Middletown Town Council will host a regular council meeting remotely on Monday, June 1st at 7 pm.
REGULAR MEETING – JUNE 1, 2020
POSTED – MAY 27, 2020
ALL SUPPORTING DOCUMENTATION TO AGENDA ITEMS ARE ON CLERKBASE THROUGH THE TOWN OF MIDDLETOWN WEBSITE https://clerkshq.com/Middletown-ri
TOWN COUNCIL OF THE TOWN OF MIDDLETOWN, RHODE ISLAND
The following items of business, having been filed with the Town Clerk under the Rules of the Council, will come before the Council at a regular meeting to be held on Regular Meeting – Said meeting will be conducted by telephone conference call on Monday, June 1, 2020 at 7:00 P.M., in accordance with Executive Order 20-25 issued by Governor Raimondo on April 15, 2020, extended on May 15, 2020, which modifies certain provisions of the Open Meetings Act (“OMA”) and the Access to Public Records Act (“APRA”) as part of the State’s emergency response to COVID-19. Members of the public may access and listen to the meeting in real-time by calling 877-853-5257 (Toll Free) or 888-475-4499 (Toll Free) and entering Meeting ID: 822 0319 9008; or On the web at https://us02web.zoom.us/j/82203199008.
The items listed on the Consent portion of the agenda are to be considered routine by the Town Council and will ordinarily be enacted by one motion. There will be no separate discussion of these items unless a member of the Council, or a member of the public so requests and the Town Council President permits, in which event the item will be removed from Consent Agenda consideration and considered in its normal sequence on the agenda. All items on this agenda, with the exception of the Public Forum Session, may be considered, discussed and voted upon in executive session and/or open session.
Pursuant to RIGL §42-46-6(b). Notice – “Nothing contained herein shall prevent a public body, other than a school committee, from adding additional items to the agenda by majority vote of the members. Such additional items shall be for informational purposes only and may not be voted on except where necessary to address an unexpected occurrence that requires immediate action to protect the public or to refer the matter to an appropriate committee or to another body or official.”
PLEDGE OF ALLEGIANCE TO THE FLAG
The Middletown Town Council follows the codification of present-day general parliamentary law as articulated in Robert’s Rules of Order Newly Revised 10th edition (2000), together with whatever rules of order the Council has adopted for its own governance. The motion to reconsider is one of the motions that can bring a question again before an assembly, and is designed to bring back for further consideration a motion which has already been voted on:
If, in the same session that a motion has been voted on, but no later than the same day or the next day on which a business meeting is held, new information or a changed situation makes it appear that a different result might reflect the true will of the assembly, a member who voted with the prevailing side can, by moving to Reconsider [RONR (10th ed.), p. 304-321] the vote, propose that the question shall come before the assembly again as if it had not previously been considered. (From Robert’s Rules of Order Newly Revised In Brief, Robert, Evans et al., De Capo Press, 2004)
BOARD OF LICENSE COMMISSION
1. Application of Rock Lobster 69, LLC dba Rock Lobster, 59 Aquidneck Avenue, for a Class BV Liquor License to be used at the same premises. Application includes request for outside service on lower patio area and upper deck. (On May 18, 2020, this item was ordered advertised and notification to abutters for Public Hearing on June 1, 2020. Due to the newspaper notice, the application requires a continuance for advertising and notification to the abutters for hearing on June 15, 2020.)
2. Applications of the following named persons, firms or corporations, for Temporary Expansion of outside service of Alcohol:
CLASS B LIMITED
MISSON, LLC-58 AQUIDNECK AVENUE
CLASS B VICTUALLER
AQ, INC./AQUIDNECK RESTAURANT & PIZZERIA- 27 AQUIDNECK AVENUE
BACK OF THE BUS, LLC/IDA’s RESTAURANT – 21A VALLEY ROAD
BOTTEGA BOCCONI, LLC/BOTTEGA BOCCONI- 36 AQUIDNECK AVENUE
DIEGO’S MIDDLETOWN, LLC- 116 AQUIDNECK AVENUE
HPK, INC./TICKETS – 15 AQUIDNECK AVENUE
THE PUB AT TWO MILE CORNER, INC/ THE PUB AT TWO MILE CORNER- 10 MAPLE AVE
4. (Continued from March 16, 2020, Regular Meeting)
Application for Special Event Permit from the Newport County YMCA for the Summer Camp (Water Sports/Surf Camp) to be held at Second Beach, beginning June 22, 2020 to August 28, 2020 from 9:00 a.m. to 2:00 p.m.
5. (Continued from March 16, 2020, Regular Meeting)
Application for Special Event Permit from Reverend Shelley Dungan of The Sacred Center at St. Mary’s Church for Yoga on the Beach to be held at Third Beach, Monday – Sunday 7:30 am – 8:30 am and Monday-Friday 6:00 pm -7:00 pm, mid-June to early September.
6. Application for Special Event Permit from Rhode Races & Events, Inc., for the Newport Rhode Races, Marathon Road Race to be held on Saturday, April 17, 2021 from 7:30 am – 1:30 pm. on various roads in Middletown.
7. Public Hearing (Advertised) (First Reading)
Town of Middletown application for PY2019 Application – Small Cities Community Development Block Grant (CDBG) for certain projects Statewide in the amount of $5 million dollars available to undertake a range of activities:
a) Improved housing opportunities for low and moderate-income families and individuals.
b) Provision of employment opportunities for low and moderate-income individuals.
c) Provision of community facilities and services principally benefiting low and moderate-income families and individuals.
An Ordinance in Amendment to the Town Code Title XI Business Regulations, Chapter 113 Food Service. (See Attached Ordinance)
10. Communication of Attorney Turner C. Scott, with enclosures, re: Utility Burial Project/Third Beach/Paradise Valley.
11. Resolution of the Council, re: In support of the Scenic Third Beach Project.
12. Memorandum of Sara Churgin, Aquidneck Island Planning Commission, Chair, with enclosures, re: Report and Update on AIPC Activities and Finances.
14. Memorandum of Council President, re: Civic Appropriations request for Bike Newport.
15. (Continued from the May 18, 2020, Regular Meeting)
Resolution of the Council, re: Memorializing the General Assembly to Enact Legislation Authorizing the Town of Middletown to issue not to exceed $5,000,000 General Obligation Bonds, Notes and Other Evidences of Indebtedness to Finance Acquiring and Preserving Open Space and Acquiring, Preserving, Restoring and Improving Recreational Areas in the Town.
16. (Continued from March 16, 2020, Regular Meeting and May 18, 2020)
At the request of Council President Sylvia, Resolution of the Council, re: Every Rhode Islander Should Be Counted in 2020 Census.
17. (Continued from March 16, 2020, Regular Meeting and May 18, 2020)
Resolution of the Council, re: Requesting amendment to RIGL Section 24-6-1, Authorizing the Town of Middletown, upon receiving a request for abandonment of highway or driftway from an abutting property owner, to sell the highway or driftway to the abutting owner at fair market value.
Wendy J.W. Marshall, CMC
This meeting location is accessible to the handicapped. Individuals requiring interpreter services for the hearing-impaired should notify the Town Clerk’s Office at 847-0009 not less than 48 hours before this meeting.
Posted on May 27, 2020 at Middletown Town Hall, Middletown Fire Department, Middletown Web Site and Secretary of State Web Site.
ORDINANCE OF THE
TOWN OF MIDDLETOWN, RHODE ISLAND
AN ORDINANCE AMENDING THE TOWN CODE OF THE
TOWN OF MIDDLETOWN
TITLE XI: BUSINESS REGULALTIONS
Chapter 113, Food Service
NOW THEREFORE, BE IT ORDAINED AS FOLLOWS:
FIRST: That Town Code Title XI, Chapter 113, Entitled “Food Service” is amended in its entirety, as follows (language to be deleted is stricken out within brackets; language to be added is underlined):
MOBILE FOOD SERVICE UNITS § 113.01 DEFINITIONS. For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. MOBILE FOOD SERVICE UNITS. Any movable restaurant, motor vehicle, truck, van, trailer, cart, bicycle or other movable unit, in or on which food or beverage is stored, transported or prepared for retail sale or distribution at temporary locations. OWNER. Any person, corporation, partnership, franchise holder, association, trust, or firm which owns the business of selling cooked or prepared food and beverage from mobile food units. § 113.02 PURPOSE. The purpose of this subchapter is to regulate the retail sale and distribution of food and beverages from trucks, vans and other movable units at the location of industrial and manufacturing plants and operations, construction sites, and municipal buildings in the town. The Council finds that such regulation is necessary to preserve the health, safety and general welfare of the town and its inhabitants. § 113.03 LICENSE REQUIREMENT; FEE. (A) No person shall operate and maintain a mobile food service unit for the purpose of selling and distributing food or beverage at industrial and manufacturing plants and operations, construction sites, and municipal buildings within the town unless the owner first obtains a mobile food service unit licensed under this chapter. (B) The license fee for each such mobile food service unit operating within the town shall be $100 per year or any part of a year. § 113.04 LICENSE APPLICATION; APPLICATION FEE; INVESTIGATION. (A) An application for a mobile food service unit license shall be made to the Council under oath on forms which shall include the following information: (1) The name, residence address, and date of birth of the owner; (2) The names, residence addresses, dates of birth, and motor vehicle operator’s license numbers of all persons who will be operating the mobile food service unit in the town; (3) The nature of the food service business to be conducted; (4) The proposed location or locations where the business of the mobile food service unit will be conducted within the town: (5) Whether the applicant has received written permission from the owner of the premises where he proposes to park or stand his mobile food service unit for the purpose of selling or distributing food or beverages, and, written permission to serve the industrial or manufacturing plant or operation or from the owner of construction site or from the municipal building which the applicant intends to serve. The applicant shall submit with the application evidence of such written permission; (6) Prior convictions of any crime or misdemeanor of the applicant (if individual) or of the principals, partners, officers, and stockholders of the applicant (if a firm, corporation, partnership, or association) and of the persons who will be operating the mobile food service unit within the town; (7) Whether the applicant has received all necessary approval from the Rhode Island Department of Health with respect to his mobile food service unit; (8) The registration numbers of any mobile food service unit the applicant proposes to operate in the town. (B) The application shall be accompanied by a non-refundable fee of $25 to cover administrative costs. (C) Upon receipt of an application for a mobile food service unit license, the Town Clerk shall refer it to the Chief of Police, who shall investigate the applicant, and all other persons identified in the application and the Chief of Police shall report his findings to the Council. § 113.05 APPROVAL, CONDITIONS, ISSUANCE OF LICENSE. (A) The Town Clerk shall forward the completed application to the Council for its review and action. (B) No license shall be issued hereunder unless the Council finds: (1) That the applicant has received written permission to park or stand his mobile food service unit and sell or distribute food or beverage therefrom upon the premises proposed by the applicant from the owner of such premises, and, written permission to serve the industrial or manufacturing plant or operation, the construction site, or the municipal building which the applicant proposes to serve; (2) That the applicant has received all necessary approvals with respect to his mobile food service unit from the Rhode Island Department of Health; (3) That the applicant has a suitable refuse container for the deposit of papers and other solid wastes by customers and by the applicant’s employees, which is designed and placed so that it can be readily used, cleaned and kept clean, in order to prevent the accumulation of litter; (4) That the proposed location of the mobile food service unit will not cause or create a threat or danger to the health, safety, and general welfare of the town and its inhabitants. In making such determinations, the Council may consider the proximity of the proposed location of the mobile food service unit to schools and recreational facilities, whether the proposed location is already serviced by any other mobile food service units licensed hereunder, and such other factor or factors which reasonably relate to the health, safety, and general welfare of the town and its inhabitants. (C) In approving a license, the Council may establish reasonable conditions and safeguards to promote and protect the health, safety, and general welfare of the town and its inhabitants. (D) Licenses are issued hereunder for the specific purpose of providing necessary food service to industrial and manufacturing plants and operations, construction sites, and municipal buildings. No license shall be issued, therefore, for the operation and maintenance of any mobile food service unit within 1,000 feet of any permanent retail food establishment. (E) In approving an application for license hereunder, the Council shall specify the premises upon which such mobile food service unit may stand or park for the purpose of selling or distributing food or beverage, and the name or identity of the industrial or manufacturing plant or operation, the construction site, or the municipal building which the applicant shall serve. (F) Upon approval by the Council, the Town Clerk shall issue a license upon payment of the fee established hereunder. The license shall specify: (1) The premises upon which such mobile food service unit may stand or park for the purpose of selling or distributing food or beverage; (2) The name or identity of the industrial or manufacturing plant or operation, the construction site, or the municipal building which the licensee shall be authorized to serve. § 113.06 COMPLIANCE WITH STATE REGULATIONS REQUIRED. The owner and the owner’s employees shall comply with all regulations of the Rhode Island Department of Health applicable to the sale of food from mobile food service units. § 113.07 OTHER REQUIREMENTS OF OPERATION. (A) The licensee shall comply with all provisions of law, ordinance, rule or regulation relating to the operation and maintenance of any mobile food service unit licensed hereunder. (B) The licensee shall cause the license issued hereunder to be posted at all times in a conspicuous place on the mobile food service unit. (C) The licensee, and all employees of the licensee, shall be courteous to all persons and shall not annoy any of the inhabitants of the town, and, shall conduct themselves in a lawful manner at all times. (D) A licensee shall not cause his mobile food service unit to stand or park for the purpose of selling or distributing food or beverage at any location not authorized or specified in his license nor shall the licensee serve any industrial or manufacturing plant or operation, construction site, or municipal building not authorized and identified in his license. § 113.08 REVOCATION OR SUSPENSION OF LICENSE. The Council may revoke or suspend a mobile food service unit license after notice to the licensee and a public hearing for any of the following causes: (A) Misrepresentation or false statement contained in the application; (B) Conviction of any crime or misdemeanor of either the licensee or any employee of the licensee who maintains and operates a mobile food service unit within the town; (C) Conducting the licensed business in an unlawful manner, in violation of this chapter, state or federal law, or in such a manner as to cause breach of the peace, to create a nuisance, or to constitute a menace to the health, safety, or general welfare of the town and its inhabitants; (D) In the event either the owner of the premises upon which the licensee is authorized to park or stand for the purpose of selling or distributing food or beverage, or the industrial or manufacturing plant or operation, construction site, or the municipal building which the licensee is authorized to serve, or both, withdraws permission to park or stand said mobile food service unit on said premises and/or serve said plant, operation, construction site, or municipal building. § 113.09 EXPIRATION OF LICENSES; RENEWALS. Mobile food service unit licenses shall expire annually from the date of the passage of the ordinance codified in this chapter. Application for renewal of a license shall be submitted at least 30 days prior to the expiration of said license. § 113.99 PENALTY. In the event any person violates any of the provisions of §§ 113.01 through 113.09, he shall, upon conviction thereof, be punishable by a fine not exceeding $100, or imprisonment not exceeding 30 days, or both.
Title XI, Chapter 113 – MOBILE FOOD ESTABLISHMENTS
113.01 – Purpose and Intent.
The purpose of this chapter is to protect and preserve the health, safety, and welfare of the Town and its residents by regulating the retail sale and distribution of food and beverages from truck, vans, carts and other movable units in the Town consistent with the State Mobile Food Establishment Registration Act, RIGL § 5-11.1-1, et seq.
113.02 – Definitions.
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning:
Department (“DBR”) means the Department of Business Regulation.
Director means the Director of the Department of Business Regulation.
Event Permit means a permit the Town issues to the organizer of a public mobile food establishment event located on public property.
Fire Safety Code shall have the meaning set forth in Chapter 28.1 of Title 23 of the Rode Island General Laws and shall include any regulations promulgated thereunder.
Mobile food establishment (“MFE”) means a food service operation that is operated from a movable motor-driven or propelled vehicle, portable structure, or watercraft that can change location. Mobile food establishments specifically includes, but is not limited to, food trucks, food carts, ice-cream trucks/carts, and lemonade trucks/carts.
Mobile Food Establishment Cart (“MFEC”) means a food service operation that is operated from a movable, non-motorized vehicle no larger than seven feet by five feet that can change location. Any MFEC which remains attached to a motorized vehicle that transports it to a location shall be considered an MFET and not an MFEC. Mobile food establishments cart specifically includes, but is not limited to, food carts, ice-cream carts and lemonade carts.
Mobile Food Establishment Truck (“MFET”) means a food service operation that is operated from a movable motor-driven or propelled vehicle, portable structure, or watercraft that can change location. Mobile food establishments specifically includes, but is not limited to, food trucks, ice-cream trucks and lemonade trucks.
Mobile Food Establishment Event means an event where an individual has ordered or commissioned the operation of one or more mobile food establishments at a private or public gathering.
Mobile Food Establishment Operator or Operator means a person or corporate entity who or that owns, manages, or controls, or who or that has the duty to manage or control, the operation of a mobile food establishment.
Mobile Food Establishment Vendor or Vendor means a person who prepares, sells, cooks or serves food or beverages from a mobile food establishment.
Municipal Mobile Food Establishment Permit means a permit issued by the Town to a mobile food service establishment operator that possesses a current state mobile food establishment permit.
Registrant means the holder of a “state mobile food establishment registration.”
RIDOH means the Rhode Island Department of Health.
Short Term Permit means a permit issued by the Town to a mobile food service establishment operator that possesses a current state mobile food registration, allowing the MFE operator to operate at a Temporary Mass Gathering or Mobile Food Establishment Event that possesses a current state mobile food establishment permit.
State Mobile Food Establishment Registration or Registration means a registration issued by the Department of Business Regulation which authorizes a mobile food establishment to operate in the state.
Temporary Mass Gathering means an actual or reasonably anticipated assembly of five hundred (500) or more people that continues, or reasonably can be expected to continue, for two (2) or more hours per day; or an event that requires a more extensive review to protect public health and safety because the event’s nature or conditions have the potential of generating environmental or health risks, and includes, but is not limited to, “special events” as defined in the food code regulations promulgated by RIDOH, and festivals and concerts, but shall not include an assembly of people at a location with permanent facilities designed for that specific assembly.
113.03 – Permit requirement; fees.
A. No person shall operate or maintain an MFE for the purpose of selling and distributing food or beverages within the Town unless the owner first obtains an MFE Registration from the DBR pursuant to RIGL §5-11.1-1, et seq, and receives an MFE Permit or Short Term Permit from the Town pursuant to this Chapter.
B. Any person or entity desiring to hold an MFE event must obtain an Event Permit from the Town prior to holding the event. Any event requiring the partial or full closure of a road or street or other use of public property shall also require a Special Event Permit under Chapter 100 of the Town Code.
C. Any person or entity desiring to hold a Temporary Mass Gathering must obtain a Temporary Mass Gathering Permit from the Town prior to holding the event. Any use of Town property other than a street shall also require specific approval from the Town.
B. The license fee for each such MFE permit operating with the Town shall be seventy-five dollars ($75.00) per year or any part of a year.
C. The license fee for each Short Term permit shall be thirty-five dollars ($35.00) per event, to be paid by the MFE Operator.
D. The license fee for each Temporary Mass Gathering Permit shall be three hundred dollars ($300.00), to be paid by the organizer.
E. The license fee for each Mobile Food Establishment Event Permit shall be thirty-five dollars ($35.00), to be paid by the organizer.
113.04 – Restrictions on permits.
A. The Town Council shall limit the number of MFET permits and MFEC permits to six (6) each per year, the issuance of which shall be limited to the authorized concession operators at Sachuest (Second) and Third Beaches. One MFE shall be allowed per permit. There is no limit on the number of Temporary Mass Gathering Permits or Mobile Food Establishment Event Permits, but applications for Temporary Mass Gathering Permits must be submitted to the Town Council for approval at least six weeks in advance of the proposed gathering, and any MFE attending a temporary mass gathering or special event must be identified by the organizer and must have a valid MFE license from DBR pursuant to RIGL 5-11.1-1.
B. The Town Council may deny, suspend or revoke a permit that the Town has issued if the operation of the registrant within the Town violates the Town’s land use regulations, zoning or other ordinances in relation to the operation of an MFE, unless deviations from land use regulations, zoning or other ordinances are specifically authorized by this ordinance.
C. The location and operation of MFE’s is limited to the concession areas of Sachuest (Second) and Third Beaches, by the authorized concession operators at said locations. Provided further, that licensed MFE’s shall be allowed to operate in other Zoning Districts at Temporary Mass Gatherings or Mobile Food Establishment Events, provided that a permit for such event has been issued by the Town.
D. The hours of operation for MFEs shall be between 8:00 a.m. and 7:00 p.m.; provided however, that hours of operation for Temporary Mass Gatherings or Mobile Food Establishment Events shall be between 11:00 a.m. and 10:00 p.m.
G. MFE’s shall comply with the Plastic Bag Regulations set forth in Chapter 92B of the Town Code.
113.05 – Application.
In addition to the information required by Rhode Island General Laws § 5-11.1-5, the application must include:
1. If the applicant is a business entity, all trade names and fictitious names used by the MFE;
2. The current email address and phone number of the operator of the MFE;
3. A completed taxpayer status affidavit;
4. Address where MFE is located when not operating; and
5. Any identifiable information regarding presence on the internet, including, but not limited to, website address and social media identifiers for Facebook, Twitter and/or Instagram.
113.06 – Approval, conditions, issuance of license.
A. No license shall be issued hereunder unless the Town finds that the applicant has received all necessary approvals with respect to the MFE from the Rhode Island Department of Health, DBR and the Department of Motor Vehicles, as applicable.
B. All permits under this chapter shall be issued by the Town Council, with the exception of Mobile Food Establishment Event Permits and Short Term Permits for private Mobile Food Establishment Events held on private property, which shall be issued by the Town Clerk, subject to compliance with all provisions of this chapter.
113.07 – Other requirements of operation.
A. The licensee shall comply with all provisions of law, ordinance, rule or regulation relating to the operation and maintenance of any MFE licensed hereunder, including licenses or permits for the sale of alcohol. The MFE license does not authorize the service of alcoholic beverages.
B. The licensee shall cause the license issued hereunder to be posted at all times in a conspicuous place on the mobile food service unit.
C. The licensee shall keep current a permit to make sales at retail from the State of Rhode Island Division of Taxation.
113.08 – Revocation or suspension of license.
The Town Council may revoke or suspend an MFE license after notice to the licensee and a public hearing for any of the following causes:
A. Upon receipt of a written complaint, the request of RIDOH or the state fire marshal, or upon its own initiative, the Town may place on probation, suspend, revoke or refuse to issue or renew a state MFE registration or may levy an administrative penalty or any combination of actions, for one or more of the following causes:
1. Providing incorrect, misleading, incomplete or materially untrue information in the registration application;
2. Violating any statutes, rules, regulations, ordinances or policies applicable to the safe operation of a mobile food establishment, specifically including the fire safety code and those set forth by the department, RIDOH and the state fire marshal;
3. Obtaining or attempting to obtain a registration through misrepresentation or fraud;
4. Having admitted to or been found to have committed any food safety or fire safety violation;
5. Using fraudulent, coercive or dishonest practices or demonstrating incompetence, untrustworthiness or financial irresponsibility in this state or in another place;
6. Having a registration or its equivalent denied, suspended or revoked in any other state, province, district or territory or administrative action under this section;
7. Operating an MFE without a current and valid registration;
8. Having its MFE license or fire safety permit denied, suspended or revoked;
9. Having a substantive complaint of foodborne illness or food related illness;
10. An MFE operator, vendor or principal thereof having been convicted of or pled nolo contender to a felony that is relevant to that person’s suitability for an MFE registration; or
11. Failure to comply with the Town’s zoning or other ordinances in operating the MFE, unless said operation is otherwise permitted hereunder.
B. The Town shall retain the authority to enforce the provisions of and impose any penalty or remedy authorized by this section against any person or entity who is in violation of this chapter or this title even if the person or entity’s registration has been surrendered or lapsed by operation of the law.