Gardner v. City of Columbus, Ohio

• Decision Date: 14 March 1988
• Docket Number: No. 87-3302,87-3302
• Citation: 841 F.2d 1272
• Parties: William GARDNER; Kenneth A. Bauman; Foggy Daze International, Inc. and Others Similarly Situated, Plaintiffs-Appellants, v. CITY OF COLUMBUS, OHIO; David J. Ort, City Treasurer; and Anne E. White, Parking Violations Bureau Clerk, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1272

841 F.2d 1272

William GARDNER; Kenneth A. Bauman; Foggy Daze International, Inc. and Others Similarly Situated Plaintiffs-Appellants, v. CITY OF COLUMBUS, OHIO; David J. Ort, City Treasurer; and Anne E. White, Parking Violations Bureau Clerk Defendants-Appellees.

No. 87-3302.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 28, 1988.

Decided March 14, 1988.

George C. Rogers (argued), Rogers & Godbey Co., LPA, Toledo, Ohio, for plaintiffs-appellants.

Robert B. Levering, Asst. City Atty., Ronald J. O'Brien, City Atty. (argued), Columbus, Ohio, for defendants-appellees.

Before MILBURN and GUY, Circuit Judges, and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Appellants, William Gardner, Kenneth Bauman, Jim Brady and Foggy Daze International, Inc., appeal from the judgment of the district court in favor of the City of Columbus, the city treasurer, and the clerk of the Parking Violations Bureau (PVB) ¹ in their suit challenging the constitutionality of Chapter 2150 of the Columbus City Code. ² For the following reasons, we affirm the judgment of the district court.

I.

The facts in this case were not in dispute. The parties submitted agreed stipulated facts and exhibits to the district court. The court then made the following findings.

Prior to March 1, 1983, the City of Columbus enforced its parking regulations through the use of criminal penalties. Individuals who violated city parking regulations faced criminal minor misdemeanor charges, adjudication of which was made by the Franklin County Municipal Court.

On January 1, 1983, Chapter 4521 and Sec. 4511.07 of the Ohio Revised Code became effective. Those statutory provisions authorized municipalities and local authorities to enact ordinances, resolutions, or regulations for the standing and parking of vehicles which treat violations of such ordinances in a non-criminal manner. If such ordinances are enacted, the legislation provides a framework for enforcement of the regulations. Local authorities are authorized to establish fines for violations and penalties for failure to timely answer the charges. Such ordinances must specify that any violation thereof "shall not be considered a criminal offense for any purpose." Ohio Rev.Code Ann. Sec. 4521.02(A) (Page 1982). The maximum fines and penalties imposed may not exceed one hundred dollars plus costs and administrative charges.

In response to the state legislation, the City of Columbus enacted Chapter 2150 of the Columbus City Code, which became effective on March 1, 1983. The Code abolished criminal penalties for parking violations and set forth civil monetary penalties for parking infractions. Chapter 2150 created the PVB, a subdivision of the City Treasurer's office, to enforce city parking ordinances in a non-criminal manner. Columbus City Code Sec. 2150.04. The PVB is not a court, its hearing officers are not judges, and its clerk is not a clerk of court. The PVB operates within the procedural framework established by Chapter 4521 of the Ohio Revised Code and Chapter 2150 of the Columbus City Code.

Since its creation in March 1983, the clerk of the PVB has enforced Columbus parking ordinances by making administrative determinations and assessing and collecting civil penalties, fees, and costs for parking violations. The PVB makes assessments not only for infractions committed subsequent to March 1, 1983, but also for infractions committed up to three years prior to that date. In enforcing parking violations, it follows the procedures set forth in the following paragraphs.

The enforcement of parking regulations is initiated when a Columbus Police Officer or a Parking Ticket Attendant observes a parking violation. The officer or attendant issues a parking ticket setting forth the infraction, make and license number of the vehicle, as well as the time, date, and location of the infraction. The ticket has three copies. One copy is given to the operator of the vehicle or is affixed to the vehicle in a conspicuous place. One copy of the ticket is maintained in the records of the PVB. The original copy is used to record the information on a computer tape and is returned to the PVB. The computer tapes are sent to Datacom, which provides notice and data services to the city.

If the owner or operator does not pay the fine specified or otherwise answer within ten days of the issuance of the ticket, a two dollar penalty is assessed. Approximately six weeks later, Datacom mails a notification of infraction to the last known address of the owner or operator, which is obtained from the Ohio Bureau of Motor Vehicles. The notification contains the following statements:

The records of the parking administrator indicate that you have failed to respond to the parking ticket infraction issued to a vehicle registered in your name and as identified above. You must pay the total due, or deny the parking infraction: explain the circumstances of the parking infraction: and/or request a hearing in writing.

If you fail to answer or to appear at a hearing within 30 days a default judgment may be entered against you with all fines, penalties, fees and costs according to law.

You may pay in person by check, money order, Visa at the above address.

If the post office returns a notice as undeliverable, no further action is taken unless a new address is obtained.

If the fine and penalty are not paid or the individual does not otherwise answer within thirty days after the notification is mailed, an additional four dollar penalty is assessed. Datacom sends an impending judgment notice to the owner or operator which contains the following language:

Failure to timely answer the parking infraction(s) identified in this notification within 10 days may result in the imposition of an additional penalty for each parking infraction, and shall be considered an admission of guilt and a default judgment in the amount of the fine, penalties, fees and costs due may be entered against you in Franklin County Municipal Court. If you have 5 or more judgments unpaid against you, your vehicle may be eligible to be booted and/or towed. All according to the laws of the State of Ohio and section 2150.060 and 2150.028 of the 1983 Columbus City Code.

In the event that no response is forthcoming, the following final prejudment notice is sent:

Records of the Parking Violations Bureau indicate that you have ignored previous notice(s) of delinquent parking violations for a vehicle registered in your name, or failed to appear for a scheduled hearing. Unless you respond within ten (10) days of the date of this notice a civil judgement [sic] will be filed in Franklin County Municipal Court, and an additional $10.00 per ticket court cost will be added. No partial or time payments will be accepted.

An owner or operator of a ticketed vehicle may file an answer with the PVB at any time prior to the filing of a judgment with the Franklin County Municipal Court. The answer may admit the commission of an infraction with or without an explanation of the circumstances in mitigation, or may deny the commission of an infraction and request a hearing. If the infraction is admitted and the fine is paid, a receipt is issued and retained in the PVB's files. If an infraction is admitted and a written explanation is presented, the Clerk and designated employees review the explanation to determine if mitigation is warranted. The PVB may or may not reduce or eliminate the fines, and the individual is notified by mail of the determination. Its determination on mitigation and the amount of the fine is treated as if it were a judgment that had been rendered subsequent to a hearing. Columbus City Code Sec. 2150.05(B)(2).

If an individual denies the commission of a parking infraction, the PVB conducts a hearing in which licensed Ohio attorneys act as hearing officers. ³ The city has the burden of proving the commission of the offense by a preponderance of the evidence. Testimony is given under oath, and is not restricted by the rules of evidence. While the ticket is prima facie evidence of the infraction, the individual may request that its issuer attend the hearing. If the individual fails to appear, the hearing officer considers evidence presented by the city as well as any documentary evidence submitted by the individual prior to the hearing.

If the hearing officer determines that the city has sustained its burden of proof, he or she issues a written order indicating that a judgment has been taken, unless the individual fails to appear, in which case the hearing officer issues a default judgment. If the city fails to meet its burden of proof, a written dismissal of the charge is issued. The hearing officer may vacate an entry of default upon application if the application is filed within one year, sets forth a sufficient defense, and sets forth excusable neglect for failure to attend the hearing. Columbus City Code Sec. 2150.07(B)(5). An individual may appeal an adverse determination by a hearing officer or an adverse PVB determination regarding mitigation to the Franklin County Municipal Court. There is no further appeal from the court's decision.

In cases of all unpaid tickets which have been reviewed by a hearing officer, tickets upon which the PVB has denied mitigation, and tickets upon which a hearing officer has entered judgment or default judgment, the PVB may file those administrative judgments with the Clerk of the Municipal Court. At the time of filing such judgments, an additional ten dollar court cost fee is assessed. When such judgments are filed, they have the same force and effect as a money judgment in a civil action rendered by the court. The PVB began filing such judgments with the Clerk of Courts in March, 1985.

Once the judgments have been filed, measures may be taken to collect the judgments in the same manner as any money judgment rendered by the municipal court.

Appellants Brady, Foggy Daze International and...