2010-3680 OrdinancesORDINANCE NO. 2010-3680
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 86 OF THE
MIAMI BEACH CITY CODE ENTITLED "SALES," BY AMENDING
ARTICLE 111, ENTITLED "NON-PROFIT VENDING AND
DISTRIBUTION," BY AMENDING DIVISION 1, ENTITLED
"GENERALLY," BY AMENDING SECTION 86-141, ENTITLED
"DEFINITIONS," BY CLARIFYING THE DEFINITION OF MESSAGE-
BEARING MERCHANDISE; BY AMENDING SECTION 86-143,
ENTITLED "AREA RESERVED FOR NON-PROFIT VENDING AND
DISTRIBUTION," BY CLARIFYING PERMIT REQUIREMENTS AND
AMENDING THE PROVISIONS REGARDING THE RELOCATION OR
SUSPENSION OF NON-PROFIT VENDING UNDER CERTAIN
CIRCUMSTANCES; BY AMENDING SECTION 86-145, ENTITLED
"PROHIBITIONS," BY AMENDING THE ACTIVITIES AND ACTIONS
PROHIBITED BY A PERMIT HOLDER; BY AMENDING SECTION 86-
148, ENTITLED "NO PERMIT; PENALTY," BY AMENDING THE
ACTIVITIES PROHIBITED WITHOUT A PERMIT; BY AMENDING
SECTION 86-152, ENTITLED "DISCLAIMER, DISPLAY, AND
EXPIRATION OF PERMIT," BY CREATING PROVISIONS AND
REQUIREMENTS REGARDING THE CONTENT OF PERMITS AND
DISPLAY REQUIREMENTS; BY AMENDING DIVISION II OF
CHAPTER 86, ENTITLED "PERMIT," BY AMENDING SECTION 86-
172, ENTITLED "APPLICATION," BY AMENDING REQUIREMENTS
RELATIVE TO THE CONTENT OF PERMIT APPLICATIONS; BY
AMENDING SECTION 86-173, ENTITLED "PROCESSING FEE," BY
AMENDING THE REQUIREMENTS FOR PROCESSING FEES FOR
PERMITS; BY AMENDING SECTION 86-174, ENTITLED
"ADMINISTRATIVE RULES," BY AMENDING THE PROVISIONS
REGARDING ADMINISTRATIVE RULES AND SETTING FORTH
FINES AND PENALTIES FOR NON-COMPLIANCE WITH THE
ADMINISTRATIVE RULES; PROVIDING FOR REPEALER,
SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
WHEREAS, the amendments set forth in this ordinance will refine the provisions relative
to non-profit vending and permits, and will provide consistency with the requirements and
provisions set forth in the City's regulations concerning street performers and art vendors as set
forth in Chapter 18 of the Miami Beach City Code.
NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. That Division I, entitled "Generally," of Article III, entitled "Non-profit Vending and
Distribution," of Chapter 86, entitled "Sales," of the Miami Beach City Code is hereby amended
as follows:
CHAPTER 86
SALES
ARTICLE III. NON-PROFIT VENDING AND DISTRIBUTION
DIVISION 1. GENERALLY
Sec. 86-141. Definitions.
The following words, terms and phrases, when used in this article, shall have the meanings
ascribed to them in this section, except where the context clearly indicates a different meaning:
Applicant means the nonprofit organization applying for a nonprofit vending and distribution
permit pursuant to this article.
Department means the department of finance of the city.
Director means the director of finance of the city.
Distribution means the transfer or offer to transfer merchandise.
Manager means the city manager
Message-bearing merchandise means a product bearing a message that is inextricably
intertwined with the purpose and activities of a permittee pursuant to this article. All message-
bearing merchandise must constitute or contain a conspicuous political, religious, philosophical
or ideological message having intellectual content that is clearly informative of the purpose of
the permittee's organization and which is sold with the predominate purpose to disseminate
such message. The message must be aad-FS permanently affixed to the merchandise, and
readable or recognizable from a reasonable distance, but in no case shall the message-bearing
merchandise contain anv other non-message-bearing text or graphic.
Nonprofit organization means a corporation that is expressly organized for nonprofit purposes,
that is in good standing at the time of its application for permit pursuant to this article and that is
deemed a tax exempt organization under section 501 of the Internal Revenue Code.
Nonprofit vending means vending by a nonprofit organization as those terms are defined in this
section.
Permittee means the nonprofit organization that has been issued a nonprofit vending permit
pursuant to this article.
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Vending means the transfer or offer to transfer merchandise for money, or requests for
donations in exchange for merchandise.
Sec. 86-142. Applicability of article.
This article regulates vending and distribution from portable tables by nonprofit organizations as
defined in section 86-141. This article does not affect the city's existing regulations regarding
charitable solicitation or the city's prohibition on other commercial vending outside of an
enclosed structure.
Sec. 86-143. Area reserved for nonprofit vending and distribution.
(a) Nonprofit vending and distribution shall only be conducted in those approved
designated areas and only with apermit.- The nonprofit vending and distribution areas
shall be assigned randomly and a permit shall be assigned to the nonprofit vendor
selected through this process,-
(b) If the number of requests for nonprofit vending and distribution permits exceeds the
number of available locations, the available locations will be assigned by a quarterly
lottery and each nonprofit vendor and distributor shall be limited to one location within
the city.
(c) If the area reserved for nonprofit vending and distribution is needed for a special
event, municipal repairs or other city business,_ or relocation or suspension is otherwise
in the best interest of the public the city manager or designee may temporarily or
permanently relocate the nonprofit vendor to a different location, or temporarily suspend
situation as referenced in this division. As additional means of enforcement the city may
remove any equipment and/or merchandise found on public property two hours after the
issuance of a hurricane warning. Any and all costs incurred by the city for removal
and/or storage of nonprofit vending equipment and/or merchandise shall be the
responsibility of the nonprofit vendor. The city is not responsible for any damages or loss
of equipment or merchandise which is lawfully confiscated.
(d) The following locations shall be available pursuant to this section:
(1) The east side of Ocean Drive and Seventh Street, 25 feet from the curb, on
the ocean access sidewalk.
(2) The east side of Ocean Drive and Ninth Street, 25 feet from the curb, on the
ocean access sidewalk.
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(3) The east side of Ocean Drive and 11th Street, 25 feet from the curb, on the
ocean access sidewalk.
(4) North of 727 Lincoln Road, the middle of the mall, under the overhang.
(5) North of 400 Lincoln Road, the middle of the mall, between two palm trees.
Sec. 86-145. Prohibitions.
A permit holder shall not:
(1) Engage in verbal or physical harassment or coercion
(2) Impede the flow of vehicular traffic or sell, offer for sale, or solicit offers to purchase,
from anv vehicle.
(3) Obstruct access to businesses or other properties or anv other place of public
accommodation.
(4) Engage in activities that prevent the free passage of pedestrians. The permit holder
shall engage in their activities on the assigned public rights-of-ways of the city in such a
manner that at all times there shall remain open for the passage of pedestrians a space
of at least five feet in width. No portion of the permit holder's table shall be included in
measuring the five feet clear pedestrian passageway.
(5) Use lounge chairs. No more than two chairs shall be permitted, but the two chairs
shall not be placed in a manner that exceeds the total sauare footage allotted for the
nonprofit vending.
(6) Create a fire hazard -or connect to anv electric outlets or power sources. The permit
holder must provide their own power sources, if anv is required. No generators, car
truck, motorcycle, or boat batteries or anv other power sources deemed hazardous to
the public health, safety or welfare by a police or code officer shall be permitted.
Extension cords are prohibited.
(7) Create excess noise in violation of the City's Noise ordinance. t#~e~e
(8) Engage in fraudulent practices or solicitations, including but not limited to
misrepresentation about any sale or solicitation, misrepresentation about the nature and
type of the nonprofit organization or misrepresentation or concealment of any material
fact in the application process.
~9~ Exceed 36 square feet of space for their vending. Such space shall be inclusive of:
a. Displays may only be from a table and there may be no more than one display
table. The display table may not exceed 50 percent of the total square footage
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allotted and the table must be skirted to the ground in solid black, dark blue or
dark green fabric.
b. All items shall be neatly displayed on the table. No items shall be displayed in
any other area or upon any other display that is not a table. Tabletop displays,
such as those used to display jewelry, shall be no more than 24 inches tall. Anv
boxes shall be stored wholly underneath the table, so that the boxes will not be
visible. No items available for sale or on display may be laid on the floor, ground,
sidewalk, ground level or raised landscape area, step, or other fixed public
improvement, or in any manner that can pose a tripping hazard.
c. The table shall be removed from city property daily, and the permit holder shall
clean permit location, including within a radius of 15' from the permit location,
and deposit trash in proper receptacles.
10) Use a push cart, or mobile display rack or stand
(11) Use sunshades or tents. Permit holders may have one traditional sidewalk cafe type
umbrella of no greater size than six feet by six feet square or nine feet in diameter, with
a maximum height of no greater than eight feet at the center, or a minimum height of
less than six feet and eight inches at the lowest edge, and supported by a single pole.
The umbrella shall be easily portable when closed and made of non-shiny woven fabric
of solid dark blue, dark preen, or dark red color only.
(12) Allow the table or any item relating to the vending to lean against or hang from any
building, structure, tree or other plant.
(13) Engage in the application of tattoos or body piercing, nor shall use fire on public
property, nor engage In the use of spray palnt/alrbrUSh equipment.
(14) Display or offer for sale food or drink.
(15) Keep any animal in the permit area except for service animals.
(16) Interfere with the passage of the public through a public area. If a permit holder
attracts a crowd sufficient to obstruct the public way, a police officer or code officer may
disperse the crowd that is creating the obstruction. The police officer or code officer may
ask the permit holder to temporarily suspend their vending activity or leave the location
when that action is necessary to protect the public safety or public order.
(17) Have more than one sign and that sign shall be no greater than 8.5 inches by 11
inches. Said sign shall be located on or attached to the table. The permit holder's name
shall be legibly displayed on such sign.
(18) Block a sidewalk, street, bikepath or restricted lane for any purpose, including
loading or unloading of their supplies and/or equipment.
Sec. 86-146. Hours of operation.
Nonprofit vending permitted pursuant to this article is prohibited between 12:00 a.m. (midnight)
and 8:00 a.m., except on Saturday and Sunday when said vending is prohibited between 2:00
a.m. and 8:00 a.m. All tables, displays, signs and inventory used in the sale and distribution of
merchandise shall be removed daily from the public property no later than 30 minutes after the
permitted time period has expired.
Sec. 86-147. Indemnification.
All permit holders shall agree to defend, indemnify and hold harmless the city and its officers,
agents and employees from any suit, actions on claims arising out of or in any way connected
with the activities permitted pursuant to this article, except for any claims or liability arising from
the negligence or misconduct of the city, its agents, officers or employees.
Sec. 86-148. No permit; penalty.
Engaging in nonprofit vending and distribution from a portable table or any other item placed
upon public property for display purposes without a permit, or engaging in nonprofit vending with
a permit in an area not designated for nonprofit vending, shall constitute a nuisance and be
punishable as provided in Code section 1-14.
Sec. 86-149. Permit obtained; penalty for noncompliance.
(a) Any violation of this article by a permit holder shall result in said permit holder being
served with a notice of violation subject to the following fines and penalties:
(1) First offense: $50.00.
(2) Second offense in the previous 12-month period: $100.00; ineligible for
application for permit for one quarter.
(3) Third offense in the previous 12-month period: $250.00; immediate
revocation of permit; ineligible for application for permit for two quarters.
(b) Notwithstanding the above, the city may also direct the nonprofit vendor to
immediately cease and desist the activity in violation of this article. Failure to
immediately comply with the order to cease and desist the activity in violation of this
article shall result in additional fines and may result in suspension or revocation of the
permit. Following suspension or revocation of a permit, upon written request of the
permit holder, the city manager or the manager's designee shall hold a hearing within
ten days after receipt of such request, at which time the manager or designee will hear
the facts constituting the basis for the modification, suspension or revocation, hear the
statements for or against such action by interested persons, and then make a decision
affirming, modifying, or reversing the action to be taken with respect to the permit. Such
decision may be announced orally at the hearing, or in writing within ten days after the
hearing. Appeals from a decision of the city manager or the manager's designee shall be
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to the appellate division of the circuit court in accordance with the rules of appellate
procedure.
Sec. 86-150. Rights of violators; payment of fine; right to appeal; failure to pay civil fine
or to appeal.
(a) A violator who has been served with a notice of violation, shall elect either to:
(1) Pay the civil fine in the manner indicated on the notice; or
(2) Request an administrative hearing before a special master, appointed as
provided in section 30-36 by the city commission, to appeal the decision of the
code compliance officer which resulted in the issuance of the notice of violation.
(b) The procedures for appeal shall be as set forth in Code section 102-385.
(c) The special master may not waive or reduce fines set by this article if a violation is
established.
(d) If the named violator after notice fails to pay the civil fine or timely fails to request an
administrative hearing before a special master, the special master shall be informed of
such failure by report from the code compliance officer. Failure of the named violator to
appeal the decision of the code compliance officer within the prescribed time period shall
constitute a waiver of the violator's right to administrative hearing. A waiver of the right to
administrative hearing shall be treated as an admission of the violation, and penalties
may be assessed accordingly.
(e) Any party aggrieved by the decision of a special master may appeal that decision to
a court of competent jurisdiction as provided in F.S. § 162.11.
Sec. 86-152. Disclaimer, display, and expiration of permit.
(a) Disclaimer. On each permit the following words shall appear: The issuance of this
permit does not constitute an endorsement by the City of Miami Beach of articles sold
pursuant to the terms of this permit. On each permit the following words shall appear:
"The issuance of this permit does not constitute an endorsement by the City of Miami
Beach of articles sold pursuant to the terms of this permit."
fib) Display. The city shall issue a permit to the nonprofit vendor which shall contain a
photograph of the permit holder, contact information and a description of the
merchandise that will be sold by the permit holder. The permit shall be displayed at the
table by the permittee at all times when selling or soliciting offers to purchase any
merchandise.
(c) Expiration. All permits shall list the expiration date, which shall be no greater than
90 days from the date of issuance.
Secs. 86-a-X152--86-170. Reserved.
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SECTION 2. That Division 2, entitled "Permit," of Article III, entitled "Non-profit Vending and
Distribution," of Chapter 86, entitled "Sales," of the Miami Beach City Code is hereby amended
as follows:
CHAPTER 86
SALES
ARTICLE III. NON-PROFIT VENDING AND DISTRIBUTION
DIVISION 2. PERMIT
Sec. 86-171. Required.
It shall be unlawful for any person to engage in nonprofit vending or distribution on public
property without obtaining a permit as required by this article.
Sec. 86-172. Application.
(a) Generally. Applications for a nonprofit vending and distribution permit shall be
made at the office of the director. Only those applications on city forms will be accepted. If the
application form is complete, the applicant agrees to abide by the terms of this article, and if the
applicant provides proof of its tax-exempt status, the application will be approved. Applications
for permits under this section may be obtained from the finance department.
(b) Contents. The permit application shall require the following information:
(1) The name and address of the nonprofit organization;
(2) The names- and addresses °^^' °^^~°' °°^"r~*~~ ^"mh°ro of_~eFSe+~Sthe
erp sons in charge of the vending or distribution and phone numbers where they
may be reached during business hours and after hours;
(3) The names of persons who are vending or
distributing at the location;
(4) The period of time for which the applicant seeks a permit;
(5) A description of the merchandise to be vended or distributed; and
(6) A certification by the persons vending or distributing that they have read and
understood the requirements of this article.
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Sec. 86-173. Processing fee.
The city may charge an application processing fee and a permit processing fee in the amounts
set forth ' administratively and approved by City Commission
resolution. Theis application processing fee must be paid in full prior to the date of the nonprofit
lottery or such permit shall be issued to another nonprofit vendor according to the established
administrative rules for nonprofit vending or distribution. The permit processing fee must be paid
in full within five (5) business days following the selection of the nonprofit vendor in the lottery.
er;-iln the event no lottery is necessary, both the application processing fee and the permit
processing fee must be paid in full prior to the issuance of the permit, but in no event later than
five (5) business days after the start of the lottery quarter or such permit shall be issued to
another nonprofit vendor according to the established administrative rules for nonprofit vending
and distribution.
Sec. 86-174. Administrative rules.
The city manager or his designee shall develop and impose administrative rules pertaining to
this permit-_inclu_ding, but not limited to, rules regarding abandonment of permit locations. All
permittees shall comply with the administrative rules; failure to do so shall result in the
application of fines and penalties as described in section 86-149 of this article.
Sec. 86-175. Transfer.
Permits are nontransferable.
SECTION 2. REPEALER.
All ordinances or parts of ordinances in conflict herewith be and the same are hereby
repealed.
SECTION 3. SEVERABILITY.
If any section, sentence, clause or phrase of this ordinance is held to be invalid or
unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect
the validity of the remaining portions of this ordinance.
SECTION 4. CODIFICATION.
It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is
hereby ordained that the provisions of this ordinance shall become and be made a part of the
Code of the City of Miami Beach, Florida. The sections of this ordinance may be renumbered or
re-lettered to accomplish such intention, and the word "ordinance" may be changed to "section,"
"article," or other appropriate word.
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SECTION 5. EFFECTIVE DATES.
This Ordinance shall take effect the ~ day of YI , 2010.
PASSED and ADOPTED this ~ day of ~/'~' , 2010.
ATTEST:
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CITY CLERK ROBERT PARCHER ~,~~~'~'~'s~J ~ ~~
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10
COMMISSION ITEM SUMMARY
Condensed Title:
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER
86 OF THE MIAMI BEACH CITY CODE ENTITLED "SALES," BY AMENDING ARTICLE III, ENTITLED "NON-PROFIT VENDING
AND DISTRIBUTION,"
Ke Intended Outcome Su orted:
' Im rove cleanliness of Miami Beach ri hts of wa es eciall in business areas.
Supporting Data (Surveys, Environmental Scan, etc.): 85% of business in South Beach are satisfied with the fairness and consistency of
enforcement of zoning and ordinances by the City of Miami Beach government for businesses; and the fairness/consistence of code enforcement
of zonin and ordinances is a ke driver of cit overnment o en and interested in hearin business concerns.
Issue:
Shall the Commission approve, on first reading, the proposed amendments to the Nonprofit Vendor and Distribution ordinance, and schedule a
second readin ublic hearin ?
Item Summa /Recommendation:
SECOND READING PUBLIC HEARING
Chapter 86, Article I I I of the Miami Beach City Code, "Nonprofit Vending and Distribution" provides the process by which nonprofit
vending and distribution can occur in an unenclosed location, such as on a public right-of-way, from portable tables. This provision in
the Code ensures that this constitutionally-protected activity can occur in such a manner as to not impact the safety, health and
welfare of the general public that uses our public rights-of-ways, such as city sidewalks. The City allocates permits to nonprofit
vendors through a quarterly lottery process to sell "message-bearing merchandise" in five (5) locations on the City right-of-way.
Nonprofit vending cannot be conducted except in the permit locations, and only by the nonprofit vendor selected via the lottery.
Typically, the City receives between 35-50 nonprofit vendor applications for each quarterly lottery. While the applicant is a nonprofit,
the application process is generally handled by an agent.
In the past few years the City Commission has adopted Code amendments to address the constitutionally-protected activity of
artist vending and street performances. On January 16, 2008 the City Commission amended the Nonprofit Vendor and Distribution
Ordinance to provide consistency in the fine and penalty provisions of this ordinance with the Street Performer/Artist Vendor
Ordinance; however, other changes relating to the set-up of permit areas, among other things, were not addressed. Additionally,
while it is understood that message-bearing merchandise refers to messaging relating to the nonprofit and/or its mission, monitoring
had indicated that often the merchandise for sale included other messaging or text inconsistent with the nonprofit organization's
mission. As such, it was concluded that amendments to the nonprofit vendor and distribution ordinance would be timely.
In reviewing the Nonprofit Vendor and Distribution Ordinance for purposes of ensuring consistency with the Street Performer/Artist
Vendor ordinance, other portions of the existing code were reviewed and suggested changes have been identified, as reflected in the
attached proposed amendment to Chapter 86, Article III. The proposed amendments to the Nonprofit Vendor and Distribution
ordinance were presented at the January 19, 2010 Neighborhoods/Community Affairs Committee and approved by Commission on
first reading.
At first reading the administration was asked to look at amendments to address the number of applications submitted by an
applicant, and what process could be used to review products proposed for sale. The current ordinance provides for administrative
rules. These rules specify that only one application is permitted per nonprofit organization. Further, the administrative rules will be
amended to require that the nonprofit organization provide the City at the time of application with samples (photos would be sufficient)
of the type of product they will be selling (e.g. t-shirts, posters, etc.), and of the anticipated messaging on such. This would be
provided for review purposes only by the City. The City can certainly alert the nonprofit of any concerns we may have with the
messaging on the sample they have provided, and the nonprofit would govern themselves accordingly. More intensive monitoring of
the nonprofit vendors will assist us in ensuring that the nonprofit organizations are selling merchandise that is message-bearing and
consistent with the mission of the organization.
Adviso Board Recommendation:
Neighborhoods/Community Affairs Committee on January 19, 2010.
Financial Information:
Source of Funds: Amount Account
1
OBPI Total
Financial Impact Summary: The proposed amendments do not provide process result in increased costs to the City, as the
ordinance monitoring for enforcement already occurs. However, violations of the ordinance would result in code violations and
associated fines/ enalties.
Cit Clerk's Office Le islative Trackin
Sian-Offs: ..
Department Director A i tant City Ma er City Ma r
T'.WGENDA\2010\April 14\Regular\N°n Profit Ventl°r Gro 2ntl Rtlg Pub{L Heanng summary.tloc ( j \ ~-
~ 1 I A I B ~A~ H ~/ AGENDA DA E ~ I ~~
m MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, vvww.miamibeachfl.oov
COMMISSION MEMORANDUM
TO: Mayo atti errera Bower and Members of the City Commission
FROM: Jorg ` .Gonzalez, City Mana
DATE: April 14, 2010
SECOND READING PUBLIC HEARING
SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA, AMENDING CHAPTER 86 OF THE MIAMI BEACH CITY CODE ENTITLED "SALES,"
BY AMENDING ARTICLE III, ENTITLED "NON-PROFIT VENDING AND DISTRIBUTION," BY
AMENDING DIVISION 1, ENTITLED "GENERALLY," BY AMENDING SECTION 86-141,
ENTITLED "DEFINITIONS," BY AMENDING THE DEFINITION OF MESSAGE-BEARING
MERCHANDISE; BY AMENDING SECTION 86-143, ENTITLED "AREA RESERVED FOR NON-
PROFIT VENDING AND DISTRIBUTION," BY CLARIFYING PERMIT REQUIREMENTS AND
AMENDING THE PROVISIONS REGARDING THE RELOCATION OR SUSPENSION OF NON-
PROFIT VENDING UNDER CERTAIN CIRCUMSTANCES; BY AMENDING SECTION 86-145,
ENTITLED "PROHIBITIONS," BY AMENDING THE ACTIVITIES AND ACTIONS PROHIBITED
BY A PERMIT HOLDER; BY AMENDING SECTION 86-148, ENTITLED "NO PERMIT;
PENALTY," BY AMENDING THE ACTIVITIES PROHIBITED WITHOUT A PERMIT; BY
AMENDING SECTION 86-152, ENTITLED "DISCLAIMER, DISPLAY, AND EXPIRATION OF
PERMIT," BY CREATING PROVISIONS AND REQUIREMENTS REGARDING THE CONTENT
OF PERMITS AND DISPLAY REQUIREMENTS; BY AMENDING DIVISION II OF CHAPTER 86,
ENTITLED "PERMIT," BY AMENDING SECTION 86-172, ENTITLED "APPLICATION," BY
AMENDING REQUIREMENTS RELATIVE TO THE CONTENT OF PERMIT APPLICATIONS; BY
AMENDING SECTION 86-173, ENTITLED "PROCESSING FEE," BY AMENDING THE
REQUIREMENTS FOR PROCESSING FEES FOR PERMITS; BY AMENDING SECTION 86-174,
ENTITLED "ADMINISTRATIVE RULES," BY AMENDING THE PROVISIONS REGARDING
ADMINISTRATIVE RULES AND SETTING FORTH FINES AND PENALTIES FOR NON-
COMPLIANCE WITH THE ADMINISTRATIVE RULES; PROVIDING FOR REPEALER,
SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
ADMINISTRATION RECOMMENDATION:
The Administration recommends that the Mayor and Commission approve the ordinance on second
reading.
BACKGROUND:
Chapter 86, Article III of the Miami Beach City Code, "Nonprofit Vending and Distribution" provides the
process by which nonprofit vending and distribution can occur in an unenclosed location, such as on a
public right-of-way, from portable tables. This provision in the Code ensures that this constitutionally-
protected activity can occur in such a manner as to not impact the safety, health and welfare of the general
public that uses our public rights-of-ways, such as city sidewalks.
Currently, the City Code defines a Nonprofit vendor as "a corporation that is expressly organized for
nonprofit purposes, that is in good standing at the time of its application for permit pursuant to this article
and that is deemed a tax exempt organization undersection 501 of the Internal Revenue Code." The City
allocates permits to nonprofit vendors through a quarterly lottery process to sell "message-bearing
merchandise" in five (5) locations on the City right-of-way. Nonprofit vending cannot be conducted except
in the permit locations, and only by the nonprofit vendor selected via the lottery. Typically, the City receives
between 35-50 nonprofit vendors applications for each quarterly lottery. While the applicant is a nonprofit,
the application process is generally handled by an agent acting on behalf of the nonprofit organization.
Page 2 of 4
Nonprofit Vending
This agent assists in the preparation of the permit application, attends the lottery on behalf of the
organizations, and coordinates staffing of the permit locations for organizations they represent who are
selected for a permit. We do not know the terms of any contractual relationship that may exist between the
nonprofit organization that is the applicant, and the agent that assists them with this process. There have
been two agents that have traditionally managed the nonprofit vending permit process on behalf of the
majority of the applicants.
PREVIOUS AMENDMENTS
As you are aware, in the past few years the City Commission has adopted Code amendments to address
the constitutionally-protected activity of artist vending and street performances. These amendments have
established, among other things, requirements relating to the set-up of vending areas and penalties for
violations of the ordinance. On January 16, 2008 the City Commission approved an amendment to the
Nonprofit Vendor and Distribution Ordinance to provide consistency in the fine and penalty provisions of
this ordinance with the Street Performer/Artist Vendor Ordinance. However, other changes relating to the
set-up of permit areas, among other things, were not addressed at that time, as there was a desire to look
at the balance of the nonprofit vendor ordinance to determine if additional changes were required.
Additionally, while it is understood that message-bearing merchandise refers to messaging relating to the
nonprofit and/or its mission, monitoring had indicated that more often than not the merchandise for sale
included other messaging or text inconsistent with the nonprofit organization's mission. As such, it was
concluded that amendments to the nonprofit vendor and distribution ordinance would be timely.
PROPOSED AMENDMENTS:
In reviewing the Non Profit Vendor and Distribution Ordinance for purposes of ensuring consistency with
the Street Performer/Artist Vendor ordinance, the existing code was reviewed and suggested changes
were identified. As reflected in the attached proposed amendment to Chapter 86, Article III, the following
changes are recommended:
Sec. 86-141. Definitions:
Clarifying language is included in the definition of "Message-bearing merchandise." Although the current
language clearly states that the message must be "inextricably intertwined with the purpose and activities
of the permittee," this additional language has been included in response to instances where text and/or
graphics not related to the non profit vendor has been included in merchandise being sold. Additional
language has been incorporated since the first reading to provide additional clarification.
Section 84-143. Area reserved for nonprofit vending and distribution:
• (a): additional language has been added to clarify the requirement of a permit for nonprofit vending
and distribution from a designated area.
• (c): language has been added to mirror the language in the Street Performer/Artist Vendor
Ordinance relating to the City's right to relocate or suspend either temporarily or permanently a
permitted nonprofit vendor from their area, including during a pending weather emergency.
Section 86-145. Prohibitions:
Language has been added to subsections (2), (4), (5), (6), (7), (9), (10), (11), (12), (13), (14), (15), (16),
(17) and (18) that provide for language in this ordinance to mirror language in the Street Performer/Artist
Vendor Ordinance relating to, among other things, the manner in which vending areas can be set up to
avoid issues for pedestrians and how vendor tables may be set up and in what space.
Section 86-148. No Permit; penalty.
Language has been added that it is a violation to engage in nonprofit vending with a permit from an area
that is not designated for nonprofit vending.
Section 86-152. Disclaimer, display, and expiration of permit.
This language has been added to mirror language in the Street Performer/Artist Vendor Ordinance.
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Nonprofit Vending
Section 86-172. Application.
Language has been deleted relating to Social Security Numbers, and added relating to after hours contact
information.
Section 86-173. Processing Fee.
Language has been added that while the fees can be set administratively, they must also be approved by
the City Commission. Language also clarifies that the permit application fee must be paid in full at the time
of the lottery, and the permit processing (if selected in the lottery) must be paid in full prior to the issuance
of a permit. This language is intended to mirror language in the Street Performer/Artist Vendor ordinance.
At the January 19, 2010 Neighborhoods/Community Affairs Committee, the Committee directly the
Administration to propose splitting the current permit processing fee of $135, similar to how the fee is split
for Street Performers/Artist Vendors. Staff was directed to develop a recommendation and bring to the
Commission when the item was presented at first reading. A recommendation is provided below relating to
the fee split.
Section 86-174. Administrative Rules.
This section clarifies that administrative rules exist and that all permittees are required to comply with
these administrative rules.
PRIOR COMMITTEE/COMMISSION ACTION:
The proposed amendments to the Nonprofit Vendor and Distribution ordinance were presented at the
January 19, 2010 Neighborhoods/Community Affairs Committee. While the processing fee for nonprofit
vending was established by the Commission during the budget approval process in September, 2009, and
the processing fee in and of itself is not being included as part of this ordinance amendment, nonprofit
vendors present commented on their concerns relating to having to pay the increased amount ($135
currently; $15 previously), and a desire be able to pay their permit processing fee in two parts (application
fee initially to participate in the lottery; permit processing fee if you are selected for a permit), as is now
being done for Street Performers/Artist Vendors. As was explained at the Committee and Commission
meetings, and as you may recall, both the nonprofit vendor permit application fees and the artist
vendor/street performer permit application fees were approved last summer during the budget process,
and as a result of Commission directive to staff to develop a cost recovery fee -where the city recovered
the costs associated with processing applications and issuing permits. The Committee indicated that the
new fee was appropriate in light of the need to recover the City's actual costs in processing applications,
and inquired as to whether the fee payment could also be split. As was reported to the Commission at first
reading, approximately 35-50 nonprofit vendors submit applications, but only five permits are issued. As
such, a split of the nonprofit vendor application fee to encompass an application processing and a permit
processing fee would not permit the City to recover its costs (approximately $27,000/year at present time),
and the administration recommended keeping the current fee structure.
The Commission also requested that the administration look at two possible amendments:
1) How to govern the number of applications that any one entity can submit; and
2) How to provide for a review of the product to make sure it complies with the non-profit message.
The current ordinance provides for administrative rules for the nonprofit vending program. As such, the
administrative rules will be amended to clarify that a nonprofit may only submit one application per quarter.
As such, there is no amendment necessary to address this issue. However, at present, the ordinance does
not restrict the ability of a nonprofit organization to use an agent to assist them in applying for or managing
their nonprofit permit, if they are selected. While it is true that one or two agents represent the majority of
the applicants, they are not the actual applicants for the permits. For many nonprofit organizations, the use
of agents provides assistance in being able to apply for this permit.
Page 4 of 4
Nonprofit Vending
In terms of the review of products, the administrative rules can certainly be amended to require that the
nonprofit organization provide the City at the time of application with samples (photos would be sufficient)
of the type of product they will be selling (e.g. t-shirts, posters, etc.), and of the anticipated messaging on
such. This would be provided for review purposes only by the City. The City can certainly alert the nonprofit
of any concerns we may have with the messaging on the sample they have provided, and the nonprofit
would govern themselves accordingly. More intensive monitoring of the nonprofit vendors will assist us in
ensuring that the nonprofit organizations are selling merchandise that ismessage-bearing and consistent
with the mission of the organization.
FISCAL IMPACT STATEMENT
The proposed amendments do not result in increased costs to the City, as the ordinance monitoring for
enforcement already occurs. However, violations of the ordinance would result in code violations and
associated fines/penalties.
CONCLUSION
The City has provided a framework for nonprofit vending and distribution on public rights-of-ways from
tables. In an effort to ensure that the City Code governing this constitutionally-protected activity is
comparable to the provisions in the City Code relating to other constitutionally-protected activities (e.g.
artist vending and street performances) these amendments are proposed. These provisions are intended
to ensure the public health, safety and welfare of the general public. As such, the proposed amendments
endeavor to create consistency, while at the same time providing clarifying language in the existing
ordinance. It is recommended that the Commission approve, on second reading, the proposed
amendments to Chapter 86, Article III, "Nonprofit Vending and Distribution."
ATTACHMENT
T:\AGENDA\2010Vipril 14\Regular\Non Profit Vendor Ord 2nd Rdg Public Hearing memo.doc
THE MIAMI HERALD I MiamiHerald.com _ _____ ____ ~_ _ __._ ~_____
m MIAMIBEACH
CITY OF MIAMI BEACH
`NOTICE OF PUBLIC HEARINGS
NOTICE IS HEREBY given that second readings and putilic hearings will be held by the -Mayor
and City Commission of the City of Miami Beach; Florida, in 'the Commission Chambers, ',
3rd floor, City Hall, 1700 Convention Center Drive, Miami Beach, Florida, on Wednesday,
April 14, 2010, to consider the following:
10:15 a.m.
Ordinahce Amending Section 90-230 Of Chapter 90 Of The City Code, Entitled "Solid Waste;"
Said Amendment Increasing The Term Of The City's FranG~se Waste Cgntractors/Franchise
Waste Contractor Agreements From Three {3) To Five {5) Years; Amending Section 90231,
Entitled "Recycling Requirements. For Franchise Waste Contractors; Protest Procedures;" And
Inquiries may be directed to the Publ
10:20 a.m.
ent (305} 673-7080: ""
r
>:
gY
ge-Be
"No-Permit; Penalty," By Amen
Section 86-152.
Inquiries maybe directed tothE
INTERESTED PARTIES are inu
or to express their views in v
1700 Convention Center Drive
1anager's Office (305) 673-7010.
131.39 or via the-City's -web site at www.miamibeachfl.gov. l rns meetng may ne conunuec
rnd under such circumstances additional legal notice would not be provided.
Robert E. Parcher, City Clerk
City of Miami Beach
'ursuantto Section 286:0105, Fla. Slat., the City hereby advises the public that: if a persor
tecides to appeal any decision made by the City Commission with respect to any matte
eonsitlered at-its meeting or-its hearing, such person must ensure that a verbatim record e
the proceedings is made, which record includes the testimony and evidence upon which the
appeal is to be based. Thfs notice does not constitute consent by the City fiorthe in#roductio
or admission of .otherwise inadmissible or irrelevant evidence, nordoes if authorize challenge
or appeals not otherwise allowed by law.. ~ `'
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access for persons with disabilities, and/or any accgmmodation to review any .documer
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