| State of Rhode Island | |
| | |
| OFFICE OF THE ATTORNEY GENERAL | |
| 150 South Main Street- Providence, Rl 02903 (401) 274-4400 | |
| | |
| Peter F. Neronha | |
| | Attorney General |
VIA EMAIL ONLY
June 9, 2020
OM 20-31
Ms. Carlene Anne Towne
Mark Davis, Esquire
Solicitor, Town of Narragansett
RE: Towne v. Narragansett Town Council
Dear Ms. Towne and Attorney Davis:
We have completed an investigation into the Open Meetings Act (“OMA”) complaint filed by Ms. Carlene Towne (“Complainant”) against the Narragansett Town Council (“Town Council”). For the reasons set forth herein, we find that the Town Council violated the OMA.
The Complainant alleges that an agenda item for the Town Council’s November 18, 2019 meeting did not sufficiently state the nature of the business to be discussed. Specifically, the Complainant contends that during an agenda item pertaining to liquor license renewals, the Town Council separately voted to amend the restrictions on one particular liquor license without providing proper notice. The subject agenda item stated:
“18. A MOTION TO APPROVE the renewal of the Alcoholic Beverage Licenses for the license period of December l, 2019 to November 30, 2020.”
The meeting minutes indicate that the Town Council considered and voted upon the renewal of liquor licenses for various particular businesses pursuant to this agenda item. For each class of liquor licenses, the meeting minutes indicate that the Town Council took a single vote to renew the licenses for all the particular businesses delineated in the minutes that hold that class of license.
Additionally, the meeting minutes reflect that the Town Council separately voted to amend and renew the liquor license for one business, Pier Liquors, Inc. (“Pier Liquors”), separately from the other businesses with Class A licenses:
“Motion by Councilor Lawler, seconded by Councilor Lema to approve the renewal of the Class A alcoholic beverage license for Pier Liquors Inc., dba Pier Liquors, 29 Pier Market Place for the license period of December 1, 2019 to November 30, 2020, with amendment to the restrictions of record to state:
‘The license shall not be transferable to a different location, but may be transferred to a different owner.’ So voted by 4 in favor, Councilor Pugh opposed.”[1]
Complainant does not take issue with the agenda item in general, but only with the Town Council amending the restrictions as to the Pier Liquors’ license and separately voting to renew that amended version, without providing notice. The Complainant explains that the Town Council had held a public hearing regarding all the liquor license renewals on November 4, 2019, but that the amendment to the Pier Liquors license was not raised at that time.
Solicitor Mark Davis provided a substantive response on behalf of the Town Council, which included an affidavit from Town Clerk Theresa C. Donovan. The Town Council explains that it is the licensing board for granting alcoholic beverages licenses in the Town, that all licenses are annually renewable, and that the Town Council holds a public hearing on the renewal of licenses each year. The Town Council maintains the propriety of the agenda item, noting that its decision “to renew the Pier Liquor alcoholic beverage license with modified criteria is exactly what the rules and regulations provide for. The renewal conditioned on amended stipulations was not a new or additional item, it was part of the renewal process that was properly noticed.”
In rebuttal, the Complainant agrees that she has “no complaint with any of the other numerous alcoholic beverage licenses that were renewed during that meeting,” but takes issue that Pier Liquor “was singled out” and its license was amended without notice.
When we examine an OMA complaint, our authority is to determine whether a violation of the OMA has occurred. See R.I. Gen. Laws § 42-46-8. In doing so, we must begin with the plain language of the OMA and relevant caselaw interpreting this statute.
The OMA requires that all public bodies provide supplemental public notice of all meetings at least forty-eight (48) hours in advance of the meeting. See R.I. Gen. Laws § 42-46-6(b). “This notice shall include the date the notice was posted, the date, time and place of the meeting, and a statement specifying the nature of the business to be discussed.” Id. (Emphasis added). In Anolik v. Zoning Board of Review of the City of Newport, the Rhode Island Supreme Court held that R.I. Gen. Laws § 42-46-6(b) requires the “public body to provide fair notice to the public under the circumstance, or such notice based on the totality of the circumstances as would fairly inform the public of the nature of the business to be discussed or acted upon.” 64 A.3d 1171, 1173 (R.I. 2013);
see also Tanner v. Town of East Greenwich, 880 A.2d 784, 797 (R.I. 2005) (appropriate inquiry is “whether the [public] notice provided by the [public body] fairly informed the public, under the totality of the circumstances, of the nature of the business to be conducted”).
The Complainant generally accepts that the agenda item provided notice that the Town Council would conduct a general vote on renewing all the liquor licenses that had been the subject of the November 4, 2019 public hearing.[2] We therefore assume without deciding that the agenda item provided notice that the Town Council would generally vote on renewing “the Alcoholic Beverage Licenses for the license period of December l, 2019 to November 30, 2020.” The record reveals that in addition to conducting a general vote to renew the licenses for each class of license, the Town Council also conducted a separate vote regarding Pier Liquors in which the Town Council voted to renew an amended version of that business’s license. The relevant agenda item did not mention Pier Liquors or provide notice that the Town Council would separately consider and take action on this one particular license. The agenda item only mentioned “Alcoholic Beverage Licenses” and did not provide notice that any particular licenses would be subject to separate consideration or amendment. Accordingly, we conclude that the pertinent agenda item failed to fairly encompass and provide notice of the Town Council’s discussions and vote during the November 18, 2019 meeting regarding the amendment and renewal of Pier Liquors’ alcoholic beverages license. We find that the November 18, 2019 agenda item did not adequately inform the public of the business to be discussed by the Town Council in this regard, and thus the Town Council violated the OMA. See R.I. Gen. Laws § 42-46-6(b).[3]
The OMA provides that the Office of the Attorney General may institute an action in Superior Court for violations of the OMA on behalf of a complainant or the public interest within one hundred eighty (180) days of public approval of the minutes of the meeting at which the alleged violation occurred. See R.I. Gen. Laws § 42-46-8 (a), (e). The Superior Court may issue injunctive relief and declare null and void any actions of the public body found to be in violation of the OMA. See R.I. Gen. Laws § 42-46-8 (d). Additionally, the Superior Court may impose fines up to $5,000 against a public body found to have committed a willful or knowing violation of the OMA. Id.
We note that there are no recent similar findings of violations against the Town Council. Although we find insufficient evidence of a willful or knowing violation in this case, this finding serves as notice that the Town Council’s conduct discussed herein violates the OMA and may serve as evidence of a willful or a knowing violation in any similar future situation.
Although, injunctive relief may be appropriate, we prefer to provide the Town Council the opportunity to remedy the violation. Therefore, within thirty (30) days from the date of this finding, the Town Council should reconsider and re-vote on the matter discussed at its November 18, 2019 meeting regarding Pier Liquors’ alcoholic beverages license at a properly posted and convened meeting. See Tanner, 880 A.2d at 802 (“By scheduling, re-noticing, and re-voting on the challenged appointment, the town council, albeit belatedly, was acting in conformity with both the letter and spirit of the avowed purpose of the OMA-to ensure that public business be performed in an open and public manner.”). Also within thirty (30) days, the Town Council should provide this Office, copying Complainant, with evidence that the above-described action has occurred.
Although the Attorney General will not file suit in this matter at this time, nothing in the OMA precludes an individual from pursuing a complaint in the Superior Court as specified in the OMA. The Complainant may pursue an OMA complaint within “ninety (90) days of the attorney general’s closing of the complaint or within one hundred eighty (180) days of the alleged violation, whichever occurs later.” R.I. Gen. Laws § 42-46-8. This file remains open pending the Town Council’s response.
We thank you for your interest in keeping government open and accountable to the public.
Sincerely,
PETER F. NERONHA ATTORNEY GENERAL
By: /s/ Sean Lyness
Sean Lyness
Special Assistant Attorney General
[1] After reviewing the video of the November 18, 2019 meeting, we confirm that these meeting minutes accurately reflect the discussion and vote.
[2] We question whether the entire agenda item, which did not identify any of the particular licenses subject to renewal, provided sufficient notice. However, since the Complainant did not challenge the entire agenda item, but only the discussion and action with regard to Pier Liquors, we limit our finding to the Town Council’s particular discussion and action regarding Pier Liquors. The Town Council may wish to heed our concern. See generally Anolik, 64 A.3d 1171.
[3] The Town Council argues that Pier Liquors’ license was subject to unique restrictions and it was thus appropriate for the Town Council to review and consider amended restrictions as part of the license renewal process. The issue before this Office is not the propriety of the Town Council amending the restrictions on the license, but rather whether it provided proper notice under the OMA that Pier Liquors’ license would be separately considered and acted upon during the meeting. Although it may very well be appropriate for a licensing body to amend restrictions on a particular business’s license pursuant to an agenda item regarding the renewal or approval of that business’s license, here the Town Council did not give notice that any particular business’s license would be separately discussed, subject to particular amendment, or voted upon apart from all the other licenses.