S. Russell v. Blair, 2006 Ohio 3766 (Ohio App. 7/21/2006)

• Court: Ohio Court of Appeals
• Writing for the Court: Donald R. Ford
• Citation: S. Russell v. Blair, 2006 Ohio 3766 (Ohio App. 7/21/2006), 2006 Ohio 3766, No. 2005-G-2645. (Ohio App. Jul 21, 2006)
• Decision Date: 21 July 2006
• Docket Number: No. 2005-G-2645.,2005-G-2645.
• Parties: Village of South Russell, Plaintiff-Appellee, v. Terence T. Blair, Defendant-Appellant.

Page 1

2006 Ohio 3766

Village of South Russell, Plaintiff-Appellee, v. Terence T. Blair, Defendant-Appellant.

No. 2005-G-2645.

Court of Appeals of Ohio, Eleventh District, Geauga County.

July 21, 2006.

Criminal Appeal from the Chardon Municipal Court, Case No. 2004 TRD 08625.

Reversed; judgment entered for appellant.

Dennis M. Coyne, City of Chardon Prosecutor, 111 Water Street, Chardon, OH 44024 (For Plaintiff-Appellee).

Terence T. Blair, 7735 Birchmont Drive, Chagrin Falls, OH 44022 (For Defendant-Appellant).

OPINION

DONALD R. FORD, P.J.

{¶1} Appellant, Terence T. Blair, appeals the September 12, 2005 judgment entry of the Chardon Municipal Court, adopting the April 6, 2005 decision of the magistrate, and finding him guilty of a stop sign violation.

{¶2} On December 7, 2004, Officer Edward Svoboda ("Officer Svoboda") of the South Russell Police Department issued a stop sign citation to appellant, in violation of South Russell Ordinance ("SRO") 414.01. On the citation, Officer Svoboda indicated that the area was residential, rather than business, rural, industry, or school. Appellant entered a not guilty plea at his initial appearance.

{¶3} The following facts were revealed at the trial held in front of a magistrate on February 2, 2005.¹ Officer Svoboda testified that around 3:40 p.m. on December 7, 2004, he was parked in a driveway near the intersection of Daisy Lane and Woodside Road in the Village of South Russell ("Village"). He was aiming his radar unit toward Woodside Road when he witnessed appellant approach a stop sign on Daisy Lane, slow his vehicle to about five to ten m.p.h., and then proceed to go through the stop sign without stopping. He then effectuated a stop of appellant's vehicle and issued a citation to him. Officer Svoboda testified that at first, appellant stated that he believed he stopped at the stop sign. However, appellant later told Officer Svoboda that the stop sign was illegally posted and that he would continue to violate it.

{¶4} On cross-examination, Officer Svoboda stated that he rarely sees parked cars in the area. However, when asked if he sees pedestrians in the area, he responded, "all the time." Officer Svoboda also testified that he would characterize the neighborhood, specifically the Daisy Lane/Woodside area, as a residential development. In addition, Officer Svoboda agreed that he marked "residential" when he issued the citation to appellant.

{¶5} Appellant's mother, Ms. Blair, also testified. She identified a picture, marked as exhibit A, as being a stop sign in the Daisy Lane/Woodside area that was taken in 2003. She indicated that in the picture, she is standing beside the stop sign and that her height is approximately five feet tall. The picture shows that the bottom edge of the stop sign was slightly higher than the top of Ms. Blair's head. She also testified that earlier that day, she went to the area identified in the picture, and that it looked the same as it did in the photo.

{¶6} On cross-examination, appellant testified that the stop sign was sixty-two inches (five feet, two inches) from the ground to the bottom edge of the sign. He also admitted that he did not come to a complete stop at the stop sign on December 7, 2004.

{¶7} On April 6, 2005, the magistrate issued his decision, finding appellant guilty of violating SRO 414.01 and fining him $50 plus costs. On April 20, 2005, appellant filed objections to the magistrate's decision. On April 21, 2005, the trial court denied appellant's objections, but did not adopt the magistrate's decision. On May 20, 2005, appellant timely filed his notice of appeal. On September 2, 2005, this court determined that the judgment appellant was appealing was not final and appealable due to the trial court's failure to adopt the magistrate's decision after it overruled his objections. We remanded the case sua sponte for twenty days for the sole purpose of the trial court adopting the magistrate's decision.

{¶8} On September 12, 2005, the trial court again denied appellant's objections, adopted the magistrate's decision, and found appellant guilty of a stop sign violation. It is from this judgment that appellant appeals, raising the following assignments of error:

{¶9} "[1.] The [m]agistrate erred, as did the [c]ourt concurring, in concluding the evidence that a stop sign placed 1' 10["] below the minimum height required by the Ohio Manual on Uniform Traffic Control Devices (OMUTCD) in a residential zone where pedestrians and parking are found is insufficient to overcome the presumption that the sign was placed in conformance with the OMUTCD and therefore the state was not required to present evidence that the sign strictly conformed to the OMUTCD. ***

{¶10} "[2.] The [m]agistrate erred, as did the [c]ourt concurring, in concluding that the evidence about cost, accidents, and traffic volume raised questions, but was insufficient to counterbalance the presumption of proper legislative enactment in the erection of a stop sign. ***"

{¶11} In his first assignment, appellant argues that the trial court's conclusion was contrary to law.

{¶12} "[T]he goal of traffic laws and regulations is to promote highway safety." Maple Heights v. Smith (1999), 131 Ohio App.3d 406, 408. R.C. 4511.09 provides that, "[t]he department of transportation shall adopt a manual and specifications for a uniform system of traffic control devices[.]" This manual is the Ohio Manual of Uniform Traffic Control Devices ("OMUTCD"). Maple Heights at 408.

{¶13} R.C. 4511.07(A) permits local authorities to regulate "the stopping, standing, or parking of vehicles[.]" However, local authorities "shall place and maintain traffic control devices in accordance with the [OMUTCD] ***." R.C. 4511.11(A). Further, R.C. 4511.11(D) mandates that, "[a]ll traffic control devices erected on a public road, street, or alley, shall conform to the state manual and specifications."

{¶14} Section 2E-4 of the OMUTCD provides that: "*** except as noted below, signs erected *** in rural districts shall be mounted at a height of at least 5 feet measured from the bottom of the sign to the near edge of the pavement. In business, commercial and residential districts where parking and/or pedestrian movement is likely to occur or where there are other obstructions to view, the clearance to the bottom of the sign shall be at least seven feet."

{¶15} If "an official sign is not in proper position and sufficiently legible to be seen by an ordinarily observant person[,]" then it shall not be enforced against an alleged violator. R.C. 4511.12(A). Thus, "`[t]here is no criminal liability for violation of a traffic control device that is unofficial,' i.e., not `in conformity with' the [OMUTCD]." Lyndhurst v. Dawson, 8th Dist. No. 81288, 2002-Ohio-7071, at ¶11, quoting Lyndhurst v. McGinness (2000), 138 Ohio App.3d 617, 621.

{¶16} In the case sub judice, there is no dispute that the stop sign was sufficiently legible. Thus, the sole issue in this assignment is whether appellant presented sufficient evidence to rebut the presumption afforded to public authorities that the stop sign was in the proper position. We conclude that he did.

{¶17} In Akron v. Cook (1990), 67 Ohio App.3d 640, 643, the court stated: "it has been held that in absence of evidence to the contrary, public officials, administrative officers, and public authorities, within the limits of the jurisdiction conferred upon them by law, will be presumed to have properly performed their duties in a regular and lawful manner and not to have acted illegally or unlawfully. State, ex. rel. Speeth v. Carney (1955), 163 Ohio St. 159, *** paragraph ten of the syllabus. This is expressed in the legal maxim, omnia praesumuntur legitime facta danec probetur in contrarium, that is, all things are presumed lawfully done, until proof be made to the contrary." (Parallel citations omitted.)

{¶18} The trial court was correct in relying on Dawson, supra, for the proposition that "if the record contains evidence upon which to base a presumption the traffic control device conforms with the [OMUTCD], the defendant may demonstrate that it does not. *** This is more in the nature of an affirmative defense, which is in accord with the analyses set forth by other Ohio appellate districts that have considered the issue." Id. at ¶13, citing, State v. Rivera, 11th Dist. No. 2001-A-0005, 2001-Ohio-4322; State v. Millhouse (Feb. 3, 1995), 4th App. No. 94 CA 4, 1995 Ohio App. LEXIS 538; Cook, supra; and Mentor v. Mills (July 22, 1988), 11th Dist. No. 12-269, 1988 Ohio App LEXIS 2962. However, we conclude that the trial court incorrectly applied the facts to this legal standard.

{¶19} At trial, appellant demonstrated that the height of the sign was sixty-two inches (five feet, two inches). According to Section 2E-4 of the OMUTCD, this height is proper if the sign is erected in a rural district. However, in a residential district, "where parking and/or pedestrian movement is likely to occur[,]" then the sign must be at least seven feet.

{¶20} Appellee contends that the Village is a rural area. Appellee concedes that the Daisy Lane/Woodside area is zoned residential, but maintains that it is still rural, and as such, the sign is at the proper height. Appellee spends a great deal of time in its brief arguing that the Village is not urban. However, whether or not an area is urban is irrelevant. Under section 2E-4 of the OMUTCD, an area can still be considered rural and residential. This provision begins with an exception to the rule; i.e, "except as noted below[.]" Thus, in a rural district, signs shall be at least five feet, except as noted below — where they may also be residential and where pedestrian movement and/or parking is likely to occur.

{¶21} With respect to this issue, the trial court stated, "[a]s to the mounting height of the stop sign in question, the height of 5 feet 2 inches conforms to the OMUTCD, unless the sign is located...