures," Transportation Research Record, 1998.

Institute of Transportation Engineers, "Transportation and Traffic Engineering Handbook,"Institute of Transportation Engineers, 1999.

"Manual on Traffic Control Devices", Federal Highway Administration, 2000.

Accident Studies

David Andreassen, "A Long Term Study of Red Light Cameras and Accidents," Australian RoadResearch Board, February, 1995.

Richard A. Retting, Allan F. Williams, Charles M. Fanner, Amy F. Feldman, "Evaluation of RedLight Camera Enforcement in Oxnard, California," Accident Analysis and Prevention 31,1999.

Richard A. Retting, Allan F. Williams, Charles M. Farmer, Amy F. Feldman, "Evaluation of RedLight Camera Enforcement in Fairfax, Va., USA," ITE Journal, August 1999.

OHice of the HouseMajority Leader 22

Richard A. Retting, Sergey Y. Kyrychenko, "Crash Reductions Associated with Red LightCamera Enforcement in Oxnard, California," Insurance Institute for Highway Safety,April 2001.

General Articles

International Association of Chiefs of Police, "Selective Traffic Enforcement Manual," NationalHighway Traffic Safety Administration, January 1972.

Rudolph E. Popolizio, "New York City's Red Light Camera Demonstration Program,"Compendium of Technical Papers, 1995.

Brian S. Bochner, "Automated Enforcement Reduces Crashes," ITE Journal, August, 1998

Richard Retting, "Statement Before the Kentucky Senate Transportation Committee on RedLight Violations and Red Light Cameras," March 9, 2000.
