Town of Bethany Beach, DE
Sussex County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Council of the Town of Bethany Beach 4-20-2007 by Ord. No. 424 (Ch. 100 of the 1992 Code). Amendments noted where applicable.]
GENERAL REFERENCES
Business licensing — See Ch. 102.
Zoning — See Ch. 425.

§ 123-1 Definitions.

As used in this article, the following terms shall have the meanings indicated:
COMMERCIAL ACTIVITY
The buying or selling of goods, services, interests, real property or intangible rights; or activities in the nature of business, trade, industry or commerce, even if conducted by a nonprofit, charitable, social or educational organization. Included, by way of example and not in limitation, are the buying or selling of or the offering to buy or sell of goods, services, real property interests or intangible rights and the solicitation of offers, the taking or filling of orders and the distribution of handbills, pamphlets, advertising circulars, samples and handouts.
PERSON
Includes any corporation, partnership, unincorporated association or other business entity.
SIDEWALK
That portion of a street or highway between the curb and adjacent building lines designed for the use of pedestrians, whether paved or not.

§ 123-2 Compliance required.

No person shall conduct any commercial activity or business on any street, sidewalk, boardwalk, public right-of-way, upon the public beach, or in a MORE District within the Town of Bethany Beach except as hereinafter provided.

§ 123-3 Permits.

A. 
Boardwalk and MORE area. The Town Manager may issue a temporary permit to any nonprofit organization to conduct a commercial activity or business on the public boardwalk or in a MORE area, provided that such organization certifies that the proceeds there from shall be utilized by it in furtherance of its nonprofit purposes. No organization shall be entitled to obtain temporary permits under this section to conduct such activities in excess of three days during any calendar year.
B. 
Sidewalks. The Town Manager may issue a temporary permit to merchants conducting business from establishments located in the Town of Bethany Beach to display and sell their products and merchandise on the sidewalk in front of their places of business. Such permits shall not be granted on a routine basis but shall be limited to special promotions and sidewalk sales of limited duration.
C. 
Town events. The Town Manager may issue a temporary permit to any person, business or entity who wishes to conduct a commercial activity in conjunction with any performance or participation at a Town-sponsored event or activity, subject to the following conditions:
(1) 
The location, including the size of the area, which may be used for the commercial activity, will be determined by the Town Manager;
(2) 
Any and all products or services which may be offered for sale at the Town-sponsored event or activity must first be approved for sale by the Town Manager;
(3) 
Any and all advertisements for products or services, which may be offered for sale, must first be approved for use at the Town-sponsored event or activity by the Town Manager;
(4) 
The temporary permit shall be restricted in duration, and the Town Manager shall determine what hours and/or days the permit will be effective.

§ 123-4 Exemptions.

This article shall not apply to and nothing herein shall be construed to prohibit or to require a permit for the following commercial activities or business if conducted as specified herein:
A. 
Mere delivery of property purchased or acquired at some other place within or without the Town.
B. 
Newspaper vending machines on the sidewalks or boardwalks of the Town, with permission of the abutting property owner, provided that: such machines do not exceed 50 inches in height, 20 inches in width and 18 inches in depth; such machines do not impede or restrict public travel along the sidewalk or boardwalk; and not more than three such machines shall be located within any fifty-foot length of sidewalk or boardwalk. Newspaper vending machine shall be properly secured so as not to be easily moved when subjected to gusts of wind.
C. 
Persons authorized by the award of a concession under Article II of this chapter, as it may from time to time hereafter be amended, provided that such person's activities must strictly conform to provisions of the concession as awarded by the Town Council.

§ 123-5 Violations and penalties; enforcement.

A. 
Any person convicted of violating any provision of this article shall be fined as outlined in Chapter 1, General Provisions, Article I, Penalties.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
B. 
In the event that any person convicted of violating this article thereafter fails to correct the violation, the Town police are authorized and empowered to impound all equipment, products, vending machines and vehicles constituting the violation.
C. 
No owner of any items impounded under this article shall be entitled to their return until all costs in connection with their impoundment and storage have been paid to the Town of Bethany Beach. In the event that such items are not redeemed within 30 days after impoundment, the Town police shall notify the owner thereof, by certified mail, return receipt requested, addressed to that owner's last known address, that such items shall be sold at public sale if not claimed within 10 days of the date such letter is posted. Should items not be reclaimed within said 10 days, the Town police shall advertise the same for public sale in at least one issue of a newspaper of general circulation in the Town of Bethany Beach and by posting notice in at least 10 public places throughout the Town. Thereafter, the Town police shall expose such items for public sale to the highest bidder at the date, place and time stated in the public notice hereinabove provided for.

§ 123-6 Definitions.

As used in this article, the following terms shall have the meanings indicated:
COMMERCIAL ACTIVITY
The buying or selling of goods, services, interests, real property or intangible rights; or selling activities in the nature of business, trade, industry or commerce, even if conducted by a nonprofit, charitable, social or educational organization. Included, by way of example and not in limitation, are the buying or selling of or the offering to buy or sell of goods, services, real property interests or intangible rights and the solicitation of offers, and the taking or filling of orders, including distribution of handbills, pamphlets, advertising circulars, samples and handouts.
PERSON
Includes any corporation, partnership, unincorporated association or other business entity.

§ 123-7 Proposals. [1]

Proposals as set forth in § 123-8 shall be in writing on forms to be provided by the Town Manager and sealed. Proposals shall contain such relevant information as deemed necessary by the Town Manager, including but not limited to:
A. 
The name and address of the applicant, as well as all persons owning any interest in the commercial activity proposed to be conducted.
B. 
A detailed description of the commercial activity which is proposed, including the number of employees, days and hours of operation, equipment and facilities and related information.
C. 
The specific location of the proposed commercial activity.
D. 
The type, amount and condition of equipment owned or capital held in the name of the person applying for the license, which will be used in providing the proposed concession.
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

§ 123-8 Advertising for concessionaire proposals.

A. 
Whenever it shall be determined by the Town Council that it is in the public interest that a specific service(s) or product(s) be made available through the operation of a commercial activity on any street, sidewalk, boardwalk or public right-of-way or upon the public beach or upon any Town-owned lands within the Town of Bethany Beach, the Town Manager shall cause to be placed in five public places in the Town and in two newspapers of general circulation in Sussex County a notice requesting sealed proposals from qualified persons interested in providing such commercial activities. Said notice shall contain:
(1) 
The commercial activity for which proposals are sought.
(2) 
The number of concessions to be awarded.
(3) 
The date by which proposals must be submitted.
(4) 
The date, time and place when such proposals shall be opened.
(5) 
The location(s) where the commercial activity shall be conducted.
(6) 
The time period for which the concession will be awarded.
(7) 
The amount of the concession fee if established by the Town Council, if any, or if the concession fee will be established by competitive bidding.
B. 
Notice shall be posted and advertised for at least three weeks prior to the date by which proposals must be submitted.

§ 123-9 Opening of proposals; award of concessions.

A. 
The Town Council shall open the proposals at the date, time and place advertised.
B. 
A concession shall be awarded to the person who, having satisfactorily complied with this article, appears to the Town Council to be the person most likely to render the best service to the Town and its visitors. In making its determination, the Town Council shall consider, among other things, the history, experience and reputation of the applicant and whether he or she has sufficient capital or adequate equipment to successfully carry out his or her obligations should he or she be awarded the concession. If the Town Council does not set the concession fee in advance, but rather by competitive bidding, the amount of a bid shall be one factor to be considered by the Town Council in evaluating any proposals, but the Town Council shall not be obligated to accept the highest bid. The Town Council may, in its absolute discretion, refuse to award any concession if it is its determination that none of the applicants or proposals is acceptable.
C. 
The successful applicant to whom a concession is awarded shall confirm, in writing, the specific details of the concession to be operated, which written confirmation may contain such minor modifications of the original proposal as deemed appropriate by the Town Council.

§ 123-10 Concession fee.

The concession fee to be charged for the privilege of conducting each concession may be established on the basis of competitive bidding or may be established by the Town Council prior to requesting proposals under § 123-8 above; and, in either event, the notices inviting proposals shall so indicate.

§ 123-11 Payment of fee by successful applicants.

A. 
The concession fee as well as the fee for a business license of the successful applicant shall be payable at the office of the Town Manager at such date(s) and time(s) as determined by the Town Manager.
B. 
Failure to pay the concession fee when due shall be cause to terminate the rights of such person, which were awarded to him or her upon his or her successful proposal, without further notice to such person.[1]
[1]
Editor's Note: Former Subsection C, regarding time being of the essence, which immediately followed, was repealed 10-15-2010 by Ord. No. 458.

§ 123-12 Supervision of concessionaires.

The Town Manager shall oversee and supervise concessionaires and their operations authorized by the Town Council pursuant to this article.

§ 123-13 Duties of concessionaires; transfer of ownership; complaints.

A. 
Concessionaires shall be expected to maintain their equipment in first-class condition in such minimum quantity as may be required to provide adequate service and supply and shall employ and maintain competent personnel to provide courteous and efficient service.
B. 
Concessionaires shall operate their concessions in strict compliance with the terms contained in the written confirmation provided under § 123-9C.
C. 
The failure to employ competent personnel or failure to operate in strict compliance with the terms of the written confirmation shall be cause to terminate the concessionaire's permit.
D. 
Any transfer or change in ownership, without having first obtained the approval of the Town Council at an official meeting of the Town Council, shall be cause to terminate the concessionaire's permit.
E. 
Upon receipt of a written and sworn complaint, if the Town Manager determines that the concessionaire has failed to comply with the obligations imposed by this article, by state or federal law and/or by the written concession document required by § 123-9C above, the Town Manager may require the concessionaire to pay to the Town liquidated damages of $50 for the first complaint and $200 for the second complaint. A third complaint shall be cause to terminate such person's concession permit. Any such contract penalty or any such termination of a concession permit may be appealed by the concessionaire, in writing, to the Town Council within 30 days of the imposition.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
F. 
Upon receipt of a written appeal, the Town Council shall schedule a public hearing to consider and decide the matter, at which hearing the concessionaire may appear in person or by legal counsel, may cross-examine and call witnesses and may present such relevant evidence as he or she deems appropriate. Strict rules of evidence or procedure shall not apply at such hearings, but the Town Council may hear and consider such evidence, which possesses probative value commonly accepted by reasonably prudent men in the conduct of their own affairs.

§ 123-14 Storage of equipment.

If storage space is authorized by the Town Council, concessionaires shall store all equipment in structures built according to specifications and design approved by the Town Manager and placed in locations approved by the Town Manager. If storage space is not authorized, concessionaires shall remove all their equipment to a place of private storage at the end of each business day.

§ 123-15 Liability insurance requirements.

[Amended 10-15-2010 by Ord. No. 458[1]]
Each person to whom a concession is awarded under this article shall carry insurance for general liability with minimum limits of $500,000 per person, $1,000,000 per occurrence for bodily injury or death and $25,000 for property damage, which policies shall show the Town of Bethany Beach and its officers, agents and employees as additional insureds. All insurance policies shall require 30 days' written notice to the Town of Bethany Beach prior to cancellation. By accepting the award of such concession, the successful applicant shall agree to indemnify and hold the Town harmless against any claim or loss whatsoever arising out of negligence or misconduct on his or her part.
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

§ 123-16 Construal of provisions.

This article shall be read in conjunction with and shall not supersede Article I of this chapter or any amendments thereto.

§ 123-17 Applicability.

This article shall operate prospectively only and shall not affect any concession, license or contract already in existence as of the effective date hereof.