Oakwood Village v. Blum

SUPREME COURT CASES

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2012-Ohio-814

Case Date: 03/01/2012

Plaintiff: Oakwood Village

Defendant: Blum

Preview:[Cite as Oakwood Village v. Blum, 2012-Ohio-814.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97081
OAKWOOD VILLAGE
PLAINTIFF-APPELLEE
vs.
JAY BLUM
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND VACATED
Criminal Appeal from the
Bedford Municipal Court
Case No. 11 TRD 02148
BEFORE:      Blackmon, A.J., Sweeney, J., and Cooney, J.
RELEASED AND JOURNALIZED:      March 1, 2012
APPELLANT PRO SE

2
Jay Blum
1554 Hopkins Avenue
Lakewood, Ohio 44107
ATTORNEY FOR APPELLEE
Stephen Klonowski
Oakwood Village Law Director and Prosecutor
5306 Transportation Blvd.
Garfield Heights, Ohio 44125
PATRICIA ANN BLACKMON, A.J.:

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{¶1}    Appellant Jay Blum (“Blum”) appeals pro se his conviction for speeding
and assigns the following four errors for our review.1
I.   The trial court erred in paragraph 3, line 2 of its judgment entry
that   appellant   did   not   establish   that                                      “parking   or   pedestrian
movements” exist in the area of the speed limit sign in question, when
testimony and evidence was submitted to the contrary, and invokes,
Article IV, Section 3 (B)(2) of the Ohio Constitution.
II.   The trial court erred in paragraph 3, line 8 of its ruling by the trial
court’s  classification  of  Oakwood  Village’s  response  to  appellant’s
official  records  request  as  hearsay  in  violation  of  Ohio  Rules  of
Evidence Rule 903(7), (8), (10), and Federal Rules of Evidence Rule 803
(7), (8), (10).
III.    The  court  erred  by  asking  the  parties  to  submit  briefs  after
testimony and evidence had been submitted, violating the appellant’s
Sixth Amendment right to a speedy trial.
IV.   The court erred by granting the City of Oakwood more time to
file their brief, when Oakwood failed to file for an enlargement of time
to file, in violation of appellant’s U.S. Constitution Sixth Amendment
right to a speedy trial.
{¶2}    Having  reviewed  the record and pertinent law, we reverse and    vacate
Blum’s conviction.   The apposite facts follow.
Facts
{¶3}    Blum was cited for traveling 41 m.p.h. in a 25 m.p.h. zone on Forbes Road.
Blum entered a plea of not guilty; the matter proceeded to a bench trial.
1No appellee brief was filed.

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{¶4}    Officer  Edward  Thyret,  Jr.  testified  that  on  March                                11,   2011,  he  was
operating radar on Forbes Road due to citizens’ complaints regarding speeding   in the
area.    At  approximately  6:44  p.m.,  the  officer’s  radar  gun  showed  that  Blum  was
traveling at 41 m.p.h.     The posted speed limit in that area of Forbes Road is 25 m.p.h.
The officer issued a citation to Blum for speeding.
{¶5}    Blum  argued  at  trial  that  the  speed  limit  was  unenforceable  for  three
reasons.   First, the sign did not comply with the Ohio Manual of Uniform Traffic Control
Devices (“uniform manual”), which required the bottom of posted signs near pedestrian
areas to be at least seven feet from the ground.   In the instant case, the bottom of the sign
was less than six feet from the ground.   Second, he argued the uniform manual required
signs to be installed on separate posts.   Here, the speed limit sign was posted above a
sign stating “No trucks after next 1000 feet.”   Third, he argued there was no basis for the
speed limit to be 25 m.p.h. in that area of the road.
{¶6}    Officer Thyret testified on rebuttal that the area of the road that Blum was
speeding was a residential, two-way street.    He noted that a bike and hike path was
located on the south side of the road.   At the time Blum was stopped for speeding, two
women and a toddler on a tricycle were on the path.   The officer testified that 41 m.p.h.
was not a reasonable speed in this area.
{¶7}    At the conclusion of the evidence, the trial court directed the parties to
submit  briefs  about  whether  the  village  complied  with  the  uniform  manual.    After
receiving Blum’s and the prosecutor’s briefs, the trial court in a two-page judgment entry

5
found Blum guilty of speeding.   The trial court ordered Blum to pay a fine of $150 plus
court costs.   This court granted Blum’s motion to stay.
Height of the Sign
{¶8}    In his first assigned error, Blum argues the trial court erred in concluding
that there was no evidence presented of pedestrian activity in the area, which would
require the bottom of the sign to be at least seven feet from the ground.
{¶9}    Section 2A.18 of the uniform manual states:                                              “Signs installed at the side
of the road in rural districts shall be at least 1.5 m (5 ft), measured from the bottom of the
sign to the near edge of the pavement.   Where parking or pedestrian movements occur,
the clearance to the bottom of the sign shall be at least 2.1 m (7 ft).” (Emphasis added.)
{¶10}   Here, the distance from the ground to the bottom of the sign measured less
than six feet.   The photographs admitted at trial depicting the speed-limit sign show that
beside the sign is a paved path.   The officer also testified that next to the street was a
bike and hike path, and at the time that Blum was stopped, two adults and a child were on
the path.   The record established that pedestrian traffic existed in the area; consequently,
the clearance of the bottom of the sign was required to be seven feet from the ground.
Based on this evidence, the trial court erred by concluding that Blum failed to establish
that there was pedestrian traffic in the area of the sign.
{¶11} R.C. 4511.09 establishes that the Ohio Department of Transportation shall
adopt a manual and specifications for a uniform system of traffic control devices. R.C.
4511.11(D) further establishes that “[a]ll traffic control devices erected on a public road,

6
street, or alley, shall conform to the state manual and specifications.”   Additionally, R.C.
4511.12  states in pertinent part:                                                                “No provision of  this chapter for which signs are
required shall be enforced against an alleged violator if at the time and place of the
alleged violation an official sign is not in proper position and sufficiently legible to be
seen by an ordinarily observant person.”      Traffic control devices must adhere to the
uniform  manual  to  be  official  signs  conveying  criminal  liability.     Lyndhurst  v.
McGinness, 138 Ohio App.3d 617, 741 N.E.2d 979 (8th Dist. 2000).
{¶12}                                                                                             When a community’s posted sign fails    to comply with the uniform
manual  regarding  signage  requirements,  the  posted  speed  limit  on  the  sign  is
unenforceable.   See Mentor v. Mills, 11th Dist. No. 12-269, 1988 WL 76764 (July 22,
1988) (the bottom of the speed limit signs were less than seven feet from the ground;
therefore, they were not enforceable); Maple Hts. v. Smith, 131 Ohio App.3d 406, 722
N.E.2d 607 (8th Dist. 1999) ( “no left turn” sign did not comply with uniform manual;
therefore,  the  defendant  could  not  be  held  criminally  liable  for  making  left  turn);
Cincinnati v. Evers, 63 Ohio Misc.2d 220, 621 N.E.2d 905 (M.C. 1993) (sign prohibiting
left turn at intersection did not comply with uniform manual; therefore, defendant could
not be held criminally liable for making the left turn); State v. Tobin, 147 Ohio Misc.2d
108,  2008-Ohio-3466,  891  N.E.2d  833  (M.C.)                                                   (the  failure  to  comply with  signage
requirements makes the speed limit unenforceable); S. Russell v. Blair, 11th Dist. No.
2005-G-2645,  2006-Ohio-3766,  2006 WL  2042991                                                   (stop sign was not at appropriate
height;   defendant could not be held criminally liable for failure to stop).

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{¶13}   The “requirements for the placement of signs are intended to insure that
the driver can see the sign, can understand its meaning, and can have time to respond.”
State v. Lechner, 9th Dist. No. 9430,                                                            (Feb. 13, 1980).   In the instant case, the sign was
not posted at the requisite height.   The village did not ask Blum whether he saw the sign
nor did it present evidence that the sign was sufficiently legible in spite of the deficiency.
The police officer who conducted the traffic stop testified that Blum told him that he
thought the speed limit was 35 m.p.h.; consequently, we can conclude that he did not see
the sign.   It was the village’s burden to offer rebuttal evidence that the sign was properly
placed or nonetheless legible. See State v. Grillot, 2 Ohio App.2d 81, 206 N.E.2d 420 (2d
Dist. 1964) (state failed to produce evidence the sign was legible under the circumstances;
thus, judgment should have been granted in plaintiff’s favor).   Accordingly, Blum’s first
assigned error is sustained.   Blum’s speeding conviction is vacated.
{¶14}      Given our disposition in the first assigned error, it is unnecessary to
address Blum’s remaining assigned errors as they are moot.   App.R. 12(A)(1)(c).
{¶15}     Judgment reversed and vacated.
It is ordered that appellant recover of appellee his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate 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.

8
PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE
JAMES J. SWEENEY, J., CONCURS;
COLLEEN CONWAY COONEY, J., DISSENTS;
(SEE ATTACHED DISSENTING OPINION.)
COLLEEN CONWAY COONEY, J., DISSENTING:
{¶16}      I respectfully dissent.   I would affirm Blum’s speeding conviction for
two reasons.    First, he was traveling at  41 miles per hour, which exceeds even the
“default”  speed  limit  he  claimed  existed  in  lieu  of  the  posted  sign.    Second,  R.C.
4511.12(A) provides that if  “an official sign is not in proper position and sufficiently
legible to be seen by an ordinarily observant person,” it shall not be enforced.    No
evidence exists in this record that the sign was not readily observable to Blum or any
other observant person.
{¶17}     Moreover, the sign was in the proper position for a rural area like Forbes
Road in Oakwood Village, which had a bike and hike path alongside, i.e. five feet from
the ground.   The photo introduced at trial demonstrates that the sign was sufficiently
legible and above the five-foot minimum required in a rural area.   Therefore, I would
affirm.

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