As the Oak Bluffs selectmen prepare to hold hearings next week to review the licenses of three rental moped companies, their town counsel has advised them that effectively banning moped rentals by eliminating all licenses would violate state law.

In a letter sent March 11 to Oak Bluffs town administrator Robert Whritenour, town counsel Michael Goldsmith addressed a host of concerns put forward in a formal complaint filed with selectmen in January by the Mopeds Are Dangerous Action Committee. The complaint asks the town to declare licenses null and void for the three moped rental companies operating in town: Island Hoppers LLC, King of Rentals of MV, and Ride On Mopeds, alleging license discrepancies and lack of enforcement of town bylaw.

Mr. Goldsmith outlined a process the town should follow to address the allegations, leaving open the possibility that one or more of the licenses could be revoked. But he also cited two court cases from the 1980s that he said limit how far the town can go to stop moped rentals altogether.

Ruling in a case involving the town of Provincetown, the Supreme Judicial Court in 1981 found that a town bylaw that attempted to ban mopeds violated a state law that allows people to operate mopeds on all public ways. The same principle was cited in a 1988 ruling in a Dukes County superior court case involving the town of Tisbury’s failure to renew a moped license, Mr. Goldsmith said.

Mr. Goldsmith, an attorney with Reynolds Rappaport Kaplan & Hackney, LLC, also noted that the Supreme Judicial Court, in deciding the Provincetown case, suggested that the town could seek special legislation to ban moped rentals, “which is an avenue also available to Oak Bluffs.”

He also turned to the town moped bylaws and how Oak Bluffs should address the complaint. The central question raised, he said, is whether inactivity of existing license holders or transfers have rendered licenses null and void or caused them to be forfeited.

A 2002 amendment to the town bylaw included plans to limit the maximum number of licenses and reduce the number of moped rental license over time, he said. At the time, the attorney general’s office cautioned that the number of licenses issued could fall to a point where an outright prohibition was likely to occur, which would be inconsistent with state law.

Mr. Goldsmith also said that if licenses are rendered null and void by inactivity or improper transfer, the license holder is not barred from re-applying and obtaining a new license. Instead, he said, the number of licenses available would be reduced by one, assuming that reduction does not reduce the overall licenses to a number that is an effective prohibition.

He also weighed in on the town requirement that moped rental companies have 50-foot long, 25-foot wide training tracks on their premises, a provision that was discussed at length March 15 at a board of selectmen meeting. Jason Leone, who owns or co-owns the three moped rental companies, filed a request for a waiver of that requirement. Former town selectmen Todd Rebello, speaking on behalf of Mr. Leone, said the moped businesses were already exempt from the bylaw under a grandfathering provision but wanted to follow a more official procedure; the request was withdrawn during the meeting and it was not clear at the time whether the businesses were exempt.

Mr. Goldsmith said under the town’s bylaw, the board is not permitted to completely waive the training track bylaw requirement. Instead, he said, the board can permit the license holder to have an alternative training program, including an off-site training track or a modified on-site track. “In either case, the board should be satisfied that a licensee’s alternative proposal satisfies the purpose of the provision, which is public safety,” he said.

He further stated that while Oak Bluffs is barred from banning mopeds altogether, the town is bound to uphold procedures set forward in the bylaws. “Given the obvious public safety concerns stemming from rental of a moped to an unsafe or an inexperience operator, and given that the board is bound by the strictures of paragraph 7, the board should review any petition for an alternative training program carefully,” Mr. Goldsmith wrote.

He said the town should hold individual hearings on complaints about each of the three business before issuing moped rental licenses for the 2017 season, and afterward the board should decide whether any of the licenses have been rendered null and void and whether the total number of licenses should be reduced, and whether the total number of licenses would be an effective prohibition.

The hearings for the three moped rental licenses have been scheduled for 4:30 p.m., 5 p.m. and 5:30 p.m. on Tuesday, March 28 at the Oak Bluffs library meeting room.

Oak Bluffs Moped Opinion Letter by Vineyard Gazette on Scribd