Common Council approves measure to impound Bird scooters but asks state to legalize them

Elena Weissmann , Mary Spicuzza | Milwaukee Journal Sentinel

Show Caption Hide Caption Bird scooter supporters protest ban Bird scooter riders gathered at Milwaukee City Hall to support the use of the motorized scooters and oppose a proposed ban.

Don't call it a ban.

But Bird scooters could soon be impounded by the city under an ordinance approved overwhelmingly Tuesday by the Milwaukee Common Council and signed by Mayor Tom Barrett.

This means the city can legally impound scooters and Bird will need to pay $100 each to recover them. But residents will likely not be fined for riding any scooters left out on the streets, so long as they do not drive recklessly.

Language directly prohibiting motorized scooters was removed from the city's ordinance under a last-minute move by Barrett and Ald. Bob Bauman, the plan's sponsor.

The "softening up" of language appears to serve two functions: to shift the focus of the Bird dispute from the city to the state, and to allow for legal use of the scooters in Milwaukee should the state take action.

Bauman said the language changes in the ordinance were "basically to make it sound less harsh — the effect is the same."

But he insisted that he has no problems with scooters in general — and may even try riding them if they become legal.

"We're not anti-scooter. We're in favor of enforcing laws in a fair and equitable manner," Bauman said. "Personally, I have no problem with motorized scooters. I have a problem with a company that basically ignores the city's role as a referee of the public right of way, and just comes in here and does things without any discussion, any forewarning."

Barrett and Bauman stressed that the scooters are illegal under state law, and it's up to the state, not the city, to legalize them.

The scooters could become legal if the Legislature or state officials take action. The council also unanimously passed a resolution Tuesday urging the state to legalize scooters, signaling their willingness to give the scooters a chance.

In response to the Common Council's move, a Bird spokesperson maintained the scooters were legal under federal law.

"The City of Milwaukee passed an ordinance today giving local law enforcement authority to impound e-scooters being operated as ‘motor vehicles’ based on an interpretation of state law," the spokesperson wrote. "However, the Federal Government motor vehicle safety regulator NHTSA has affirmatively stated that scooters like those offered by Bird are not 'motor vehicles.' "

The statement continued, "We look forward to continuing our work with the City of Milwaukee and the State of Wisconsin to resolve this matter and provide the people of Wisconsin our clean energy solution for short distance trips."

The immediate response to the city measure was confusion over how aggressively it would be enforced.

The proposal passed on a 12 to 2 vote. Alds. Tony Zielinski and Khalif Rainey voted against the measure, with Zielinski raising concerns over how the city responded to Bird representatives.

"My understanding is that Bird attended a Public Works Committee meeting to speak ... (and) they were not afforded the opportunity to do so," said Zielinski, a 2020 mayoral candidate.

"We should have open communication with the company," he added. "It's critical that we have a transparent, open government system."

Bird fans chirp their protest

About a dozen protesters showed up at City Hall in support of Bird scooters.

Led by two Bird representatives, they held up colorful posters outside City Hall and chanted, "Don't ban Bird!" and "Save our scooters!"

Brothers Borna and Sina Riazi, who live in Menomonee Falls, were among the Bird supporters.

"We're here to the save the Birds!" said Sina, 17.

Borna, 19, called them an efficient way to get to work, and added that he likes riding them with friends.

Brad Smith of Wauwatosa, who joined the protest with his 12-year-old daughter Alma Hagopian-Smith, said they were there to support the idea of innovative transportation in Milwaukee.

Alma held a sign that read, "Evolve MKE. Free the bird."

"We want Milwaukee to be seen as an innovative city," Smith said. "These types of innovative approaches to transportation need to be supported. If they're not, I think it sends a message that Milwaukee's not very forward-thinking."

A path to legality

During a news conference after Tuesday's vote, Barrett called on the state to make motorized scooters like Bird legal.

"There is an issue here, and the issue is the state law," Barrett said. "The (ordinance) that I will sign today makes it clear that we want to see the state law change.

"If they are legal, we want them to be here in the city of Milwaukee," he added. "I think it's exciting that we've got many forms of transportation. I love buses, I love the streetcar, I love the Bublr bikes, and I think I'll fall in love with the scooters as well."

Barrett said he also supports a pilot study conducted by the city when and if the state makes them legal.

Aldermen have raised safety concerns as well as legality issues. If someone was injured while riding one of the scooters, it's not clear who would be held responsible — Bird, the rider or the city.

The word on Bird

Deputy City Attorney Adam Stephens issued Bird a cease-and-desist letter June 28, just days after they began operations. When Bird refused to budge, Stephens responded by filing a lawsuit against the scooter-share company July 6.

Bird scooters flock to Milwaukee Despite the City of Milwaukee taking legal action against the company, Bird Rides Inc., people are riding around town on these motorized scooters.

RELATED: Milwaukee residents continue to dodge $100 citations as Bird scooter use spikes

RELATED: Milwaukee police issue ticket to Bird rider after scooter hits pedestrian on Downer Ave.

In the lawsuit, Stephens argues the scooters are illegal under state law and the city is powerless to legalize their use.

Bird scooters have provoked similar responses from cities around the country, including San Francisco, Nashville, Tennessee, Miami and Denver. Its most recent location, Cambridge, Massachusetts, has deemed the scooters illegal and plans to meet with Bird representatives before taking any further action.

As in most of these cities and despite legal conflict, Milwaukee residents have demonstrated an overwhelmingly positive response to the scooters. People can be seen zipping all around the city on the small black scooters — along Lake Michigan, through downtown and even in certain suburbs, like Shorewood.

RELATED: Bird asks Milwaukee residents to protest scooter ban at Common Council meeting

RELATED: Enjoy Bird scooters while you can, because they likely won't be back until 2019