ORDINANCE NO. 2013 -22
CHAPTER 12, ARTICLE XI: SHOPPING CARTSWHEREAS, the City Council finds that the abandonment of shopping carts within the City is a source of visual blight, reduces the aesthetic appearance of the City, and constitutes a nuisance; and
WHEREAS, the City Council finds that the abandonment of shopping carts on both private and public property, including streets and other rights -of -way, can lead to the impediment of traffic, including emergency services, and constitutes a threat to the public health, safety, and welfare; and
WHEREAS, the City Council finds that the local businesses often fail to take reasonable and appropriate steps to either prevent the removal of the carts from their premises or retrieve the carts in a timely manner; and
WHEREAS, the City Council finds that requiring local businesses to be more proactive in preventing shopping cart abandonment is necessary in order to reduce the sources of visual blight in the City and to protect the public health, safety, and welfare; and
WHEREAS, California Business and Professions Code Section 22435.8 grants a local jurisdiction the authority to adopt an ordinance regulating or prohibiting the removal of shopping carts from the business premises or parking areas of retail establishments except to the extent any provision of such ordinance expressly conflicts with any provision of state law.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FAIRFIELD DOES ORDAIN AS FOLLOWS:
Section 1. Article XI "Shopping Carts" is hereby added to Chapter 12 of the Fairfield City Code to read as follows:
Article XI: SHOPPING CARTS
12.1101 Purpose and Intent
12.1103 Shopping Cart Identification Signs
12.1104 Notification Signs at Business Pedestrian Exits
12.1105 Permission for Cart Removal from Business Premises
12.1106 Shopping Cart Containment Plan Required
12.1106.1 Cart Containment Plan Review Fees
12.1106.2 Cart Containment Plan Approval, Conditional Approval or Denial
12.1107 Shopping Cart Containment Plan Exemption
12.1108 Unauthorized Acts or Off premises Possession of a Shopping Cart
12.1109 Shopping Cart Retrieval and Impoundment
Section 12.1101: Purpose and Intent
a) The City has determined that the unauthorized removal of shopping carts from retail establishments constitutes a nuisance, creates potential hazards to the health and safety of the public, and interferes with pedestrian and vehicular traffic. Wrecked, dismantled and /or abandoned shopping carts on public or private property create conditions that reduce property values and promote blight and deterioration within the City's neighborhoods.
b) The intent of this Article is to ensure that owners take measures to prevent the removal of shopping carts from business premises and to facilitate the retrieval and return of lost, stolen, or abandoned carts in a manner that complements and supplements provisions of state law.
Section 12.1102: Definitions
a) "Abandoned shopping cart" means a shopping cart that has been removed from the business premises without the written permission of the owner or on -duty manager and has been left on either public or private property.
b) "Business premises" means the interior of a cart owner's establishment, adjacent walkways, any loading area, and the parking area, as defined herein. The owner's business premises may include a multi -store shopping center with shared areas of parking and public access.
c) "Director" means the Director of Community Development or Director of Public Works for the City of Fairfield, or the Director's designee.
d) "Owner" means a person or entity, which in connection with the conduct of a business, owns, possesses, or makes available any shopping cart to customers or the public. For purposes of this Article, owner shall also include the owner's agent that provides shopping carts for use by owner's customers.
e) "Parking area" means a parking lot or other property provided by a commercial establishment for the use by a customer for parking an automobile or other vehicle. For a multi -store shopping center, "parking area" includes the entire parking area provided for use by customers of the shopping center.
f) "Shopping cart or cart" means a basket which is mounted on wheels or a similar device used in a retail establishment by a customer for transporting goods, including but not limited to grocery store shopping carts. A cart sold by a commercial establishment to a retail customer for that customer's personal use is not a shopping cart for the purposes of this Article.
g) "Shopping cart retrieval service" means a contract with a commercial service to retrieve and return shopping carts to their respective owners, which meets minimum service requirements as established by the Director. A contract with a commercial service to retrieve and return shopping carts to the owners which fails to meet minimum service requirements established by the Director is not a "shopping cart retrieval service" within the meaning of this Article. If the City retrieves more than twenty (20) carts of an owner within a period of ninety (90) consecutive days, the commercial service has demonstrated that it fails to meet minimum service requirements and such service is not a "shopping cart retrieval service" within the meaning of this Article.
Section 12.1103: Shopping Cart Identification Signs
a) Each shopping cart owned or used within the City shall have permanently affixed to it an easily visible identification sign or engraved surface which includes all of the following information:
1) The identity of the cart's owner and owner's establishment;
2) A valid telephone number or address for returning the cart removed from the business premises to the owner;
3) Notification to the public that the unauthorized removal of the cart from the business premises or parking area of the owner's establishment, or the unauthorized possession of the cart, is a violation of state law and Fairfield City Code;
4) Notification that shopping carts shall not be removed from the business premises without the express written consent of the owner.
Section 12.1104: Notification Signs at Business Pedestrian Exits
Each owner shall post and maintain a sign at each customer pedestrian exit at the owner's establishment providing notice, in one or more languages, that unauthorized removal of a shopping cart from the business premises is a violation of state law and the Fairfield City Code. The signs shall be conspicuously and prominently displayed on the interior walls of the building within two feet of each customer pedestrian exit.
Section 12.1105: Permission for Cart Removal from Business Premises
No person shall be deemed to be authorized to remove a shopping cart from the business premises unless such person possesses express written authorization from the owner. A contract between the owner and a person to provide repair or maintenance of the owner's carts constitutes express written authorization for such person to remove the owner's carts for the purpose of repair or maintenance.
Section 12.1106: Shopping Cart Containment Plan Required
Every owner shall operate and maintain a shopping cart containment program pursuant to a shopping cart containment plan that contains all of the following:
a) Name of the owner. The name of the owner, the physical address of the owner's establishment, and name, address and phone number(s) of the property owner if different from the business owner.
b) Inventory of carts. A complete inventory of all carts maintained on or in the business premises.
c) Cart identification. Shopping cart identification requirements pursuant to Section 12.1103 of this Article.
d) Loss prevention measures. A description of the specific measures that the owner shall implement to prevent cart removal from the business premises. These measures may include, but are not limited to:
1) Placing signs directing customers not to remove the shopping carts from the business premises;
2) Using courtesy clerks to accompany customers and return the carts to the owner's establishment;
3) Using security personnel to prevent shopping carts from being removed from the business premises or requiring a security deposit for use of a cart;
4) Providing small, two wheeled shopping carts that a customer may rent or purchase for the customer's personal use;
5) Providing a neighborhood shuttle or other service to transport purchased goods for a customer;
6) Installing on shopping carts electronic disabling devices, such as wheel locks, which disable the cart upon crossing a barrier at the perimeter of the business premises;
7) Installing barriers on carts or at the doors, near the loading areas, or at other defined perimeters, of the business premises to prevent the passage of a cart beyond such barrier;
8) An owner that is operating without a plan approved by the Director is in violation of this Article and is subject to a penalty of $50.00 for each day of noncompliance.
Section 12.1106.1: Cart Containment Plan Review Fees
An owner must submit for review and approval by the Director a shopping cart containment plan that complies with the requirements established in Section 12.1106, and any amendments to a shopping cart containment plan previously approved by the Director. The owner shall pay a fee upon submitting the plan or plan amendment for review of the plan or plan amendment in an amount established by resolution of the City Council.
Section 12.1106.2 Cart Containment Plan Approval, Conditional Approval or Deniala) The Director shall approve, conditionally approve or deny a proposed shopping cart containment plan, and shall notify the owner of such decision within thirty (30) days of receipt of the plan and payment of the fee required pursuant to Section 12.1106.1. If approved, the cart containment plan shall be implemented by the owner no later than thirty (30) days from the date of approval.
b) A plan or an amendment to a plan may be approved subject to conditions or denied based upon one or more 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 carts from the business premises as evidenced by data regarding the owner's abandoned shopping carts;
4) The plan fails to address any special or unique conditions due to the geographical location of the business premises as they relate to cart retention and prevention efforts;
5) Implementation of the plan violates another provision of the City Code;
6) The owner knowingly makes a false statement of fact or omits a material fact required to be submitted for the plan, or for any amendment to the plan or in any other information required by the City.
c) Within fifteen (15) days of the written decision of the Director that a plan or amendment is incomplete or denied, the owner shall submit a revised or complete plan, as appropriate. The Director may require specific measures to be included in the plan, including mandatory electronic disabling devices.
d) The Director may revoke the Director's prior approval of a plan based on one or more of the grounds listed in paragraph (b) above.
e) Within ten (10) days of the written decision of the Director, an owner may appeal to the City Manager the Director's decision to deny or revoke prior approval of a plan. The decision of the City Manager shall be final.
f) At any time after the Director's approval of any plan, the owner may submit an amendment to 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.
Section 12.1107: Shopping Cart Containment Plan Exemption
The Director shall exempt from Section 12.1106 an owner that demonstrates to the Director that the owner is contracting with a shopping cart retrieval service.
Section 12.1108: Unauthorized Acts or Possession of an Abandoned Shopping Cart
It is unlawful for any person to do any of the following:
a) To remove a shopping cart from the business premises with the intent to temporarily or permanently deprive the owner of possession of the cart;
b) To be in possession of a shopping cart that has been removed from the business premises with the intent to temporarily or permanently deprive the owner of possession of the cart;
c) To alter, convert, or tamper with a shopping cart, or to remove any part or portion thereof, or to remove, obliterate or alter serial numbers on a shopping cart or to be in possession of any shopping cart with serial numbers removed, obliterated, or altered, with the intent to temporarily or permanently deprive the owner of possession of the cart;
d) To leave or abandon a shopping cart at a location other than the business premises with the intent to temporarily or permanently deprive the owner of possession of the cart;
e) Any person who violates the provisions of this Article is subject to any enforcement procedures permitted by law, including but not limited to, prosecution of a misdemeanor or an infraction, civil action for injunction, administrative enforcement procedures, and revocation of a use permit, if applicable.
Section 12.1109: Shopping Cart Retrieval and Impoundment
a) The city shall immediately notify an owner of the discovery and location of the owner's abandoned shopping cart.
b) If the abandoned shopping cart is not retrieved within three (3) business days from the date the owner receives actual notice from the City about the discovery and location of the shopping cart, the City shall retrieve and impound the abandoned shopping cart.
c) Notwithstanding subsection (b) of this section, the City shall immediately retrieve and impound an abandoned shopping cart from public or private property if the location of the abandoned shopping cart impedes or will impede emergency services.
d) Notwithstanding subsection (b) of this section, the City may immediately retrieve and impound an abandoned shopping cart without complying with the three -day advance notice requirement provided that:
1) The City provides the owner with actual notice within twenty -four (24) hours following the impound, and the notice informs the owner of the location where the abandoned shopping cart may be claimed. The City shall provide actual notice by telephone or mail and shall document notification.
2) Any abandoned shopping cart, reclaimed by an owner within three (3) business days following the date of actual notice as provided pursuant to paragraph 1 of this subsection, shall be released and surrendered to the owner at no charge whatsoever, including the waiver of any city impound costs or fines that would otherwise be applicable. Any cart reclaimed within the three business day period shall not be deemed an occurrence for the purposes of subsection (h) of this section.
e) Abandoned shopping carts impounded by the City pursuant to subsections (b), (c), and (d) of this section shall be held at a location that is reasonably convenient to the owner and open for business at least six (6) hours of each business day.
f) The City shall not be liable for any damage to a shopping cart impounded pursuant to this Article.
g) Any owner that fails to retrieve the owner's abandoned cart impounded by the City pursuant to subsections (b) and (c) of this section or fails to retrieve the owner's abandoned cart within three (3) business days after receiving notice from the City pursuant to subsection (d) shall pay the City's costs for retrieving the cart and for providing notice to the owner.
h) Any owner who fails to retrieve an abandoned cart in accordance with this Article in excess of three (3) times during a consecutive six (6) month period shall be subject to a $50.00 fine for each day that the City holds the owner's cart in impound.
i) Any abandoned shopping cart not reclaimed from the City impound within thirty (30) days after the City provided notice to the owner or the owner's agent may be immediately sold or otherwise disposed of by the City.
j) If the City retrieves a total of twenty (20) carts within a period of ninety (90) calendar days, the City shall then require the Owner to amend its Shopping Cart Containment Plan to include, at a minimum, electronic disabling devices, such as wheel locks that disable the cart when the cart crosses a barrier at the perimeter of the business premises.
k) The City may immediately retrieve and immediately dispose of any abandoned shopping cart that lacks an identification sign required by this Article.
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