Segway tour company, Orlando Gliders (also known as Boston Gliders) has filed a “Motion to Dismiss and Memorandum of Law” taking aim at the 2011 City of Boston ordinance regulating the use of personal assistive mobility devices and associated violations the company received primarily for operating on the Harborwalk. Boston by Segway operates at 420 Hanover St., on the corner of Commercial St. in the North End. A summary excerpt from the document appears below:
In summary, based on the facts and authorities set forth herein this motion, the ordinance is vague, overbroad (facially and as applied), violates the 1st Amendment of the U.S. Constitution and the free speech provisions of the Constitution of the Commonwealth, it violates the commerce clause of the U.S. Constitution, it violates substantive and procedural due process guarantees of the U.S. Constitution and the Constitution of the Commonwealth, it violates the Home Rule provisions of the Constitution of the Commonwealth, the Ordinance is preempted by the Federal regulatory scheme, it improper delegates discretionary authority to the Boston Police Department, it is an illegal bill of attainder, and it contains an illegal fine scheme.
The defendant has not been provided with the complaints and factual basis for the violations at this time. By agreement with the Commonwealth, the defendant reserves the right to challenge these factual bases. When provided with these factual bases, the defendant avers that the there is no factual basis to impose liability based on fact the Segway devices were on the Harbor Walk (a permitted area) at the time of the alleged offenses, the enforcing agents failed to properly ascertain the name and affiliation of any operators, and otherwise the defendant is not liable or guilty for violations of the Ordinance.
Accordingly, the ordinance must be set aside and the cases before the Court dismissed.
The full 46-page Motion to Dismiss can be downloaded here (MS Word file).
I am not a Constitutional scholar or a lawyer but how does a law that requires Segways to say the hell off of the sidewalks violate the first amendment?
” Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Is he arguing that his Segway tours constitute peaceable assembly of people and NOT a violation of the public’s right to walk on sidewalks without the threat of being run over by tourists who took a 15 minute lesson driving a motorized device? I don’t think so
Joyce, Yes yes we know we only have completed 100,000 people by Segway and still you are talking about the hope or possibility of some one getting hit. Keep carrying the torch.
I’m glad to see you know or understand so much of the situation.
The new Boston ordinance went so far in its flawed attempt to ensure the companies revenue is affected.
Part of the new ordinance allows the segway company to advertise for it’s self however it does restrict advertising for other companies.
However you feel, an reasonable person would see the law was passed on a biased based platform. Based on no facts and the opinions of city workers that again refuse to listen to actual facts and follow the federal law and guidelines.
Why are there rules for how, where and when segway’s will operate if they are on the street? How come Segway tours are the only regulated type of tour? How come only Segway tour guides are regulated? Group size?
So when 30 bikes are in a tour on the street! but 6 segways can’t. Segway’s must remain at 8MPH on the street Bike tours go 12MPH. No other type of tour must submit routes. No other type of tour guide must submit to approval. You have walking tours that block the sidewalk, have no location or business in the city of Boston. Meet their customers in a public city park and sell tickets. The city cites reasons like commerce yet collect no taxes from these companies, do nothing to regulate them, and allow them to conduct business on city property every day.
I remember when neighbors complained about segway’s parked on the sidewalk. Now everyday you have a hundred bikes parked in front of all 3 Urban Adventours stores blocking half the sidewalk. The best is when they travel across the street to the Christopher Columbus Park and stage and train there customers on their bikes. However bikes are not allowed in the park. On any given day you see 20-30 of them riding down from the middle of the park all lined up heading out to the street.
Why in the ordinance are segway companies required to have a inside location to train? and not a bike company? Is that because the mayor likes and endorses bike use? I know everyone knows how to use a bike right? Everyone knows the rules of the road right? No everyone does not know how to ride a bike or operate that type of bike. I challenge you to go some day and hear some questions people have.
Why are walking tours allowed to operate a business with out a license, location, or any type of background or certification.
If you have not caught the idea yet that the city discriminated against one company in a set of demographic class. This is called Trade Restriction.
The proper way for the city to deal with this would have been to create an Travel Association or Tour Association.
This way all Tour Guides will be certified, background checked and trained on the correct information and process.
All Tour companies would be required to have insurance, an physical location and office inside the city of Boston and pay taxes.
All tour companies would have to submit routes and get them approved base on facts, not opinions. This would include foot count and traffic counts through those route areas.
In closing if the issue is really the sidewalk, and commerce on the sidewalk, how then is blocking the sidewalk allowed to happen without a police detail?
To illustrate some points, Pedicabs parked on the sidewalk every night on the corner of Hanover St. How about the fact that Giacomo’s uses the sidewalk as a public waiting room every day.
You may not like the Segway’s or just the idea of them. Keep in check that in 2011 55,000 people came to the North End to do the Segway Tours. If we left where will those people shop, eat? If you need a clear idea just ask stores and restaurants on Warren St. the lunch crowd went from 100 a day to 10 when we moved to 73 Commercial St. Yes I am saying that 55,000 people did come, and did go spend money in the North End after wards. Yes some of them would still come and enjoy the shops and restaurants. Just start to ask, look for one business that can say someone was not in there shop this week because they where here taking a Segway tour.
So picture we move maybe to Fort Point, or Kenmore? Do you thing those people are going to get in a cab and come to the North End to have lunch. The best is the Segway Tours will still come to the North End, the only loss would be to the local business. Get ready because in 2012 we are only going to provide 75,000 tours. Please just keep up the story press the issue, and soon very soon it will be like McDonalds a line all day.
This is just one of the parts that violates Federal Law. I have for your light reading included the Federal part.
Advertising Is Protected by the First Amendment
The question is often asked: Does the First Amendment protect advertisements? Advertising is indeed protected by the First Amendment of the U.S. Constitution. However, advertising or “commercial speech” enjoys somewhat less First Amendment protection from governmental encroachment than other types of speech. The Federal Trade Commission (FTC), for example, may regulate speech that is found to be “deceptive.” And the FTC keeps stepping up the types of commercial speech it regulates. Moreover, it uses a variety of tools to do so, but that is a discussion for another article.
Under the landmark U.S. Supreme Court decision, Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, No. 79-565, Supreme Court of the United States, 447 U.S. 557; 100 S. Ct. 2343; 1980 U.S. LEXIS 48; 65 L. Ed. 2d 341; 6 Media L. Rep. 1497; 34 P.U.R.4th 178, June 20, 1980, a state must justify restrictions on truthful, nonmisleading commercial speech by demonstrating that its actions “directly advance” a substantial state interest and are no more extensive than necessary to serve that interest. This is the so-called Central Hudson Test.
Commercial speech now clearly has prominent place in the rights protected by the First Amendment. A 1993 Supreme Court opinion summarized the general principles underlying the protection of commercial speech:
“The commercial market place, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not the government, assess the value of the information presented. Thus, even a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment.” (Edenfield v. Fane, 123 L. Ed. 2d 543, 113 S. Ct. 1792, 1798 (1993).)
At one time, purely commercial advertisements were considered to be outside the First Amendment’s protection. (See Valentine v. Chrestensen, 316 U.S. 52, 54, 86 L. Ed. 1262, 62 S. Ct. 920 (1942). That case, which was overruled, said the Constitution imposes no restraint on the government as to the regulation of “purely commercial advertising”.
While the U.S. Supreme Court has often acknowledged this constitutional protection, the Supreme Court’s decisions have recognized the “‘common sense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” (Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 455-56, 56 L. Ed. 2d 444, 98 S. Ct. 1912 (1978) (citing Virginia Pharmacy Bd. v. Citizens Consumer Council, 425 U.S. 748, 771 n.24, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976)).
These distinctions have led the Court to conclude that “the Constitution . . . affords a lesser protection to commercial speech than to other constitutionally guaranteed expression.” U.S. v. Edge Broadcasting Co., 125 L. Ed. 2d 345, 61 U.S.L.W. 4759, 4761 (1993) (citing Board of Trustees v. Fox, 492 U.S. 469, 477, 106 L. Ed. 2d 388, 109 S. Ct. 3028 (1989), Central Hudson Gas & Electric Corp. v. Public Service Com., 447 U.S. 557, 563, 65 L. Ed. 2d 341, 100 S. Ct. 2343 (1980), and Ohralik, 436 U.S. at 456)).
Thanks and I welcome any emotional free conversation.
Al Danley
617-670-4200
“Joyce, Yes yes we know we only have completed 100,000 people by Segway and still you are talking about the hope or possibility of some one getting hit. Keep carrying the torch.
I’m glad to see you know or understand so much of the situation.”
and then…
“Thanks and I welcome any emotional free conversation.”
Al, I guess sarcasm doesn’t count as “emotional” conversation… typical Boston hypocrisy
Well, at least he is letting us know he intends to be a disruption and a vindictive, spiteful, and hateful presence among us. “So picture we move maybe to Fort Point, or Kenmore? Do you thing those people are going to get in a cab and come to the North End to have lunch. The best is the Segway Tours will still come to the North End, the only loss would be to the local business. Get ready because in 2012 we are only going to provide 75,000 tours. Please just keep up the story press the issue, and soon very soon it will be like McDonalds a line all day.” I’ve got news for you, Al. Your business couldn’t function if it were moved to those two locations because you’d have to find a way to reconcile the tour and the wear and tear with the new distance. Segway people take their ride and bolt out of the neighborhood. A lunch spot right next to the business might be one exception.
Because I try to be fair, I should state that something has changed with regards to tour operation. I have experienced whole groups deferring to me as a pedestrian. And I have not seen a sidewalk used by the tour since I can remember. I hope this is part of the updated training. I believe we can co-exist.
But I believe Al’s business has to be granted every right it deserves. And that Al himself needs to be a better neighbor as regards his vile and threatening tone. If you take pleasure in making misery with us, Al, perhaps you should move. It’s only a matter of time. Because the will of the people always finds a way of winning the war, chapter and verse arguments aside.