343.07 ADMINISTRATIVE HEARINGS AND APPEALS.

   (a) An owner or responsible party who receives a notice of liability, under this chapter may do one of the following:

      (1)   Pay the civil penalty, in accordance with the instruction on the notice of liability thereby failing to contest liability and waiving the opportunity to contest the violation; or

      (2)   Within thirty (30) calendar days of the Date of Issuance of the Notice of Liability provide the City of Hamilton Division of Police or its designee, information as to the driver of the motor vehicle at the time of the violation as prescribed in Section 343.03(c); or

      (3)   Contest the notice of liability by filing a written request for an administrative hearing. A written notice of request for an administrative hearing must be filed within thirty (30) calendar days after receipt of the notice of liability. The failure to give notice of request for an administrative hearing within this time period shall constitute a waiver of the right to contest the notice of liability, and is deemed to constitute an admission of liability and waiver of the opportunity to contest the violation. A Hearing Officer shall hear the case. Administrative hearings shall be held not sooner than twenty-one (21) but not later than forty-five (45) days after the filing of a written request for the administrative hearing; this time may be extended upon a written request by the person or entity who requested the administrative hearing for additional time. Notice of the administrative hearing shall be sent via ordinary mail to the person or entity who requested the administrative hearing not later than seven (7) days before the hearing.

         (A)   The Hearing Officer shall ensure that the administrative hearing is open to the public. The Hearing Officer shall post a docket in a conspicuous place near the entrance to the hearing room. The Hearing Officer shall identify on the docket, by respondent, the administrative hearings scheduled for that day and the time of each administrative hearing. The Hearing Officer may schedule multiple administrative hearings for the same time to allow for occurrences such as nonappearances or admissions of liability.

         (B)   The person who requested the administrative hearing or a representative of the entity that requested the administrative hearing shall appear for the administrative hearing and may present evidence at the administrative hearing.

         (C)   The Hearing Officer shall determine whether a preponderance of evidence establishes that a violation alleged in the notice of liability occurred and the person or entity requesting the review is the person who was operating the vehicle at the time of the violation. A certified copy of the notice of liability alleging the violation of his chapter occurred, sworn to or affirmed by a duly authorized City of Hamilton Police Officer, with the recorded images or data produced by an automated mobile speed enforcement system shall be prima facie evidence of the facts contained therein and shall be admissible in a proceeding alleging a violation under this chapter. Adjudication of liability shall be based on a preponderance of the evidence.

            (i)   If the Hearing Officer finds by a preponderance of the evidence that the alleged traffic law violation did in fact occur and that the person or entity named in the notice of liability is the person who was operating the vehicle at the time of the violation, the Hearing Officer shall issue a written decision imposing liability for the violation upon that individual or entity and submit it to the City of Hamilton Division of Police and the person or entity named in the notice of liability.

            (ii)   If the Hearing Officer finds by a preponderance of the evidence that the alleged traffic law violation did not occur or did in fact occur but the person or entity named in the notice of liability is not the person who was operating the vehicle at the time of the violation, the Hearing Officer shall, in writing, issue a decision finding that the individual or entity is not liable and submit it to the City of Hamilton Division of Police and the person or entity named in the notice of liability.

            (iii)   If the person who requested the administrative hearing or a representative of the entity that requested the hearing fails to appear at the hearing, the Hearing Officer shall determine that the person or entity is liable for the violation. In such a case, the Hearing Officer shall issue a written decision imposing liability for the violation upon the individual or entity and submit it to the City of Hamilton Division of Police and the person or entity named in the notice of liability.

            (iv)   The Hearing Officer shall render a decision on the day an administrative hearing takes place.

   (b)    An owner is not responsible for a traffic law violation if, within thirty days after the date of mailing of the notice of liability, the owner furnishes an affidavit specified in Section 343.03(c)(1) or (2) to the City of Hamilton Division of Police in a form established by the City of Hamilton Division of Police and one of the following conditions are met:

      (1)   If the owner submits an affidavit as specified in Section 343.03(c)(1), the designated party either accepts liability for the violation by paying the civil penalty or failing to request an administrative hearing within thirty days or is determined liable in an administrative hearing; or

      (2)   If the owner submits an affidavit as specified in Section 343.03(c)(2), the affidavit is supported by a stolen vehicle or stolen license plate report as required in that division.

   (c)   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 upon the defense being established by a preponderance of the evidence by the owner or responsible party:

      (1)    At the time and place of the alleged violation, the automated mobile speed enforcement was not in proper position and the recorded image is not legible enough to determine the information needed to impose liability.

      (2)   That the owner or person named in the notice of liability was not operating the motor vehicle at the time of the violation. To satisfy the evidentiary burden under this subsection, the owner or person name in the notice of liability shall provide to the Hearing Officer evidence showing the identity of the person who was operating the motor vehicle at the time of the violation, including, but not limited to, the operator's name and current address, and any other evidence the Hearing Officer deems pertinent.

      (3)   That the motor vehicle or license plates of the motor vehicle were stolen before the violation occurred and were not under the control and possession of the owner at the time of the violation. To satisfy the evidentiary burden under this subsection, the owner shall provide an affidavit and stolen vehicle or stolen license plate report as required in Section 343.03(c)(2).

      (4)   A Hearing Officer also may consider the totality of the circumstances when determining whether to impose liability upon the person or entity named in the notice of liability.

      (5)   If the owner is a motor vehicle leasing dealer or a motor vehicle renting dealer, notify the law enforcement agency of the local authority of the name and address of the lessee or renter of the motor vehicle at the time of the traffic law violation. A motor vehicle leasing dealer or motor vehicle renting dealer who receives a notice of liability for an alleged traffic law violation detected by a traffic law photo-monitoring device is not liable for a notice of liability issued for a motor vehicle that was in the care, custody, or control of a lessee or renter at the time of the alleged violation. The dealer shall not pay such a notice of liability and subsequently attempt to collect a fee or assess the lessee or renter a charge for any payment of such a notice of liability made on behalf of the lessee or renter.

   (d)   If the Hearing Officer finds that the person or entity named in the notice of liability was not operating the motor vehicle at the time of the violation or receives evidence under Section 343.03 identifying the person driving the motor vehicle at the time of the violation, the Hearing Officer shall provide to the City of Hamilton Police Department or its designee within five (5) calendar days of the hearing, a copy of any evidence substantiating who was operating the motor vehicle at the time of the violation.

      (1)   Upon receipt of evidence of the responsible party pursuant to this subsection or pursuant to Section 343.03(b) and (c), the City of Hamilton 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 Section 343.04, to the person that the evidence indicates was operating the motor vehicle at the time of the violation.

      (2)   A notice of liability issued under Section 343.04 shall be sent by the City of Hamilton or its designee by ordinary mail no later than twenty-one (21) days after the receipt of the evidence from the Hearing Officer or the owner.

   (e)   If a designated party who is issued a notice of liability under (d)(2) of this Section contests the notice of liability by filing a written request for an administrative hearing to review the notice of liability not later than thirty (30) days after receipt of the notice of liability, the owner of the motor vehicle shall also be required to attend the administrative hearing. If at the administrative hearing involving the designated party, the Hearing Officer cannot determine the identity of the operator of the vehicle at the time of the violation, the registered owner is liable for the violation. The Hearing Officer then shall issue a written decision imposing liability for the violation on the owner and submit it to the City of Hamilton Police Department or its designee and to the owner. If the designated party also is a registered owner of the vehicle, liability for the violation shall follow the order of registered owners as listed on the title to the vehicle.

   (f)   A person who is named in a notice of liability for a civil violation may assert a testimonial privilege in accordance with Ohio R.C. 2317.02(D).

   (g)   A person or entity may appeal a written decision rendered by a Hearing Officer to the Hamilton Municipal Court.

(Ord. 2016-12-121. Passed 12-21-16 .)