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HomeMy WebLinkAbout03-06 Regulation of Shopping CartsORDINANCE NO. 03-6 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COSTA MESA, CALIFORNIA, AMENDING CHAPTER I, ARTICLE 1 OF TITLE 15 OF THE COSTA MESA MUNICIPAL CODE RELATING TO THE REGULATION OF SHOPPING CARTS. THE CITY COUNCIL OF THE CITY OF COSTA MESA DOES HEREBY ORDAIN AS FOLLOWS: The City Council of the City of Costa Mesa, California, does hereby find and declare: WHEREAS, abandoned shopping carts are an eyesore, a public nuisance, and a safety hazard to pedestrians and vehicles; and; WHEREAS, retail businesses have a responsibility to contain their shopping carts on their business premises and not to allow them to be taken off the premises and abandoned in neighborhoods nearby; and WHEREAS, methods currently used by retailers to contain shopping carts on their premises and to recover their abandoned shopping carts by use of retrieval services have not been successful in eradicating the problem of abandoned shopping carts littering neighborhoods throughout the City; and WHEREAS, although State law (i.e. Bus. & Prof. Code section 22435.2) makes it unlawful for a person to remove an identified shopping cart from a store's premises, to be in possession of such a cart, or to abandon such a cart with the intent to temporarily or permanently deprive its owner of possession of the cart, this State law has not stopped shopping carts from being abandoned in our City's neighborhoods; and WHEREAS, more effective measures are needed to ensure that shopping carts are contained on the business premises of their owners and such measures should be directed at preventing the cause of the problem, rather than looking to remedial measures to clean-up the problem's by-product in the City's neighborhoods; and WHEREAS, although State law governs city retrieval measures for abandoned shopping carts, the State has not preempted local regulation that "regulates or prohibits the removal of shopping carts or laundry carts from the premises or parking areas of a retail establishment." (Business & Professions Code section 22435.8) NOW THEREFORE, the City Council of the City of Costa Mesa ordains as follows: Section 1. Title 15, Chapter I, Article 1 of the Costa Mesa Municipal Code is hereby revised to read as follows: "ARTICLE 1. SHOPPING CART REGULATION Sec. 15-14. Definitions Sec. 15-15. Declaration of Public Nuisance Sec. 15-16. Mandatory Containment Systems for Shopping Carts Sec. 15-17. Removal of Shopping Carts from Retail Establishments Prohibited Sec. 15-18. Mandatory Marking of Shopping Carts Sec. 15-19. Impounding of Abandoned Carts Sec. 15-20. Nuisance Abatement Administrative Fees and Fines Sec. 15-21. Recovery by Owner Sec. 15-22. Disposal Sec. 15-23. Appeal of Cart Impound Sec. 15-24. Penalty for Violation Sec. 15-14. Definitions "Abandoned Shopping Cart" means any cart that is located outside the premises or parking lot of a Retail Establishment which owns the cart, except a cart that is in the physical possession of a person who has the written consent of the cart's owner. 2 "Cart Owner' means every person who, in connection with the conduct of a Retail Establishment, owns, rightfully possesses, or makes any cart available to patrons and/or the public. This shall include the owner's agent or authorized representative. "City" means the City of Costa Mesa or its designated representatives. "Contractor' means an authorized independent contractor approved by the City Council for the purpose of effecting the removal of Abandoned Shopping Carts. "Identified Cart" means a shopping cart that has a permanently affixed sign that identifies, in accordance with Business and Professions Code § 22435.1, the owner of the cart or the retailer, or both; notifies the public of the procedure to be utilized for authorized removal of the cart from the owner's premises; notifies the public that the unauthorized removal of the cart from the Cart Owner's premises or Cart Owners Parking Area or the unauthorized possession of the cart, is a violation of state law; and lists a valid telephone number or address for returning the cart to the owner or retailer. If the Cart Owner operates more than one store, the sign shall identify the location of the store where the cart is used. "Parking Area" means a parking lot or other property provided by a Retail Establishment for use by a customer for parking an automobile or other vehicle. In a multi -store complex or shopping center, "Parking Area" includes the entire parking area used by or controlled by the complex or center. "Person" means a natural person, firm, association, organization, partnership, business, trust, corporation, limited liability company, or other entity. "Retail Establishment" means any trade establishment selling articles, commodities, services, or any line of merchandise where shopping carts are made available for and used by its customers. 3 "Shopping cart" or "cart" means a basket that is mounted on wheels or a similar device generally used in Retail Establishments by a customer for the purpose of transporting goods of any kind. Shopping cart also includes a cart used in a coin-operated laundry or dry-cleaning Retail Establishment for purposes of transporting clothes and necessary cleaning materials. "Shopping Cart Nuisance Abatement Program" means the City's activity to rid neighborhoods of Abandoned Shopping Carts by contracting with a private company that will on a daily basis search for and seize all abandoned carts and by contracting with Retail Establishments for sharing the costs of abating nuisance carts. An owner of a Retail Establishment participates in this program by entering into a cost sharing contract with the City. Carts that are seized under this program will be returned to the store from which they were taken, if known. "Unidentified Cart" means a shopping cart that is not an Identified Cart as defined above. Sec. 15-15. Declaration of a Public Nuisance Any Abandoned Shopping Cart is declared to constitute a public nuisance that could impede emergency services, interfere with pedestrian and vehicular traffic, reduce property values, promote blight and deterioration, comprise an attractive nuisance, and create other hazards to the health, safety and general welfare of the community. Sec. 15-16. Mandatory Containment Systems for Shopping Carts It shall be unlawful for any person owning a Retail Establishment located in the City of Costa Mesa where one or more shopping carts are available for customer use not to install and maintain an effective containment system to contain all shopping carts within the property boundaries of the business or adjacent Parking Area. The owner shall provide signage in a conspicuous location 4 notifying shopping cart users that removal of shopping carts from the premises or Parking Area is prohibited without the written consent of the business owner. (a) Containment systems may include, but are not limited to, any one or combination of the following: 1. A physical barrier, such as bollards, restricting shopping carts from being removed from the business premises; 2. Shopping carts equipped with a protruding arm or similar device prohibiting the cart from being removed from the interior of the business; 3. Shopping carts equipped with a wheel locking mechanism that is used in conjunction with an electronic barrier along the perimeter of the area shopping carts are allowed. The wheel locking mechanism will activate when the shopping cart crosses the electronic barrier; 4. A system, which may be mechanical in nature, requiring a deposit to use a shopping cart; deposit should be of a reasonable amount that would not deter the use of the cart, but would encourage the return of the cart. (b) In lieu of installing an effective containment system, the owner of a Retail Establishment may obtain a waiver from the Director of Development Services in satisfaction of this subdivision by either of the following two methods: 1. The store is participating in the City's Shopping Cart Nuisance Abatement Program, and has paid all fees owned under this program. 2. The store maintains its own cart retrieval program that has been certified as effective by the Director. The Director, or his or her designee, will evaluate such programs according to a standard established by City Council resolution in order to ensure that cart retrieval programs achieve the goals of this Article. No enforcement action for violating this section may be taken against the owner of a Retail Establishment who has a valid waiver pursuant to this subdivision. The Director may revoke any waiver if the store no longer qualifies for it. 5 (c) For purposes of this section, "effective containment system' shall mean a system that results in no more than 5 shopping carts being removed without the owner's consent from the business premises or Parking Area within any 12 -month period. There is a rebuttable presumption that a cart found abandoned somewhere off the premises of the cart's owner was removed from the premises without the owner's consent. Sec. 15-17. Removal of Shopping Carts From Retail Establishment Prohibited It is unlawful for any person other than a Cart Owner or its authorized representative to remove a cart from the premises of the owner's Retail Establishment, unless the Cart Owner expressly authorizes its removal in writing. Sec. 15-18. Mandatory Marking of Shopping Carts. (a) The owner of a Retail Establishment shall mark all shopping carts used in its business by its customers as required by Business & Professions Code Section 22435.1. The owner shall permanently affix a sign to each cart that identifies the owner of the cart or the retailer, or both; notifies the public of the procedure to be utilized for authorized removal of the cart from the Cart Owner's premises; notifies the public that the unauthorized removal of the cart from the Cart Owners premises or Cart Owner's Parking Area or the unauthorized possession of the cart, is a violation of state law; lists a valid telephone number or address for returning the cart to the Cart Owner. b) Each day during which all of the carts of a Retail Establishment are not marked as required by this section shall constitute a separate violation. Sec. 15-19. Impounding of Abandoned Carts (a) Identified Carts. The City, or a Contractor, may remove and impound any abandoned identified shopping cart from any public or private property. 1. The cart shall be marked with a tag indicating the date and location of its discovery and shall be stored for 30 calendar days at a location selected by the City that is reasonably convenient to the cart's owner and is open at least six hours of each business day. 2. The owner of an Identified Cart or his representative shall be given actual notice within 24 hours following the impound of the cart of the location where the cart may be claimed. (b) Unidentified Carts. The City, or a Contractor, may remove and impound any abandoned unidentified shopping cart from any public or private property. 1. The Unidentified Cart shall be marked with a tag indicating the date and location of its discovery and shall be stored for 30 calendar days at a location selected by the City that is reasonably convenient to the cart's owner and is open at least six hours of each business day. 2. If there is any reasonably credible evidence on the cart of the name and address of its owner, the owner shall be given actual notice within 5 business days following the impound of the cart of the location where the cart may be claimed. (c) The City a Contractor may remove any abandoned identified shopping cart in accordance with the City's Shopping Cart Nuisance Abatement Program and return the cart to its owner at no charge whatsoever, including recovery and storage costs and fines, without complying with the other provisions of this section. Sec. 15-20. Nuisance Abatement Administrative Fees and Fines (a) Administrative fees. Except as provided in section 15-21 below, an administrative fee to cover the City's cost for the removal, tagging, and storage of Abandoned Shopping Carts and associated administrative activities performed by the City may be established by resolution of the City Council and imposed 7 upon the owners of abandoned carts. Such fee shall not exceed the City's reasonable estimate of actual cost for such services (b) Fines. In addition to the payment of an administrative fee as set forth in § 15-20 (a) above and except as provided in section 15-21 below, the owner of an impounded cart shall also be subject to a fine in the maximum amount established by Business and Professions Code § 22435.7 (f), as may be amended from time to time. The fine for Identified Carts shall be based on each occurrence in excess of three during any six-month period for failure to reclaim Identified Carts in accordance with section 15-21 below. An occurrence includes all Identified Carts impounded by the City, or a Contractor, in a one -day period. The fine for Unidentified Carts shall be the same fine amount as for each occurrence set forth in this subdivision for Identified Carts but imposed on each Unidentified Cart impounded, beginning with the first Unidentified Cart impounded. Sec. 15-21. Recovery by Owner Claims to recover an impounded shopping cart shall be presented to the Director of Public Services, or his designee, in accordance with the following: (a) A Cart Owner or his authorized representative may by appointment inspect impounded carts to determine if any of the owner's carts are present. (b) A Cart Owner may reclaim an impounded cart at any time during normal business hours prior to its disposal or destruction by paying all applicable administrative fees and fines, except as provided in subdivision (c) below. (c) The owner of an Identified Cart may reclaim it within three business days following the date of actual notice of impoundment at no charge whatsoever, including the waiver of any administrative fees and fines that would otherwise be applicable pursuant to § 15-20 above. Any Identified Cart reclaimed by the 3 owner or his authorized representative within the three business days shall not be deemed an occurrence for purposes of § 15-20(b) above. Any impounded Identified Cart that is not reclaimed by the owner within three business days following the date of actual notice of impoundment shall be subject to any applicable administrative fees and fines imposed pursuant to § 15-20, commencing on the fourth business day following the date of actual notice of impoundment. (d) No cart shall be released to a person seeking to reclaim it, unless such person submits to the City reasonably credible evidence of ownership or right to possession of the impounded cart. There shall be a presumption that an Identified Cart is owned by the business establishment designated on the cart. (e) Any release of a cart to a person deemed by the City to be entitled thereto, shall be an absolute defense of the City against any other person claiming to be entitled thereto. See. 15-22. Disposal Any Identified or Unidentified Cart may be sold or otherwise disposed of by the City if not reclaimed from the City within 30 days of receipt of a notice of impoundment by the owner of the cart, or within 30 days from the date of impoundment if no notice was required by this Article. In the event an unclaimed cart remains unclaimed, is disposed of or destroyed, the City retains the right to collect any applicable fees and/or fines from the Cart Owner. Sec. 15-23. Appeals of Cart Impound A person who can demonstrate that he or she is the owner of an impounded cart may appeal the imposition of the nuisance abatement administrative fee and/or fine by presenting evidence that the cart removal and storage was not performed substantially in accordance with the provisions of this Article. Appeals shall be 6 made in writing to the Director of Public Services or his designee within 10 calendar days of paying the fee and/or fine. An administrative hearing will be held within 30 calendar days of the receipt of a request for an appeal. The Cart Owner or authorized representative shall appear and be heard on the matter. If the Director of Public Services or his designee determines that the shopping cart was not removed and stored in substantial accordance with the provisions of this Article, the nuisance abatement administrative fee and/or fine shall be refunded. The decision of the Public Services Director or his designee shall be final. Sec. 15-24. Penalty for Violation (a) Any violation of the provisions of this Article shall be subject to section 1- 33 of this Code. Each day on which a violation of any provision of this Article exists shall be a new and separate violation. (b) Notwithstanding any other enforcement action allowed under this Code, the City Council may prescribe the civil fine for any person owning a Retail Establishment who is given a civil citation for not having established an effective containment system pursuant to section 15-16, above. Section 2. The owner of a Retail Establishment shall not be required to comply with section 15-16 [establishing a shopping cart containment system] and with section 15-18 [marking all shopping carts] and the City will not begin enforcement of the new regulations contained in this ordinance until 120 days after the effective date of this ordinance. Section 3. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of Costa Mesa hereby declares that it would have adopted this Ordinance and each section, subsection, sentence, clause, phrase, or portion thereof, 10 irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases or portions be declared invalid or unconstitutional. Section 4. The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same to be published and posted pursuant to the provisions of law in that regard and this Ordinance shall take effect thirty (30) days after its final passage. PASSED AND ADOPTED this 16" day of June, 2003. ATTEST: i Depu6VCity Clerk of the City of Costa Mesa 6 Mayor of the C' y of Costa Mesa APPROVED AS TO FORM: Acting City Attorney 11 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) as CITY OF COSTA MESA ) I, JULIE FOLCIK, Deputy City Clerk and ex -officio clerk of the City Council of the City of Costa Mesa, hereby certify that the above and foregoing Ordinance No. 03-6 was introduced and considered section by section at a regular meeting of said City Council held on the 2nd day of June, 2003, and thereafter passed and adopted as a whole at a regular meeting of said City Council held on the 16`" day of June, 2003, by the following roll call vote: AYES: Monahan, Cowan, Scheafer NOES: Steel, Mansoor ABSENT: None IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Seal of the City of Costa Mesa this 17'^ day of June, 2003. DepW City Clerk and ex -officio Clerk of the CIty Council of theCity of Costa Mesa 12