IN THE MONTGOMERY COUNTY COMMON PLEAS COURT CIVIL DIVISION

Transcription

1 ELECTRONICALLY FILED COURT OF COMMON PLEAS Tuesday, March 25, :34:14 AM CASE NUMBER: 2014 CV Docket ID: GREGORY A BRUSH CLERK OF COURTS MONTGOMERY COUNTY OHIO IN THE MONTGOMERY COUNTY COMMON PLEAS COURT CIVIL DIVISION Terry Toney : Case No Westona Drive Dayton, OH : individually and on behalf of all others similarly situated : (Judge ) and : Stacy Toney : 1511 Westona Drive Dayton, OH : individually and on behalf of all others similarly situated : and : Charles Grant Vandervort : 555 Todds Ridge Road Wilmington, OH : individually and on behalf of all others similarly situated : and : Aaron Berger : 300 Blumen Lane Dayton, OH : individually and on behalf of all others similarly situated : and : Alicia Berger : 300 Blumen Lane Dayton, OH : individually and on behalf of all others similarly situated : and : 1

2 Thomas A. Griffith : 6521 Chambersburg Rd. Huber Heights, OH : individually and on behalf of all others similarly situated : and : Teresa K. Griffith : 6521 Chambersburg Rd. Huber Heights, OH : individually and on behalf of all others similarly situated : and : Ghassan Deek : 6886 Late Autumn Ct. Centerville, OH : individually and on behalf of all others similarly situated : Plaintiffs, : v. : City of Dayton : 101 West Third Street Dayton, OH : and : Chief Richard S. Biehl : Dayton Police Department 335 W. Third St. : Dayton, OH : and : RedFlex Traffic Systems, Inc. : c/o National Registered Agents, Inc East Ninth Street : Cleveland, OH : Defendants. 2

3 CLASS ACTION COMPLAINT; JURY DEMAND ENDORSED HEREON Plaintiffs, by and through counsel, for their Complaint do hereby state the following: INTRODUCTION 1. Plaintiffs bring this class action for declaratory judgment, injunctive relief and equitable restitution/disgorgement, as well as for violations of the Ohio Constitution. 2. This case arises out of the employment and operation of automated traffic control photographic systems ( ATCPS ) within the limits of the City of Dayton ( the City ) for the monitoring of alleged red light and speeding violations. 3. In 2002, the City enacted R.C.G.O through Ordinance , which was amended in 2010 by Ordinance and again in 2011 by Ordinance These ordinances also amended, affected, and/or otherwise impacted R.C.G.O , 76.07, 76.08, 76.11, and ( the Ordinances ). A copy of is attached hereto as Exhibit The Ordinances are invalid and unenforceable because they fail to provide adequate due process to vehicle owners as guaranteed by the Ohio Constitution. 5. The Ordinances are also invalid and unenforceable because they improperly and unconstitutionally divest the Dayton Municipal Court of the jurisdiction to adjudicate alleged violations of the Ordinances. PARTIES 6. Plaintiffs Terry and Stacy Toney ( the Toneys ), at all times pertinent hereto, were and are residents of the City of Dayton, Montgomery County, Ohio, and were and are legally married. 7. Plaintiff Charles Grant Vandervort ( Vandervort ), at all times pertinent hereto, was and is a resident of Wilmington, Clinton County, Ohio. 8. Plaintiffs Aaron and Alicia Berger ( the Bergers ), at all times pertinent hereto, were and are residents of the City of Moraine, Montgomery County, Ohio, and were and are legally married. 9. Plaintiffs Thomas and Teresa Griffith ( the Griffiths ), at all times pertinent hereto, were and are residents of the City of Huber Heights, Montgomery County, Ohio, and were and are legally married. 3

4 10. Plaintiff Ghassan Deek ( Deek ), at all times pertinent hereto, was and is a resident of Centerville, Montgomery County, Ohio. 11. Defendant City of Dayton is an Ohio municipality with its principal location at 101 West Third Street, Dayton, Ohio The City, since the initial enactment of the Ordinances, has employed the ATCPS to assess civil penalties against vehicle owners or lessees for red light and/or speeding violations. The City is also engaged in the seizure, towing and impoundment of vehicles for alleged unpaid civil violations issued pursuant to the Ordinances. 12. Chief Richard Biehl ( Biehl ) is the Chief of the Dayton Police Department. He is sued solely in his official capacity and solely as regards Plaintiffs claims for injunctive relief as opposed to damages. Biehl is responsible to the implementation and enforcement of the ATCPS 13. RedFlex Traffic Systems, Inc. ( RedFlex ), a Delaware corporation doing business in Ohio, is responsible for the installation, maintenance, and operation of the red light and/or speeding cameras set up within the City limits. Further, RedFlex is responsible for administration and collection of the civil penalty collections on behalf of the City, and by contract receives a percentage of the amounts collected pursuant to same. RedFlex is an agent of the City. JURISDICTION AND VENUE 14. Pursuant to O.R.C et seq., this Court is authorized to grant the injunctive relief sought, as well as to declare the rights, duties, status, and other legal relations whether or not relief is or could be claimed. 15. Pursuant to Civ. R. 3(B), venue is proper in this Court, and this Court has jurisdiction over this matter, in that a substantial portion of the events that form the basis of this Complaint occurred in Montgomery County, the defendants conducted activity that gave rise to the claim for relief in Montgomery County, and the unconstitutional conduct complained of occurred in Montgomery County. FACTS 16. The Toneys are currently facing civil penalties as a result of the operation of the ATCPS, pursuant to violation notice numbers DS , DS , DS , DS , DS , and DS Copies of the Notices are attached hereto as Exhibit 2. a. The Toneys requested that the City stay enforcement of the penalties and all action pursuant to the Ordinances by letters from their counsel dated June 8, 2013 and July 18, b. In an to counsel dated July 22, 2013, Jason M. Ward of the Dayton Police Department Traffic Services Unit denied the request for stay, stating: 4

5 We have received both your letters asking for a stay in the proceedings regarding your clients citations. This is outside of or business practice. Your clients were provided with paperwork explaining how to take care of the citations. 17. Vandervort paid civil penalties as a result of the operation of the ATCPS, pursuant to Notices Nos. DS and DS Vandervort paid $ for the violations on August 14, The Bergers paid a civil penalty as a result of the operation of the ATCPS, pursuant to notice, the number of which will be supplemented. Upon information and belief, the Bergers paid $85.00 for the violation. 19. The Griffiths are also currently facing a civil penalty as a result of the operation of the ATCPS, pursuant to violation notice number DS A copy of the Notice is attached hereto as Exhibit Deek paid a civil penalty as a result of the operation of the ATCPS, pursuant to notice, the number of which will be supplemented. Upon information and belief, Deek paid $85.00 for the violation. 21. On June 29, 2011, the Commission of the City of Dayton adopted final forms of Dayton City Ordinance No R.C.G.O (A)(1) which was amended by Ordinance No The Ordinances read in relevant part: The automated traffic control photographic system (ATCPS) imposes monetary liability on the owner of a vehicle, for failure of an operator thereof to comply with traffic control indications and/or posted speed limits in the city in accordance with the provisions of this section. 22. R.C.G.O (C)(4) provides: A certified copy of the notice of liability alleging the violation of this section occurred, sworn to or affirmed by a duly authorized police officer of the City of Dayton with the recorded images produced by an automated traffic control signal photographic system shall be prima facie evidence of the facts contained therein and shall be admissible in the proceeding alleging a violation under this section. 23. R.C.G.O (D)(1), entitled Notice of Liability reads: The notice of liability shall be processed by the City of Dayton Police Department or its designee, and shall be served by ordinary mail to the owner s address as given on the motor vehicle registration from the Bureau of Motor Vehicles of the state registered. 24. R.C.G.O (E)(1), entitled Options to Resolve Notice of Liability provides three (3) methods for resolving the notice of liability: 5

6 (a) Pay the civil penalty, in accordance with instructions on the notice of liability; or (b) Within fifteen (15) calendar days provide the Dayton Police Department or its designee information as to the driver of the vehicle, at the time of the violation; or (c) Contest the notice of liability by filing a written request for review of the notice of liability with payment in the amount equal to the amount of the civil penalty to the City of Dayton Police Department of its designee. An individual desiring a hearing must post payment equal to the amount of the civil penalty before an appeal hearing will be scheduled. A written notice of request for review must be filed within 15 days after receipt of the notification of liability. The failure to give notice of request for review within this time period shall constitute a waiver of the right to contest the notice of liability. 25. R.C.G.O (F), entitled, Civil Penalties imposes monetary liability upon the owner or responsible party of a motor vehicle recorded by ATCPS while being operated in violation of a traffic law. This section provides that a civil penalty may not exceed $ and assesses a $25.00 late fee for failure to pay within 30 days. 26. R.C.G.O (G), entitled Collection of Civil Penalty states: If the civil penalty is not paid, the civil penalty imposed under the provisions of this section shall be collectible, together with any interest and penalties thereon, by civil suit. 27. R.C.G.O and 76.08(J), entitled Authority of police to impound or immobilize vehicles authorizes members of the police department to impound or immobilize vehicles: owned or leased by a person or entity to whom two or more notices of liability have been issued pursuant to Title VII of the City of Dayton s Revised Code of General Ordinances and a person or entity registered as the owner or lessee of the vehicle with the Ohio Bureau of Motor Vehicles (or with any other state vehicle registration office) has failed or refused to comply with the civil penalties assessed within thirty (30) days from the date of the second violation. 28. Upon information and belief, Defendants have been enforcing the above ordinances, pursuant to their provisions, by mailing, or causing the mailing, via Ordinary Mail, civil violation notices to citizens whose vehicles were photographed by automated traffic cameras while allegedly speeding or during alleged violations of red light traffic signals. Prior to April 2012, Defendants, pursuant to their contract, were in the practice of turning individuals who had not paid the civil penalty within 30 days over to collections agencies for the collection of monies owed from unpaid ATCPS violations. 29. In April 2012, Defendants ceased using collections agencies for the purpose of collecting monies on unpaid ATCPS violations and initiated a practice of actively seizing, 6

7 towing and impounding the vehicles of those who had unpaid ATCPS violations where the individual possessed two (2) or more ATCPS violations that had not been paid within 30 days. 30. Upon information and belief, Defendants are unlawfully applying the amended versions of R.C.G.O and retroactively as ATCPS violations issued prior to the June 29, 2011 effective date, that remain unpaid, have subjected individuals to the seizure, towing and impoundment of their vehicles. 31. The proposed defined class and subclass, as registered owners of automobiles, each were issued a Notice of Violation by Ordinary Mail for an alleged speeding or red light violation. However, due to the nature of Ordinary Mail and lack of a proof of service requirement provided by the Ordinances, some putative class and subclass members, in certain instances, were deprived of their property without first being provided adequate notice of the existence of the alleged ATCPS violation. R.C.G.O provides for no proof of service requirement in connection with the issuance of ATCPS civil violations. 32. With no proof of service requirement, there is absolutely no guarantee that a driver cited for an ATCPS violation will ever receive notice of the violation, making it impossible for the cited driver to timely request a hearing under the ordinance, and subjecting them to fines, possible collections action, or the unlawful towing of their vehicle. 33. The hours of operation for enforcement of the red light and/or speed cameras are 24 hours a day, 7 days a week, 365 days a year. 34. The primary purpose for the implementation and operation of the ATCPS has been to generate revenue, not for public safety. Upon information and belief, revenue generated by the ATCPS has been used by defendants for non-public safety purposes. 35. Upon information and belief, the speed monitoring equipment used by RedFlex has not been accepted by any Ohio court as scientifically reliable. 36. The administrative procedures established by the Ordinances are not consistent with the rules governing Municipal Courts in the State of Ohio. 37. In addition, the administrative procedures established by the Ordinances are not consistent with the rules of civil procedure or the rules of evidence. While strict compliance with these rules is not required by the Ohio Constitution, the failure to provide adequate due process protections violates the due process rights of motorists. In particular: a. The procedures set forth in the Ordinances do not provide for proper service of the violation notices, do not permit discovery, and do not permit parties to subpoena witnesses. b. The procedures set forth in the Ordinances permit the admission of hearsay evidence 7

8 c. The procedures set forth in the Ordinance could require a person to provide testimony against his or her spouse in violation of the spousal privilege. d The procedures set forth in the Ordinances do not permit a person who receives a violation notice and who claims to not have been operating the vehicle to merely convince the hearing officer that he or she was not the driver. Rather, the owner must provide the name and address of the driver of the vehicle; no other form of evidence can establish the affirmative defense. e. The procedures set forth in the Ordinances require a person to post the amount of a potential fine before obtaining a hearing. The Ordinance does not make any provisions for an indigent person to obtain a waiver of the posting requirement. 38. Upon information and belief, the City may use collection services and/or report non-payment of civil penalties to credit reporting agencies. 39. The Ordinances and ATCPS are substantially similar to an ordinance adopted by the Village of Elmwood Place, Hamilton County, Ohio. Elmwood Place s enforcement system was installed by and operated by a different company; however, the enabling language for same is similar to that set forth in the instant case. 40. On March 7, 2013, in Pruiett v. Village of Elmwood Place, Hamilton Cty. C.P. Case No. A , Judge Robert P. Ruehlman of the Hamilton County Common Pleas Court issued an Order declaring that the Village of Elmwood Place s ordinance violated the due process guarantees of the Ohio Constitution. A copy of Judge Ruehlman s decision is attached hereto as Exhibit The Ordinances and ATCPS are substantially similar to an ordinance adopted by the Village of New Miami, Butler County, Ohio. New Miami s enforcement system was installed by and operated by a different company; however, the enabling language for same is similar to that set forth in the instant case. 42. On February 25, 2014, in Barrow v. Village of New Miami, Butler Cty. C.P. Case No. CV , Judge Michael Sage issued on Order declaring that the Village of New Miami s Ordinance violated the due process guarantees of the Ohio Constitution. A copy of Judge Sage s decision is attached as Exhibit 5. CLASS ALLEGATIONS 43. The Toneys, Vandervort, the Bergers, the Griffiths, and Deek, pursuant to Civ. R. 23(A), propose to represent a class consisting of all persons who have paid penalties, fees, and other charges imposed pursuant to the Ordinances and ATCPS, as well as those who have pending unresolved violations in regard to same. 8

9 43. The proposed Plaintiff class consists of tens of thousands of individuals, and is therefore so numerous and dispersed that joinder is impracticable. 44. Most, if not all, of the proposed class members can be identified due to the fact that the contract between the City and RedFlex requires that detailed records of alleged violations of the Ordinances be maintained. 45. With the help of qualified counsel who are experienced in such litigation, Plaintiffs are capable of adequately representing the proposed Plaintiff class for any and all purposes, in that the Toneys, Vandervort, the Bergers, and the Griffifiths, like other members of the proposed Plaintiff class, have paid penalties, fees, and other charges imposed pursuant to the Ordinances and ATCPS, and/or have pending unresolved violations in regard to same. 46. There are numerous questions of law and fact common to the proposed Plaintiff class, including, but not limited to: a. whether, pursuant to O.R.C , the Plaintiff class is entitled to a declaration that the Ordinances are invalid and unenforceable; b. whether the Ordinances improperly divest the Dayton Municipal Court of jurisdiction; c. whether the Ordinances and procedures set forth in same are unconstitutional, as they deprive the class members the opportunity to a meaningful hearing in violation of procedural due process; d. whether the Ordinances and procedures set forth in same are unconstitutional, as they require proposed class members to pay any and all civil penalties in advance before they are afforded a hearing to prove their innocence; e. whether the Ordinances and procedures set forth in same are unconstitutional, as they are being retroactively applied; f. whether the notice requirements of the Ordinances are constitutionally sufficient; g. whether the Ordinances and procedures set forth in same are unconstitutional, as they are overbroad; h. whether defendants have been unjustly enriched by virtue of collecting and retaining the penalties, fees, and other charges that have been paid by those proposed class members who have paid same to date; i. whether equity requires that defendants be ordered to disgorge all such payments made to them by those proposed class members who have made payments to date; 9

10 j. whether interest on such amounts is also due to those proposed class members who made payments to date; k. whether the proposed class members are entitled to compensatory damages and the amount and type of such damages; 47. In all pertinent respects, the Toneys, Vandervort s, Bergers and Griffiths claims are typical of those of the other proposed class members in that they, like other members of the proposed class, were illegally forced to pay a penalty or have been noticed to pay a penalty as the result of a deprivation and violation of their rights. 48. Certification of Plaintiffs claims herein for class action treatment is appropriate under Civ. R. 23 in that, under Civ. R. 23(B)(1)(a), the prosecution of separate actions by individual members of the proposed Plaintiff class would create the risk of inconsistent adjudications with respect to the individual members of the proposed Plaintiff class that would establish incompatible standards of conduct for defendants regarding the Ordinances and the ATCPS; under Civ. R. 23(B)(2), in the City has acted, and threatens to continue acting, in an unconstitutional manner generally applicable to the proposed Plaintiff class, thereby making appropriate final injunctive and/or corresponding declaratory and/or equitable relief with respect to the class as a whole; and, under Civ. R. 23(B)(3), classwide questions concerning the conduct of defendants and the harm inflicted by class members by far predominate over any questions affecting only individual class members and a class action is far superior to any other available method for fairly and efficiently providing restitution to class members. FIRST CAUSE OF ACTION (DECLARATORY JUDGMENT-INFRINGEMENT UPON JURISDICTION OF DAYTON MUNICIPAL COURT) 49. Plaintiffs hereby reincorporate and reallege the allegations contained in Paragraphs One (1) through Forty-Eight (48) as if fully rewritten herein. 50. There is a dispute between the parties about whether or not the Ordinances and the ATCPS are invalid and unenforceable because they improperly divest the Dayton Municipal Court of some or all of its jurisdiction by establishing an administrative alternative without the express approval of the legislature. 51. Article IV, Section I of the Ohio Constitution vests judicial power in Ohio in the Supreme Court and various lower courts. Municipal Courts, including Dayton Municipal Court, have been established by the General Assembly in O.R.C. Chapter The legislature has granted to municipal courts jurisdiction over a violation of all municipal offenses within their territories. 10

11 53. O.R.C defines the jurisdiction of the Dayton Municipal Court. Under the statute, Dayton Municipal Court has jurisdiction over, among other matters, any violation of municipal ordinance within its territory. 54. The Ohio Revised Code vests in the Dayton Municipal Court the jurisdiction to adjudicate the violation of any municipal ordinance, including the Ordinances and the ATCPS. 55. The effect of the Ordinances and the ATCPS is to improperly divest the Dayton Municipal Court of jurisdiction by setting up a wholly extrajudicial scheme that grants to a hearing officer, chosen in an unspecified manner, the authority to adjudicate alleged violations of the Ordinances and the ATCPS. 56. Pursuant to O.R.C , Plaintiffs are entitled to a declaration that the Ordinances and the ATCPS are invalid and unenforceable because it usurps the jurisdiction of the Dayton Municipal Court in violation of Article IV, Section I of the Ohio Constitution. SECOND CAUSE OF ACTION (DECLARATORY JUDGMENT-VIOLATION OF OHIO CONSTITUTION) 57. Plaintiffs hereby reincorporate and reallege the allegations contained in Paragraphs One (1) through Fifty-Six (56) as if fully rewritten herein. 58. The Ordinances and ATCPS violate Plaintiffs constitutional rights to procedural due process as guaranteed by Article I, Sections 1, 2, 16, and 19 of the Ohio Constitution. Section 16, Article I, Ohio Constitution, guarantees that every person injured in his lands, goods, person or reputation shall have remedy by due course of law. 59. The civil administrative hearing process established by the Ordinances fails to set forth any procedures or authority by which the constitutionality of the Ordinances may be determined. Accordingly, Plaintiffs are not required to exhaust all administrative remedies. 60. The administrative procedures used by defendants violate the Ohio Constitution s guarantee of due course of law by not providing an opportunity for those who receive a violation notice to be heard at a meaningful time and in a meaningful manner. 61. The Ordinances further violate Plaintiffs constitutional rights in that they do not provide constitutionally sufficient notice requirements of alleged ATCPS violations. 62. R.C.G.O and require merely that the notification of a civil penalty be issued via ordinary mail. Under this policy, no proof of service of confirmation of the receipt of the civil violation of hearing notice is required for defendants to deprive a Plaintiff of their rights, including their right to property. 63. Further, the Ordinances and ATCPS violate Plaintiffs constitutional rights to procedural due process because they immediately assume a Plaintiff guilty, or liable, of speeding 11

12 or running a red light simply because a Plaintiff is the registered owner of the vehicle photographed. 64. Compounding this is the fact that RedFlex, a private for-profit corporation with a financial interest in the outcome of the violations, is empowered to control and maintain the ATCPS photographic/video evidence against the alleged violator, which under R.C.G.O is prima facie evidence of guilt and admissible without foundational evidentiary requirements. 65. R.C.G.O impermissibly places the burden of proving innocence upon a Plaintiff, who must first pay the violation before being afforded the opportunity either submit an affidavit as to the identity of the offending driver or appear before a hearing officer to contest the violation. Should a Plaintiff fail to take action to prove his or her innocence, or fail to pay the civil violation, he or should would face increased penalties, damage to his or her credit rating, and/or the seizure, impoundment and towing of his or her vehicle. 66. The Ordinances and ATCPS are not consistent with the Ohio Rules of Civil Procedure in that they do not provide for proper service of the violation notices pursuant to Civ. R. 4.1, do not permit discovery pursuant to Civ. R , and do not provide for parties to be able to subpoena witnesses pursuant to Civ. R The Ordinances and ATCPS are not consistent with the Ohio Rules of Evidence in that they permit the admission of hearsay evidence in violation of Evid. R. 801, and require that a person who was not driving a vehicle, but who has knowledge that his or her spouse was driving the vehicle provide testimony against the spouse in violation of Evid. R. 601 and O.R.C The administrative procedures set forth in the Ordinances therefore violate the constitutional guarantees of due process in part because they: a. Fail to comply with the Ohio Rules of Civil Procedure; b. Fail to comply with the Ohio Rules of Evidence; c. Fail to permit a person who receives a violation notice to conduct discovery, have a trial by jury, or subpoena witnesses; d. Permit a person to be found liable based on unsubstantiated hearsay evidence; e. May require a person to either admit liability or provide the identity of a liable person, including a spouse in violation of spousal privilege; f. Fail to permit the recipient of a violation notice to assert affirmative defenses not set forth therein; 12

13 g. Fail to permit the recipient of a violation notice to assert constitutional defenses; h. Require the posting of the full amount of the fine prior to obtaining a hearing. 69. Pursuant to O.R.C , Plaintiffs are entitled to a declaration that the Ordinances and ATCPS are unconstitutional and therefore invalid and unenforceable. THIRD CAUSE OF ACTION (INJUNCTIVE RELIEF) 70. Plaintiffs hereby reincorporate and reallege the allegations contained in Paragraphs One (1) through Sixty-Nine (69) as if fully rewritten herein. 71. The Ordinances and ATCPS violate the Ohio Constitution and are therefore invalid and unenforceable. 72 The continued operation of ATCPS pursuant to the Ordinances is causing substantial, immediate, and continuing damage to Plaintiffs and members of the proposed Plaintiff class: a. Plaintiffs and/or the proposed class members may be compelled to pay civil penalties to the City; b. Plaintiffs and/or the proposed class members may suffer damage to their credit rating from threatened collection actions by the City pursuing collection actions and/or possibly reporting non-payments to credit reporting agencies. 73. Plaintiffs and the proposed class members are entitled to an injunction from this Court prohibiting the continued enforcement of the Ordinances and ATCPS, as well as any violations outstanding issued prior to the effective date of the injunction. FOURTH CAUSE OF ACTION (EQUITABLE RESTITUTION/DISGORGEMENT BASED ON UNJUST ENRICHMENT) 74. Plaintiffs hereby reincorporate and reallege the allegations contained in Paragraphs One (1) through Seventy-Three (73) as if fully rewritten herein. 75 The Ordinances and ATCPS violate the Ohio Constitution and are therefore invalid and unenforceable. 76. Defendants have received substantial revenue from the operation of ATCPS. Upon information and belief, this revenue was in excess of $8.7 million from 2003 to

14 77. Plaintiffs and the proposed class members have been adversely affected by the enforcement of the Ordinances through the payment of fines, civil penalties, costs, attorney fees, and/or interest. 78. Said amounts paid to Defendants by Plaintiffs and the proposed class members were done so pursuant to the provisions of the unconstitutional Ordinances. 79. As a result, Defendants have been unjustly enriched. retain. 80. Defendants have received benefits which would be unconscionable for them to 81. Defendant City of Dayton is not entitled to sovereign immunity, as suits seeking the return of funds wrongfully collected or held by governmental actors may be maintained in equity. 82. Defendants should not be permitted to unjustly retain the amounts received by them pursuant to the Ordinances and ATCPS which were paid by Plaintiffs and the proposed class members. Equity requires that Defendants be ordered to disgorge all such payments made to them and to those acting on their behalf, plus interest. WHEREFORE, Plaintiffs demand judgment against Defendants, jointly and severally, as follows: A) Certification of the proposed class and maintenance of this as a class action pursuant to Civ. R. 23; B) A declaration in their favor that the Ordinances and ATCPS are unconstitutional and therefore invalid and unenforceable; D) Issuance of an injunction prohibiting further enforcement of the Ordinances and ATCPS; E) Equitable restitution and disgorgement of all penalties, fees, fines, and other amounts of any nature paid to Defendants by Plaintiffs and the proposed class members pursuant to the Ordinances and ATCPS, plus interest; F) Compensatory damages as may be appropriately determined by the jury; G) An award of prejudgment interest, postjudgment interest, costs and reasonable attorney s fees; and H) For such other and further relief to which they may be entitled at law or in equity. 14

15 Respectfully submitted, MICHAEL K. ALLEN & ASSOCIATES /s/ Michael K. Allen Michael K. Allen ( ) Joshua Adam Engel ( ) 5181 Natorp Blvd., Suite 210 Mason, OH (513) (513) (Fax) MANNING LAW FIRM, LLC /s/ Thomas J. Manning Thomas J. Manning ( ) P.O. Box Dayton, OH (937) (866) (Fax) MARKOVITS, STOCK & DEMARCO, LLC /s/ Paul M. DeMarco Paul M. DeMarco ( ) 119 East Court Street, #530 Cincinnati, OH (513) Attorneys for Plaintiffs 15

16 JURY DEMAND Pursuant to Civ. R. 38, Plaintiffs hereby demand a trial by jury as to all causes of action set forth herein. /s/ Thomas J. Manning Thomas J. Manning Attorney for Plaintiffs 16

17 Municode Page 1 of 4 8/15/2013 Sec Civil penalties for automated traffic control photographic system. (A) (B) EXHIBIT 1 Applicability. (1) Notwithstanding any other provision of the traffic code, the city hereby adopts a civil enforcement system for red light and speeding violations as outlined in this section. The automated traffic control photographic system (ATCPS) imposes monetary liability on the owner of a vehicle, for failure of an operator thereof to comply with traffic control indications and/or posted speed limits in the city in accordance with the provisions of this section. (2) The city shall be responsible for administering the ATCPS. Specifically, the Dayton Police Department or its designee shall be empowered to install and operate ATCPS for enforcement of red light and speed violations within the city of Dayton. (3) This section applies whenever traffic is controlled by traffic control signals exhibiting different colored lights, or colored lighted arrows, successively one at a time or in combination. Only the colors green, red and yellow shall be used, except for special pedestrian signals carrying a word legend, and said lights shall indicate and apply to drivers of vehicles and trackless trolleys, as follows: (i) Green indication means the same as defined in 70.13(B)(1)(a), (b), and (c). (ii) Steady yellow indication means the same as defined in 70.13(b)(2)(a), (b). (iii) Steady red indication means the same as defined in 70.13(b)(3)(a), (b), (c), and (d). (4) This section applies whenever a motor vehicle, motorized bicycle, or trackless trolley is operated at a speed greater than the posted speed limit or as established. (5) This section applies to all persons operating a motor vehicle, motorized bicycle, or trackless trolley on a street or highway within city limits. (6) Intersections in which an ATCPS is installed shall have visible postings upon approach of the intersection that the intersection is equipped with an automated traffic control signal monitoring system. (7) The City of Dayton Police Department or its designee shall administer the ATCPS program and shall maintain a list at each Police District of system locations within the city limits where ATCPS are installed. (8) Whenever a Dayton Police Officer witnesses a violation of 70.13(b)(3), 71.50, or R.C and and has issued a citation pursuant to those sections, this section does not apply. However the recorded image and/or radar reading may be used as evidence for a violation of (b)(3), 71.50, or R.C and Any citation for a violation of 70.13(b)(3), 71.50, or R.C and issued personally by an officer of the City of Dayton Police Department at an ATCPS location shall not be issued in the manner described under this section. The citation shall be treated in the same manner as prescribed by Dayton Police Department Policy IV. (9) This section shall not apply to violations involving vehicle or pedestrian collisions. Definitions. For purposes of this section, the following words and phrases shall have the meanings indicated: Automated Traffic Control Signal Photographic System. A device with one or more motor vehicle sensors, installed to work in conjunction with a traffic control signal, to produce recorded images of motor vehicles entering an intersection against a red signal indication and/or capture recordings of vehicle speed measurements while approaching and traveling through an intersection. Hearing officer. An independent third party, not employed by the City of Dayton Police Department or its designee. In operation. Operating in good working condition. Responsible party. The person who was operating the vehicle at the time of the violation or the person who had care, custody, and control of the vehicle at the time of the violation.

18 8/15/2013 Municode Page 2 of 4 System location. The approach to a location toward which a photographic, micro-photographic, electronic image, digital image, videotape, radar, speed measurement or any other medium is directed and is in operation. It is the location where the automated traffic control photographic system is installed to monitor offenses under this section. (C) (D) Violation. (1) It shall be unlawful for a vehicle to cross the stop line at a system location when the traffic controls signal for that vehicle's direction of travel is emitting a steady red light. The owner of the vehicle shall be responsible for a violation under this section, except when the owner can provide evidence that the vehicle was in the care, custody, and control of another person at the time of the violation, as described in subsection (C)(3). (2) It shall be unlawful to operate a motor vehicle, motorized bicycle, or trackless trolley at a speed greater than posted or is established pursuant to the provisions of and R.C The owner of the vehicle shall be responsible for a violation under this section, except when the owner can provide evidence that the vehicle was in the care, custody, and control of another person at the time of the violation, as described in subsection (C)(3). (3) The owner of the vehicle shall not be responsible for the civil violation if, within 15 calendar days after notification of liability, the owner furnishes the City of Dayton Police Department or its designee with: (a) The name and address of the person who leased, rented, or otherwise had the care, custody, and control of the vehicle at the time of the violation; or (b) An affidavit by the owner stating that at the time of the violation, the vehicle or the license plates of the vehicle involved were stolen or were in the care, custody, or control of some person who did not have the owner's permission to use the vehicle, or that the motor vehicle or registration plates of vehicle were stolen before the violation occurred and were not under the control or possession of the owner at the time of the violation. In order to demonstrate that the vehicle or the 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. (4) A certified copy of the notice of liability alleging the violation of this section occurred, sworn to or affirmed by a duly authorized Police Officer of the City of Dayton, with the recorded images produced by an automated traffic control signal photographic system shall be prima facie evidence of the facts contained therein and shall be admissible in a proceeding alleging a violation under this section. (5) If the vehicle involved in the violation is a commercial vehicle and the notice of liability is issued to a corporate entity, the corporate entity must provide to the Dayton Police Department or its designee an affidavit, sworn to or affirmed by the statutory agent of the corporate entity, that: (a) States that the person/entity named in the notice of liability was not in operation of the vehicle at the time of the violation; and (b) Provides the name, address, and driver's license identification number of the person who was in operation of the vehicle at the time of the violation. Notice of liability. (1) The notice of liability shall be processed by the City of Dayton Police Department or its designee, and shall be served by ordinary mail to the owner's address as given on the motor vehicle registration from the Bureau of Motor Vehicles of the state registered. The notice of liability shall include: (a) The name and address of the registered owner of the vehicle; (b) The license plate number of the motor vehicle involved in the violation; (c) The violation charged, if the violation is for speed, by the vehicles speed at the time of the violation and the posted speed must be stated; (d) The location of the intersection; (e) The date and time of the violation; (f) A copy of the recorded image(s);

19 8/15/2013 Municode (E) (2) (3) (4) (g) (h) (i) (j) The amount of the civil penalty imposed and the date by which the civil penalty should be paid and where the payment should be made; A signed statement by a Dayton Police Officer that based on inspection of recorded images and/or speed measurement readings, the motor vehicle was being operated in violation of subsection (C)(1) or (C)(2) of this section, and a statement that the recorded images and/or speed measurement readings are prima facia evidence of a violation of subsection (C)(1) or (C)(2) of this section; Information advising the person alleged to be liable of the options as provided in subsection (E)(1) of this section; The time, place, and manner in which an administrative appeal can be initiated and a warning that failure to exercise the options provided under subsection (E)(1) of this section in a timely manner is an admission of liability. The City of Dayton or its designee may mail, by ordinary mail, a warning notice in lieu of notice of liability under this section. Except as provided in subsection (E)(3)(b), a notice of liability issued under this section shall be mailed no later than 20 calendar days after the alleged violation. Except as provided under subsection (E)(3)(a) of this section, the Dayton Police Department or its designee may not mail a notice of liability to a person who is not the owner of the vehicle. Page 3 of 4 Options to Resolve Notice of Liability. (1) An owner or responsible party who receives a "notice of liability", under this section may do one of the following: (a) Pay the civil penalty, in accordance with instructions on the notice of liability; or (b) Within 15 calendar days provide the Dayton Police Department or its designee information as to the driver of the vehicle, at the time of the violation; or (c) Contest the notice of liability by filing a written request for review of the notice of liability with payment in the amount equal to the amount of the civil penalty to the City of Dayton Police Department or its designee. An individual desiring a hearing must post payment equal to the amount of the civil penalty before an appeal hearing will be scheduled. A written notice of request for review must be filed within 15 days after receipt of the notification of liability. The failure to give notice of request for review within this time period shall constitute a waiver of the right to contest the notice of liability. A Hearing Officer shall hear the request for review. A hearing shall be held within ten business days of the receipt of the request for review; this time may be extended upon a written request for additional time. (i) The Hearing Officer shall determine whether a preponderance of evidence establishes that a violation of this section occurred and the person requesting the review is liable. A certified copy of the notice of liability alleging the violation of this section occurred, sworn to or affirmed by a duly authorized Police Officer of the City of Dayton, with the recorded images produced by a traffic control photographic system shall be prima facie evidence of the facts contained therein and shall be admissible in a proceeding alleging a violation under this section. Adjudication of liability shall be based on a preponderance of the evidence. (ii) If the Hearing Officer finds sufficient evidence of a violation, but the owner or the responsible party is not liable, the Hearing Officer shall, in writing, issue a decision finding the individual not liable and submit it to the City of Dayton Police Department or its designee. (iii) All hearings are open to the public. (2) If the owner or responsible party chooses to contest the notice of liability, the Hearing Officer may consider any of the following as an affirmative defense of a violation: (a) That the driver of the vehicle passed through the intersection in order to yield the rightof-way to an emergency vehicle in accordance with R.C , or to a funeral procession in accordance with 71.13

20 8/15/2013 Municode (F) (G) (3) (b) (c) (d) That the motor vehicle or registration plates of the motor vehicle were stolen before the violation occurred and were not under the control or possession of the owner at the time of the violation. In order to demonstrate that the motor vehicle or the registration 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 registration plates was filed prior to the violation or within 48 hours after the violation occurred. That this section is unenforceable because at the time and place of the alleged violation, the traffic control signal or speed sensor were not operating properly, or the ATCPS recorded image is not legible enough to determine the information required by subsection (d) of this section. Evidence, other than that adduced pursuant to subsection (E)(2)(b) of this section, that the owner or person named in the notice of liability was not operating the 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 Hearing Officer evidence showing the identity of the person who was operating the vehicle at the time of the violation, including, at a minimum, the operator's name and current address, and any other evidence that the Hearing Officer deems pertinent. If the Hearing Officer finds that the person or entity named in the notice of liability was not operating the vehicle at the time of the violation or receives evidence under subsection (E)(2)(d) identifying the person driving the vehicle at the time of the violation, the Hearing Officer shall provide to the City of Dayton Police Department or its designee within five calendar days, a copy of any evidence substantiating who was operating the vehicle at the time of the violation. (a) Upon the receipt of evidence of the responsible party pursuant to this subsection or pursuant to subsection (C)(3)(a), the City of Dayton Police Department or its designee may issue a notice of liability, with the name and address of the responsible party and the information required by subsection (D)(1)(b), (c), (d), (e), (f), (g), (h), (i), and (j) of this section, to the person that the evidence indicates was operating the vehicle at the time of the violation. (b) A notice of liability issued under this subsection (E)(3) shall be sent by ordinary mail no later than five business days after receipt of the evidence from the Hearing Officer or the owner. Civil Penalties. (1) Unless the driver of the motor vehicle received a citation from a police officer at the time of the violation, the owner or responsible party for the motor vehicle is subject to a civil penalty if the motor vehicle is recorded by ATCPS while being operated in violation of this section. (2) A civil penalty under this section may not exceed $ Persons who choose to pay the civil penalty without appearing before a Hearing Officer may do so in the manner indicated on the notice of liability. (3) A violation for which a civil penalty is imposed under this section is not a moving violation for the purpose of assessing points under R.C (C)(13) for minor misdemeanor moving traffic offenses and may not be recorded on the driving record of the owner or operator of the vehicle and shall not be reported to the Bureau of Motor Vehicles. (4) If the civil penalty assessed under this subsection is not paid within 30 days of issuance, the offender will be assessed a $25.00 late fee in addition to the original civil penalty. (5) Members of the Police Department are authorized to impound, immobilize, remove, or direct the removal of a vehicle as authorized by Collection of Civil Penalty. If the civil penalty is not paid, the civil penalty imposed under the provisions of this section shall be collectible, together with any interest and penalties thereon, by civil suit. (Ord , passed ; Am. Ord , passed ; Am. Ord , ) Page 4 of 4

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