Finnimore & Fisher Inc. d/b/a Island Moped v. Town of New Shoreham

Supreme Court of Rhode Island·Decided April 18, 2023·No. 21-272·Published

Opinion

April 18, 2023 Supreme Court

No. 2021-272-Appeal.

(WC 21-129)

Finnimore & Fisher Inc. d/b/a Island :

Moped et al.

v. :

Town of New Shoreham. :

NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published.

Supreme Court

No. 2021-272-Appeal.

(WC 21-129)

Finnimore & Fisher Inc. d/b/a Island :

Moped et al.

v. :

Town of New Shoreham.1 :

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Chief Justice Suttell, for the Court. The defendant, the Town of New Shoreham (the town), appeals from the Superior Court’s entry of a preliminary injunction enjoining enforcement of certain amendments to the New Shoreham General Ordinance, chapter 8, article IV, entitled Motorized Cycle Rental. The plaintiffs are New Shoreham businesses that rent mopeds: Finnimore & Fisher Inc. d/b/a Island Moped; Miles-Un-Ltd., Inc.; Aldo’s Mopeds, Inc.; The Moped Man, Inc.; and Ocean State Bikes, Inc.2 Before this Court, the town argues that the hearing justice erred in her analysis and ultimate decision to grant in part the motion for

1 The named defendant in this case is the Town of New Shoreham through the members of the Town of New Shoreham Town Council, in their official capacities. 2 A moped is a “motor scooter.” The American Heritage Dictionary of the English Language 1144 (5th ed. 2011).

preliminary injunction brought by the plaintiffs. For the reasons set forth herein, we affirm the order of the Superior Court.

I

Facts and Travel

We derive the underlying facts of this case from the submissions of the parties and the transcripts. We relate only the facts relevant to this appeal.

On March 4, 2021, the town approved amendments to the New Shoreham General Ordinances, chapter 8, article IV, entitled Motorized Cycle Rental (the ordinance). The amendments affected three sections of the ordinance; at issue on appeal are §§ 8-88 and 8-90. A second amendment was additionally made to § 8-90 on May 19, 2021.

Specifically, the amendment to § 8-88, entitled “Hours of operation,” made two changes. First, the hours during which mopeds may be rented changed from 9:00 a.m. - 6:00 p.m. to 10:00 a.m. - 6:00 p.m. Second, the operational hours of mopeds changed from 9:00 a.m. - 8:00 p.m. to 10:00 a.m. - 6:00 p.m.

There were two amendments made to § 8-90, entitled “Safety,” the latter of which altered changes made in the former version of § 8-90. Those amendments, acting together, ultimately modified the role of licensees—those businesses licensed to rent mopeds and other motorized cycles. These amendments added language (1) requiring licensees to instruct renters that no passenger shall ride in front of the

driver; (2) requiring licensees to “ensure” that all passengers be “provided with a separate rear seat, a separate foot-rest, and an appropriate handlebar or grip” and that all passengers wear a helmet and can rest his or her feet on a foot rest; (3) requiring licensees to “insure [sic]” that any passenger under twelve years old “has a properly secured back-rest or equivalent, shall have his or her feet placed upon the foot-rest, and shall be seated behind the operator unless a side car is provided”; (4) requiring the licensees to instruct a renter about proper operation, as well as show renters a training video, issue them a questionnaire, and administer to them a supervised driving test; and (5) precluding the licensee from renting to an individual who is visibly intoxicated. Language was also added to § 8-90(A), which stated: “In addition, violations of this ordinance as well as any other [t]own ordinance or state law or regulation, may result in suspension, revocation, and/or non-renewal of a licensee’s license.”

On the same day that the town approved the initial amendments, it also granted plaintiffs their licenses for the 2021 season. The plaintiffs thereafter filed a complaint against the town in Washington County Superior Court on March 17, 2021, which requested declaratory and injunctive relief and alleged denial of state and federal procedural and substantive due process, denial of state and federal equal protection, and abuse of process. In their complaint, plaintiffs submitted that the town had attempted to amend its ordinance regarding mopeds “in an impermissible

manner[,]” in contravention of a settlement agreement reached between the parties and in contravention of G.L. 1956 § 31-19.3-5. The complaint was subsequently amended on May 24, 2021.3 On March 26, 2021, plaintiffs moved for a temporary restraining order and preliminary injunction, to which the town objected. The hearing justice heard arguments on the request for a temporary restraining order; and, on April 23, 2021, an order entered granting the motion and scheduling a hearing on the prayer for preliminary injunctive relief.

Hearings on the preliminary injunction were held on various dates in May and June 2021. At the hearings, the parties presented evidence and the testimony of several witnesses. The parties additionally submitted memoranda on their respective positions.

On June 23, 2021, the hearing justice filed her written decision. She began her analysis by addressing plaintiffs’ constitutional claims, indicating that she need not reach those claims because the motion could be decided on other grounds.

The hearing justice then reviewed § 31-19.3-5 of what she called the “New Shoreham Moped Statute[,]” which states:

“(a) The town council of the town of New Shoreham may enact reasonable ordinances establishing procedures and

3 The amended complaint incorporated a reference to the second amendment to the ordinance and further procedural history that occurred since the filing of the original complaint. It contained the same counts as the original complaint.

standards for the licensing, supervision, regulation, and control of the rental of motorized bicycles, motor scooters and motorized tricycles.

“(b) An ordinance enacted pursuant to this section may:

“(1) Establish a fee to be charged for the issuance or renewal of any license for the rental of motorized bicycles, motor scooters and/or motorized tricycles the holder of the license is authorized to rent or lease and shall not exceed the sum of forty dollars ($40.00) per motorized bicycle, motor scooters or motorized tricycle.

“(2) Establish a maximum number of licenses which may be granted for the rental of motorized bicycles, motor scooters and/or motorized tricycles.

“(3) Establish hours during which motorized bicycles, motor scooters and/or motorized tricycles may be rented.

“(4) Establish a maximum number of motorized bicycles, motor scooters and/or motorized tricycles which a license holder may rent or lease under the license.

“(5) Provide that no motorized bicycle, motor scooters or motorized tricycle shall be rented or leased in the town of New Shoreham unless the operator thereof has a valid license issued under the provisions of § 31-10-1, or a similar license issued by a state other than Rhode Island.

“(6) Require all motorized bicycles, motor scooters and/or motorized tricycles to pass inspection annually and be issued a certificate by a duly authorized state inspection facility indicating that the vehicle has passed inspection to be conducted at inspection agencies which shall be created and

governed by rules and regulations promulgated by the department of revenue.”

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