Finnimore & Fisher Inc. v. Town of New Shoreham
| Decision Date | 23 June 2021 |
| Docket Number | C. A. WC-2021-0129 |
| Parties | 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., Plaintiffs, v. TOWN OF NEW SHOREHAM, through ANDRE BOUDREAU, SVEN RISOM, MARTHA BALL, KEITH STOVER, and MARK EMMANUELLE, in their capacities as Members of the Town Council of the Town of New Shoreham, Defendant. |
| Court | Rhode Island Superior Court |
For Plaintiff: Mark J. Hagopian, Esq.; Elizabeth M. Noonan, Esq.
For Defendant: Katherine A. Merolla, Esq.; Mark T. Reynolds, Esq.
DECISION
Before this Court for decision is Finnimore & Fisher Inc. d/b/a Island Moped (Island Moped), Miles-Un-Ltd., Inc., Aldo's Mopeds, Inc., The Moped Man, Inc., and Ocean State Bikes Inc.'s (collectively, Plaintiffs) Motion for Preliminary Injunction. The Defendant-the Town of New Shoreham, through Andre Boudreau, Sven Risom, Martha Ball, Keith Stover, and Mark Emmanuelle, in their capacities as members of the Town Council of the Town of New Shoreham (collectively, the Town)-objects to Plaintiffs' motion. The Court granted Plaintiffs' Motion for Temporary Restraining Order on April 14, 2021. Hearings on the Plaintiffs' Motion for Preliminary Injunction were held on May 4, 5, 20, and June 3 2021. Jurisdiction is pursuant to G.L. 1956 §§ 8-2-13 and 9-30-1, as well as Rule 65 of the Superior Court Rules of Civil Procedure.
The Court, after having reviewed the testimony and evidence presented at hearing, makes the following findings of fact:
The Plaintiffs are all businesses that rent motorized scooters, known as "mopeds," in the Town of New Shoreham. See Hr'g Tr. 97:19-98:4, May 4, 2021. Over the years there has been a substantial increase in ferries and boats coming to New Shoreham. Id. at 16:19-22. As a result, the volume of people visiting the Town has soared. Id. at 16:19-22, 35:24-36:4. While the number of mopeds in New Shoreham has remained the same, the increase in vacationers has resulted in a rise of motorized and unmotorized vehicles. See id. at 16:22-25. Thus the New Shoreham roads are more congested with vehicular and pedestrian traffic. Id. at 16:25-17:1, 35:20-22. During the summer months, the increase of traffic on the roadways creates chaos. Id. at 17:2-3.
Former Police Chief Vincent Carlone credibly testified at hearing that there is a need in New Shoreham for a larger police presence during the summer months. Id. at 11:20-25. He explained that he undertook a community-based approach to policing. Id. at 10:3-5. He made efforts to collaborate and gain trust with the community. Id. at 10:3-11:3, 28:14-18. Additionally, the police department has forged bonds with the owners of the moped rental businesses. Id. at 15:12-18. The owners of the moped rental companies, according to former Police Chief Carlone have been very cooperative with the police and have partnered with the department to keep operations as safe as possible. Id. at 15:16-16:13. For example, the moped owners purchased and installed street signs that warned vehicles of sharp turns at dangerous corners and had their employees sweep sand from road shoulders to avoid accidents. Id. at 15:24-16:9. The moped owners hired a security guard who rode on a moped to take post in different areas to prevent mopeds from traveling into dangerous areas, including dirt roads. Id. at 28:3-9. The moped owners and police continuously shared ideas with one another to prevent serious accidents. Id. at 27:22-25.
The installation of signage and sweeping of the roads are improvements supported by two different traffic reports. First, a road safety audit report performed in December 2016 contained a number of moped-related improvement recommendations including educating tourists about road conditions, steepness, horizontal/vertical geometry, and debris on the road. Id. at 77:20-23. There were also recommendations to inspect and sweep the pavement roads on a regular basis, install curve warning signs and consider enacting ordinances for helmet use. Id. at 77:23-78:2. In addition, these recommendations were supported by Maureen Chlebek, a certified professional traffic operations engineer. (Pls.' Ex 3, at 6.) She concluded that moped drivers are often inexperienced and have difficulty navigating New Shoreham's roadways. Id. She recommended that appropriate warning signage be maintained and installed at horizontal and vertical curves, that the roadways be routinely cleared of debris and sand, and that the other recommendations from the road safety audit report be implemented. Id.
In the downtown area, Weldon's Way is particularly congested. This is true especially during the summer between 9:00 a.m. and 10:00 a.m. (Hr'g Tr. 74:21-24, May 5, 2021.) It is during these hours that multiple ferries arrive into the harbor carrying visitors and vehicles. Id. at 75:1-8. In addition, delivery trucks arrive to New Shoreham around noontime. Id. at 85:4-5. The police department has been working to reduce the congestion on Weldon's Way. Id. at 78:16-18. Specifically, certain food distributors have been contacted and asked to find alternative delivery routes. Id. at 77:24-79:6.
Despite the congestion between 9:00 a.m. and 10:00 a.m., the uncontradicted data demonstrates that from 2015 through 2020, 3 out of 168 moped crashes occurred between 9:00 and 10:00 a.m., in the morning. (Hr'g Tr. 75:19-76:1, May 4, 2021; Pls.' Ex 3, at 4-5.) In fact, a safety analysis demonstrated that over the past six years the highest number of reported moped-related crashes occurred between 12:00 p.m. and 1:00 p.m. (Pls.' Ex. 3, at 4.) The total number of moped crashes over these six years was thirty-one. Id. In addition, 75% of the reported moped crashes occurred between 10:00 a.m. and 4:00 p.m. Id. at 6.
To undertake their safety analysis, Ms. Chlebek and her team considered the roadway systems in New Shoreham, reviewed 168 moped-related crash reports, sorted through that data, and then looked for trends.[1] (Hr'g Tr. 64:21-25, May 4, 2021.) Of these 168 moped-related accidents, there were eighty-nine suspected injuries, forty-one non-incapacitating injuries, and nineteen incapacitating injuries.[2] Id. at 73:25-74:12; Pls.' Ex. 3, at 4. The crash data also revealed that 66% of the moped crashes were single-vehicle crashes, 21% involved a moped crashing with another motor vehicle, and 7% involved a moped crashing into a parked car. (Hr'g Tr. 75:1-5, 86:20-22, May 4, 2021; Pls.' Ex. 3, at 4.) Ms. Chlebek was unable to determine whether the crashes were alcohol related because the reports did not contain that data. Id. at 72:8-14.
There are four moped companies operating along Weldon's Way. (Hr'g Tr. 39:14-16, May 4, 2021.) The companies perform instructional demonstrations with customers on Weldon's Way. Id. at 39:10-13. Michael Finnimore, owner and operator of Island Moped, testified that renters are first given a tutorial explaining the operation of the moped and thereafter the renter operates the moped on a gravel lot. Id. at 106:21-107:6, 108:12-19. Once the demonstration on the gravel lot is complete, Mr. Finnimore asks whether the renter would be comfortable driving on Weldon's Way to become more familiar with the vehicle. Id. at 114:16-19. Typically, 50% of renters practice on Weldon's Way. Id. at 114:21. This allows the renter to practice operating the moped on the road. Id. at 114:24-115:4. Mr. Finnimore believes that the in-person demonstration is more valuable than a training video or moped quiz. John Leone, owner of Aldo's Mopeds, Inc., testified to similar practices. He credibly testified that at his moped rental shop in Martha's Vineyard, there is a video that plays on a loop. Notwithstanding, he indicated that the renters often do not pay attention to it.
These practice rides on Weldon's Way are discouraged by the police department. Id. at 41:18-21. Despite that, they continue as has been observed by the Town Manager, Maryanne Crawford, and former Police Chief Vincent Carlone. Id. at 40:11-14; Hr'g Tr. 5:13-18, May 5, 2021. The former Police Chief noted that he personally had never issued any citations for illegal U-turns on Weldon's Way. (Hr'g Tr. 40:17-19, May 4, 2021.)
Mr. Finnimore also testified to various safety measures his rental company undertakes before allowing a renter to operate a moped on Town roads. For example, it is required that every renter wears a helmet. Id. at 103:24-25. To demonstrate that this is done, the company has the renter review and initial an agreement that indicates he or she was informed that they must wear a helmet. Id. at 104:3-4. Additionally, a sticker is placed on every helmet and moped indicating that helmets must be worn. Id. at 104:4-5. Mr. Finnimore explained that he requires renters to initial the rental agreement concerning mandatory helmets. This is required because in the past when a renter was stopped for not wearing a helmet, the renter would often tell police that the information was never given by the moped staff. Id. at 103:24-104:10.
By all accounts, the summer of 2020 was different than other summers in New Shoreham. Id. at 31:15-25. In the past, New Shoreham had been a "family destination," but in the summer of 2020, there were many more younger people visiting New Shoreham.[3] Id. at 31:19-22. The credible evidence established that with respect to moped accidents the number increased from fifty-two in 2019 to sixty-seven during 2020. (Aff. New Shoreham Town Manager at 1.) Doctor Thomas Warcup, who is the medical director at Block Island Heath Services, Inc., testified that out of the 6, 000 admissions to the Block Island Medical Center, sixty-seven were for moped-related...
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