ORDINANCE NO. 732 CHAPTER 13. SHOPPING AND OTHER CARTS
Section 5-13.01: Findings, determinations and purpose.
a) The City Council hereby makes the following findings and determinations:
Abandoned laundry, grocery, shopping and other carts are unsightly, interfere with pedestrian and vehicular traffic, accumulate over time on public and private property causing blight and similar conditions resulting in reduction of property values and deterioration of the City's neighborhoods, are detrimental to the public health, safety and welfare and constitute a public nuisance.
b) The purpose of this Chapter is to promote the public health, safety, and welfare by prohibiting improper removal of any cart from the premises or parking area of the business establishment of the owner of the cart, and by requiring owners to take specified actions to reduce the removal of carts from the owner's premises or parking area and facilitate retrieval of carts that are so removed.
Section 5-13.03: Enforcement.
a) This Chapter shall be administered and enforced by the Director with the assistance of the Police Chief, Fire Chief and their respective designated agents and code enforcement officers. The Director is hereby authorized and directed to promulgate and implement rules, regulations, and procedures necessary or appropriate for enforcement of this Chapter. The Director, Police Chief, Fire Chief and their respective designated agents and code enforcement officers are authorized as follows:
1) To enter upon and inspect any public and private property or premises to determine whether the provisions of this Chapter are being obeyed. All inspections, entries, and examinations shall be done according to applicable legal and constitutional requirements. If an owner, tenant, occupant, or agent or other responsible party refuses to grant permission to enter or inspect, the City may seek an inspection warrant pursuant to the procedures in the California Code of Civil Procedure.
2) To examine a cart or parts thereof, or to obtain information as to the identity of the owner of any cart, or to retrieve a cart or carts in accordance with the provisions of this Chapter.
3) To determine whether a violation of this Chapter exists and to take appropriate action in compliance with law to enforce the provisions of this Chapter.
Section 5-13.04: Prohibition against removing, possessing or altering carts.
a) It shall be unlawful for any person except the owner of a cart or the owner's agent to do any of the following:
1) Remove a cart from the premises or parking area of a business establishment without the express written consent of the owner.
2) Be in possession of any cart while that cart is not located on the premises or parking area of the business establishment of owner of the cart without the express written consent of the owner.
3) Be in possession of any cart with serial numbers removed, obliterated or altered.
4) Alter, convert or tamper with a cart, or remove any part or portion of a cart, or remove, obliterate or alter serial numbers on a cart.
Section 5-13.05: Prohibition against abandoning carts.
a) It shall be unlawful for any person to leave, abandon or store any cart on any sidewalk, street or other public place, or on private property exposed to public view, other than the premises or parking area of the owner's business establishment.
Section 5-13.06: Cart identification required.
a) Every owner who, in connection with the conduct of a business, including but not limited to a food dispensing business, retail business or laundry business, owns or makes any cart available to the public shall permanently affix a durable metal or plastic sign to such cart containing all the fo1lowing information:
1) The name of the owner of the cart or the name of the retailer that provides the cart, or both;
2) Notice of the procedure to be utilized for authorized removal of the cart from the premises;
3) Notice that the unauthorized removal of a cart from the premises or parking area of the business establishment, or the unauthorized possession of a cart, is a violation of state and local law; and
4) A valid telephone number or address for returning the cart removed from the premises or parking area to the owner or retailer.
b) Carts provided by individual stores or retailers that are owned by or affiliated with the same company and share the same name (e.g., chain stores) shall bear some form of identification which clearly identifies the specific store that the cart is assigned to.
c) A cart that does not have a sign attached as required by subsection (a) of this section is presumed to be abandoned if it has been left standing unattended on any public property or private property other than the premises or parking area of the owner's business establishment. The City may impound such a cart, as provided in Section 15-12.08 immediately upon discovery of the cart
Section 5-13.07: Removal prevention and retrieval--mandatory plan.
a) Every owner who provides or intends to provide carts to be used by customers of the owner's business establishment shall do all the following:
1) Provide customers with written notice within thirty (30) days after the effective date of the ordinance adding this Chapter or, for businesses opening after the effective date of such ordinance, within thirty (30) days after the opening thereof, that removal of carts from the owner's premises or parking area is prohibited and is a violation of state and local law. This notification shall be provided for at least seven (7) days on days reasonably calculated by the owner to reach the most customers, and may be provided in the form of flyers, warnings on shopping bags or any form of written notification that will effectively notify customers of the prohibition.
2) In accordance with rules promulgated by the Director, post prominently and conspicuously, at all locations required by such rules, a notice in substantially the following form: "REMOVAL OF [A SHOPPING CART/GROCERY CART/ LAUNDRY CART, AS APPLICABLE] FROM THESE PREMISES IS PROHIBITED BY LAW (CMC § 15-12.04) AND WILL SUBJECT THE VIOLATOR TO A FINE OF UP TO $1000.00 OR SIX MONTHS IN JAIL OR BOTH THE FINE AND THE JAIL TERM."
3) Implement specific measures to retrieve carts that are removed from premises or parking area of the owner's business establishment. Such measures may include, but are not limited to, employment of personnel or contractors to retrieve shopping carts on a regular basis or whenever necessary.
b) If the Director determines that an excessive number of abandoned carts belong to a particular owner, the owner shall be required to contract with a cart retrieval service that retrieves carts at least five days a week, and to submit to the Director and implement a removal prevention and retrieval plan pursuant to subsection (c) of this section. The Director shall notify the owner in writing when such requirements shall be imposed. For purposes of this subsection and subsection (d) of this section, the number of abandoned shopping carts belonging to a particular owner shall be considered excessive if the owner fails three (3) times within a six (6)-month period to retrieve an abandoned cart within three (3) business days from the date the owner, or his or her agent, receives actual notice from the City of the Cali's discovery and location.
c) If required by the Director to submit a removal prevention and retrieval plan, the owner shall submit a written plan describing in detail the measures the owner will implement to prevent cart removal and to timely retrieve abandoned carts. The plan shall describe notification methods as described in subsections (a)(l) and (a)(2) of this section and the name, address and working hours of the retrieval service that the owner has contracted with. In addition, the plan shall describe specific physical removal prevention measures the owner will implement, if such measures are required pursuant to subsection (d) of this section. The owner shall submit the proposed plan within thirty (30) days after notification by the Director that submission of a plan is required and shall implement the removal prevention and retrieval measures in the proposed plan immediately upon its completion. The owner shall continue to implement the removal prevention and retrieval measures in the proposed plan but shall modify them or implement additional measures as required by the Director as a condition of approval of the plan.
d) If the Director determines that, within one (1) year after the implementation of a removal prevention and retrieval plan by an owner, as described in subsection (c), an excessive number of abandoned carts (as defined in subsection (b) belong to the owner, the Director may require the owner to implement one (l) or more specific physical measures to prevent cart removal from the premises or parking area of the owner's business establishment. The measure(s) the owner may be required to implement include, but are not limited to, the following:
1) Installation of disabling devices on all carts that prevent the use of the carts off of the premises or associated parking area;
2) Employment of personnel or security guards to advise and deter customers from removing carts from the premises or associated parking area;
3) Requiring a security deposit for use of all carts;
4) Restricting the use of carts outside the building of the business unless in the company of an employee;
5) Installation of obstacles to prevent the removal of carts provided such measure does not violate any other law, including but not limited to, the Americans with Disabilities Act;
6) Installation of surveillance equipment on the premises.
e) The Director may require additional measures to be implemented if he or she determines that the plan is not sufficient to prevent the removal of shopping carts from the premises or associated parking area or retrieval measures are insufficient.
Section 5-13.08: Evaluation report.
a) Every owner who has been required to submit a removal prevention and retrieval plan pursuant to Section 15-12.07 shall submit an annual report. The annual report shall be submitted to the Director by July 1 of each year, and shall evaluate the measures that were used and approved in the prior year. The report shall include, but not be limited to, the following:
1) The measures actually implemented to prevent removal of carts from the premises; and
2) The number of times the City, a resident, or anyone else reported carts off the premises or parking area of the owner's business establishment, as well as the number of carts returned by the retrieval service.
b) The Director may require the owner to provide additional information if deemed necessary.
c) After timely submitting the annual report, an owner whose report demonstrates compliance with the provisions of this Chapter shall be relieved of further reporting obligations. If compliance with this Chapter is not demonstrated by the annual report or such report is not timely submitted, the Director shall extend the reporting obligations for at least one additional year.
Section 5-13.09: Impoundment of abandoned carts.
a) The City may retrieve, impound and dispose of abandoned carts and impose fines and collect charges in accordance with Section 22435.7 of the Business and Professions Code of the State.
Section 5-13.10: Administrative hearing.
a) If a dispute arises between an owner and the City regarding the administrative enforcement of any requirement of this Chapter, the owner may have an administrative hearing in order to resolve the dispute, as follows:
1) The owner shall submit a written request for a hearing to the Director. Within fifteen (15) days after receiving the request, the Director shall request the City Manager or his or her designee to appoint a hearing officer. The City Manager or his or her designee may act as the hearing officer. The Director shall notify the owner by first class mail of the name of the designated hearing officer.
I) The owner may object to the designated hearing officer within ten (10) business days after the date the City notifies the owner of the name of the hearing officer. In that event, the owner and the Director shall meet and confer to develop a mutually acceptable hearing officer. An owner objecting to the designated hearing officer shall do so in writing, addressed and delivered to the Director. The written objection must be dated and signed by the owner and set forth the basis of the objection. Any costs associated with a non-City designated hearing officer shall be the responsibility of the owner.
2) The Director shall schedule a date, time and place for the hearing and provide notice of the hearing in accordance with subsection (c) of this section.
3) Written notice of the date, time, and place of the hearing shall be served at least ten (10) calendar days prior to the hearing. Notice of the hearing shall be sent to the owner by first class mail at the address provided by the owner.
The hearing shall be set no sooner than twenty (20) days and no later than ninety (90) days following the request for hearing. One continuance of the hearing, not to exceed twenty-one (21) days, may be granted upon written request to the Director.
4) The administrative hearing shall be conducted in accordance with written procedures established by the City Manager and approved by the City Council and the City Attorney. The hearing shall provide an independent, objective, fair, and impartial review of the dispute. The hearing officer shall hear and consider all relevant evidence, objections, or protests, and shall receive testimony from the owner or any authorized representative of the owner and any witnesses. The Director or the Director's designee may, but shall not be required to, participate in an administrative hearing. All documents relating to the dispute shall be submitted as evidence. The hearing officer may uphold the disputed decision, order, requirement or other administrative enforcement action; modify the disputed decision, order, requirement or other administrative enforcement action or cancel the disputed decisions, order, requirement or other administrative enforcement action.
e) Within thirty (30) days after the administrative hearing is completed, the hearing officer shall issue a written decision and/or order which shall be served personally upon, or by certified mail, return receipt requested, to the owner or the authorized representative of the owner. The hearing officer's decision or order shall be deemed final.
f) The administrative hearing procedures provided by this section shall not apply to any criminal enforcement of this Chapter.
Section 5-13.11: Retrieval services.
a) Any person who engages in the business of cart retrieval in the City as defined in this Chapter (except as an employee) shall have a City business license pursuant to Chapter 1 of Title 3 of this Code.
b) Any person who engages in the business of cart retrieval in the City shall retain records showing written authorization from the cart owner, or an agent thereof, to retrieve the cart or carts and to be in possession of the cart or carts retrieved.
1) A copy of the record showing written authorization shall be maintained in each vehicle used for cart retrieval.
c) Each vehicle employed in the business of cart retrieval in the City shall display a sign that clearly identifies the name and telephone number of the retrieval service.
Section 5-13.12: Penalties and Enforcement.
a) Any person who violates Section 15-12.04 or Section 15-12.05 shall be guilty of a misdemeanor and subject to punishment in accordance with subsection (i) of this section.
b) Any owner who maintains or permits the use of carts without required signs in violation of the provisions of Section 15-12.06 shall be guilty of an infraction/misdemeanor and subject to punishment in accordance with subsection (h) or subsection (i), as applicable, of this section.
c) Any owner who fails to submit a cart removal prevention and retrieval plan required by Section 15-12.07 within thirty (30) days after notification by the Director that a plan is required, or who fails to implement the measures established in a plan or modifications to a plan as required by the City, shall be guilty of an infraction/misdemeanor and subject to punishment in accordance with subsection (h) or subsection (i), as applicable, of this section.
d) In addition to the penalties provided for in subsection (c), if an owner is found guilty by a court of competent jurisdiction of an infraction or misdemeanor for violation of subsection (c) three (3) or more times within a twelve (12) month period, the Director may require such owner to install on all carts disabling devices which prevent their removal from the premises or parking area of the owner's business establishment. An owner who fails to place a disabling device on all carts when required is guilty of a misdemeanor and subject to punishment in accordance with subsection (i) of this section.
e) Any owner that fails to timely submit an evaluation report as required by Section 15-12.08 is guilty of an infraction/misdemeanor and subject to punishment in accordance with subsection (h) or subsection (i), as applicable, of this section.
f) Any person who violates the provisions of Section 15-12.11 concerning licensing and operation of a cart retrieval business is guilty of a misdemeanor and subject to punishment in accordance with subsection (i) of this section.
g) A violation of the provisions of this Chapter described in subsections (b), (c) or (e) shall be a misdemeanor, except that, where the City Attorney has determined that such action would be in the best interest of justice, the City Attorney may specify in the accusatory pleading that the violation shall be prosecuted as an infraction.
h) Each and every violation of this Chapter which is deemed and infraction is punishable by:
1) A fine not exceeding One Hundred Dollars ($100.00) for the first violation;
2) A fine not exceeding Two Hundred Dollars ($200.00) for the second violation for the same or similar provision within a one (1) year period after the first violation; or
3) A fine not exceeding Five Hundred Dollars ($500.00) for each additional violation, after the second, of the same or similar provision within a one (1) year period after the first violation.
i) Each and every violation of this Chapter which is deemed a misdemeanor is punishable by a fine by a fine of not more than One Thousand Dollars ($1,000.00), or by imprisonment in the City or County jail for a period of not more than six (6) months, or by both such fine and imprisonment.
j) The provisions of this Section are not intended to preclude the application of any other laws relating to prosecution for theft. Nothing in this Section shall prevent the City from pm-suing criminal, civil, administrative or any other legal remedy to address violations of this Chapter.
Section 3: This ordinance shall take effect thirty days after its adoption.
Section 4: The City Clerk is authorized and directed to cause this ordinance or a summary of this ordinance to be published.
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