CHAPTER 18, ARTICLE VIII
Section 18-354: Cart Identification and Premises Signage Required.
a) Every cart, including shopping carts and laundry carts, owned or provided by any business owner shall have a legible sign permanently affixed to the cart that contains the following information in both English and Spanish languages:
1) An up-to-date identity of the cart owner, business establishment, or both.
2) Notification to the public that the removal of the cart from the premises or parking area of the business establishment, or the unauthorized possession of the cart, is a violation of state and city law.
3) An up-to-date address and valid phone number of the cart owner or the business establishment for cart return.
4) Notification to the public of the procedure to be utilized for authorized removal of the cart from the premises.
b) Any cart found abandoned on public or private property that does not have the identification and information required by this section shall be removed from the property and disposed of by the city in accordance with state law.
c) All business owners providing carts shall post signs in both English and Spanish languages no less than 18 inches in width and 24 inches in height with block lettering not less than one-half inch in width and two inches in height in a conspicuous place on the premises within two feet of all customer entrances and exits, including the parking area, stating at a minimum, the following:
1) REMOVAL OF CARTS FROM THESE PREMISES AND/OR UNAUTHORIZED POSSESSION IS PROHIBITED BY LAW (Cal. Bus. & Prof. Code Section 22435.2; Pomona City Code Section 18-356) AND PUNISHABLE BY A FINE OF UP TO $1,000 and SACAR LOS CARRITOS Y/O TENERLOS EN SU POSESION SIN AUTORIZACION ES PROHIBIDO POR LA LEY (Cal. Bus. & Prof. Code Section 22435.2; Codigo de la Ciudad de Pomona Seccion 18-356 Y SERA CASTIGADO CON UNA MULTA
DE HASTA $1,000
d) Any business owner not in compliance with this section within 60 calendar days from its adoption will be in violation of this section.
(Ord. No. 3996, § 5-203, 9-22-2003; Ord. No. 4101, § 1, 4-21-2008)
Section 18-355: Abandonment Prohibited
a) It shall be unlawful for any person to cause or permit any cart to be abandoned on or upon any sidewalk, street or other public area, or upon private property, other than the premises of the owner of such cart.
b) It shall be unlawful for a business owner to knowingly have on its premises for the use of its customers, carts identified on the carts as belonging to a different business owner.
(Ord. No. 3996, § 5-204, 9-22-2003)
Section 18-356: Unauthorized Removal and/or Possession Prohibited.
a) It is unlawful to do any of the following acts if a cart had or has a permanently affixed sign as provided in section 18-354:
1) To remove a cart from the business premises or the parking area of a business establishment providing carts for use while on the premises, with the intent to temporarily or permanently deprive the cart owner or business establishment of possession of the cart;
2) To be in possession of a cart that has been removed from the business premises or the parking area of a business establishment providing carts for use while on the premises, with the intent to temporarily or permanently deprive the cart owner or business establishment of possession of the cart;
3) To be in possession of a cart with serial numbers, its sign or containment mechanisms removed, obliterated, or altered, with the intent to temporarily or permanently deprive the cart owner or business establishment of possession of the cart;
4) To alter, convert, or tamper with a cart, or to remove any part or portion thereof, including but not limited to containment mechanisms, or to remove, obliterate or alter serial numbers on a cart, with the intent to temporarily or permanently deprive the owner or retailer of possession of the cart; or
5) To be in possession of a cart while that cart is not located on the premises or parking lot of the business establishment providing carts for use while on the premises, with the intent to temporarily or permanently deprive the cart owner or business establishment of possession of the cart.
b) There is a rebuttable presumption that any cart with proper identification pursuant to section 18-354 but not located on the premises or parking lot of the proper business establishment:
1) Was removed from the business premises by the person using the cart, and without the owner's consent; or
2) Was not abandoned by the owner.
c) Subsection (a)(1) shall not apply to carts removed as authorized by the owner for the purpose of repair, maintenance or disposal.
d) Subsections (a)(1), (a)(2), and (a)(5) shall not apply to those persons who obtain written consent from the owner allowing the removal and use of the cart off the premises of the proper business establishment.
(Ord. No. 3996, § 5-205, 9-22-2003; Ord. No. 4101, § 2, 4-21-2008)
Section 18-357: Mandatory Abandoned Cart Prevention Plan
a) Every business owner who provides carts, or allows or intends to allow the use of carts, shall develop, implement and comply with the terms and conditions of a city approved abandoned cart prevention plan to prevent the unauthorized removal by any person of any carts from the owner's premises and, if removed, to retrieve the cart within 24 hours of the removal, or notice of removal. The owner's abandoned cart prevention plan shall include the following elements:
1) Name of business/owner. The name of the owner and the business name; the physical address where the business is conducted; name, address and phone numbers of the on-site and off-site owner if different.
2) Inventory of carts. A complete list of all carts maintained on or in the premises.
3) Community outreach.
I) A description of the community outreach process under which the owner shall cause notice to be provided to customers that the removal of carts from the premises is prohibited, and a violation of state and city law. This notice shall include, but is not limited to, flyers distributed on the premises, warnings on shopping bags, signs posted in prominent places near door and parking lot exits, direct mail, announcements using intercom systems on the premises, web site or other means demonstrated to be effective.
II) Notice of posting. There shall be posted by the owner of any retail establishment furnishing a parking area and shopping carts for its customers, prominently and conspicuously, a notice in substantially the following form: "REMOVAL OF SHOPPING CARTS FROM THESE PREMISES IS PROHIBITED BY LAW (POMONA CODE SECTION 18-356) AND WILL SUBJECT THE VIOLATOR TO A FINE OF UP TO $1,000.00."
4) Cart identification. Signs and cart identification requirements which conform to state law.
5) Loss prevention measures. A description of the specific measures that the owner shall implement to prevent cart removal from the premises. These measures may include, but are not limited to, electronic or other disabling devices on the carts so they cannot be removed from the premises, effective management practices, use of courtesy clerks to accompany customers and return carts to the store, use of security personnel to prevent removal, security deposit for use of cart, other demonstrably effective measures acceptable to the city's utility services director, likely to prevent cart removal from the premises.
6) Employee training. A description of an ongoing employee training program that shall be implemented by the owner and that shall be designed to educate new and existing employees on the abandoned cart prevention plan and conditions contained therein, at least annually.
7) Mandatory cart retrieval. A plan for retrieval of abandoned carts by the owner within a 24-hour time period of removal, or evidence of a contract with a city licensed retrieval service.
(Ord. No. 3996, § 5-206, 9-22-2003)
Section 18-358: Submittal of Plan for Approval or Denial.
a) Each business owner shall submit an abandoned cart prevention plan in compliance with this article beginning on the effective date of this ordinance along with payment of mandatory abandoned cart prevention plan fee as established by city council resolution. For all new businesses that open during or after this deadline, and have shopping and laundry carts, the owner shall be required to comply with the provisions of this article regardless of receipt of written notice from the director of utility services. In implementing this article for the period commencing upon adoption of the ordinance from which this section is derived through December 31, 2004, the director shall provide no less than 60 days written notice to each owner of the date that the owner's initial abandoned cart prevention plan is due. The director may approve or deny the proposed plan and notify the owner of such decision within 30 days of receipt of the plan. If approved, the abandoned cart prevention plan shall be implemented by the owner no later than 30 days from the date of approval. After December 31, 2004, the owner shall comply with the provisions of this article regardless of receipt of written notice from the director.
b) The director may deny a plan based upon any of the following grounds:
1) Implementation of the plan would violate provisions of the building, zoning, health, safety, fire, police or other city codes, or any county, state, or federal law which substantially affects public health, welfare or safety.
2) The plan fails to include all the information required by this article.
3) The plan is insufficient or inadequate to prevent removal of carts from the owner's premises.
4) The plan fails to address any special or unique conditions due to the geographical location of the premises as they relate to cart retention and prevention efforts.
5) Implementation of the plan would violate a term or condition of another policy or requirement of the city Code.
6) The owner has knowingly made a false statement of fact, or omitted a fact required to be revealed in an application for a plan, or in any addendum or report or other information required to be provided regarding the plan.
c) If the plan is rejected as incomplete or inadequate, the director shall indicate the areas of incompleteness or inadequacy, and the owner shall have an additional 30 days in which to resubmit a corrected plan.
d) An owner who fails to submit a complete plan, or fails to implement approved plan measures, or fails to comply with the approved plan measures, may be required to submit a new plan upon the city's request and/or shall be subject to enforcement of these requirements through any lawful means available to the city.
e) The director's denial of a plan shall be the final administrative decision.
(Ord. No. 3996, § 5-207, 9-22-2003)
Section 18-359: Plan Modification
a) At any time, subsequent to the director's approval of an abandoned cart prevention plan, the owner may request a modification of a previously approved plan to address a change in circumstances, an unanticipated physical or economic impact of the plan, or a need to modify an ineffective plan.
(Ord. No. 3996, § 5-208, 9-22-2003)
Section 18-360: Exemption from Mandatory Plan
a) The city may exempt any owner from compliance with this article if records indicate that carts from the owner's establishment had not been retrieved at the city's expense in the previous year.
b) Any owner may request an exemption on an annual basis from the requirements of this article if the owner provides written documentation and demonstrates to the satisfaction of the city that the owner has:
1) A contract with a city licensed cart retrieval service, or a physical device or mechanism in place or management practice currently implemented that prevents the unauthorized removal of carts from the owner's premises; and,
2) None of the owner's carts have been found abandoned on three or more occasions during the period of six continuous months immediately preceding the date the application for an exemption is submitted to the city.
c) A written application for the exemption shall include all of the following:
1) The name of the owner and the name of the business; the physical address where the business is conducted; and the name, address and phone number of the on-site and off-site owner;
2) The method, management practice, or physical device that will ensure that the carts will not leave the premises.
3) Payment of the exemption application fee as established by city council resolution.
d) Any exemption granted to an owner shall be void upon the sale or transfer of ownership of the business.
(Ord. No. 3996, § 5-209, 9-22-2003)
Section 18-361: Renewal of Exemption.
a) Any owner granted an exemption from the abandoned cart prevention plan shall file with the director a written application for a one-year renewal of the exemption annually in accordance with the provisions of section 18-360. The written application for a renewal of the exemption shall include the information required to be submitted in the initial application for the exemption in accordance with the provision of section 18-360 and payment of the renewal exemption fee as established by city council resolution.
(Ord. No. 3996, § 5-210, 9-22-2003)
Section 18-362: Denial or Revocation of a Renewal of an Exemption.
a) An application for a renewal of an exemption may be denied or revoked by the city upon any of the following grounds:
1) Any of the owner's carts is or has been abandoned on public or private property, or in a right-of-way for longer than three business days after notification by the director on three occasions in any six month period.
2) The owner has failed to comply with any of the provisions of this article.
3) The owner knowingly makes a false statement of fact or omits a fact required to be revealed in an application for the exemption, or in any amendment or report or other information required to be made.
(Ord. No. 3996, § 5-211, 9-22-2003)
Section 18-363: Hearing and Appeal Procedure for Renewal of Exemption.
a) Notice of intended decision.
1) Upon determining the existence of any of the grounds for denial or revocation of a renewal of an exemption in accordance with section 18-362, the director may issue to the owner a notice of intended decision to deny or revoke the exemption.
2) The notice of intended decision shall state all the grounds upon which the denial or revocation of the renewal application for an exemption is based.
3) The notice of intended decision shall advise the owner that the denial or revocation shall become final unless the owner files a written request for hearing before the director within ten calendar days of the date of service of the notice of intended decision to deny or revoke the renewal of the exemption.
4) The notice of intended decision shall specify the effective date of the denial or revocation of such exemption.
b) Procedure for hearing before the director.
1) The written request for a hearing before the director must be received by the director within ten calendar days of the notice of intended decision to deny or revoke the renewal of the exemption.
2) Upon timely receipt of a written request for a hearing, the director shall schedule a hearing, which shall be held no later than 30 calendar days after receipt of a timely request for hearing.
3) The director shall serve a notice of hearing on the owner at least ten calendar days prior to the scheduled date of the hearing.
4) At the hearing before the director, the owner shall be given the opportunity to present witnesses and relevant documentary evidence.
5) The hearing will be conducted informally and the technical rules of evidence shall not apply. Any and all evidence which the city deems reliable, relevant and not unduly repetitious may be considered.
c) Decision of the director.
1) Within 20 calendar days after the hearing, the director shall serve on the owner a written decision sustaining, reversing or modifying the director's intended decision.
2) The decision by the director after hearing shall become final unless the owner files an appeal before the city manager within the time period specified in subsection (d) of this section.
d) Appeals to the city manager.
1) If an owner is dissatisfied with the written decision of the director, the owner may file an appeal to the city manager.
2) The appeal must be in writing on a form provided by the city manager's office and must be received by the city manager's office within 15 calendar days of the date of the director's decision. An appeal fee established by city council resolution shall be submitted concurrently with the appeal form.
3) The city manager, or his designee, shall preside at the hearing and hear all facts and testimony presented and deemed appropriate.
(Ord. No. 3996, § 5-212, 9-22-2003)
Section 18-364: Noncompliance; Enforcement
a) Any owner who fails to comply with any provision of this article or any provision of the owner's approved abandoned cart prevention plan shall be subject to enforcement procedures for each violation through any lawful means available to the city, including without limitation, those set forth in Business and Professions Code § 22435.7, as well as the institution of an administrative remedy in accordance with this article. Pursuant to Business and Professions Code § 22435.7, an administrative fee shall be established by city council resolution.
b) Any person who violates subsection 18-354(a) and/or section 18-356 is guilty of a misdemeanor. The provisions of these sections are not intended to preclude the application of any other laws relating to the prosecution of thefts.
(Ord. No. 3996, § 5-213, 9-22-2003)
Section 18-365: Retrieval Notification
a) The city shall notify the owner of an abandoned cart as identified on the signage information permanently affixed to the cart. The city notification shall be documented and provided either by telephone or by written notice. The notification shall require that the identified carts be retrieved pursuant to the conditions for retrieval as set forth in the owner's abandoned cart retrieval plan. Carts not retrieved in accordance with the approved cart retrieval plan shall be subject to the administrative fee as provided for in section 18-364.
(Ord. No. 3996, § 5-214, 9-22-2003)
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