Cape Gazette
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Rehoboth asks judge to dismiss scooter suit

Case tests whether permit is consitutional
By Ryan Mavity | Aug 21, 2013
Source: File A federal judge could soon rule on a motion to dismiss a case challenging the constitutionality of Rehoboth Beach's scooter ordinance. In March, the city instituted a $40 permit for scooters to park and created designated scooter corrals.

Rehoboth Beach — Rehoboth Beach officials have asked a  federal court to dismiss a suit challenging the constitutionality of Rehoboth’s scooter ordinance.

There is no timetable for U.S. District Court of Delaware Judge Richard Andrews to make his ruling. According to the court, there will be no scheduling until the motion has been ruled on. The city has asked for a jury trial if the case goes to court.

The suit was brought by Rehoboth resident and scooter rider Lawrence Myslewski, who argued the ordinance, passed in March, is unconstitutional and violates his Fourteenth Amendment right to equal protection of the law because he has to pay for a permit to park his scooters in front of his home, but is given a free parking permit for his car.

Myslewski’s attorney, David Finger, has also argued that the intent of the ordinance – improving public safety by preventing scooters from parking on the sidewalks –  is moot, because Rehoboth code already prevents scooters on the sidewalks. He said the ordinance, which instituted a $40 permit that allows scooters to park at designated corrals during the summer, discriminates against scooter riders.

The city’s attorneys Megan Mantzavinos and Emily Silverstein, asked that the case be dismissed, saying the ordinance addresses a legitimate safety concern, and the city commissioners have legislative immunity, barring Myslewski from pursuing an equal protection claim.

“Plaintiff’s mere inconvenience of parking his Vespas on his driveway or private property, as opposed to the public street, is insufficient to satisfy the necessary requirements to withstand a motion to dismiss,” Mantzavinos and Silverstein said.

Finger, in opposing the city’s motion to dismiss, said Myslewski’s suit is an “as applied” challenge, meaning the ordinance is unconstitutional as applied to residents of Rehoboth. He said there is no rational basis for the ordinance because scooters and other motor vehicles are prohibited on sidewalks.

“There is a disconnect between the purpose of the law and what it actually does,” Finger said.

In response, Mantzavinos and Silverstein said, “The mere fact that the motor scooter ordinance results in motor scooter operators being treated differently from automobile owners in a single aspect does not negate the fact that the ordinance is rationally related to a legitimate government purpose.”

The Rehoboth attorneys also said the ordinance does not require scooter riders to purchase permits; scooters can be parked in metered spaces if they pay the meters. However, Finger said if scooter riders want to park their scooters in front of their homes, they have to pay the scooter permit fee.

Legislative immunity is not available to the city commissioners, City Manager Greg Ferrese and Chief Keith Banks, all named as defendants in the suit, Finger said. However, Mantzavinos and Silverstein said legislators have immunity for legislative activities such as drafting, introducing and passing legislation.

“Plaintiff’s allegations against the commissioners consist of nothing more than that they were responsible for implementing the motor scooter ordinance and that they voted to adopt the ordinance,” Mantzavinos and Silverstein said.

Myslewski is seeking a declaration the ordinance is unconstitutional; he is not asking for monetary damages.

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