[Cite as Reusch v. Toledo, 2020-Ohio-3066.]
COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT COUNTY OF LUCAS
JEFFREY D. REUSCH, :
Plaintiff-Appellant, : No. L-19-1238 v. :
CITY OF TOLEDO, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: May 22, 2020
Civil Appeal from the Toledo Municipal Court Case No. CVF-19-02624
Appearances:
Dale R. Emch, Toledo Director of Law, and Edward T. Mohler, Senior Attorney, for appellee.
Jeffrey D. Reusch, pro se.
MARY EILEEN KILBANE, J.:
Plaintiff-appellant, Jeffrey D. Reusch (“Reusch”), appeals the trial
court’s decision granting summary judgment in favor of the city of Toledo (“Toledo”)
and upholding the decision that Reusch had committed a civil speeding infraction.
For the following reasons, we affirm the decision of the trial court. Facts
Toledo and Reusch both agree that there are a number of material
facts not in dispute. The trial court referred to those facts in formulating its detailed
opinion.
On October 14, 2018, Reusch was observed driving 62 m.p.h. in a 50
m.p.h. zone on northbound Interstate 75 in Toledo. The 50 m.p.h. limit was a
temporary limit established to cover a construction zone. Reusch was observed by
radar/lidar technology, operated by a Toledo police officer, that captured recorded
images of his vehicle and noted the speed he was traveling. On October 22, 2018,
Reusch received a notice of liability informing him that he had been observed
speeding. The notice stated that the images of Reusch driving constituted prima
facie evidence of a violation of Toledo Municipal Code (“TMC”) 313.12. TMC 313.12
is an ordinance used to issue tickets to speeders recorded by red-light cameras and
radar/lidar devices.
Reusch timely appealed the notice of liability, and Toledo’s hearing
officer held a hearing on January 3, 2019. The reviewing officer was presented with
ample evidence that Reusch was driving 62 m.p.h. in a 50 m.p.h. zone including:
photographs, records concerning the radar device, and testimony concerning the
officer’s qualifications. Reusch had submitted a 49-page brief, with attached
exhibits, disputing his citation; despite the arguments therein, on January 15, 2019,
the officer upheld the citation. Reusch timely filed an administrative appeal on January 15, 2019, to
the Toledo Municipal Court. On May 13, 2019, Reusch moved to submit additional
evidence. The trial court granted his request, and Reusch was allowed to submit the
evidence and conduct some limited discovery.
On July 31, 2019, Reusch moved for summary judgment. Toledo filed
its response on August 16, 2019, and Reusch filed his reply on August 23, 2019.
A motion hearing was held on September 16, 2019. The motion
hearing also included a period of discussion in the jury room. Following the hearing,
the trial court denied Reusch’s motion for summary judgment on September 16, and
entered judgment in favor of Toledo. On September 18, 2019, the trial court clarified
that Reusch’s motion had been denied and that the court had entered judgment in
favor of Toledo in the administrative appeal, not summary judgment.
This appeal follows. We have been presented with a single
assignment of error.
Assignment of Error
The trial court erred when it upheld the decision of the hearing officer finding that appellant committed a civil speeding infraction under Toledo Municipal Code 313.12.
In this appeal, Reusch is not challenging the fact that he was driving
62 m.p.h. In his brief, he articulates a number of material facts that he and Toledo
agree on, namely that he was driving above the speed limit. Instead, he is arguing
that Toledo did not utilize the correct statute in finding him liable and that his citation is therefore void. We disagree. The trial court’s analysis is sound; Toledo
had the authority to ticket Reusch in this instance.
Standard of review
Generally, an appellate court reviews a common pleas court’s decision
in an administrative appeal for an abuse of discretion. Gyugo v. Franklin Cty. Bd.
of Dev. Disabilities, 151 Ohio St.3d 1, 2017-Ohio-6953, 84 N.E.3d 1021, citing Pons
v. State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993). However, an
appellate court exercises plenary review over questions of law, including questions
of statutory interpretation, like the questions before us here. State v. Straley, 139
Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175.
When exercising plenary review over a question of statutory
interpretation we review using a de novo standard. Id. When reviewing a matter de
novo, this court gives no deference to the trial court’s decision. BST Ohio Corp. v.
Wolgang, 8th Dist. Cuyahoga No. 108130, 2019-Ohio-4785, ¶ 12.
The relevant ordinances and statutes
TMC 313.12(c)(2) states in relevant part that: “The owner of a vehicle
* * * shall be liable for a penalty imposed pursuant to this Section if such vehicle is
operated at a speed in excess of those set forth in TMC Section 333.03.”
As Reusch noted in his briefs, the ordinance does not say that it is a
violation to exceed the posted speed limit, but rather that it is a violation to exceed
the speed limits “set forth” in TMC 333.03.
Briefly, we consider what the words “set forth” mean. The principal consideration with respect to the interpretation of a
statute is the legislative intent. State v. Garner, 8th Dist. Cuyahoga Nos. 97948 and
97949, 2012-Ohio-3262, ¶ 10, citing State v. Jordan, 89 Ohio St.3d 488, 491, 2000-
Ohio-225, 733 N.E.2d 601. Courts must first look to the language of the statute itself
in order to determine the legislative intent. Provident Bank v. Wood, 36 Ohio St.2d
101, 105, 304 N.E.2d 378 (1973).
If a statute is clear and unambiguous, the statute must be applied as
written and no further interpretation is necessary. State ex rel. Savarese v. Buckeye
Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996). The
court must give effect to the words used in a statute, while avoiding “‘delet[ing]
words used or insert[ing] words not used.’” Bernardini v. Bd. of Edn., 58 Ohio St.2d
1, 4, 387 N.E.2d 1222 (1979), quoting Columbus-Suburban Coach Lines, Inc. v. Pub.
Util. Comm., 20 Ohio St.2d 125, 127, 254 N.E.2d 8 (1969). Here, the statute is clear.
TMC 333.03 includes two provisions that set forth express speed
limits – (b) and (d) – and five provisions that set forth implicit speed limits. “Set
forth” is not limited to express speed limits; if that were true, then the limits imposed
by the other provisions would be meaningless. That cannot be the case.
The trial court found that TMC 333.03(h) set forth an implicit speed
limit that Reusch violated, therefore making him liable. We agree.
TMC 333.03(h)
Toledo’s arguments below, and the lower court’s opinion, focused on
the interplay between several ordinances. Toledo argued that the 50 m.p.h.
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[Cite as Reusch v. Toledo, 2020-Ohio-3066.]
COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT COUNTY OF LUCAS
JEFFREY D. REUSCH, :
Plaintiff-Appellant, : No. L-19-1238 v. :
CITY OF TOLEDO, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: May 22, 2020
Civil Appeal from the Toledo Municipal Court Case No. CVF-19-02624
Appearances:
Dale R. Emch, Toledo Director of Law, and Edward T. Mohler, Senior Attorney, for appellee.
Jeffrey D. Reusch, pro se.
MARY EILEEN KILBANE, J.:
Plaintiff-appellant, Jeffrey D. Reusch (“Reusch”), appeals the trial
court’s decision granting summary judgment in favor of the city of Toledo (“Toledo”)
and upholding the decision that Reusch had committed a civil speeding infraction.
For the following reasons, we affirm the decision of the trial court. Facts
Toledo and Reusch both agree that there are a number of material
facts not in dispute. The trial court referred to those facts in formulating its detailed
opinion.
On October 14, 2018, Reusch was observed driving 62 m.p.h. in a 50
m.p.h. zone on northbound Interstate 75 in Toledo. The 50 m.p.h. limit was a
temporary limit established to cover a construction zone. Reusch was observed by
radar/lidar technology, operated by a Toledo police officer, that captured recorded
images of his vehicle and noted the speed he was traveling. On October 22, 2018,
Reusch received a notice of liability informing him that he had been observed
speeding. The notice stated that the images of Reusch driving constituted prima
facie evidence of a violation of Toledo Municipal Code (“TMC”) 313.12. TMC 313.12
is an ordinance used to issue tickets to speeders recorded by red-light cameras and
radar/lidar devices.
Reusch timely appealed the notice of liability, and Toledo’s hearing
officer held a hearing on January 3, 2019. The reviewing officer was presented with
ample evidence that Reusch was driving 62 m.p.h. in a 50 m.p.h. zone including:
photographs, records concerning the radar device, and testimony concerning the
officer’s qualifications. Reusch had submitted a 49-page brief, with attached
exhibits, disputing his citation; despite the arguments therein, on January 15, 2019,
the officer upheld the citation. Reusch timely filed an administrative appeal on January 15, 2019, to
the Toledo Municipal Court. On May 13, 2019, Reusch moved to submit additional
evidence. The trial court granted his request, and Reusch was allowed to submit the
evidence and conduct some limited discovery.
On July 31, 2019, Reusch moved for summary judgment. Toledo filed
its response on August 16, 2019, and Reusch filed his reply on August 23, 2019.
A motion hearing was held on September 16, 2019. The motion
hearing also included a period of discussion in the jury room. Following the hearing,
the trial court denied Reusch’s motion for summary judgment on September 16, and
entered judgment in favor of Toledo. On September 18, 2019, the trial court clarified
that Reusch’s motion had been denied and that the court had entered judgment in
favor of Toledo in the administrative appeal, not summary judgment.
This appeal follows. We have been presented with a single
assignment of error.
Assignment of Error
The trial court erred when it upheld the decision of the hearing officer finding that appellant committed a civil speeding infraction under Toledo Municipal Code 313.12.
In this appeal, Reusch is not challenging the fact that he was driving
62 m.p.h. In his brief, he articulates a number of material facts that he and Toledo
agree on, namely that he was driving above the speed limit. Instead, he is arguing
that Toledo did not utilize the correct statute in finding him liable and that his citation is therefore void. We disagree. The trial court’s analysis is sound; Toledo
had the authority to ticket Reusch in this instance.
Standard of review
Generally, an appellate court reviews a common pleas court’s decision
in an administrative appeal for an abuse of discretion. Gyugo v. Franklin Cty. Bd.
of Dev. Disabilities, 151 Ohio St.3d 1, 2017-Ohio-6953, 84 N.E.3d 1021, citing Pons
v. State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993). However, an
appellate court exercises plenary review over questions of law, including questions
of statutory interpretation, like the questions before us here. State v. Straley, 139
Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175.
When exercising plenary review over a question of statutory
interpretation we review using a de novo standard. Id. When reviewing a matter de
novo, this court gives no deference to the trial court’s decision. BST Ohio Corp. v.
Wolgang, 8th Dist. Cuyahoga No. 108130, 2019-Ohio-4785, ¶ 12.
The relevant ordinances and statutes
TMC 313.12(c)(2) states in relevant part that: “The owner of a vehicle
* * * shall be liable for a penalty imposed pursuant to this Section if such vehicle is
operated at a speed in excess of those set forth in TMC Section 333.03.”
As Reusch noted in his briefs, the ordinance does not say that it is a
violation to exceed the posted speed limit, but rather that it is a violation to exceed
the speed limits “set forth” in TMC 333.03.
Briefly, we consider what the words “set forth” mean. The principal consideration with respect to the interpretation of a
statute is the legislative intent. State v. Garner, 8th Dist. Cuyahoga Nos. 97948 and
97949, 2012-Ohio-3262, ¶ 10, citing State v. Jordan, 89 Ohio St.3d 488, 491, 2000-
Ohio-225, 733 N.E.2d 601. Courts must first look to the language of the statute itself
in order to determine the legislative intent. Provident Bank v. Wood, 36 Ohio St.2d
101, 105, 304 N.E.2d 378 (1973).
If a statute is clear and unambiguous, the statute must be applied as
written and no further interpretation is necessary. State ex rel. Savarese v. Buckeye
Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996). The
court must give effect to the words used in a statute, while avoiding “‘delet[ing]
words used or insert[ing] words not used.’” Bernardini v. Bd. of Edn., 58 Ohio St.2d
1, 4, 387 N.E.2d 1222 (1979), quoting Columbus-Suburban Coach Lines, Inc. v. Pub.
Util. Comm., 20 Ohio St.2d 125, 127, 254 N.E.2d 8 (1969). Here, the statute is clear.
TMC 333.03 includes two provisions that set forth express speed
limits – (b) and (d) – and five provisions that set forth implicit speed limits. “Set
forth” is not limited to express speed limits; if that were true, then the limits imposed
by the other provisions would be meaningless. That cannot be the case.
The trial court found that TMC 333.03(h) set forth an implicit speed
limit that Reusch violated, therefore making him liable. We agree.
TMC 333.03(h)
Toledo’s arguments below, and the lower court’s opinion, focused on
the interplay between several ordinances. Toledo argued that the 50 m.p.h. speed limit was not expressly set forth in TMC 333.03, but was instead incorporated
pursuant to TMC 333.03(h).
TMC 333.03(h) states that a speed limit may be “altered, in
accordance with Ohio R.C. 4511.21 by declaration of the Ohio Director of
Transportation or by statue of Council amending Traffic Schedule IV.” We look then
to the language of R.C. 4511.21, in particular subsection (H).
R.C. 4511.21(H)
R.C. 4511.21(H) provides three enumerated mechanisms for the
director to alter speed limits as well as a single inclusive mechanism. R.C.
4511.21(H)(4) provides that “[n]othing in [R.C. 4511.21] shall be construed to limit
the authority of the director to establish speed limits within a construction zone as
authorized under section 4511.98 of the Revised Code.”
R.C. 4511.98 grants the director broad authority to alter speed limits
in construction zones. There is no dispute that the speed limit in this case was
altered according to R.C. 4511.98. The only question is whether the director’s
altering of the construction-zone speed limit “as authorized under” R.C. 4511.98 can
also be construed as being “in accordance with” R.C. 4511.21, as contemplated by the
relevant municipal code.
The phrase “in accordance with” is quite broad. “When interpreting
a statute, ‘words and phrases shall be read in context and construed according to the
rules of grammar and common usage.’” Teamsters Local Union No. 436 v.
Cleveland, 2017-Ohio-8975, 102 N.E.3d 101, ¶ 36 (10th Dist.), quoting R.C. 1.42. The phrase “in accordance with” has been deemed to be synonymous with “pursuant to”
or “in compliance with.” Id., citing Black’s Law Dictionary 1431 (10th Ed.2014) and
State v. Niesen-Pennycuff, 132 Ohio St.3d 416, 2012-Ohio-2730, 973 N.E.2d 221,
¶19.
“In accordance with” stands in stark contrast to the legislature’s
language in R.C. 4511.21(H)(4), in which it was expressly recognized that the
director may alter a speed limit in a construction zone “as authorized under” R.C.
4511.98. “Authorized” is generally defined as “[t]o empower; to give a right or
authority to act. To endow with authority or effective legal power, warrant, or right.”
Brook Park v. Americargo, Inc., 59 Ohio App.3d 23, 25, 570 N.E.2d 290 (8th
Dist.1989), quoting People v. Young, 100 Ill. App.2d 20, 241 N.E.2d 587 (1968).
Although R.C. 4511.21(H) sets forth several mechanisms by which the director may
alter posted speed limits, it expressly recognizes the director’s authority to alter
posted speed limits in construction zones is also authorized under R.C. 4511.98.
TMC 333.03(h) avoids the phrase “as authorized under” and instead
provides that any alteration of a posted speed limit “in accordance with” R.C. 4511.21
shall be the recognized speed limit as contemplated under TMC 313.12(c)(2).
Reusch argues that R.C. 4511.21(H)(4) does not encompass R.C. 4511.98 because the
sole purpose of R.C. 4511.21(H)(4) is to not limit 4511.98. We disagree with his
interpretation.
Had the drafters of TMC 333.03(h) indicated that the alterations of
the speed limit must be “authorized by” R.C. 4511.21, Reusch’s argument would have more support. Because the drafters chose the different language, we cannot read “as
authorized under” to be synonymous with the phrase “in accordance with.” The sole
question is whether altering a speed limit pursuant to R.C. 4511.98 is “in accordance
with” R.C. 4511.21. We find that it is.
Under TMC 333.03(h), the construction-zone speed limit was altered
in accordance or consistent with R.C. 4511.21, and therefore, the altered speed limit
was contemplated under TMC 313.12(c)(2).
Accordingly, we find that TMC 333.03(h), pursuant to TMC
313.12(c)(2), gives Toledo the authority to issue the notice of liability to Reusch.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue be sent to said court to carry this
judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
MARY J. BOYLE, P.J., and SEAN C. GALLAGHER, J., CONCUR
*Judges of the Eighth District Court of Appeals sitting by assignment in the Sixth District Court of Appeals.