2018-05-11 / Front Page

Town ponders beach peddlers

By Duke Harrington Staff Writer

KENNEBUNK — For the second time since it was adopted by voters last year, Kennebunk’s parks ordinance is on the block for a do-over.

The rules governing behavior at 19 parks and three public beaches in town were adopted at the town meeting referendum last June, with 81 percent of the vote (1,198-281). But just 14 days later, officials realized a tweak was needed. In addition to a prohibition on knives that did not pass muster with state and federal laws, the new ordinance required that all parks and beaches “shall be closed from dusk until dawn.”

But, as Town Manager Mike Pardue pointed out, some parks — such as the Ethelyn Stuart Marthia Park, Tibbetts Plaza and the Waterhouse Center — hold events after sundown.

The beaches also were a curfew problem, Pardue said, particularly for the Fourth of July festivities. At general election polling this past November, voters agreed 2,955-633 (with 82.4 percent in favor) to remove beaches from the sundown sayonara.

But now, officials are looking to excise beachfront areas from the ordinance entirely.

That was the immediate result of a special selectboard workshop April 30, nominally called to consider what to do about “peddlers and vendors” on the town’s public beaches.

“The new park use ordinance, and the beach use ordinance that was already in place, they conflict with each other in a number of ways,” Community Development Director Chris Osterrieder told the board.

“But, really, taking into account the rules for street peddlers and vendors, you actually have three different ordinances which all touch upon the same thing, which is problematic,” Osterrieder said.

Those conflicts have come to a head over the question of allowing businesses to operate on the beach. One example is Get Out There! Fitness, run by Leslie Carroll-Fleming, who offers “Beach Boot Camp” exercise classes on the beach three times per week, from 6:15 to 8:30 a.m.

In April 2015, selectmen voted as a policy to bar peddlers from all town parks. In the parks ordinance, that includes the beaches. But under the beach ordinance, the town actually issues issues licenses to conduct business on the beach, so long as it is non-intrusive to regular beachgoers.

Meanwhile, in the street peddlers and vendors ordinance — which dates to 1923 and was last updated in March of last year — vendors are defined as those who sell food items, while peddlers are those “offering for sale tangible commodities.” Vendors are barred in the ordinance from operating in the Coastal Residential Zoning District and in the Resource Protection Zone abutting Beach Avenue and Great Hill Road. Peddlers are not.

So, the town both bars and licenses businesses from operating on the beach, while a business that provides a service, such as guided exercise classes, slips through the licensing cracks, as they sell neither food nor “tangible commodities.”

Meanwhile, the peddlers ordinance also says a peddler is a merchant with no fixed storefront, and Carroll-Fleming does have a location on Main Street, selectmen noted.

“We only regulate what we define. So, as I see it, they don’t need a permit,” Osterrieder said.

“I’ve got a license now for eight years,” Carroll Fleming said, prompting selectmen to jokingly request that she not ask for her money back.

The beach business license costs $50.

Some selectmen seemed to feel there should be no permit, but only in the sense that there should be no commercial activity on the beach.

“I think having programs on the beach opens it up to a lot of programs on the beach,” Selectman Ed Karytko said. “If you’ve got five different programs going on between 7:30 and 9 o’clock in the morning, you’re going to have complaints.”

Selectman Blake Baldwin reached the same conclusion, from a separate stance.

“As a business owner in town, I tell you, I would love to run my business without paying rent, without paying (real) property taxes, without paying personal property taxes. I mean, that would be the greatest thing I could imagine, but I don’t get to do that,” he said.

“There’s just something that seems fundamentally unfair to me in that,” Baldwin said, admitting that “I’m the reason,” former town manager Barry Tibbetts first introduced the new parks ordinance.

“Well, whether she is there or not there, people are still going to exercise on the beach,” Selectman Dan Boothby said.

Parks and Recreation Director Tasha Pinkham noted that the town does run its own exercise class on the beach, as well as a component of the Aquaholics surfing program. As town services, both are exempt from licensing, she said.

Baldwin noted that it costs $300 to rent the town hall auditorium and suggested that if the beach permit is revisited, selectmen should take a microscope to fees “systemwide.”

“I’ve been doing some research and other towns charge $1,000 to use their parks for the season,” Pinkham said.

“Well, it has to be relative,” Selectman William Ward said. “If you have 20 people exercising on the beach that should be a different charge than what you’d charge for the auditorium.”

According to Town Clerk Merton Brown, there are currently only two beach business permits issued — one for Get Out There! Fitness and one for the Aquaholics Surf Shop, for a portion of the surfing program not managed by the town rec department. Both were allowed to operate on the beach last year because they had already taken out their permits, which go into effect July 1, when the town meeting vote adopting the new parks ordinance that would have prohibited then took place. Brown said he has received two requests for permits for this coming season — one for a yoga class, another for a second exercise group — but advised both to hold off while selectmen settle the various discrepancies.

“What we need to do is align our terminology and redline each of these (ordinances) were we have a conflict,” board chairman Dick Morin said.

Pardue said Town Attorney Natalie Burns has recommended going to voters in November to remove all mention of public beaches from the parks ordinance. Then, the town can do the work of wiping all other conflicts from local codes, with an eye toward getting any decisions on permitting hammered out in time for the 2019 summer season.

Morin also suggested imposing a moratorium on new permits for this season.

Osterrieder asked what to do about Carroll Fleming, whose existing permit expires July 1. “I don’t actually believe they are a peddler. So, there would be no need for a permit and no need for a moratorium,” he said.

“So, you’re saying anyone can go down there (and provide a service-based business),” Selectman Christopher Cluff asked.

But that question was left hanging.

Morin, however, had a solution.

“What I meant by a moratorium is maintaining the status quo,” he said. “If you have a permit out today, you can renew that permit. That’s historical. We can honor the existing agreements pending revisions while imposing a moratorium on anything new.”

“I don’t want to argue with anybody or step on anybody’s toes,” Carroll-Fleming said. “I don’t want to be annoying people. I just want everything to be OK.”

Osterrieder said he could have a proposed overhaul to the relevant ordinances ready for review by selectmen “in about seven weeks.” Selectmen have the power to update the peddlers ordinance of their own accord, absent of a town vote, he said.

Karytko predicted interest in licensing business on the beach will attract public interest on par with recent meetings concerning dogs on the beach.

“I’d be really concerned if we didn’t address the problem of what we want down on the beach. It will be an incredible public discussion when we entertain this thing,” he said.

Staff Writer Duke Harrington can be reached at news@kennebunkpost.com.

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