Limitations within the Downtown Miami special vending district

Vending within the Downtown Miami vending district shall be subject to all generally applicable rules and regulations in this article except as contrarily and specifically provided below:

(1)

No merchandise shall be vended or displayed other than:

a.

Prepackaged foods, as defined by 61C-4.009, Florida Administrative Code (1994), as amended, of the snack food type.

b.

Prepared foods including, but not limited to: ice cream, baked goods, fresh fruit and the like.

c.

Unprepared foods including, but not limited to: hot dogs, crepes and the like.

d.

Plants and flowers including, but not limited to: fresh cut or dried flowers or potted plants and the like.

(2)

Vending of merchandise shall be prohibited from any type of vehicle or stand other than a pushcart of the specific types and construction shown and described on composite "exhibit B," attached to Ordinance No. 11212. Pushcarts satisfying said criteria may be purchased by the DDA utilizing fees collected from vending zone franchises and may be leased to the franchisees at lease rates to be determined by the DDA. Vendors shall not be precluded from using non-DDA provided equipment or pushcarts. However, said materials shall satisfy the above criteria and be inspected and certified by DDA as having complied with this section.

(3)

No merchandise, supplies, containers or any other items related to the vendor shall be placed anywhere within the public right-of-way other than on or concealed within the pushcart, with the exception of one folding chair or wooden stool of a type approved by the DDA.

(4)

No vendor or entity shall own, operate, hold or control a local business tax receipt for more than one pushcart in the herein district.

(5)

Vending zones.

a.

Assignment of vendors to specific vending zones.

1.

Franchise rights.

i.

Vending in vending zones within the Downtown Miami special vending district shall be the subject of inquiries from duly licensed vendors willing to pay for the franchise right to vend exclusively from a specifically identified vending zone, subject to applicable rules, regulations, ordinances and statutes governing vending. There shall be a monthly franchise fee of $100.00 for area A, $50.00 for area B, and $20.00 for area C. As a condition precedent to the granting of a franchise, the first full monthly payment and any partial month preceding the first full month, pro rated, shall be paid at the time the franchise is granted. Each succeeding monthly payment shall be paid by the franchisee, at the office of the DDA, on the first day of each month (on the following Monday if the first is on weekend, and the next day if the first is on a national holiday which closes City of Miami offices on such Monday). Payments shall be made by cashier's check, bank-certified funds, or money order payable to the City of Miami. Failure to tender required payments on the dates specified shall invalidate said franchise award and vacate the vending zone.

b.

Location of vending zones.

1.

There shall be a maximum of 75 vending zones in this district, with 25 allotted to each of those areas to be known as A, B, and C. Vending zones shall be delineated by the DDA in cooperation with the resilience and public works department based upon the following criteria:

i.

Vending zones shall be located in areas where the sidewalk width is sufficient to accommodate regular daily peak-hour pedestrian flow plus the six-foot sidewalk width necessary for the vending zone, with a minimum of friction and pedestrian inconvenience.

ii.

Vending zones shall, whenever possible, be located where the sidewalk and curb have been extended into the street forming a pedestrian peninsula.

iii.

Along the streets, where the sidewalk does not meet the above criteria, vending zones may be located in areas of the sidewalk constricted in width by existing utility poles, benches, signposts, trees, and similar permanent obstructions.

iv.

Vending zones shall conform to all limitations listed in section 39-32 except as contravened in this section.

v.

Vending zones shall be limited to no more than ten percent of the linear frontage of each block. Priority shall be given to qualified areas near street corners and major nonresidential building entrances. Said zones shall have a minimum distance separation from one another of 50 feet.

2.

No vending shall be permitted within the Downtown Miami special vending district except within the sidewalk areas specifically designated on the official map attached to Ordinance No. 11212 as composite "Exhibit A." Said vending maps, as amended, shall be the official vending zone locator for this district and shall be kept in the office of the city clerk with certified copies being furnished to the executive director, the director, and the city manager's office or its designated city department.

3.

Substitute locations amending said map may be considered and approved by the executive director on a case-by-case basis if such locations are in compliance with all the provisions of this article and other applicable regulations. The revised location map shall be immediately filed with the city clerk and copies sent to the director and the city manager's office or its designated city department.

4.

Vending zones may also be eliminated.

5.

Eliminations or substitutions shall be based on findings by the executive director or director that such action is warranted on health and safety grounds, or necessitated by rights-of-way improvement or private or public construction activity.

c.

Lottery.

1.

The DDA shall establish and the executive director shall supervise a lottery system whereby those persons possessing, as conditions precedent to participating in the lottery, valid and appropriate state licenses (upon required inspections, from the state department of business and professional regulation for the sale of prepared food, and/or the state department of agriculture for the sale of prepackaged food, or their successor agencies), an local business tax receipt, appropriate state and local sales tax certificates and DDA pushcart certification shall be publicly chosen by chance for vending zones in this district. The executive director, the city manager's office or its designated city department shall assign each vending zone a number corresponding to a location on the appropriate vending map. All qualified vendors shall have their names placed into containers for a public drawing by the executive director or his or her designee to determine which location shall serve as the vending zone for each vendor for the franchise period. At the conclusion of the franchise period all franchise rights shall end and all franchises shall be subject to a new lottery.

2.

The DDA is authorized and directed to annually issue a "Notice of Street Vending Franchise Opportunities in Downtown Miami." Said notice for each franchise period shall be publicly advertised in a newspaper of general circulation approximately 60 days prior to each franchise period and shall indicate the pending availability of exclusive vending zones in the district, and the terms of such availability, including the date, place and time of the lottery. Notices as for a posted notice lottery may also be given, but shall be considered courtesy notice only.

3.

Utilizing the standards and criteria set forth in this article, the DDA may promulgate such reasonable supplementary rules, regulations and/or procedures as are necessary to implement and effectuate the herein lottery and vending zone assignment process, which shall include participation by a representative of the Downtown Miami Partnership. Said supplementary rules, regulations and procedures shall be filed with the city clerk, and also made available at the DDA and the city manager's office or its designated city department.

4.

For vending zones which may become available during the franchise period due to vacancy, abandonment or executive director's or director's action, the executive director may specify the date, time and place for the holding of a special lottery for such designated vending zone(s), and shall publicly advertise said information as for a posted notice lottery.

5.

All franchise documents are nontransferable. Sale of a majority of stock in a corporate franchise by stockholders listed on the franchise application or sale of a majority interest in a partnership as listed on the franchise application shall be deemed a transfer of the franchise, which is prohibited. The franchise document shall be in the possession of the vendor and immediately accessible at all times, and shall be displayed to a police officer or code enforcement officer upon request. Failure to immediately provide this document, along with a valid local business tax receipt, the pushcart certification required by subsection (2) of this section, sales tax certificate(s) required by subsection (16) of this section, and appropriate current state inspection license(s) shall be grounds for immediate removal of the pushcart from the vending zone and district, suspension of the franchise and initiation of local business tax receipt and franchise revocation proceedings by the executive director or city manager's office or its designated city department.

6.

Franchises awarded pursuant to this section shall be subject to section 39-29. Furthermore, the award of a franchise pursuant to this section does not grant or infer vested rights to the use of the public rights-of-way by the franchisee.

7.

Any vending zone or franchise document issued pursuant to this section shall be subject to modification by ordinance at any time deemed necessary by the city commission. Vending in any vending zone may be temporarily suspended or relocated by the director upon reasonable notice when private or public construction or activities or health and safety concerns of the director make it unsafe or impractical to allow vending in that vending zone. Such suspension(s) which last for a continuous or cumulative period in excess of five days of a franchise period shall result in a pro rata refund of the lottery franchise fee paid by the franchisee who is the subject of such suspension. No other payments or compensation shall be owed by the city or due the franchisee as a result of such suspension(s). A vendor so dispossessed may, if possible, be offered a substitute vending zone by the executive director without the necessity of lottery proceedings. Said new location shall be valid for the balance of the time remaining on the vendor's franchise document for that franchise period, or until the vendor's original franchise is again available, whichever date or event occurs first. If a substitute location is accepted by the vendor the refund shall be only for the actual days of suspended operation, and shall not include the assigned day(s) of operation in the substitute location.

8.

Vending activity voluntarily terminated, or suspended or revoked due to unauthorized absence or other violations of this article or otherwise violating the Code of the City of Miami, Dade County or general law shall not be the basis for any pro rata refund of a franchise fee. Revocation of franchise documents based on voluntary termination, unauthorized absences or violations shall result in a forfeiture of the entire franchise fee.

d.

Limitations within vending zones.

1.

There shall be no more than one vendor permitted to operate within each vending zone.

2.

Each vendor shall be permitted to operate within only one vending zone.

3.

Each vending zone shall approximate the size of the specific pushcart permitted within said vending zone and shall be clearly marked on the sidewalk.

4.

Vending pushcarts shall be, at all times, positioned so that their longest side is parallel to the street curb.

e.

All participants in lottery proceedings pursuant to this section shall submit, as a condition precedent to participating, a copy of an appropriate valid local business tax receipt, certification from the DDA that the pushcart which is to be used in this district has been issued a document evidencing compliance pursuant to subsection (2) of this section, sales tax certification pursuant to subsection (16) of this section and the appropriate state license pursuant to subsection (20) of this section.

f.

Unauthorized absence from a designated vending zone shall constitute a basis for suspension and revocation of a franchise document. Upon certification by the executive director or the city manager's office or its designated city department that a vending zone has been unoccupied for a continuous period of 15 days for reasons other than those mentioned in subsection (5)c.5 of this section or section 39-29, the executive director or city manager's office or its designated city department shall notify the vendor of the intent to revoke the vendor's franchise unless clear evidence of vending activity during the 15-day period in question is provided to the executive director or city manager's office or its designated city department. Subsequent to ten-day notice mailed by certified mail to the address shown on the vendor's lottery application form, the executive director shall conduct a hearing and may revoke the vending franchise and reward the franchise to a different vendor, pursuant to a posted notice lottery, for the balance of that franchise period. The vendor subject to such revocation may appeal said decision in the same manner provided in section 54-230. An appeal shall not stay an order banishing a pushcart or franchisee.

g.

Any franchisee incurring three written notices of violation of this article within a two-year period shall be the subject of the following franchise revocation proceedings:

1.

When violations occur, the franchisee shall be notified by the executive director, his/her designee, or the city manager's office or its designated city department in person or via certified mail. The first violation notice or citation shall be a reprimand; the second violation notice or citation shall be a warning; the third violation notice or citation shall result in an automatic revocation of franchise document, immediate removal of the franchisee's pushcart from the district, and banishment of the violator from the district for a period of one calendar year.

2.

Revocations may be appealed in the same manner provided in section 54-230. An appeal shall not stay an order to remove a pushcart or banish a franchisee from the district.

h.

A franchisee may voluntarily relinquish a franchise through written, notarized notification to the executive director, specifying an effective date. On said date the subject vending zone shall be automatically reclassified as vacant, and subject to reassignment in a special lottery. The relinquishing franchisee shall be ineligible to participate in any lottery in that specific special vending district for the balance of that franchise period.

(6)

All goods for sale other than those on display must be stored within the structure of the pushcart and shall not be visible to the general public.

(7)

It shall be unlawful for any vendor to use any noise making device to solicit customers.

(8)

Pushcarts shall not be chained or otherwise affixed to trees, lightpoles, sign stanchions or any other object in the right-of-way.

(9)

Pushcarts shall be required to be in their vending zone between the hours of 9:00 a.m. and 6:00 p.m. on a weekday and between the hours of 10:00 a.m. and 6:00 p.m. on a Saturday or Sunday.

(10)

Vending shall be prohibited within eight feet of the entranceway to any building, and within 50 feet of the entranceway to any church, synagogue or other place of worship.

(11)

No open flame cooking shall be permitted.

(12)

Vending zones shall not be occupied exclusively by a selected vendor pursuant to this section until July 1, 1995. Said date shall initiate the inaugural franchise period for the Downtown Miami special vending district.

(13)

Fees collected under this subsection are for franchises granted for the exclusive right to use a portion of the public right-of-way, and are in addition to other permit fees and local business taxes imposed by law.

(14)

All franchise fees collected pursuant to this section shall be placed in a special account established for the Downtown Miami special vending district by the City of Miami's director of finance, and shall be utilized exclusively by the executive director, upon approval of the DDA board of directors, for the administration of this district, its management services and purchase or replacement of pushcarts and/or related equipment.

(15)

The executive director shall design and distribute to those awarded a vending zone a franchise document identifying the person or entity chosen by lottery, the specific location where said person or entity is to be allowed to vend exclusively during the vending period, and the duration of such entitlement.

(16)

Except as otherwise provided in this section all franchise documents issued for vending activity within the district shall be valid for a period of one year or, in the case of special lottery franchisees, the balance of the franchise period. Prior to the expiration date (September 30 of each year), vending zones shall once again be awarded pursuant to the lottery requirements of this section. The reallocation and assignment of vending zones shall become effective on October 1 of each year and no vendor shall be allowed to occupy the same vending zone for two consecutive franchise periods.

(17)

All franchise documents issued for vending activity in this district shall only be valid during one franchise period, and shall expire on the expiration date shown on the franchise document and records of the executive director. Upon such expiration the vendor's exclusive right to such vending zone shall terminate, and vending rotation rights shall once again be awarded pursuant to the lottery procedures of this section.

(18)

Liability and insurance.

a.

Prior to the issuance of a franchise document, the vendor shall furnish the executive director with a signed statement that said vendor shall hold harmless and indemnify the city and DDA and their officers and employees for any claims for damages to property or injury to persons which may be occasioned by any activity carried on under the terms of the franchise document and associated local business tax receipt.

b.

Prior to the issuance of a franchise document, said vendor shall also furnish proof of and maintain such public liability and property damage from all claims and damage to property or bodily injury, including death, which may arise from or in connection with operations under the franchise document and associated local business tax receipt. Such insurance shall provide coverage of not less than $500,000.00 for bodily injury, and property damage respectively per occurrence. Such insurance shall be without prejudice to coverage otherwise existing and shall name as additional insured the city and DDA and their officers and employees, and shall further provide that the policy shall not terminate or be canceled for any reason, prior to the completion of the franchise period without 45 days' written notice to the risk management division of the department of fire-rescue or its successor, the executive director and the director of resilience and public works of the city at the addresses shown in the franchise document.

(19)

Sales tax certification. Prior to the issuance of a franchise document, the vendor shall also furnish original evidence of a valid certificate of resale or equivalent document from the Florida Department of Revenue and Metropolitan Dade County, if applicable, evidencing that the vendor and the specific vending activity authorized by said franchise document have been permitted by said tax collection entities to the extent mandated by law. Franchisee(s) shall furnish upon demand, evidence that the herein requested certificate of resale or equivalent document is current. Failure to maintain said certification shall constitute a basis for suspension and/or revocation of a franchise document.

(20)

State license inspection and certification. Prior to issuance of a franchise document, the vendor shall also furnish original evidence of a valid license issued, upon inspection, by the state department of business and professional regulation (for vending prepared food, as defined by state regulations) and/or the state department of agriculture (for vending prepackaged food, as defined by state regulations).

(Ord. No. 9880, § 1, 9-13-84; Ord. No. 10479, § 1, 9-8-88; Ord. No. 10633, § 1, 9-14-89; Ord. No. 10805, § 1, 10-25-90; Ord. No. 10891, § 1, 6-20-91; Ord. No. 11212, § 3(39-17), 1-12-95; Ord. No. 11249, § 2, 4-27-95; Code 1980, § 39-17; Ord. No. 11288, § 2, 7-13-95; Ord. No. 12885, § 1, 2-8-07; Ord. No. 13676, § 2, 4-27-17; Ord. No. 13792, § 1, 10-11-18; Ord. No. 14138, § 12, 2-9-23)