DMV’s $100 question: ‘motorized bike’ or ‘motor cycle'

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DMV’s $100 question: ‘motorized bike’ or ‘motor cycle'

Postby Micronaut » Mon Nov 07, 2005 9:04 pm

DMV’s $100 question: ‘motorized bicycle’ or ‘motor-driven cycle’?
By Steven Stycos ... e/003.html

“Aren’t you really asking me, as a judge of Superior Court, to update the statute, to rewrite the statute?” asked Judge Allen Rubine, as the two-day hearing on state regulation of mopeds concluded Tuesday, Oct. 25, in South Kingstown.

The Rhode Island General Assembly, said Block Island moped dealer attorney Mark Hagopian, “is really where this controversy belongs,” but in the meantime, the court should allow people to drive mopeds with only a standard driver’s license, he said.

At the beginning of October, the moped businesses won a temporary restraining order blocking the Rhode Island Division of Motor Vehicles’ contention that state law requires moped drivers to have a motorcycle license. That requirement, the dealers say, could ruin their business, as perhaps only 10 percent of rental customers have motorcycle licenses. They returned to court Oct. 21 and 25, seeking a preliminary injunction for longer-lasting protection against the DMV’s legal interpretation.

The Block Island dealers were joined by Providence moped dealer Patrick Engeman, who surprised the courtroom by openly admitting his company has removed speed governors from “hundreds” of mopeds for a $100 charge. Engeman testified, however, that he does not sell mopeds to any Block Island moped dealers.

After listening to a history of the dispute and asking skeptical questions of both sides, Rubine indicated he would issue a decision shortly after he receives legal briefs next week.

Rubine’s job will not be easy. He must struggle to interpret state law that governs mopeds but does not use the word “moped.” State law currently allows holders of a driver’s license to operate “motorized bicycles.”

John Leone, owner of Aldo’s Mopeds, testified that the DMV has always considered the popular scooters he rents as motorized bicycles. DMV attorney Bernard Lemos disagreed, saying mopeds must have pedals to be exempt from the motorcycle license requirement.

State law defines motorized bicycles as “bicycles with helper motors” that “may be propelled by human power or helper power,” have a motor rated less than 1.5 brake horsepower or 2 S.A.E. horsepower, and travel at a maximum speed of not more than 30 mph.

Lemos said that language implies two means of propulsion, and because scooter-style mopeds have only one, they do not qualify. The heart of the problem, he continued, is “The vehicles may have evolved technically, but the statute has been static.” Neither the DMV, nor Rubine, should be writing the law, he argued. That job is reserved for the Rhode Island General Assembly and until the Legislature acts, scooter-like mopeds should require a motorcycle license.

Rubine clearly thought that argument had merit, asking Hagopian, “Should we ignore that other language that speaks about a dual means of propulsion?” And later he asked, “Once [the law] uses the word ‘helper,’ don’t I have to figure out what it’s helping?”

No, responded Hagopian, Rubine should not waste his time trying to define “human power” or “helper power.” Instead he should just use the horsepower and speed limits specified in the law.

The newer scooter-style vehicles are quieter, safer and better for the environment than the old-style models with pedals, both Lemos and Hagopian agreed, because they have four-cycle instead of two-cycle engines, a lower center of gravity, and better brakes. New Shoreham Solicitor Merlyn O’Keefe, who sided with DMV in the case, however, dissented, explaining that he had seen no conclusive data comparing the safety of the two vehicles.

The key issue is liability, testified Brian Peterson, the associate director of the Department of Administration in charge of DMV. If a 16-year-old was hurt riding a moped without a motorcycle license, the state could be liable for not effectively enforcing the law. Engeman said the same concern motivated his participation in the lawsuit. “I see a claim of responsibility leading back to me,” he explained.

With 22 years of experience in the business, Leone gave Rubine some history. In 1983, all his rental mopeds had pedals that were used to make the spark to start the motor and to brake. By the mid-1990s, however, Leone, who manages Miles-Un-Ltd and The Moped Man in addition to his own company, said dealers switched to mechanically superior and more stylish scooter-style mopeds commonly used today on the island.

Until this year, the changeover drew no reaction from DMV, Leone said, but did drastically reduce accidents. As a dealer and a member of the town’s Moped Safety Committee, he has seen a dramatic decline in accidents with the scooter-style mopeds, he said. When he rented only pedal mopeds his vehicles averaged 15 to 20 accidents a year, he testified, but with scooter-style vehicles accidents have been reduced to three to five a year.

Under cross-examination, Leone admitted that the old-style mopeds could be pedaled around the island, but noted, “It is extremely difficult to pedal one of them vehicles” because the crankshaft goes though the gear box before connecting to the chain. “It’s possible,” he added, “but I haven’t witnessed anyone pedaling a moped.”

After Leone, Peterson related how DMV came to require motorcycle licenses for scooters this summer.

Last spring, DMV Director of Enforcement Joseph Monteiro told Peterson, his new boss, that motor scooters were being illegally registered as motorized bicycles. Peterson investigated and learned that DMV’s application of the law was inconsistent. Some DMV clerks registered scooter-style mopeds as motorized bicycles, while others registered them as “motor-driven cycles,” a classification reserved in state law for motorcycles and “every motor scooter” with no more than 5 horsepower.

When new scooter-style mopeds were rejected as motorized bicycles by DMV, testified Engeman, co-owner of Java Speed Scooters, their owners often complained to him. He testified that he routinely told them to try another DMV branch office for a better result.

As part of his investigation, Peterson personally went to Java Speed Scooters and, without identifying himself, asked if he needed a motorcycle license to drive a scooter-style moped. No, salesmen responded, if the engine size was below 49 cubic centimeters. [Massachusetts state law refers to engine size in classifying two-wheeled motorized vehicles, but Rhode Island state law does not.]

If he found a “good” DMV clerk, the salesmen continued, he could get the vehicle registered as a motorized bicycle. Salesmen also said, Peterson testified, that easy-to-follow instructions were available on the Internet to help him remove the RPM inhibitor so the moped would go faster than 30 mph.

By July 2005 Peterson was convinced that confusion reigned in DMV’s regulation of mopeds. He sent a memo to all DMV clerks with a photo of the two types of mopeds, and informed them that mopeds must have pedals to be classified as motorized bicycles. He also informed all town police chiefs that scooter-style mopeds required motorcycle licenses to drive. Later, New Shoreham Police Chief Vincent Carlone told the island’s moped dealers, triggering their request for a temporary restraining order.

At the end of the hearing, both sides buttressed their positions with legal arguments. DMV’s Lemos contended that the case should be heard in District Court, not Superior Court, and that none of the dealers had been harmed yet, so they had no legal standing to sue.

Hagopian disagreed, saying that the potential loss of business merited a Superior Court case. He said that by failing to require a motorcycle license for moped drivers for years, DMV had given moped dealers a property right that cannot be taken away without due process and compensation.

Hagopian clarified his position via email on Thursday, Oct. 27. He wrote that the “dealers [have] a property right in their Town business licenses and the DMV’s retroactive reinterpretation of the vehicle registration statute amounts to an arbitrary taking of that property interest, without due process.”

Lemos disagreed, stating that lax enforcement could not create a property right. If it could, he noted, stores that illegally sell liquor and cigarettes to minors could claim they had a right to do so in the future, because they have in the past.
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