HomeMy WebLinkAboutOrdinance No. 14-2010ORDINANCE NO. 14 -2010
AN ORDINANCE OF THE CITY OF CAPE CANAVERAL,
FLORIDA, AMENDING CHAPTER 54, PARKS AND
RECREATION, OF THE CODE OF ORDINANCES;
AUTHORIZING THE CITY COUNCIL TO AWARD
FRANCHISES FOR COMMERCIAL VENDING ACTIVITIES
ON THE CITY'S BEACHES BY COMPETITIVE BID
PURSUANT TO CERTAIN REQUIREMENTS AND
RESTRICTIONS; PROVIDING FOR THE REPEAL OF
PRIOR INCONSISTENT ORDINANCES AND
RESOLUTIONS; INCORPORATION INTO THE CODE;
SEVERABILITY; AND AN EFFECTIVE DATE.
WHEREAS, the City is granted the authority, under Section 2(b), Article VIII, of the State
Constitution, to exercise any power for municipal purposes, except when expressly prohibited by
law; and
WHEREAS, at the time the City of Cape Canaveral was incorporated in 1963, its City
Charter provided that the use of the ocean beach for public recreational purposes was paramount to
its use for any other purpose; see Ch. 63 -1197, Article II, § 1(9), Laws of Fla ; and
WHEREAS, consistent with this Charter provision, the City has traditionally restricted any
commercial activities from occurring on its beaches; and
WHEREAS, the City desires to permit limited commercial vending activities on its beaches
in an effort to enhance and improve the experience of beach - goers; and
WHEREAS, the safety, welfare and convenience of the persons that reside near the beaches
of the City of Cape Canaveral and of the public that recreate on the beach are of the utmost
importance to the City and to the City Council; and
WHEREAS, it is the intent of this Ordinance to allow limited commercial vending activities
on City beaches provided such activities do not adversely effect the safety, welfare and convenience
of persons that reside near beaches and of the public that recreate on the beach; and
WHEREAS, the City Council desires to permit commercial beach vending activities by
franchise agreement pursuant to the conditions and limitations set forth herein; and
WHEREAS, the City Council of the City of Cape Canaveral, Florida, hereby finds this
Ordinance to be in the best interests of the public health, safety, and welfare of the citizens of Cape
Canaveral.
BE IT ORDAINED by the City Council of the City of Cape Canaveral, Brevard
City of Cape Canaveral
Ordinance No. 14 -2010
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County, Florida, as follows:
Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by this
reference as legislative findings and the intent and purpose of the City Council of the City of Cape
Canaveral.
Section 2. Code Amendment. Chapter 54, Parks and Recreation, of the Code of
Ordinances, City of Cape Canaveral, Florida, is hereby amended as follows ( underlined type
indicates additions and strikeout type indicates deletions, while asterisks (* * *) indicate a deletion
from this Ordinance of text existing in Chapter 54. It is intended that the text in Chapter 54 denoted
by the asterisks and set forth in this Ordinance shall remain unchanged from the language existing
prior to adoption of this Ordinance):
CHAPTER 54. PARKS AND RECREATION
ARTICLE I. IN GENERAL
* **
Sec. 54 -4. Commercial solicitation.
No person shall solicit, canvass or merchandise for the sale or rental of merchandise,
services, goods, promotional schemes, advertising programs or property of any kind or character in
the following locations in the city:
1. All of the sand beach areas between the Atlantic Ocean and the city set back line for
beachfront lots except as authorized by franchise agreement pursuant to section 54 -5, here
2. All public parking lots and facilities for beach or park access, including dune
crossovers.
3. All publicly owned parks.
The words "solicit" or "canvass" as used herein shall include any act, delivery or exchange
not initiated by the prospective customer, which directs attention to any business, mercantile or
commercial establishment or enterprise, or any other commercial activity, for the purpose of directly
or indirectly promoting commercial interests through sales, rentals or any exchange of value.
Sec. 54 -5. Commercial Beach Vendor Franchises. Reserved.
(a) Authority The City Council may enter into franchise agreements rg antin the right,
privilege and franchise to use the sand beach areas within the City's Jurisdictional boundaries
to solicit, canvass or merchandise for the sale of food and non - alcoholic beverages. Said
franchise agreements shall be for the purpose of a particular person or entity operating
City of Cape Canaveral
Ordinance No. 14 -2010
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commercial beach vending business in the City in conformity with, and subject to, all
provisions, terms and conditions of this section. Aperson's or entity's right to use the City's
beaches for the franchise purposes stated herein shall not be exclusive and the City reserves
the ri hg t to grant the use of its beaches to any person at any time during the period of any
franchise awarded pursuant to this article.
Award of franchise. All franchises granted hereunder shall be awarded by the City
Council through the submission and consideration of competitive bids pursuant to all
applicable laws and policies. Franchises shall not exceed a term of three (3) years and no
more than two _(2) franchises shall be in effect at any given time. In considering any bids
submitted for a franchise under this section, the City Council shall consider the following
criteria in addition to any criteria included in the bid specifications:
The effects the proposed franchise would have on the public's use and
enjoyment of the City's beaches;
The effects the proposed franchise would have on public safety
The performance history of the proposed franchisee, if any
The environmental impacts of proposed franchise activities;
Public input;
The ability of the bidder to comply with the minimum requirements of
franchises under subsection (d);
The prices offered for the sale of food and beverages, and
Any other criteria deemed relevant by the City Council.
(c) Franchise fee. The City Council shall impose a franchise fee upon any person or
entity that enters into a franchise agreement with the City pursuant to this section.
Minimum requirements of franchisees.
If the franchisee is a corporation or other entity, it shall provide
documentation that it is duly registered to conduct business in the State of Florida.
Franchisee shall provide the City with a detailed description of the scope of
its proposed beach vending operation, including, but not limited to a description of
the food and beverages to be sold; number and description of carts or other apparatus
used to store or transport merchandise, name of each employee, and the proposed
price of all merchandise.
City of Cape Canaveral
Ordinance No. 14 -2010
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The principal of any franchisee and all persons conducting beach vending
activities on City beaches shall be subject to a background check. The City reserves
the right to refuse to award a franchise or to terminate an existing franchise in the
event any principal or any person conducting beach vending activities on City
beaches has been convicted of a felony within the past five (5) years.
Franchisees shall be required to furnish a fully paid commercial general
liability damage and food and beverage liability insurance policy. Such insurance
policy shall be procured by the franchisee from a company licensed to do business
in the state. The policy must protect the city, its officers, agents, and attorneys from
any and all claims or damages to property and or bodily injury which may result from
or in connection with any of the operations carried on by franchisee, list the City as
an additional named insured, and provide for a deductible deemed acceptable by the
City Manager. The franchisee shall also provide proof of worker's compensation
insurance at the limits provided by the Florida Statutes.
Franchisees shall, to the fullest extent permitted by law, indemnify and hold
harmless the City and its employees, officers, and attorneys from and against all
claims, losses, damages, personal injuries (including but not limited to death), or
liability (including reasonable attorneys fees), which directly or indirectly arise out
of, or result from any act or failure to act of franchisee which in any way is related
to franchisee's activities or services under the franchise.
Prior to commencing vending activities under an awarded franchise,
franchisee must obtain and maintain in good standing all food, beverage, business tax
and other local and state licenses.
Franchisee shall fully comply with all terms and conditions of any franchise
agreement with the City.
(e) Manner and conduct of beach vending. Beach vending authorized by franchise under
this section shall only be authorized between the hours of 9:00 AM and dusk daily and shall
be conducted in a manner that is consistent with the public's use of the beach as a passive
and active recreational facility and with the public's expectation that activities and services
provided on the beach will enhance one's enjoyment of their beach experience. As such, no
person or entity operating under a commercial beach vendor franchise shall:
Solicit a person whose eyes are closed;
Touch a person without consent during a solicitation;
Continue a solicitation after receiving a_ negative response from the person
solicited:
City of Cape Canaveral
Ordinance No. 14 -2010
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(4) Impede the free movement of any person;
Overate a motorized beach vending vehicle or cart on the beach or within
restricted areas; or
Solicit using any loud sound, vociferous speech, boisterous conduct or
profane or vulgar language,
ff Minimum Appearance /Dress Requirements. Persons engaging in commercial beach
vending shall be required to wear at a minimum an opaque short sleeve T -shirt and opaque
short pants covering the pelvic area, around the waist, and the upper part of the legs. The T-
shirt shall prominently display the business name of the Franchisee.
UL Identi ication requirements.
M Franchisees shall display their beach vending license so that it is visible to
patrons, either on their person or on their vending apparatus, at all times while
engaging in commercial beach vending;
(2) The cart or other vending apparatus must display the prices for all items
offered for sale.
(h) Location of commercial beach vending. Commercial beach vending shall be
prohibited within the following ar eas:
r
(1) Within conservation areas, dunes or other protected zones;
Within beach parkin areas;
(3) Within pedestrian beach approaches; or
(4) Within 25 feet of an,�lifeguard tower or facility.
Termination or suspension of franchise. The City Council may terminate any
franchise awarded under this section upon a finding that the franchisee has violated the
provisions of this section or has defaulted under, or otherwise violated, the franchise
agreement.
Section 3. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior
inconsistent ordinances and resolutions adopted by the City Council, or parts of prior ordinances and
resolutions in conflict herewith, are hereby repealed to the extent of the conflict.
Section 4. Incorporation Into Code. This Ordinance shall be incorporated into the
Cape Canaveral City Code and any section or paragraph, number or letter, and any heading may be
City of Cape Canaveral
Ordinance No. 14 -2010
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changed or modified as necessary to effectuate the foregoing. Grammatical, typographical, and like
errors may be corrected and additions, alterations, and omissions, not affecting the construction or
meaning of this ordinance and the City Code may be freely made.
Section 5. Severability. If any section, subsection, sentence, clause, phrase, word or
provision of this Ordinance is for any reason held invalid or unconstitutional by any court of
competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall
be deemed a separate, distinct and independent provision, and such holding shall not affect the
validity of the remaining portions of this Ordinance.
Section 6. Effective Date. This Ordinance shall become effective immediately upon
adoption by the City Council of the City of Cape Canaveral, Florida.
ADOPTED by the City Council of the City of Cape Canaveral, Florida, this 21 ` day of
December, 2010. ("QQ�
- ROCKY RAN ELS, Mayor
ATTEST:
i
ANGELA APPERSON, City Clerk
First Reading: December 7, 2010
Legal Ad published: December 10, 2010
Second Reading: December 21, 2010
Approved as to legal form and sufficiency for
the of Cape Canaveral only:
ANTHONY A. GARGANESE, City Attorney
Bob Hoog
James Morgan
Buzz Petsos
Rocky Randels
Betty Walsh
For Against
Second
Ah G n
Y
Mo t.ionr
X
City of Cape Canaveral
Ordinance No. 14 -2010
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