Council discusses penalties for ordinance violations

Thu, 10/25/2018 - 6:00pm

The consequences of adopting new ordinances to address environmental protections has created a dilemma for the New Shoreham Town Council concerning penalties for violations of those ordinances.

A discussion about a proposed dune protection ordinance during the Town Council’s Oct. 17 meeting turned into a debate about enforcement, and what penalty, or penalties, should be ascribed. Due to the fragility of the island’s dunes and the need for enforcement, the council was holding a public hearing to discuss adding a “Protection of Dunes on Public Property” section to the town’s general ordinances.

Former New Shoreham Police Chief Bill McCombe raised the question of what penalty should be assigned to an infraction. McCombe said a general penalty would be a “criminal offense,” a misdemeanor charge punishable by jail time, and/or a fine of $500, while a civil infraction could amount to a court summons and a fine.

Town Manager Ed Roberge said, based on the recommendation of the Town Solicitor, the violation would be punishable as a general penalty, just like the penalty for violating the town’s balloon and single-use plastic bag ordinances. Roberge, who advocates flexibility with enforcement, said he felt that the police would use their discretion when enforcing the ordinance. 

Town Solicitor Katherine Merolla said a general penalty for an infraction equates to “a fine not exceeding $200, and imprisonment not exceeding three months, which under state law constitutes a petty misdemeanor.”

First Warden Ken Lacoste asked McCombe what his concerns were regarding enforcement for a violation of the proposed dune ordinance. “Is it over aggressiveness, or whatever?” asked Lacoste.

“It’s a criminal offense,” said McCombe of the general penalty. “That’s what the difference is on this, as opposed to a violation. My concern is that the Town Council understands the difference between what is a civil violation, and what is a criminal offense.”

“It’s a different type of charge,” noted McCombe. “I’d be surprised if the intent of the council is to make it a criminal offense. So, I think before you pass an ordinance you should take a look at the penalty.”

Councilor Sven Risom said, “The goal was to be able to give the police the ability to ask somebody to keep off the dunes.” Risom said the Town Council discussed “education, signage, and some ability to be able to act. I don’t think anybody wants it to be a criminal offense.”

Councilor Martha Ball asked if it would be “possible to have a tiered fine system within the penalty part of the town’s general ordinance?”

Merolla said the Town Council would need to “specify which section, or part of the general ordinance” that the penalties would apply to.

Ball said if the council would be passing a dune ordinance that is subject to a criminal offense penalty then “I don’t think we should pass it.” She said the Town Council should consult with the police department and get some other alternatives before adopting the ordinance.

Second Warden André Boudreau addressed his question to Police Officer Paul Deane, who was seated at the back of the room. “I’ll drag you into this discussion,” said Boudreau, who presented a hypothetical: “If someone is walking on the dunes, in violation of the ordinance, and you get a call about it, what do you do?”

“Most people don’t realize the fragility of our dune system,” said Deane. “We saw that before we put up the signs and the little ropes to keep people off of the dunes. What people don’t know they don’t understand.”

Deane said that, “Ninety-nine percent of the time when you inform people that they’re in violation of one of our ordinances, they apologize about it. So, I think this is about education. If you inform them about it, 99 percent don’t want to be in violation.”

“I don’t think any of you want a criminal penalty assigned to the balloons, or plastic straws, or dune ordinances,” said Deane, who noted that the council should consider ascribing a civil violation to the town’s general ordinance. Deane said criminal offenses taint a person’s record inhibiting their ability to apply for jobs. “I think having it be criminal is a little bit too far. If it’s a violation make it a Warden’s summons.”

Roberge recommended that the Town Council table the discussion so that a variety of penalties could be considered before voting on adopting the dune ordinance. The council voted unanimously to continue the discussion at the upcoming Nov. 19 meeting.

Dredging Old Harbor

In other news, the Town Council voted unanimously (4-0), with Lacoste recused, to award the contract for dredging Old Harbor’s inner basin to the Block Island-based A. Transue Corporation at a cost of $14,200. Roberge said the company was chosen from among four bidders, and the work needs to be completed by Jan. 15, 2019, which is a condition of the permit for the project. Boudreau made the motion that was seconded by Risom.

School Building Committee

The Town Council voted unanimously (5-0) to appoint Block Island School Superintendent Michael Convery to the School Building Committee. Lacoste made the motion that was seconded by Willi.

Glyphosate & Recycling

The Town Council discussed the banning of the herbicide glyphosate with the Conservation Commission, and also discussed Rhode Island Resource Recovery Corporation’s decision to put a cap on contaminated loads of recyclables delivered to the state landfill.

Conservation Commission Chair Ned Phillips reiterated his commission’s interest in banning glyphosate on Block Island and wants the town to pursue an exception at the state level, given the town cannot independently ban the herbicide. Phillips said a few years ago the commission “put a proposal forward to the Town Council requesting a possible ban of glyphosate on the island. The matter was dropped.” He urged the council to pursue banning the product. “This is a very important issue.”

Lacoste said he spoke with Ken Ayers, Chief of the Division of Agriculture for the Department of Environmental Management, who told him that Department of Environmental Management is the enforcing official of the pesticide control act in the state. “He said any municipal act to the contrary, like a town-wide ban, would be unenforceable. (Ayers) said the way to go, if we’re interested in pursuing a ban, would be to petition the state legislature. His impression was that the state legislature would probably be hesitant to do it on a town-wide basis. They would want to do it statewide, if they were to take such a step.” 

The council intends to formulate a plan with Roberge, which could include speaking with Ayers about the issue.

Regarding the cap on contaminated material, BIRM owner Sean McGarry informed the council that the RIRR “sent out a letter to every municipality in the state changing the way they regulate contaminated recycling loads.” McGarry said there’s been “increased scrutiny” over recyclable loads delivered to the state landfill, and if contaminated material in a recyclable material load exceeds allowable levels a part of the load is rejected by the RIRR, leading to additional costs. 

“So what’s the message we can get across to the public?” asked Lacoste of McGarry.

McGarry said the public needs to try to reduce the amount of contaminated material included in the recyclable materials that’s delivered to the Transfer Station. He also said there “needs to be a legislative component that provides incentives to industry to reuse materials. Think globally, but act locally,” he said.  

Risom said the Town Council should schedule a work session to discuss the issues of recycling and composting, etc. “I think we as a town should have a dialogue about it.” The item was noted for discussion purposes only on the council’s agenda, and no action was taken.

The next Town Council meeting is a liquor license renewal meeting scheduled for Thursday, Nov, 1 at 4 p.m.