ARTICLE IX. SHOPPING CART REGULATIONS
Sec. 33-211. Findings and purpose.
(a) Many retail establishments provide shopping carts for the convenience of customers while shopping on the establishment’s premises. However, shopping carts removed from the premises of these establishments and left abandoned on public or private property throughout the city constitute a public nuisance and a potential hazard to the health and safety of the public. The proliferation of lost, stolen, wrecked or abandoned shopping carts on public and private property:
(1) Create conditions that reduce property values, and promote blight and deterioration of the city neighborhoods, tending to lead to declining property values and increases in crime;
(2) Obstruct the free passage along public and private streets, sidewalks, parking lots and other rights of way and/or interfere with pedestrian and vehicular traffic on streets;
(3) Impede emergency service; and
(4) Clog storm drain channels reducing their ability to function properly, by trapping debris and trash and thereby creating flooding hazards, and constitute violation of the city’s waste discharge requirements.
(b) For the above-referenced reasons, such lost, stolen, wrecked or abandoned shopping carts are hereby declared to be a public nuisance, which shall be subject to abatement in the manner set forth in this article or in any other manner provided by law.
(c) The purpose of this article is to set forth regulations to ensure that reasonable measures are taken by owners of businesses which provide shopping carts on their premises for the convenience of their customers to prevent the removal of shopping carts from business premises and parking lots, and, when removed despite the owner’s implementation of its control pan, to provide for the prompt retrieval of such shopping carts.
(d) The purpose and intent of this article is additionally to ensure that measures are taken by owners to prevent the removal of shopping carts from a business premises, to make removal of shopping carts a violation of the law, and to facilitate the retrieval of abandoned shopping carts in a manner that supplements and complements state law, but is not preempted with state law.
(Ord. No. NS-2725, § 2, 10-2-06)
Sec. 33-212. Applicability/prohibition.
(a) This article shall apply to all owners of business establishments or other commercial services within the city that provide more than five (5) shopping carts for customer use.
(b) It shall be unlawful for an owner and/or owner’s agent to cause or permit any shopping cart to be abandoned upon any sidewalk, street or other public place in the city or upon any private property other than the premises owner of such shopping cart.
(Ord. No. NS-2725, § 2, 10-2-06)
Sec. 33-213. Shopping cart identification required.
(a) Every shopping cart owned or provided by any owner must have a sign permanently affixed to the shopping cart that contains all of the following information:
(1) Identity of owner, or owner’s business establishment, or both;
(2) The address of the owner of the business establishment for shopping cart return and a phone number at which a person may contact the owner to retrieve the shopping cart; and,
(3) Notification to the public that the removal of the shopping cart from the premises is a violation of state and local law.
(b) Any shopping cart found abandoned that does not have the identification and information required by this section may be removed and disposed of by the city in accordance with state law.
(c) No owner shall provide any shopping cart for customer use that does not contain the signage required by this section.
(Ord. No. NS-2725, § 2, 10-2-06)
Sec. 33-214. Premises signage.
Signs shall be placed and maintained on the premises, at all customer store entrances and exits, and in the parking area, warning customers that removal of shopping carts from the premises is a prohibited by state and local law. Any and all posting of signs shall comply with the provisions of the Code, except that the number and placement of such signs may be in excess of those limits found in chapter 41.
(Ord. No. NS-2725, § 2, 10-2-06)
Sec. 33-215. Unauthorized removal prohibited.
It shall be unlawful for any person:
(a) To remove a shopping cart from a premises, either temporarily or permanently, which is properly marked in conformity with this article, without the written consent of the owner; or
(b) To be in possession of a shopping cart that has been removed from a premises, which is properly marked in conformity with this article, without the written consent of the owner; or
(c) To detach the sign or deface the name or address marked on a sign, which is properly marked on a shopping cart in conformity with this article.
(d) This section shall not apply to shopping carts removed as authorized by the owner for the purposes of repair, maintenance or disposal.
Sec. 33-216. Mandatory shopping cart control plan.
(a) Every owner subject to this article shall prepare, submit, implement and comply with the terms and conditions of a shopping cart control plan to prevent the unauthorized removal of any shopping cart from the owner’s premises and, if removed, retrieval of the shopping cart within time periods set forth in subsection (b)(8). The focus of the plan shall be on means to confine shopping carts to the owner’s premises.
(b) The shopping cart control plan shall be designed to effectively prevent the removal of all shopping carts from the premises. The owner shall have the obligation to provide demonstrable evidence to the director that the elements proposed will be effective. The plan shall include the following elements.
(1) Sign affixed to cart. Every shopping cart shall have a sign permanently affixed to it fully compliant with the requirements of section 33-213 of this article.
(2) Premises signage. Signs shall be placed and maintained on the premises, as required by section 33-214.
(3) Shopping cart inventory. The plan shall include a complete list of all shopping carts maintained on or in the premises.
(4) Community education plan. A description of a community education and outreach program to be carried out by the owner that will effectively inform customers that the removal of shopping carts from the premises is prohibited and is a violation of state and local law. This program may include, but is not limited to, flyers distributed at the premises, warnings on shopping bags, supplemental signage, direct mail, announcements using intercom systems at the premises, web site or other means demonstrated to be effective to the reasonable satisfaction of the director.
(5) Shopping cart identification. Signs and shopping cart identification requirements which conform to state and local law.
(6) Shopping cart containment plan. The plan shall describe the specific measures that the owner shall implement to prevent shopping cart from being removed from the premises. These measures may include, but are not limited to.
(i) Electronic or other disabling devices on the shopping carts so they can not be removed from the premises; or,
(ii) Bollards, chains or other physical barrier to prevent transporting shopping carts out of the store or off the premises; and/or,
(iii) Effective management practices including use of (A) courtesy clerks to accompany customers and return the shopping carts to the store, (B) security personnel assigned the responsibility to prevent removal; (C) or other measures acceptable to the director that the owner can demonstrate will effectively prevent shopping cart to be removed from the premises.
Where physical improvements such as (i) and (ii) above are not proposed, the plan shall include justification for such omission.
(7) Employee training. The plan shall include a description of an annual ongoing employee training program that shall be implemented by the owner designed to educate new and existing employees on the shopping cart control plan and conditions contained therein.
(8) Mandatory shopping cart retrieval element. The plan shall include provisions for retrieval of abandoned shopping carts. The plan shall ensure that all of owner’s shopping care removed from the premises shall be recovered within twenty-four (24) hours, or in the case of shopping carts abandoned at or around a bus stop, within twelve (12) hours.
The retrieval element shall identify the streets and bus stops which shall be patrolled; the manner, frequency and times of such patrols; and the procedures to be employed by the owner to retrieve abandoned shopping carts, including but not limited to the number of trucks and hours of operation of retrieval activities. In addition, the retrieval element shall detail a telephone notification program, whereby persons may notify the owner of an abandoned shopping cart and request retrieval of any shopping cart properly identified as belonging to the owner; and provide that each vehicle used to retrieve shopping carts shall bear conspicuous signs identifying the name of the owner or the retail business name and, if applicable, the name of the contract shopping cart retrieval service.
(9) Daily cart confinement. A plan for storing shopping carts during non-business hours, for any business which is not open twenty-four (24) hours per day, to prevent theft when closed.
(10) Collaboration with other businesses. Two (2) or more retail establishments located within the same shopping or retail center or sharing a common parking area may collaborate and submit a single shopping cart control plan.
(11) Monthly reports. The owner shall provide a written report to the director specifying the number of abandoned shopping carts retrieved on the owner’s behalf during the preceding calendar month. The report may be provided by an owner’s contract shopping cart retrieval service.
(Ord. No. NS-2725, § 2, 10-2-06)
Sec. 33-217. Fees.
Every owner subject to this article shall submit with its initial proposed plan and thereafter annually with its annual report a fee in the amount set forth by resolution of the city council adopted from time to time. The fee shall not exceed the city’s reasonable cost to administer and manage the activities mandated by this article, and shall not include the city’s cost of retrieving shopping carts, except as provided for in Business and Professions Code section 22435.7.
(Ord. No. NS-2725, § 2, 10-2-06)
Sec. 33-218. Plan approval or denial and penalties.
(a) Upon this article becoming effective, all owners shall submit a shopping cart control plan in compliance with section 33-216 to the director. For the initial plans, the director shall establish a schedule for submittal of plans. The director shall give written notice to each owner of its deadline for submittal of a plan, provided that all plans must be submitted no later than March 1, 2007 The schedule shall provide at least sixty (60) days from notice to submit a plan. The director may approve or deny the proposed plan and shall notify the owner of such decision. If approved, the shopping cart control plan shall be implemented by the owner no later than time specified in the approval, which shall not be thirty (30) days less than the date of the director’s notice.
(b) Notwithstanding the foregoing, the obligations imposed by this article in sections 33-213 and 33-214 shall be fully implemented no later than ninety (90) days from the effective date of this article.
(c) Thereafter, each owner must amend or update its plan at the earlier of
(1) any substantial modification of an owner’s business or premises that would adversely affect an approved plan or
(2) on the fifth (5th) anniversary of approval of its initial plan, and each fifth (5th) year thereafter. All new businesses established after January 1, 2007 must file a plan prior to issuance of a business license for that new business.
(d) The director may deny a plan based upon any of the following grounds:
(1) Implementation of the plan violates any provision of the building, zoning, health, safety, fire, police or other provision of this code or any county, state or federal law which substantially affects public health, welfare, or safety;
(2) The plan fails to include all of the information required by this article;
(3) The plan is insufficient or inadequate to prevent removal of shopping carts from the premises;
(4) The plan fails to address any special or unique conditions due to the geographical location of the premises as they relate to shopping cart retention and prevention efforts.
(5) Implementation of the plan violates a term or condition of a plan or other requirement of this Code;
(6) The owner knowingly makes a false statement of fact or omits a fact required to be revealed in an application for the plan, or in any amendment or report or other information required to be made.
(e) If the plan is rejected as incomplete or inadequate, the director shall indicate areas of incompleteness or inadequacy, and the owner shall have an additional thirty (30) days in which to resubmit a complete and adequate plan.
(f) An owner who fails to submit a complete plan to the satisfaction of the director, or fails to implement approved plan measures or fails to comply with the approved plan measures will be subject to enforcement of these requirements through any lawful means available to the city, including without limitation institution of the administrative remedies process pursuant to Chapter 1.
(g) The director’s decision shall be final.
(Ord. No. NS-2725, § 2, 10-2-06)
Sec. 33-219. Plan modification and annual report.
(a) At any time after the director’s approval of any abandoned shopping cart plan, the owner may submit to the director a modification of the previously approved plan to address a change in circumstances, address an unanticipated physical or economic impact of the plan, or modify an inadequate or ineffective plan.
(b) Each year, on or before the anniversary of the director’s approval of the plan, each owner (or multiple businesses that have collaborated on a single approved plan) shall submit an annual report to the director (1) certifying its compliance with the approved plan and each item specified in section 33-216, (2) detailing compliance with each provision of its approved plan over the prior year, and (3) summarizing its monthly cart retrieval statistics for the prior year. The director may, based upon review of the annual report, initiate modification or revocation proceedings.
(Ord. No. NS-2725, § 2, 10-2-06)
Sec. 33-220. Modification or revocation of plan.
An approved plan may be revoked by the director, or modified in lieu of revocation in the exercise of the director’s sound discretion, upon any of the following occurrences:
(a) The owner is operating, or is permitting operation, of the retail business in violation of one or more provisions of the plan and has failed to correct such violations for a period of at least fifteen (15) calendar days following date of receipt of written notification of such violation(s) from the city.
(b) The plan is inadequate to either reasonably prevent the removal of shopping carts from the premises, or reasonably ensure the prompt retrieval of abandoned shopping carts.
(c) The owner has failed to comply with any of the provisions of this article.
(d) The owner knowingly makes a false statement of fact or omits a fact required to be revealed in an application for the plan, or in any amendment or report or other information required to be made.
(Ord. No. NS-2725, § 2, 10-2-06)
Sec. 33-221. Notice of intended decision.
(a) Upon determining the existence of any of the grounds for revocation of a plan in accordance with section 33-220, the director shall issue to the owner a notice of intended decision to revoke or modify the plan.
(b) The notice of intended decision shall state all the grounds upon which the revocation or modification is based.
(c) The notice of intended decision shall advise the owner that the revocation or modification shall become final unless the owner files a written request for hearing before the director within ten (10) calendar days of the date of service of the notice of intended decision to revoke or modify the plan.
(d) The notice of intended decision shall specify the effective date of the revocation or modification of the plan.
(Ord. No. NS-2725, § 2, 10-2-06)
Sec. 33-222. Procedure for hearing before the director.
(a) The written request for a hearing before the director must be received by the director within ten (10) calendar days of the date of service of the notice of intended decision to revoke the plan or deny the renewal application for an exemption.
(b) Upon timely receipt of a written request for a hearing, the director shall schedule a hearing which shall be held no later than thirty (30) calendar days after receipt of a timely request for hearing.
(c) The director shall serve a notice of hearing on the owner at least ten (10) calendar days prior to the scheduled date of the hearing.
(d) At the hearing before the director, or before a hearing officer at the director’s option, the owner shall be given the opportunity to present witnesses and relevant documentary evidence.
(e) The hearing will be conducted informally and the technical rules of evidence shall not apply. Any and all evidence which the director or hearing officer deems reliable, relevant and not unduly repetitious may be considered.
(Ord. No. NS-2725, § 2, 10-2-06)
Sec. 33-223. Decision of the director.
(a) The director or hearing officer shall serve on the owner a written decision sustaining, reversing or modifying the director’s intended decision.
(b) The decision by the director or hearing officer after hearing shall become final unless the owner files an appeal within the time period specified in section 33-224.
(Ord. No. NS-2725, § 2, 10-2-06)
Sec. 33-224. Chapter 3 appeal.
(a) If an owner is dissatisfied with the written decision of the director, the owner may file a written appeal to the city.
(b) The appeal must be in writing on a form provided by the city and must be received by clerk of the council within ten (10) calendar days of notification of the director’s decision.
(c) The appeal, including its hearing, shall be conducted in accordance with chapter 3.
(Ord. No. NS-2725, § 2, 10-2-06)
Sec. 33-225. Enforcement.
Every owner shall comply with the provisions of this article and every provision of the owner’s approved shopping cart control plan.
Any owner who violates any provision of this article or any provision of the owner’s approved shopping cart control plan shall be subject to enforcement procedures for each violation through any lawful means available to the city, including without limitation institution of administrative remedies in accordance with chapter 1.
(Ord. No. NS-2725, § 2, 10-2-06)
Sec. 33-226. Retrieval notification.
The city may notify the owner of an abandoned shopping cart as identified on the signage information permanently affixed to the shopping cart. The city notification shall be documented and provided either by telephone or by written notice. The notification shall require that the identified shopping cart(s) be retrieved pursuant to the conditions for retrieval as set forth in the owner’s abandoned shopping cart retrieval plan.
(Ord. No. NS-2725, § 2, 10-2-06)
