VILLAGE OF NEWBURGH HEIGHTS
4000 Washington Park Boulevard, Newburgh Heights, Ohio 44105 * Phone: (216) 641-4650 * Fax: (216) 641-2712
Mayor / Safety Director
Trevor Elkins
Fiscal Officer
Joanne Clapp
Solicitor
Luke McConville
Prosecutor
Council Members
John Csehek, Pro Tempore
Linda Giersz
Dorene Kray
Steve Moran
Brian Schaffran
Bob Schippling
Vince Ruffa
Magistrate
Dean DePiero
Building Commissioner
David Faciana Jr.
Councilwoman Emeritus
Rose Holecek
February 17, 2014
RE: Am. H.B. No. 69
Honorable Members of the State Government Oversight and Reform Committee:
The Village of Newburgh Heights has implemented a photo enforcement program to assist
our police department with traffic enforcement. I am asking for your support in opposition
of Am. H.B. No. 69 and would urge the Committee to proffer legislation as an alternative,
which would reasonably regulate the use of such equipment. As an example, I have
attached the Village of Newburgh Heights' amended enforcement ordinance which takes
into account the recent appellate court's opinion regarding adjudication of citations.
Our enforcement program's greatest value is its ability to release law enforcement
resources from routine traffic control, allowing their reallocation to higher priority
concerns. With more than 100,000 vehicles traveling through Newburgh Heights daily on
Interstate 77 and Harvard Avenue, it is no longer financially possible for the village to
maintain the staffing necessary to enforce traffic safety as well as apply the personnel
required for criminal investigations and mitigation. Until the residents passed an 8.7 mill
levy this past May, we were only able to maintain 2 officers per shift, now we will employ 3
per shift most of the time. This is just enough to keep up with current activity in the
community. These cameras are a tool that allow us to ensure manpower is being used in its
most effective capacity.
The cameras absolutely work in slowing commuters. We initiated our program last
September and on the first day identified approximately 700 speed violations of 10 MPH or
greater above the posted limit on Harvard Avenue; a route with more than 18,000 cars
travelling it daily. Today, speeding has reduced to the point where only roughly 50
violations are identified daily. The program is effective and we would not have been able to
have this type of impact with only human based enforcement.
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ORDINANCE RECORD
VILLAGE OF NEWBURGH HEIGHTS, OHIO
ORDINANCE NO. 2014-15
INTRODUCED BY: Mayor Elkins
AN ORDINANCE AMENDING CODIFIED ORDINANCE CHAPTER 315
ENTITLED “AUTOMATED SPEED AND TRAFFIC ENFORCEMENT
PROGRAM” BY ADDING A RIGHT TO MEDIATION AND A MUNICIPAL
COURT HEARING, ADDING AND MODIFYING CERTAIN DEFINITIONS
RELATING TO MEDIATION AND A MUNICIPAL COURT HEARING, AND
CORRECTING CERTAIN SCRIVENER ERRORS, AND DECLARING AN
EMERGENCY.
WHEREAS, the Village enacted Codified Ordinance Chapter 315 for the purpose
of instituting a program of automated speed enforcement through civil citation;
WHEREAS, a recent Eighth District Court of Appeals of Ohio case styled Jodka
v. City of Cleveland (2014), 2014 WL 265797 (Ohio App. 8 Dist.) affirmed the
constitutionality of automated speed enforcement civil citations;
WHEREAS, the Court Jodka v. City of Cleveland (2014), 2014 WL 265797 (Ohio
App. 8 Dist.) declared that the creation of a tribunal under ordinances for adjudicating
citation contests did not constitute proper exercise of concurrent police powers authorized
by statute and was not a power of local self-government under the Ohio Constitution;
WHEREAS, the Village wishes to provide any owner or responsible party who
receives a civil citation under Codified Ordinance Chapter 315 with the right to a hearing
before a municipal court judge; and
WHEREAS, the Village wishes to avoid needlessly clogging the dockets of the
municipal court to which it refers cases by first attempting to resolve civil citation clauses
in mediation conducted by a Village-appointed mediator;
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE
VILLAGE OF NEWBURGH HEIGHTS, CUYAHOGA COUNTY, OHIO, two-thirds of
all the members elected thereto concurring, that:
Section 1. The Village hereby amends Codified Ordinance Section 315.01 to read
in its entirety as follows:
315.01 TITLE, PURPOSE AND OBJECTIVES.
As used in this Ordinance, words and phrases are defined as follows:
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Definitions.
(a) “Automated speed enforcement program” is a program intended to
reduce speeding violations using an automated speed enforcement
system.
(b) “Automated speed enforcement system” is a system with one or more
sensors working in conjunction with a speed measuring device to
produce recorded images of motor vehicles traveling at a prohibited
rate of speed.
(c) “MediationHearing Officer” is the mediator appointed by the Mayor
and who is an active, registered attorney in good standing with the
Ohio Supreme Court.
(d) “Vehicle owner” is the person or entity identified by the Ohio Bureau
of Motor Vehicles, or registered with any other state vehicle
registration office, as the registered owner of a vehicle or a lessee of a
motor vehicle under a lease of six months or more, or the renter of a
vehicle during the period of infraction pursuant to a written rental
agreement with a motor vehicle renting dealer.
(e) “Motor vehicle” has the same definition as in Village of Newburgh
Heights Codified Ordinance Section 301.20, as amended from time to
time.
(f) “Recorded images” means images recorded by an automated speed
enforcement system photographic system on any of the following:
(1) Two or more photographs; or
(2) Two or more microphotographs; or
(3) Two or more electronic images; or
(4) Two or more digital images; or
(5) Videotape or video recording; or
(6) Any other medium; and
(7) Showing the front or rear of a motor vehicle and on at least one
image or portion of tape, clearly identifying the license plate
number of the motor vehicle.
(g) “Date of issuance of notice of liability” shall be the date printed on the
notice of liability immediately prior to its mailing.
(g)(h) “Municipal Court Judge” means a judge in the municipal court to
which the Village refers its municipal court cases.
(i) “Mediation” shall refer to that portion of the Mediation and Hearing
Process during which the Village’s Mediation Officer attempts to
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mediate a resolution of the civil liability citation between the Village
and the vehicle owner or other responsible party.
(h)(j) “Mediation and Appeal Hearing Process” means the process by
which an owner or other responsible party appeals the civil liability
citation and requires first a Mediation between the parties for the
purpose of attempting to find a resolution of the civil liability citation,
and then, if Mediation is not successful, the referral of the case to a
municipal court for an appeal hearing.
Section 2. The Village hereby amends Codified Ordinance Section 315.04(a)(9)
for the purpose of correcting a scrivener’s error to read in its entirety as follows:
(9) The time, place, and manner in which an
administrative appeal can be initiated and a warning
that failure to exercise the options provided under
Section 315.03(b)6 of this Ordinance in a timely
manner is an admission of liability; and
Section 3. The Village hereby amends Codified Ordinance Section 315.04(d) for
the purpose of correcting a scrivener’s error to read in its entirety as follows:
(d)
It is prima facie evidence that the person
registered as the owner of the vehicle with the Ohio
Bureau of Motor Vehicles (or with any other state
vehicle registration office) was operating the
vehicle at the time of the offense set out in Section
315.03(a)3 of this Ordinance. This evidence and
presumption may be rebutted in accordance with
Section 315.03(b) of this Ordinance.
Section 4. The Village hereby amends Codified Ordinance Section 315.05(b)(4)
for the purpose of correcting a scrivener’s error to read in its entirety as follows:
(4) The failure to respond to a notice of liability in a
timely fashion as set forth in this Ordinance shall
constitute a waiver of the right to contest liability
for the violation under Section 315.03(b)3(b) of this
Ordinance.
(4)
Section 5. The Village hereby amends Codified Ordinance Section 315.05(b)(5)
to read in its entirety as follows:
(5) Persons who choose to pay the civil penalty
without appearing before a Mediator and, as
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applicable, a Municipal Court JudgeHearing Officer
may do so in the manner indicated on the notice of
liability.
Section 6. The Village hereby amends Codified Ordinance Section 315.07 to read
in its entirety as follows:
315.07 MEDIATION AND APPEAL HEARING PROCESS
(a) A vehicle owner or responsible party who receives a notice of
liability, under this Ordinance may do one of the following:
(1) Pay the civil penalty, in accordance with the instructions on the
notice of liability; or
(2) Within thirty (30) calendar days of the date of issuance of the
notice of liability, submit to the Village police department or its
designee one of the affidavits described in Section 315.03(b) of
this Ordinance. Upon receipt of such an affidavit timely
submitted, the Village shall suspend further action against the
owner of the vehicle and instead direct notices and collection
efforts to the person identified in the affidavit submitted by the
owner of the motor vehicle. If the person named in the affidavit,
when notified, denies being the driver or denies liability, then the
Village shall resume the notice and collection process against the
vehicle owner, the same as if no affidavit had been submitted, and
if the violation is found to have been committed by a
preponderance of evidence, the vehicle owner shall be liable for
any penalties imposed for the violation.
(3) Contest the notice of liability by filing a written request for entry
into the Mediation and Appeal Hearing Process for mediation with
a Village Mediator followed by, as necessary, a municipal court
hearinga hearing to review of the notice of liability with the
Village police department or its designee. A written notice of
request for entry into the Mediation and Appeal Hearing
Processreview must be received by the Village police department,
or its designee, within thirty (30) calendar days after the date of
issuance of the notice of liability. The failure to give notice of
request for entry into the Mediation and Appeal Hearing
Processreview within this time period shall constitute a waiver of
the right to contest the notice of liability. A vehicle owner or other
responsible party who requests entry into the Mediation and
Appeal Hearing Process shall first attend a Mediation conducted
by a Village-appointed Mediation Officer, which Mediation shall
be held within forty-five business days of receipt by the Village of
the notice of the request; this time may be extended upon a written
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reasonable request for additional time or upon reasonable
notification of the Mediation Officer or Clerk of Mayor’s Court
with prior notice to all parties.. If the civil citation for liability is
not successfully resolved between the parties at Mediation, the
case shall be referred to the municipal court assigned to hear
Village cases, and shall be set for hearing by said municipal court
in a manner consistent with that municipal court’s customary case
scheduling practices and consistent with principles of due process.
Any continuance or extension of the schedule for said municipal
court hearing shall be in the discretion of the municipal court. A
hearing officer shall hear reviews. Hearings shall be held within
forty-five (45) business days of the date received by the Village, or
its designee, of the request for review; this time may be extended
upon a written reasonable request for additional time or upon
reasonable notification of the hearing officer or local authority
with prior notice to all parties. If the owner or responsible party
requests entry into the Mediation and Appeal Hearing Process, a
review of the notice of liability and a hearing, a $25.00 fee per
notice of liability for such Mediationsuch review and hearing shall
be assessed to the applicant. The MediationHearing Officer may
waive this Mediationadministrative hearing fee only if the owner
or responsible person pleads liable and pays the full amount of the
civil penalty prior to commencement of the Mediationhearing.
The Mediationhearing shall be open to the public, and a Mediation
Scheduledocket shall be posted in a conspicuous place near the
entrance to the hearing room where Mediations are conducted that
shall identify, by alleged violator, the Mediationshearings
scheduled for that day and the time of each Mediationhearing.
More than one Mediationhearing may be scheduled for the same
time to allow for such things as non-appearances or admissions of
liability.
A. In the event that the Mediation does not resolve the civil
liability citation between the parties, the case shall be referred
for a municipal court hearing. The Municipal Court Hearing
Officer shall determine whether a preponderance of evidence
establishes that a violation of this Ordinance occurred and the
person requesting the appeal hearingreview is the party
operating the vehicle at the time of the violation. The
Municipal Courthearing officer shall advise the person or
entity on the day of the hearing of the Municipal
Court’sHearing Officer’s decision. A certified copy of the
notice of liability alleging the violation of this Ordinance
occurred, sworn to or affirmed by a duly authorized official or
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agent of the Village of Newburgh Heights, or its designee,
with the recorded images or data produced by an automated
speed enforcement system shall be prima facie evidence of the
facts contained therein and shall be admissible in a proceeding
alleging a violation under this Ordinance. Adjudication of
liability shall be based on a preponderance of the evidence.
B. If the Municipal Courthearing officer finds sufficient evidence
of a violation, but the vehicle owner or responsible party is not
liable, the Municipal Courthearing officer shall, in writing,
issue a decision finding the vehicle owner and/or responsible
party not liable and submit it to the Village of Newburgh
Heights, or its designee.
(b) If the owner or responsible party chooses to contest the notice of
liability, the Municipal Courthearing officer may consider any of the
following as an affirmative defense to a violation upon the defense
being established by a preponderance of the evidence by the vehicle
owner or responsible party:
(1) That the motor vehicle or license plates of the motor vehicle were
stolen before the violation occurred and were not under control or
possession of the owner at the time of the violation. In order to
demonstrate that the motor vehicle or license plates were stolen
before the violation occurred and were not under the control or
possession of the owner at the time of the violation, the owner
must submit proof that a police report about the stolen motor
vehicle or license plates was filed prior to the violation or within
48 hours after the violation occurred.
(2) That the motor vehicle was under the custody and/or control of
another person at the time of the violation. In order to establish
this, the owner or responsible person must provide the name and
address of the person who had custody and/or control of the motor
vehicle at the time of the violation.
(3) That this section is unenforceable because the recorded image is
not legible enough to determine the information needed.
(4) Evidence, other than that adduced pursuant to Section
315.07(b)(1) of this Ordinance, that the vehicle owner or person
named in the notice of liability was not operating the motor
vehicle at the time of the violation. To satisfy the evidentiary
burden under this subsection, the owner or person named in the
notice of liability shall provide to the Municipal CourtHearing
Officer evidence showing the identity of the person who was
operating the motor vehicle at the time of the violation, including,
but not limited to, the operator’s name and current address, and
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any other evidence the Municipal CourtHearing Officer deems
pertinent.
(5) That the motor vehicle operator was yielding the right-of-way to
an emergency vehicle in accordance with Ohio law, or to a funeral
procession.
(6) That under consideration of the totality of the circumstances the
person or entity named in the notice of liability is not liable.
(c) If the Municipal CourtHearing Officer finds that the person or entity
named in the notice of liability was not operating the motor vehicle at
the time of the violation or receives evidence under Section
315.07(b)(4) identifying the person driving the motor vehicle at the
time of the violation, the Municipal CourtHearing Officer shall
provide it to the Village of Newburgh Heights or its designee within
five (5) calendar days, along with a copy of any evidence
substantiating who was operating the motor vehicle at the time of the
violation.
(1) Upon receipt of evidence of the responsible party pursuant to this
Section or pursuant to Section 315.03(b), the Village of Newburgh
Heights or its designee may issue a notice of liability, with the
name and address of the responsible party and the information
required by Section 315.04 of this Chapter, to the person that the
evidence indicates was operating the motor vehicle at the time of
the violation.
(2) A notice of liability issued under this Section 315.07(c), shall be
sent by the Village of Newburgh Heights or its designee by
ordinary mail no later than twenty-one (21) business days after the
receipt of the evidence from the Municipal CourtHearing Officer.
The content of a notice of liability issued under this subsection
shall be the same as set forth in division (a) of Section 315.04 of
this Chapter.
Section 7. The Village Magistrate shall serve as Mediation Officer for purposes
of Codified Ordinance Chapter 315.
Section 8. That it is found and determined that all formal actions of this Council
concerning and relating to the adoption of this Ordinance were adopted in an open
meeting of this Council, and that all deliberations of this Council that resulted in such
formal action occurred in meetings open to the public, in compliance with all legal
requirements, including Section 121.22 of the Ohio Revised Code.
Section 9. This ordinance is hereby declared to be an emergency measure
necessary for the immediate preservation of the public peace, health and safety of the
Village, by effecting immediate compliance with the Eight District Court of Appeals of
Ohio’s recent ruling in Jodka v. City of Cleveland (2014), 2014 WL 265797 (Ohio App. 8
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Dist.); wherefore, this resolution shall be in full force and effect from and immediately
after its adoption and approval by the Mayor.
PASSED: ________________, 2014
Approved at to Form
__________________________
Solicitor
Ord. 2014-15
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Trevor Elkins, Mayor
Village of Newburgh Heights, Ohio
__________________________
Joanne Clapp, Fiscal Officer
Village of Newburgh Heights, Ohio
VILLAGE OF NEWBURGH HEIGHTS
4000 Washington Park Boulevard, Newburgh Heights, Ohio 44105 * Phone: (216) 641-4650 * Fax: (216) 641-2712
Mayor / Safety Director
Trevor Elkins
Fiscal Officer
Joanne Clapp
Solicitor
Luke McConville
Prosecutor
Council Members
John Csehek, Pro Tempore
Linda Giersz
Dorene Kray
Steve Moran
Brian Schaffran
Bob Schippling
Vince Ruffa
Magistrate
Dean DePiero
Building Commissioner
David Faciana Jr.
Councilwoman Emeritus
Rose Holecek
Newburgh Heights went above and beyond to notify commuters of our automated
enforcement program. There are signs posted at each entrance to the village and near the
cameras themselves. Two full page public notices listing the entire ordinance were placed in
the local paper. Every household in the village received the public notice delivered to their
door. This all occurred over a 45 day period prior to the cameras becoming active.
After the cameras became active, no license plate could be issued more than 2 citations in
the first 30 days of enforcement, allowing for plenty of warning and not being overly
punitive. Furthermore, the citation threshold was set at a very reasonable and fair 10 MPH
over the posted speed limit of 25 MPH. This has been the speed limit on Harvard Avenue
for decades and is consistent with the speed limit on Harvard Avenue of our neighboring
municipalities of Cleveland and Cuyahoga Heights. We did not change our speed limit in
an effort to create more citations.
I could go on for pages about the merits of the program. Those seeking to ban the cameras
will argue they are used only as a source of revenue. This is an unfortunate perspective. Do
the cameras generate revenue through the citations? Of course they do. No one is
contesting this point and if they are they're being disingenuous. However, more
importantly they allow communities to more effectively apply their resources to higher
priority law enforcement activity and reduce the exposure of their police personnel to the
dangers of roadside traffic stops.
Thank you for your time and I would urge you again to oppose Am. H.B. No. 69 and
introduce legislation regulating automated enforcement programs in a system similarly to
the program we have in place here in Newburgh Heights.
Sincerely,
Trevor Elkins
Mayor
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