§ 15-39. Certain sales and leases along the Ocean Beach Park are prohibited, except pursuant to a license agreement.

(a)

Prohibition. 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). The license agreement incorporates the terms and conditions of the license and the license holder's agreement to such terms and conditions

(b)

Application requirements. 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 provide the following information;

(1)

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 seven (7) 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, misdemeanor or felony, against children, regardless of the time elapsed;

(iii)

Any drug offense, felony, regarding possession with intent to distribute, regardless of time elapsed;

(iv)

Any felony conviction within the prior seven (7) years;

(v)

Any conviction involving moral turpitude, misdemeanor or felony, within the prior seven (7) years.

(vi)

All approved license holders and their employees shall be subject to yearly criminal history checks and discovery of a felony conviction and/or a misdemeanor conviction involving children, or involving moral turpitude may result in termination of said license.

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 24/7 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 subsection (j)(2).

(2)

If an applicant is proposing to conduct sales and leasing activities within the Ocean Beach Park and also, where applicable, upon upland property, an application cannot be accepted without written authorization from the upland property owner authorizing the applicant to conduct said sales and leasing activities.

(3)

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. The schedule of all fees and charges relative to all license agreements 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.

(4)

In the application, an explanation is required as to where the applicant will store equipment or materials. The applicant must provide a location for same consistent with subsection (c), since there are limited opportunities for equipment or materials to be stored in the Ocean Beach Park or Sea Dune Area and extending westerly to the adjacent beach uplands and easterly therefrom to the city's municipal boundary. Written authorization from the owner of the property designated for storage, must be included, if applicable.

(5)

If the applicant receives a license agreement, a current local business tax receipt (BTR) must be applied for, secured and kept on file with the city.

(6)

The applicant must acquire and maintain polices of insurance which name the city as a named insured party in the minimum amount of one million dollars($1,000,000.00) for any one accident or any one person and fifty thousand dollars ($50,000.00) 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.

(7)

The applicant shall specify the granted location in the city's public Ocean Beach Park and any area extending westerly to the upland area and easterly therefrom to the city's municipal boundary, where the applicant would seek to operate its beach business.

(8)

The application must provide a detailed listing of all goods and service that the applicant plans to sell or rent. If the applicant plans on serving any type of alcoholic beverages, the application must include all necessary state alcohol licenses and permits from the Florida Alcohol Beverage Commission including a complete diagram pertaining to any state-approved extension of premises from an upland owner's state-approved liquor license location allowing the sale of such licensed alcohol beverages.

(c)

Operational requirements. 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. A person or entity having a license agreement under this section is referred to as a "License Holder."

(1)

The license agreement shall grant the right to sell or rent specified goods or services directly in the Ocean Beach Park and extending westerly to the adjacent upland area, where applicable and where upland owner has authorized use, and easterly therefrom to the city's municipal boundary of one thousand (1,000) feet east of the mean high-water line, and within a defined granted location, which shall be specifically defined within the license agreement.

(2)

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.

(3)

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 5-50 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.

(4)

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.

(5)

The city has determined that a total of fifteen (15) business locations, as determined by need and/or demand, may be located in the city's Ocean Beach Park, to control over-commercialization of the public Ocean Beach Park. One (1) applicant, at one (1) location may have multiple license agreements, such as one (1) for leasing chairs/umbrellas/surf boards, and one (1) for serving food and beverages, or two (2) independent and separate license holders may be located at one (1) location, if they have different licenses, such as one (1) for leasing chairs/umbrellas/surf boards, and one (1) for serving food and beverages, as authorized by the upland property owners, where applicable 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 (1) license will be permitted per license agreement.

(6)

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.

(7)

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.

(8)

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 during non-operating hours, for any reason, without specific prior approval from the city. The city will allow limited storage of equipment and materials by license holders in the Ocean Beach Park, as set forth in this Section or as otherwise set forth in the license agreement. If a license holder desires to use storage containers for storage of equipment and materials during non-operating hours, such locations must first be granted an "exemption" or a "permit" from the, Florida Department of Environmental Protection (FDEP), if applicable, for storage bin size and location, and once that is received, it must be approved by the city building department to ensure that such bin materials, size and location will not damage the dune system, vegetation or wildlife. A storage container is limited in size to a no greater than 10 foot × 8 foot × 8 foot sand colored container, as approved by the city, that must be moveable as necessary for wildlife protection and/or severe weather conditions. Further, a license holder may use enclosed trailers for operational and overnight storage within the Ocean Beach Park in locations as set forth in the license agreement. Except for the previously defined storage container, and enclosed trailers no other Beach business related items, not contained within the storage container, 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.

(9)

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, which may be incorporated into the terms of the license agreement. Operating motorized vehicles are strictly prohibited in the Ocean Beach Park or in the Sea Dune Area as defined by the City Code of Ordinances, Chapter 5, Article IV, Section 5-51, unless the approval of the city has been obtained for such traffic and travel. ADA approved wheelchairs for use on the beach may be used to assist the physically disabled.

(10)

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. Signage on any storage container must be removed at the conclusion of license holder's hours of operation or when no business is being conducted at the granted location. 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.

(11)

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.

(12)

Signage. The license holder shall limit advertising signage to:

a.

Three (3) different signs on the storage unit(s), up to thirty-two (32) square feet in total sign area.

b.

Two (2) signs up to twelve (12) square feet 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 (1) portable sandwich sign for each business stand which shall not exceed nine (9) square feet in total size and be located within twenty (20) 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.

(13)

All storage units, with the exception of a storage container or enclosed trailer as described in (c)(8). And as approved by the city, 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.

(14)

If the license holder plans to locate storage units on public property 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 public property and/or parking space(s).

(15)

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.

(16)

The license holder's granted location may be modified or adjusted by the city, as necessary, to address public access or safety considerations.

(17)

A license holder shall have a reasonable expectation of renewal of its license agreement, prior to the expiration of such license agreement provided the license holder has complied with the terms and conditions of its existing license agreement and has the continued approval of the upland property owner, if applicable. A license holder may apply for a renewal of its license agreement any time within twelve (12) months prior to the expiration of its current license agreement. Upon receipt of a request for renewal, the city manager shall process and make a determination of such renewal request with ninety (90) days of receipt of a renewal request.

(d)

Criteria for approval. 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:

(1)

The effects the proposed business would have on the public's use and enjoyment of the city's public Ocean Beach Park;

(2)

The effects the proposed license holder's business or its employees would have on public safety;

(3)

The performance and criminal history of the proposed license holder and its employees if any;

(4)

The environmental impacts of proposed beach businesses' activities;

(5)

The number of beach business locations currently in existence, if a new location is requested;

(6)

Public demand for beach services

(7)

Any other criteria deemed relevant by the city.

(e)

Time for consideration. Following receipt of an application for a license agreement, the city manager or his designee shall have thirty (30) 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 subsection (d)(3) above. The city may approve, approve with conditions or deny the request for the license agreement.

(f)

Denial and appeal of application. Any person or entity denied a license agreement by the city under subsection (e) above, may not re-apply for one (1) 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. 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, pursuant to the terms, standards and conditions contained herein. Upon receipt of a denial, the applicant has thirty (30) days to appeal that denial to the city's board of adjustment and said board may overrule said denial.

(g)

Term. The term of the license agreement shall be for seven (7) years, or for the term approved by the upland property owner, if applicable, whichever term is shorter. The license agreement term shall at all times run co-existent with the same term authorized by the upland private property owner, if applicable and in no circumstance will the term of the license agreement run longer than the term of the agreement with the upland property owner.

(h)

Request for proposals/qualifications. All beach businesses and applicants, whose upland property owner is or would be the City of Cocoa Beach, upon expiration of their current license agreement, and all subsequent license agreements, shall be required to participate in a publicly advertised and offered invitation for proposal submittal, as provided in the city's Purchasing Policies & Procedures Manual, reference page 9, as amended, which provides a complete description of how a competitive procurement is created. Beach businesses abutting publicly owned property that require the use of said upland property for storage or other approved uses shall be charged for such use as follows; the fee for leasing publicly owned upland property will be determined for a current license holder as already provided in their license agreement. For businesses selected pursuant to a competitive procurement, fees will be as stated in Resolution 2016-05 (e) 2. and 4. as approved, and as amended. One of the criteria for selection includes annual leasing fees offered to the city for the city's upland property. The other criteria will be developed as provided under the competitive procurement policy and the draft of same will be approved by the city commission prior to the public advertisement of the Invitation for proposal.

(i)

Commercial business exception. 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 or an upland property owner's private property rights 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.

(1)

The license holder may terminate this agreement by giving sixty (60) 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.

(2)

The right(s) of the license holder may be terminated for cause by the city upon sixty (60) 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 thirty-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 twenty-four (24) 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 subsection (c)(3); 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 (3) 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.

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, where applicable. 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 an offense, as defined in subsection(b)(1)h., 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 (3) reports and or complaints within ninety (90) 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)(2)d. above.

j.

The expiration date of the license agreement.

k.

A determination by the city to prohibit all commercial activity in the Ocean Beach Park.

(3)

Appeal: Any determination by the city to terminate a license under subsection (J)(2). a. through j. is appealable to the city board of adjustment. An appeal from a decision of the board of adjustment shall lie only to the courts. Absent an appeal the license holder may not re-apply for one (1) calendar year from the date of license termination.

(k)

Assignment/sale of the license agreement.

(1)

This agreement may be assigned or sold. The new owner or assignee shall be granted a renewal of the license absent a finding by the city that such renewal should not be granted as particularly provided under subsections(j)(1), (2) of this agreement. Any appeal of the decision not to renew a license based on a sale or assignment is appealable to the city board of adjustment. An appeal from a decision of the board of adjustment shall lie only to the courts. Absent an appeal the new owner or assignee may not re-apply for one (1) calendar year from the date of denial.

(2)

A complete application package must be submitted to the city manager or his/her designee.

(3)

The application package must detail that the proposed assignee meets and/or exceeds the requirements for the granting of a license.

(4)

The proposed assignee, like the existing license holder, is required to provide written authorization, if applicable, from the upland property owner that they are authorized to conduct a beach business in the granted location.

(5)

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.

(6)

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 subsection (c)(3), and all other rules and regulations as required for obtaining and operating a City of Cocoa Beach - Beach License Agreement.

(7)

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.

(Ord. No. 1542, § 2, 2-2-2012; Ord. No. 1594, § 2, 5-5-2016)