ARTICLE 31: ABANDONED SHOPPING CARTS
Section 9-3101: Title
This article shall be known as the "Abandoned Shopping Cart Ordinance."
Section 9-3102; Findings and Purpose
The Council of the City of Fresno finds that Abandoned Shopping Carts in the city create potential hazard to the health and safety of the public, and interfere with pedestrian and vehicular traffic and create a public nuisance. The accumulation of Abandoned Carts, sometimes wrecked and/or dismantled on public and private property tends to create conditions that reduce property values, and promote blight and deterioration and result in a public nuisance. This article is intended to insure that measures are taken by the owners of Shopping Carts to prevent the removal of the Shopping Carts from the Cart Owner’s Business Premises, to make removal of the Cart a violation of the Code, and to facilitate the retrieval of Abandoned Shopping Carts in a manner consistent with State law and to use an administrative citation program to establish appropriate fines intended to act as a reasonable deterrent in preventing violations.
Section 9-3103: Definitions
The definitions set forth in this section shall govern the application and interpretation of this article.
a) "Abandoned Cart" or "Abandoned Shopping Cart” shall mean any Cart that has been removed, without the written consent of the Cart Owner, from the Business Premises or parking area of the retail establishment of which the Cart Owner’s Business Premises are located and is located on either public or private property. The Cart Owner’s Business Premises may include a multi-store shopping center with shared areas of parking and public access.
b) "Abandoned Cart Prevention Plan" shall mean a document submitted in writing by the Cart Owner pursuant to Section 9- 3105(c) of this article that provides a plan for the prevention of Cart removal and for the recovery of Off-site Carts.
c) "Business Premises" means the interior of a Cart Owner's Parking Area, as defined herein. The Cart Owner's Business Premises may include a multi-store shopping center and public access.
d) "Cart" or "Shopping Cart" means a basket which is mounted on wheels or a similar device generally used in a retail or commercial establishment by a customer for the purpose of transporting goods of any kind, including a basket used in a laundromat or similar business. 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.
e) "Cart Identification Sign" means a sign or engraved surface which is permanently affixed to a Shopping Cart containing all of the information specified in Section [9-31 05(a).]
f) "Cart Owner' means the owner or operator of a commercial establishment which provides Carts for use by its customers for the purpose of transporting goods of any kind.
g) "Cart Removal Warning" means a placard, sign or painted text which meets the requirements specified in Section [9-3105(c) (4).]
h) "Cart Retrieval Company" or "Cart Retrieval Service" means Shopping Carts to the Cart Owner.
i) "Director' means the Director of the Development and Resource Management Department or his/her designees or such other person designated by the City Manager to administer this article.
j) "Off-site" means not within the Business Premises.
k) "On-site Cart Containment Program" means one or more of the following measures:
1) Disabling devices on all Shopping Carts which prevent them from being removed from the Business Premises by locking the wheels or otherwise preventing the movement of the Carts.
2) An on-site security guard to deter customers who attempt to remove Carts from the Business Premises.
3) Posts and chains around the Business Premises to prevent Cart removal, if permitted by the applicable zoning and the site plan, and if approved by the fire marshal.
4) Obtaining a security deposit from customers for the on-site use of Shopping Carts.
5) The rental or sale of Carts that can be temporarily or permanently used for the transport of goods.
6) Any other measure approved by the Director as a means to contain Carts on the Business Premises.
l) "Parking Area" means a parking lot or other property controlled by the complex or center.
m) "Physical Containment System" means one of the following, as approved by the Director:
1) Disabling devices on all Shopping Carts which prevent them from being removed from the Business Premises by locking the wheels or otherwise preventing the movement of the Carts.
2) Any other system of equipment approved by the Director which physically contains Shopping Carts on the Business Premises
n) "Recycling Center" means any facility that is used in the process of collecting, sorting, cleansing treating, processing, reconstituting, or storing materials that would otherwise become solid waste and returning them to the economic mainstream in the form of raw standards necessary to be used in the marketplace.
Section 9-3104: Unlawful Possession and Abandonment of Carts
Any person who violates any prohibition of this section is guilty of a misdemeanor as provided in California Business and Professions Code Section 22435.3. This section shall not apply to Carts removed as authorized by the Cart Owner, pursuant to Business and Professions Code Section 22435.4, including for the purposes of maintenance, repair or disposal, it is unlawful to do any of the following acts, if a Cart has a permanently affixed sign as provided in Business and Professions Code Section 22435.1:
a) To remove a Cart from the Business Premises of a retail or commercial establishment with the intent to temporarily or permanently deprive the Cart Owner of possession of the cart.
b) To be in possession of any Cart that has been removed from the Business Premises of a retail or commercial establishment with intent to temporarily or permanently deprive the Cart Owner of possession of the Cart.
c) To be in possession of any Cart with serial numbers removed, obliterated, or altered, with the intent to temporarily or permanently deprive the Cart Owner of possession of the Cart.
d) To leave or abandon a Cart at a location other than the Business Premises of the retail or commercial establishment with the intent to temporarily or permanently deprive the Cart Owner of possession of the Cart.
e) To alter, convert, or tamper with a Cart or to remove any part or portion thereof or to remove, obliterate or alter serial numbers on a Cart, with the intent to temporarily or permanently deprive the Cart Owner or retailer of the possession of the Cart.
f) To be in possession of any Cart while that Cart is not located on the Business Premises of the retail or commercial establishment which owns the Cart, with the intent to temporarily or permanently deprive the Cart Owner or retailer of possession of the Cart.
Section 9-3105: Cart Owner Requirements
All owners of Carts shall comply with the requirements of this Section.
a) Cart Identification Required. All Carts must have a permanently affixed sign identifying the owner of the Cart and notifying the public of the procedure utilized for authorized removal of the Cart from the Business Premises and that unauthorized removal or Owners, shall be responsible for complying with this section and continuously maintaining. or causing to be maintained, the Cart Identification Sign so that all information is accurate and clearly legible.
b) Daily Cart Retrieval. All Cart Owners, regardless of the number of Carts owned, shall retrieve all Carts daily to ensure that the Carts are secured from public access after close of business hours.
c) Abandoned Cart Prevention Plan. Every Cart Owner of more than twenty-five (25) Carts shall develop, implement and comply with the terms and conditions of an Abandoned Cart Prevention Plan to prevent the unauthorized removal of Carts from the Business Premises and, if removed, to retrieve the Cart within three (3) business days of the removal or notice of the removal. The Abandoned Cart Prevention Plan shall be submitted to the Director in writing on a renewable annual basis and shall include the following elements:
1) Name of Business/Owner. The name of the owner and the business, the physical address where the business is conducted, and the name, address and telephone number where all notices and/or citations are to be sent.
2) Inventory of Carts. The number of Carts owned.
3) Community Outreach. A description of a community outreach process under which the Cart Owner shall cause notice to be provided the customers that the removal of Carts from the Business Premises is prohibits and is a violation of state and local law. This notice may include, but is not limited to, flyers distributed at the premises, warnings on shopping bags, direct mail, announcements using intercom systems at the Business Premises, a web site or other means demonstrated to be effective to the reasonable satisfaction of the Director.
4) Signs. Multi-lingual signs shall be placed prominently and conspicuously at all entrances and exits to the Cart owner’s Business Premises, including the Parking Areas, that provide a notice containing the following information: "REMOVAL OF SHOPPING CARTS FROM THESE PREMISES IS PROHIBITED BY STATE LAW (B & P s22435.2) AND WILL SUBJECT THE VIOLATOR TO A MAXIMUM FINE OF $1OOO.OO AND/OR ONE YEAR IN JAIL.''
5) Physical Containment System. Every Cart Owner shall provide a description of the specific measures the Cart Owner shall implement to prevent Cart removal from the Business Premises which meets the requirements specified in Section 9-3103(m). These measures may include measures may include, but are not limited to an electronic or other disabling devices on a Cart so they cannot be removed from the Business Premises, rental or sale of utility carts that can be temporarily or permanently used to transport purchases, security personnel to prevent removal, security deposit for use of a Cart, or other demonstrable measures acceptable to the Director that are likely to prevent Cart removal from the Business Premises.
6) Employee Training. A description of an ongoing employee training program that shall be implemented and designed to educate new and existing employees on the Abandoned Cart Prevention Plan and conditions contained therein no less frequently than annually.
7) Multiple Businesses. A Cart Owner who has two (2) or more businesses may submit a single Abandoned Cart Prevention Plan.
d) Administration of the Abandoned Cart Prevention Plan. The Abandoned Cart Prevention Plan shall be administered under the provisions of this subsection.
1) At the time the Cart Owner submits the Abandoned Cart Prevention Plan, the Cart Owner shall pay a fee for the review and administration of the plan as set forth in the Master Fee Schedule.
2) The Director must approve or deny the Abandoned Cart Prevention Plan within forty-five (45) days of its submission. The plan may be denied on the grounds that it fails to include the elements required under this article or the plan is inadequate or insufficient to fulfill the required elements. If the plan is denied, the Director shall do so in writing and provide an explanation for the basis of his or her decision. The Cart Owner has twenty (20) days, subject to an extension by the Director, to submit a new plan or appeal the Director's decision to the Administrative Hearing Officer pursuant to the Administrative Hearing Ordinance in Article 5 of Chapter 1.
3) Once a plan is approved, the Cart Owner has thirty (30) days to begin implementation. lf, at any time after the plan has been approved, the Director determines that the plan is inadequate to fulfill the required elements of this article, the Director may, in writing, require the Cart Owner, to modify or submit a new plan. such a modification may include, but is not limited to, requiring the Cart Owner to identify a new person to retrieve abandoned carts or changing the physical loss prevention measure. lf the Director requires the Cart Owner to modify or submit a new plan, the Cart Owner shall be given a reasonable time to comply and shall be provided an appeal to the Administrative Hearing Officer pursuant to Chapter 1, Article 5. A new plan or modified plan is subject to a fee for its review as provided in the Master Fee Schedule.
e) On-Site Cart Containment System Program Required. Every Cart Owner shall operate and maintain an On-Site Cart Containment Program as defined in Section 9-3103(k). A Cart Owner may be with a qualified Cart Retrieval Service and submits information to the within a five-mile radius of the Cart Owner's Business Premises: and (ii) respond to complaints from the public in a manner which results in the retrieval of Shopping Carts within twenty-four (24) hours after receiving complaints. Whoever is identified by the Cart Owner as the party responsible for retrieval of the Carts shall be made available for e[Ç]art retrieval six (6) days a week, eight (8) hours a day or during the Cart Owner's business hours, whichever is shorter.
f) Violations. Violation of any provision of this section, including, but not limited to, failure to submit a plan or comply with a plan submitted, is a violation of this article and the city may pursue any available remedy provided under the Code for a code violation, including the issuance of an administrative citation under Section 1-406.
Section 9-3106: City Retrieval of Carts
The city may retrieve an Abandoned Cart from public property (or private property with the consent of the property owner) in the following circumstances:
a) Where the location of the Shopping Cart will impede emergency services.
b) When the Abandoned Cart does not identify the Cart Owner as required in Section 9-3105.
c) When the city has contacted the Cart Owner, and notified him or her of the abandoned Cart and the Vart has not been reclaimed within three (3) business days.
Section 9-3107: Immediate Impound by City of Identified Carts
Notwithstanding any other section of this article, the city may immediately impound a Cart without complying with the (3) day advance notice requirement provided the city actually notifies the Cart Owner within twenty-four (2Ð hours that the city has impounded the cart and provides information to the Cart Owner where and how the Cart may be retrieved reclaimed. The City shall hold the Cart at a location that is reasonably convenient to the Cart Owner and open for business at least six (6) hours of each business day. Any Cart reclaimed within three (3) business days shall be released and surrendered to the Cart Owner at no charge, including a waiver of any impound and storage fees or fines. Any Cart reclaimed within three (3) business days shall not be deemed an occurrence for purposes of Section 9-3109(a). If the Cart is not reclaimed by the Cart Owner within three (3) business days, the city may collect its actual costs, impose a fine, and dispose of the Cart consistent with the provisions of Section 9-3109.
Section 9-3108: Possession of Carts by Recycling.
Any Recycling Center that comes into possession of a Cart shall not sell or use the Cart for any purpose and shall comply with the requirements of this section as follows:
a) Carts with Identification Signs. Any Recycling Center that possesses a Cart with Cart Identification Signs shall notify the Cart Owner of the Cart’s location. After notifying the Cart Owner, the Recycling Center shall hold the Cart on its premises for three (3) business days to ensure that the Cart will not be sold or otherwise recirculated to the public. If the Cart is not reclaimed by the Cart Owner within three (3) business days after receiving notice, the Recycling Center shall notify the City’s Police Department and arrange for the City to retrieve the Cart.
b) Carts without Identification Signs. Any Recycling Center that possesses a Cart without a Cart Identification Sign shall notify the City’s Police Department and arrange for the City to retrieve the Cart. The Recycling Center shall hold the Cart on its premises to ensure that the Cart will not be sold or otherwise recirculated to the public.
Section 9-319: Enforcement and Remedies
The City may exercise the following remedies:
a) Pursuant to Business and Professions Code Section 22425.7, any Cart Owner that fails to retrieve its Abandoned Cart(s) within three (3) business days after receiving notice from the City, shall pay the City’s administrative costs for retrieving the Cart(s) and providing the notification to the Cart Owner. Any Carts Owner who fails to retrieve Abandoned Carts in accordance with this Chapter in excess of three times during a specified six-month period shall be subject to a fifty dollar ($50) fine for each occurrence. An occurrence includes all Carts owned by the Cart Owner that are impounded by the City for a one-day period.
b) If a Cart is not retrieved by its owner within thirty (30) days after the Cart Owner has received notice of the Cart being impounded, including a failure to pay costs and fines, or if the Cart Owner cannot be determined, the Cart will be sold, destroyed or otherwise disposed of as the City sees fit.
c) Following the city having retrieve more than ten (10) Carts in any thirty (30) day period or the issuance of more than ten (10) administrative citation sin any twelve (12) month period, the Director may require the Cart Owner to install a Physical Containment System.
Section 9-3110: Severability Clause.
lf any provision, paragraph, word or section of this article is invalidated by any court of competent jurisdiction, the remaining provisions, paragraphs, words, and sections shall not be affected and shall continue in full force and effect.
Section 9-3111: Cumulative Remedy
Nothing herein is intended to limit the city from pursuing any other remedy available at law or in equity against any person or entity maintaining, committing, or causing a public nuisance or any other violation of the Code or State or Federal law.
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