[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.]
As used in this article, the following terms
shall have the meanings indicated:
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.
Includes any corporation, partnership, unincorporated association
or other business entity.
That portion of a street or highway between the curb and
adjacent building lines designed for the use of pedestrians, whether
paved or not.
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.
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.
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.
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.
As used in this article, the following terms
shall have the meanings indicated:
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.
Includes any corporation, partnership, unincorporated association
or other business entity.
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.
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.
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.
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.
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.
The Town Manager shall oversee and supervise
concessionaires and their operations authorized by the Town Council
pursuant to this article.
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]
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.
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.
[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.
This article shall be read in conjunction with and shall not supersede Article I of this chapter or any amendments thereto.
This article shall operate prospectively only
and shall not affect any concession, license or contract already in
existence as of the effective date hereof.
