BEACH BUSINESS ORDINANCE NO FINAL DRAFT ORDINANCE NO. 1594

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1 BEACH BUSINESS ORDINANCE NO. FINAL DRAFT ORDINANCE NO. AN ORDINANCE OF THE CITY OF COCOA BEACH, BREVARD COUNTY, FLORIDA, AMENDING THE CODE OF ORDINANCES SECTION - CERTAIN SALES AND LEASES ALONG THE OCEAN BEACH PARK ARE PROHIBITED ; ESTABLISHING A PROCEDURE FOR OBTAINING A BEACH BUSINESS LICENSE AGREEMENT FOR COMMERCIAL ACTIVITY IN THE OCEAN BEACH PARK; PROVIDING FOR TERMINATION AND ASSIGNMENT OF A LICENSE AGREEMENT; AND, PROVIDING FOR INCORPORATION OF RECITALS, SEVERABILITY, INTERPRETATION, CONFLICTS, AND AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Cocoa Beach has identified that a procedure is necessary for a beach business under the present Code provisions regulating commercial sales, rentals, and operations in the Ocean Beach Park, and regulations are necessary to support and implement provisions of the Preamble of the City Charter specifically to further the interest of all citizens of Cocoa Beach in the establishment of a low-density residential and family-oriented resort community with paramount consideration given to the health, safety, and welfare, comfort, and quality of life for all citizens ; and, WHEREAS, the purpose of these Beach License Agreements is to reasonably permit the solicitation and immediate sale or rental of certain goods and services which serve a public need directly in the Ocean Beach Park and which are not themselves a nuisance or detriment to public safety, without unreasonably interfering with the flow, recreation, enjoyment and privacy of persons otherwise upon the sand beach areas; and, WHEREAS, proper regulation of the Ocean Beach Park is important for maintaining the quality of life, safety and health of the City; and, WHEREAS, the City Commission has determined that the cost and expense of maintaining the Ocean Beach Park and preserving beach safety is a substantial cost to the City, it is appropriate that a portion of such expenses be borne by those utilizing the Ocean Beach Park to operate a beach business and thus profiting from its safe, attractive and well maintained condition; and, WHEREAS, the City Commission held two () duly noticed public hearings on, 0, and on, 0, to consider this amendment and has posted and provided public notice of this Ordinance in accordance with City Code and Florida Statutes; and, WHEREAS, the City Commission finds that this ordinance will promote the public health, safety, welfare, economic order and public interest. NOW, THEREFORE, BE IT ORDAINDED BY the City Commission of the City of Cocoa Beach, Florida: SECTION : The above recitals are true and correct and by this reference are hereby incorporated herein and made an integral part hereof as though fully set forth herein. SECTION : Section - Certain sales and leases along the Ocean Beach Park are prohibited; punishment for violations of the Code of Ordinances of the City of Cocoa Beach, Florida is hereby amended to read as follows: Section. -. Certain Sales and leases along the Ocean Beach Park are prohibited. A. It shall be unlawful for anyone to conduct a beach business for the sale or rental of any merchandise, services, or goods of any kind or character in the City s Ocean Beach Park, within the corporate limits of the City, without first obtaining a license to operate a business, which is described as a Beach License Agreement. (License Agreement)

2 The City will require the applicant for a License Agreement to comply with all terms of the license agreement and to provide required information, including but not limited to the following: a. Applicant s name, permanent address and local address (if different); b. Applicant s age, sex, height, weight, and other identifying characteristics; c. Brief description of the nature of the business and the goods or services to be sold or rented; d. Length of time desired to conduct the business (Not to exceed five () years); e. A current photographic likeness of the applicant sufficient to establish identification; f. Whether the applicant has been convicted of a crime, and if so, the nature of the crime; g. Written authorization for a background criminal history check; h. Any applicant who has been adjudicated guilty or pled nolo contender to any of the following offenses shall be prohibited from receiving a License Agreement in the City; (i) Any felony involving violence, regardless of the time elapsed; (ii) Any crime against children, regardless of the time elapsed; (iii) Any drug offense regarding possession with intent to distribute, regardless of time elapsed; (iv) Any felony conviction within the prior seven () years; (v) Any conviction involving moral turpitude within the prior seven () years. i. Necessary insurance as required by the City; j. A License Agreement is required with an Application Fee and a License Fee to be based and calculated on the area designated as the Granted Location where such business would be allowed. k. The City requires a current telephone number or other type of contact information for the License Holder/business that is operational / and updates as to any changes in contact information must be provided immediately. The City must be able to contact the vendor at all times as to emergency weather events, other types of emergencies and also with regard to public complaints or concerns. Failure to keep the City current as to contact information may result in Termination of the License Agreement under (J)(). B. A License Agreement shall be required in order to conduct a beach business for the sale or rental of any merchandise, services, or goods of any kind or character.. The License Agreement shall grant the right to sell or rent specified goods or services directly in the Ocean Beach Park and extending easterly therefrom to the City s municipal boundary of,000 feet east of the mean high-water line, and within a defined Granted Location, which shall be specifically defined within the License Agreement.. The License Agreement shall allow an established number of beach rental equipment set-ups, as negotiated between the applicant and City for each individual application submitted, such as chairs and umbrellas, or other such items at any given time, and all set-ups shall be located wholly within and confined to the defined and Granted Location as specifically detailed within the License Agreement.. It shall be unlawful for any person, association of persons, or legal entity, directly or indirectly, or through or as an owner, agent or employee, or in any other capacity, to sell, or lease, or in any way to offer to deliver or transfer, or to deliver or transfer, for cash or on credit, or to participate in any manner towards the accomplishment of any of the foregoing, any merchandise of any kind, including, but not limited to, beach equipment, beach recreational equipment, food and beverages or to operate, solicit, transact or conduct any business, profession or occupation upon any portion of the Ocean Beach Park including the Sea Dune Area as defined in Section -0 of the City Code, unless such activities are pursuant to the City s granting of a valid License Agreement or as may be authorized by approval of a Special Event application.. The License Agreement shall provide a non-exclusive authority to sell or rent goods or services but shall provide exclusive authority as to the sale or rental of goods or services directly within the Granted Location in the Ocean Beach Park that is specifically detailed within the License Agreement.

3 C. The application for a License Agreement shall be obtained from the Development Services Department and shall be in writing on a form prescribed by the City and shall meet the following conditions:. A License Agreement application cannot be accepted without written authorization from the private upland property owner, authorizing the applicant to conduct said beach business on and/or seaward of their property.. A non-refundable application fee to cover the costs of processing, criminal history checks and verification of eligibility must be submitted with the application and renewal of any applications. This application fee and the schedule of all fees and charges relative to the License Agreement shall be authorized and approved by Resolution of the City Commission and made available in the offices of the City Clerk and the Development Services Department.. In the application, an explanation is required as to where the vendor will store equipment or materials. The applicant must provide a location for same within a close proximity to the Ocean Beach Park, where applicable, since no equipment or materials may be stored in the Ocean Beach Park/or Sea Dune Area and extending easterly therefrom to the City s municipal boundary. Written authorization from the owner of the property designated for storage must be included if required. A current local business tax receipt (BTR) license must be applied for, secured and kept on file with the City; the applicant must acquire and maintain policies of insurance which name the City as a named insured party in the minimum amount of $,000, for any one accident or any one person and $0, for any property damage; and the applicant must apply for, acquire and maintain all required Federal, State and county licenses or permits and provide the City with a hold-harmless agreement.. The City has determined that a total of fifteen () business locations, as determined by need and/or demand, may be located in the City s Ocean Beach Park, to control overcommercialization of the public Ocean Beach Park. One () applicant may have multiple License Agreements at one () or more locations, as authorized by the upland property owners, and as approved by the City. Since no discounts are provided for obtaining multiple Licenses, each separate and additional License must be applied for and paid for separately, including the full and additional Application and License Fees. Separate License Agreements will be issued for each separate License approved by the City, since no more than one () License will be permitted per License Agreement.. The License Agreement allows the License Holder to conduct and transact business in the City s public Ocean Beach Park where many tourists, families and children recreate, the applicant shall be required to disclose the name or names of all persons who may be conducting business in the City s Ocean Beach and such disclosure shall be current at all times. The applicant and all prospective employees shall be subject to a criminal history search conducted by the City s Police Department to insure the safety of visitors and residents and to eliminate those convicted of a crime involving moral turpitude.. The License Holder shall specify the Granted Location in the City s public Ocean Beach Park and any area extending easterly therefrom to the City s municipal boundary, where the applicant would seek to operate its beach business. The beach business shall be operated in a zoning district where such a business is permitted and approved. Under no circumstances shall the License Holder be permitted to stake-off and/or otherwise physically delineate the Granted Location boundaries of their beach business through the use of ropes, stakes, flags or any other physical items.. The application must provide a detailed listing of all goods and services that the License Holder plans to sell or rent.. No equipment or materials or any other beach business related items of any kind shall be stored in the Ocean Beach Park including the Sea Dune Area at any time or for any reason, without specific prior approval from the City. No Beach business related items may be left out in the public Ocean Beach Park overnight, such as beach rental equipment, recreational equipment, or equipment which assists the License Holder in the daily operation of their Beach business.. License Holder shall identify how it will transport equipment and materials to and from the Ocean Beach Park and obtain written approval from the City for same. Operating motorized vehicles are strictly prohibited in the Ocean Beach Park or in the Sea Dune Area as defined by

4 the City Code of Ordinances, Chapter, Article IV, Section -. ADA approved wheelchairs for use on the beach may be used to assist the physically disabled. 0. The License Holder shall be permitted to operate their Beach business between the hours of dawn to dusk throughout the calendar year. Nighttime operation of the Beach business is strictly prohibited, and no illumination in the Ocean Beach Park or in the Sea Dune Area will be permitted at any time during the operation of the beach business.. At no time shall the License Holder be permitted to actively solicit business from beach patrons at the public Ocean Beach Park access points, nor shall any signage or equipment be permitted in any way to block and/or hinder public access to the Ocean Beach Park or be located anywhere outside of the approved Granted Location.. Signage - The License Holder shall limit advertising signage to: a. Three () different signs on the storage unit(s), up to sq. ft. in total sign area. b. Two () signs up to sq. ft. each for safety/regulatory and pricing information, per storage unit. c. All signage must be attached and secured to the storage unit(s) as approved by the Chief Building Official. d. One () portable sandwich sign for each business stand which shall not exceed nine () square feet in total size and be located within twenty (0) feet of the Beach business stand within the Granted Location, but it shall in no instance interfere with pedestrian traffic or public Ocean Beach Park access. e. Other forms of advertising such as uniforms, displays of goods, merchandise and services and City approved signage as described herein.. All storage units shall be located on the upland private or public property, off of the public Ocean Beach Park and Sea Dune Area. Should upland storage be required for the beach business, an appropriate and separate Business Tax Receipt (BTR) License shall be required by the City for storage.. If the License Holder plans to locate storage units on upland public property off of the Ocean Beach Park and Sea Dune Area, same shall be required to receive approval from the City and a determination shall be made by the City as to the appropriate rental fees due for the use of the upland public property and/or parking space(s).. A License Holder shall pay a Beach Business License Fee as established by Resolution of the City Commission of the City of Cocoa Beach. Said License Fee(s) shall be in addition to the Business Tax Receipt (BTR) License Fee(s) due to the City to allow the business to operate in the City, and/or for storage. Should the License Holder be required to rent or lease publicly owned property, in order to operate a Beach business, an additional public property rental fee(s) shall apply and be payable to the City.. The License Holder s Granted Location may be modified or adjusted by the City, as necessary, to address public access or safety considerations. D. In considering any application submitted for a License Agreement under this Section, the City shall consider the following criteria in addition to the application specifications:. The effects the proposed business would have on the public s use and enjoyment of the City s public Ocean Beach Park;. The effects the proposed License Holder s business or its employees would have on public safety;. The performance and criminal history of the proposed License Holder and its employees if any;. The environmental impacts of proposed Beach businesses activities;. The number of Beach business locations currently in existence, if a new location is requested;. Any other criteria deemed relevant by the City. E. Following receipt of an application for a License Agreement, the City Manager or his designee shall have thirty (0) days to consider the application for approval. Approval shall be based on the criteria provided in Section D above, and review as to the completeness of the Application and appropriate vetting pursuant to Section D() above. The City may approve, approve with conditions or deny the request for the License Agreement.

5 F. Any person or entity denied a License Agreement by the City under Section E above, may not reapply for one () calendar year from the date of denial. Should the applicant decide to appeal this and/or any other decision of the City, the applicant may make an appeal to the City Board of Adjustment. An Appeal from a decision of the Board of Adjustment shall lie only to the courts. G. The term of the License Agreement shall be for five () years, or for the term approved by the upland property owner, whichever term is shorter. The License Agreement term shall at all times run coexistent with the same term authorized by the upland private property owner, and in no circumstance will the term of the License Agreement run longer than the term of the agreement with the upland property owner. Nothing in this or in any other ordinance, resolution, agreement or document of the City of Cocoa Beach shall be construed to mean or imply that any License Holder shall be permitted to continue their License Agreement for any period of time beyond the term outlined and defined in the License Agreement. The power and authority to approve or deny a License Agreement application rests solely with the City Manager and his/her designee. H. All active License Holders, whose upland property owner is the City of Cocoa Beach, upon expiration of their current License Agreement, and all subsequent License Agreements, shall be required to go through the publicly advertised and offered Request For Proposal (RFP) submittal, selection and approval process, along with any other applicants interested in applying for available future License Agreements. All other License Agreements will be reviewed for conformance at the five () year interval, and relicensed if requested and approved by the upland property owner and the City for another five () year term. I. Any person or entity, whose business is properly licensed within the City, and who does not transact commercial business in the Ocean Beach Park, may utilize the Ocean Beach and any area extending easterly therefrom to the City s municipal boundary, which is not in conflict with a License Holder s Granted Location, for physical instruction such as yoga, surfing and/or swimming lessons or other appropriate physical instruction without obtaining a License Agreement. The City Manager, or his designee, is authorized to set terms of use, conditions of operation, or require that such instructional operations obtain a License Agreement if same are found to be transacting business in the Ocean Beach Park, or of such magnitude that they are determined to require additional review by the City. J. Termination of the License Agreement.. The License Holder may terminate this agreement by giving sixty (0) days written notice to the City. To coincide with, or prior to any termination event by License Holder, all stand(s), storage unit(s) and beach rental equipment or any other business related items shall be removed from the Granted Location and/or City property.. The right(s) of the License Holder may be terminated for cause by the City upon sixty (0) days written notice by certified U.S. mail to the License Holder upon the occurrence of one of the following events or conditions: a. Failure of License Holder to pay the amount(s) due by the due date(s) for the Business Tax Receipt (BTR) License(s), the License Agreement and/or any storage fees. The City agrees to a 0 day grace period from the due date(s) accepted for this Agreement. b. Failure of the License Holder to maintain their stand(s), storage unit(s) and their granted location in clean condition and in good and operable repair, including the ability of the stand(s) and storage unit(s) to be removed from the area as required within hours of a demand to do so by the City. c. Failure of the License Holder to update and maintain: the insurance coverage required in Section C(); and, all required and applicable State, County and City Food and Beverage health safety licenses, should this License Holder be permitted to sell said items by its License Agreement. d. Failure of the License Holder to comply with the terms, limitations or conditions specified in its Agreement. Three () documented incidents of violations to any of the terms and conditions specified in this Agreement, during its duration are grounds for termination of the License Holder s Agreement and rights thereunder.

6 e. Should the upland property owner at any time revoke or rescind their agreement with the License Holder, for any reason or at any time during the duration of the License Agreement then the License Agreement with the City shall become null-and-void and terminated on the same date in which the upland property owner s termination of their agreement becomes effective. A License Agreement cannot be licensed to operate by the City without written authorization from the upland property owner. If the upland property owner terminates their agreement with the License Holder due to the sale of the upland business, or for any other reason beyond the control of the License Holder, and as approved by the City Manager, the annual fees already paid for any unused portion of the remaining year of the License Agreement may be reimbursed by the City to the License Holder on a pro-rated basis. f. Abandonment of the Beach License Agreement the failure of the License Holder to conduct or operate its business at the Granted Location for a continuous three () month period of time. g. If the License Holder or its employees are convicted of a misdemeanor or felony, or any violation and conviction involving moral turpitude, that shall be grounds for termination of the convicted employee, and/or the termination of the License Agreement and rights thereunder as determined by the City Manager or his designee. h. Filing of Bankruptcy by the Beach License Holder. i. Three() Reports and or complaints within 0 days to the City concerning misconduct as to the License Holder and/or the License Holder s employees as to fights and/or disturbances at the License Holder s Granted Location. See paragraph J()(d) above. j. The expiration date of this agreement. K. Assignment /Sale of the License Agreement.. This Agreement may be assigned or sold. The new owner or assignee must satisfy all of the City s requirements to secure and maintain a license under this Section.. A complete application package must be submitted to the City Manager or his/her designee.. The application package must detail that the proposed assignee meets and/or exceeds the requirements for the granting of a license.. The proposed assignee, like the existing License Holder, is required to provide written authorization from the upland property owner that they are authorized to conduct a Beach business in the Granted Location.. The proposed assignee must apply for a new License Agreement, and if necessary an agreement concerning the rental of public property upon the expiration of the current License Holder s Agreement.. The proposed assignee must also apply for, secure and keep current any new City Business Tax Receipt License(s) (BTR), and comply with the insurance requirements outlined under Section C(), and all other rules and regulations as required for obtaining and operating a City of Cocoa Beach - Beach License Agreement.. Any attempt to assign this Agreement without prior written consent, and the required application approvals of the City shall render the assignment and/or the sale of the License Agreement null-and-void with respect to the assignee. SECTION : Severability. If any provision of this Ordinance or the application thereof to any circumstances is held invalid, the invalidity shall not affect other provisions or applications of the Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of the Ordinance are declared severable. SECTION : Conflicts. All ordinances or Resolutions or parts of Ordinances or Resolutions in conflict herewith are hereby repealed. SECTION : Effective Date. This Ordinance shall become in full force and effect upon adoption in accordance with the Charter of the City of Cocoa Beach, Florida.

7 0 Upon Motion by Commissioner Seconded by Commissioner this Ordinance was duly adopted at a Regular Meeting of the City Commission of the City of Cocoa Beach, Florida, held on the day of, 0. Ayes: Nays: Absent or Abstaining: Tim Tumulty, Mayor-Commissioner ATTEST: Loredana Kalaghchy, CMC City Clerk First Reading: Date Posted: Date Published: