CITY COMMISSION BRIEFING For Meeting Scheduled for December 3, 2009 Request Franchise on the Beach by Eugene Patty
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1 CITY COMMISSION BRIEFING For Meeting Scheduled for December 3, 2009 Request Franchise on the Beach by Eugene Patty TO: FROM: THRU: RE: Mayor Leon Skip Beeler and Members of the City Commission Anthony Caravella, AICP, Director of Development Services Chuck Billias, City Manager Review request (Attachment A ) from Eugene Patty to authorize a franchise to sell ice cream and water on the ocean beach. Agenda Item H-2 DATE: November 30, 2009 NOTE: The action being requested (copy presented as Attachment A ) is not a staff initiated agenda item and staff recommends the Commission deny Mr. Patty s request. This briefing has been prepared by staff for the purpose of providing support information to the City Commission to aid in the decision being requested by Mr. Patty. A. Background/General Information and Introduction City Code Section prohibits sales and leases on the City s ocean beach. This code section reads: Sec Certain sales and leases along Atlantic Ocean beach area prohibited; punishment for violations. 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 offer for sale or lease or 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, food and beverage, in the area adjacent to the Atlantic Ocean and extending westerly therefrom to the "Sea Wall Line," provided for in section 5-45 of this Code, and extending north and south to the northernmost and southernmost boundaries of the city, unless such activities be pursuant to franchise or resolution of the city commission entered of record, except such activities aforesaid as may be otherwise lawfully conducted at permanent structures in said area, and the possession by said person, association of persons, or legal entity of a license to do business in the city does not, of itself, permit the activities herein prohibited. The prohibition herein contained shall not be construed to permit any uses of said area inconsistent with any zoning or other ordinance of the city. Violations of this section shall be punished according to law. C:\Documents and Settings\jb2248\Desktop\CC Printing\Next Meeting\Public Records Request Patty Beach Franchise-Commish Brief ( ).DOC
2 Briefing Memorandum to: Mayor Leon Skip Beeler and Members of the City Commission Re: Eugene Patty request for franchise for sales on the ocean beach Date: November 30, 2009 for Commission Meeting on December 3, 2009 Page 2 Note the cited code section also provides for unless such activities be pursuant to franchise or resolution of the city commission entered of record. Therefore, Mr. Patty is requesting the City Commission authorize a franchise or resolution to sell ice cream and water on the ocean beach. There are presently only four franchises or resolutions approved by the City Commission authorizing sales on the ocean beach. These four franchises are Adrian Dillon at Shepard Park, Mr. Rosenberry abutting Pulsipher Avenue, the Cocoa Beach Pier, and Coconut s Restaurant. o The Dillon and Rosenberry franchises are for rental of beach equipment; there are no consumables sold by these two long standing and long-term franchise holders. o The Pier and Coconut s franchises are historic fixed location real property operations with riparian rights on the beach (and in the case of the Pier - a State of Florida lease) and in which the franchise holder maintains trash containers for consumable materials and conducts franchise rights at permanent structure. The Commission has previously set forth a policy and direction that there will be no additional franchises on the ocean beach. As support to that policy, the City Commission has adopted the following Comprehensive Plan policy: Policy III.4.12: In order to avoid excessive stress on City beaches, dunes and the beachfront parks and the Brevard County owned beachfront parks and public areas within the city, and in order to avoid unnecessary traffic control and parking management problems, the City shall prohibit all commercial activities on the City beaches [emphasis added], dunes and beachfront parks, unless those activities are conducted pursuant to City issued franchises an or special event permits, but may be otherwise subject to any interlocal agreement between the city and Brevard County in respect to county owned beachfront parks and public areas within the city. City staff had previously responded to a public records request by Mr. Patty regarding the issue of sales on the beach. A copy of this City response to records request # is presented as Attachment B. In that records request, Mr. Patty was advised Therefore, selling goods on the beach is not permitted pursuant to City Code Section 15-39, City Comprehensive Plan Policy III.4.12, and City Land Development Code Section Mr. Patty had been cited for violating City Code Section Mr. Patty did appeal the citation to County Court. The court upheld the City s citation. A copy of the latest court rulings in this matter are presented as Attachment C.
3 Briefing Memorandum to: Mayor Leon Skip Beeler and Members of the City Commission Re: Eugene Patty request for franchise for sales on the ocean beach Date: November 30, 2009 for Commission Meeting on December 3, 2009 Page 3 1. Key Facts/Issues Requiring Discussion Does the Commission desire to modify its long standing policy of not approving additional franchises on the ocean beach? Would such a change in policy require a Comprehensive Plan amendment, and the process required for such an amendment, in order to solicit public input before any policy change? 2. Costs Not applicable. If the Commission desires to proceed forward, franchise fees will need to be negotiated and determined. 3. Savings. Not applicable. 4. Source of Funds. Not applicable. 5. Communications Not applicable. 6. Environmental Impact. Not applicable. 7. Department Representatives Anthony Caravella, AICP, Director of Development Services 8. Staff Recommendation Staff does not recommend approval. Additional franchises on the beach are not consistent with the City Comprehensive Plan and long standing City policy. 9. Recommended Motion: If for denial: I move to deny the request by Eugene Patty for a franchise to sell ice cream and water on the ocean beach. If for approval: I move to authorize the City Manager to negotiate a franchise agreement with Eugene Patty to sell ice cream and water on the ocean beach, with the final agreement to be approved by resolution of the City Commission. Attachments A. Agenda Item Request Form from Eugene Patty B. City s Response to Public Records Request C. County Court rulings related to this issue c: Eugene D. Patty; 435 Seabreeze Drive; Indialantic, FL
4 ATTACHMENT A (1 of 1) Mr. Patty s Agenda Request
5 ATTACHMENT B (1 of 6) City s Response to Public Records Request
6 ATTACHMENT B (2 of 6) City s Response to Public Records Request
7 ATTACHMENT B (3 of 6) City s Response to Public Records Request
8 ATTACHMENT B (4 of 6) City s Response to Public Records Request
9 ATTACHMENT B (5 of 6) City s Response to Public Records Request
10 ATTACHMENT B (6 of 6) City s Response to Public Records Request
11 ATTACHMENT C (1 of 4) County Court Rulings
12 ATTACHMENT C (2 of 4) County Court Rulings
13 ATTACHMENT C (3 of 4) County Court Rulings
14 ATTACHMENT C (4 of 4) County Court Rulings
& Companion Fee Resolution Mayor Leon Skip Beeler and Members of the City Commission
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Thank each of you for your support to maintain Edisto Beach as the town that we all know and love.
Good evening, I am Mayor Jane Darby. With me this evening are our councilmembers, Mayor Pro Tem Crawford Moore, Susan Hornsby, Jerome Kizer and Patti Smyer. Also the department directors, Chief Brothers,