HomeMy WebLinkAbout13. Adopt Ord New Shopping Cart Containment Regulations11[=111■\(•)
ItPPi�O'V'ED BY
10: HONORABLE MAYOR AND MEMBERS • THE CITY COUNCICITY MANAGER
• • • THE CITY MANAGER
BY: ALDO E. SCHINDLER, DIRECTOR OF COMMUNITY DEVELOPMENT
DATE: JANUARY 28, 2020
SUBJECT: NEW
• CART CONTAINMENT REGULATIONS
That the City Council adopt:
At its January 14, 2020 meeting, the City Council received a staff presentation, discussed, and
after fully considering all • and written testimony and facts and opinions offered, introduced
the
-• Ordinance.
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ATTACHMENTS
Attachment A — Ordinance
WHEREAS, shopping carts left in the public and private property create blight, become a
public hazard to pedestrians and motorists and are a nuisance to the community; and
WHEREAS, owners of shopping carts should be responsible for containing their
shopping carts on their respective business premises; and
WHEREAS, the City Council wishes to adopt regulations to ensure that reasonable
measures are taken by the owners and operators of businesses which provide shopping carts
for the convenience of customers to either prevent the removal of shopping carts from business
premises and parking lots, or provide for the prompt retrieval of lost, stolen or abandoned
shopping carts.
NOW, - •-E, THE CITY COUNCIL OF OF DOWNEY DOES
HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Sections 4133, 4133.1 and 4133.2 of Chapter 1 ("Disorderly Conduct") of
Article IV ("Public Welfare, Morals, and Policy") of the Downey Municipal Code are hereby
repealed in their entirety and a new Section 4133 is hereby added to Chapter 1, Article IV of the
Downey Municipal Code to read as follows:
(a) Findings and Declaration; Many retail establishments provide shopping carts for the
convenience of customers while shopping on the premises of such businesses. However,
shopping carts removed from the premises of such businesses and left abandoned on
public or private property throughout the city constitute a public nuisance and a potential
hazard to the health and safety of the public. The proliferation of lost, stolen or
abandoned shopping carts on public and private sidewalks, streets, parking lots and other
ways interfere with pedestrian and vehicular traffic on public and private streets and
impedes emergency services. For the aforesaid reasons, such lost, stolen or abandoned
shopping carts are hereby declared to be a public nuisance which shall be subject to
abatement in the manner set forth in this section or in any other manner provided by law.
The purpose of these regulations is to ensure that reasonable measures are taken by the
owners and operators of businesses which provide shopping carts for the convenience of
customers to either prevent the removal of shopping carts from business premises and
parking lots, or provide for the prompt retrieval of lost, stolen or abandoned shopping
carts, to complement and supplement provisions of state law, and to adopt local
regulations to the extent not otherwise preempted by state statute.
(b) Definitions: Except as expressly set forth herein, the following words and terms as used
in this section shall have the following meanings:
(1) "Abandoned shopping cart" shall mean a shopping cart that is left unattended,
discarded or abandoned upon any public or private property other than the
business premises from which the shopping cart was removed, regardless of
Attachment `6A„
whether such shopping cart was removed from the premises with the permission
of the owner.
(2) "Business premises" shall mean the interior of a cart owner's commercial
establishment, adjacent walkways, any loading area, and the parking area, as
defined herein.
(3) "Cart identification sign" shall mean a sign or engraved surface which is
permanently affixed to a shopping cart containing all of the information specified in
Downey Municipal Code Section 4133(d)(2).
(4) "Cart owner" shall mean the owner or operator of a commercial establishment, or
agent thereof, that provides carts for use by its customers for the purpose of
transporting goods of any kind, regardless of whether such commercial
establishment is operated as a retail or wholesale business, and regardless of
whether the commercial establishment is open to the general public, or is a private
club or business, or is a membership store.
(5) "Cart removal warning" shall mean a placard, sign or painted text which meets the
requirements of Downey Municipal Code Section 4133(4)(3).
(6) "Enforcement officer" shall mean any officer or employee of the city designated
with the authority to enforce the applicable provisions of the Downey Municipal
Code.
(7) "Parking area" shall mean a parking lot or other property provided by a
commercial 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.
(8) "Qualified cart retrieval service" shall mean a commercial service, operated by a
third party and paid by a cart owner to retrieve and return shopping carts.
(9) "Shopping cart" shall mean a basket which is mounted on wheels or a similar
device provided by the operator of a commercial establishment for the use of
customers for the purpose of transporting goods of any kind. 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 section.
(c) Unlawful Acts:
(1) Except as otherwise expressly provided in this Section, it shall be unlawful and a
misdemeanor offense for any cart owner to provide or offer, or permit to be
provided or offered, any shopping cart to a customer of the cart owner without a
current and valid cart containment plan approved by the City as required by and in
accordance with the provisions of this Section.
(2) It is unlawful and a misdemeanor to do any of the following acts, if a shopping cart
has a permanently affixed cart identification sign:
01RDINANCE NO.
PAGE 3
(A) To temporarily or permanently remove a shopping cart from the business
premises or the parking area of a business establishment without the
express prior written approval of the owner or on -duty manager of the
business establishment. Written permission shall be valid for a period not
to exceed 24 hours.
(B) To be in possession of a shopping cart that has been removed from the
business premises or parking area of a business establishment without the
express prior written approval of the cart owner or on -duty manager of the
business establishment unless it is in the process of being immediately
returned to the owner or business establishment.
(C) To abandon or leave any shopping cart upon any public street, alley,
sidewalk, parkway, or other public place nor upon any private property
except that of the business premises of the cart owner.
A To alter, convert, tamper with, or remove any part (including, but not
limited to, cart identification sign or physical devices designed to lock or
disable the wheels of a cart) from any shopping cart which has a
permanently affixed cart identification sign.
Subsection 4133(c)(2) shall not apply to carts that are removed for the purposes
of repair or maintenance that has been authorized by the cart owner.
(3) Failure to comply with any portion of Section 4133 may subject the violator to any
civil, criminal, or administrative remedies, as provided by law.
(d) Cart Containment Plan: Every cart owner shall develop, implement, and comply with
the provisions of a written cart containment plan approved by the City to prevent
customers from removing carts from the business premises. The cart containment plan
shall be posted at or near the entrance of the business premises. The cart containment
plan shall include the following elements and a detailed description of how they will be
implemented:
(1) Physical Measures: Specific physical measures shall be implemented to prevent
cart removal from the business premises. This shall include one or more of the
following:
(A) 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.
A Obtaining a security deposit from customers for the on-site use of
shopping carts.
(C) Any other measure approved by the Director of Public Works as a means
to contain carts on premises.
(2) Cart Identification Sign: Every cart owner shall ensure that every shopping cart
has a sign permanently affixed to it that contains, at a minimum, the following
information:
(A) Identification of the owner of the cart or the retailer, or both;
(B) Notification to the public of the procedure to be utilized for authorized
removal of the cart from the premises;
(C) Notification to the public that the unauthorized removal of the cart from the
premises or parking area of the retail establishment, or the unauthorized
possession of the cart, is a violation of state law and the Downey Municipal
Code; and
(D) A valid telephone number or address for returning the cart removed from
the premises or parking area to the owner or retailer,
(3) Cart Removal Warning Required: Every cart owner shall post and maintain cart
removal warnings on the business premises, which meet all of the following
minimum specifications:
(A) Meet or exceed eighteen inches (18") in width and twenty-four inches (24")
in height.
(B) Using block lettering not less than one-half inch (1/2") in width and two
inches (2") in height, contain a statement to the effect that unauthorized
removal of a shopping cart from the business premises, or possession of a
shopping cart in a location other than on the business premises, is a
violation of State law and City ordinance.
(C) List a local or toll-free telephone number for cart retrieval.
(D) Be affixed to an interior wall of the building or otherwise permanently and
prominently displayed within two feet (2') of all customer entrances and
exits,
(E) Cart removal warnings on the exterior of the building are not considered
"signs" for the purpose of calculating maximum allowable signage under
Article 9 ("Land Use") of the Downey Municipal Code.
(4) Cart retrieval operations: The procedure by which the owner or qualified cart
retrieval service will search, find and return carts removed from the business
premises. The cart retrieval operation must demonstrate that the cart retrieval
service will patrol all public streets, highways, sidewalks, alleys, parks, and other
public rights-of-way throughout the City not less than every 24 hours to actively
locate lost, stolen, and abandoned shopping carts, and that the cart retrieval
service or cart owner will respond to complaints from the public or notifications
from an enforcement officer in a manner which results in the retrieval of carts
within 24 hours of receiving the notification. The owner shall provide written
authorization to all retrieval personnel, which authorization shall be carried by
each person while performing cart retrieval services on behalf of the owner and
shall be provided to any enforcement officer upon request.
ORDINANCE NO.
PAGE 5
(5) Shopping cart maintenance: If a cart owner equips shopping carts with disabling
devices, the owner shall conduct regular maintenance to ensure the disabling
devices are working properly. If at any time, the owner determines the disabling
device installed on a cart is not working properly, the cart shall be pulled from
circulation until it is repaired. The owner shall inspect, test, and repair all
abandoned carts returned to the owner prior to making the returned carts
available for use.
(6) Employee training: The owner of the retail establishment shall implement and
maintain a periodic training program for its new and existing employees designed
to educate such employees concerning the requirements of the cart containment
plan and the provision of law prohibiting the unauthorized removal of shopping
carts from the premises of the retail establishment.
(1) Except as set forth in Subsection 4133(e)(2), cart owners shall submit a proposed
cart containment plan that complies with the provisions of Subsection 4133(d) to
the Public Works Department, and obtain approval thereof by the City, prior to
providing any shopping carts to its customers. Each proposed plan shall be
accompanied by a non-refundable fee in an amount set by resolution of the City
Council.
(2) Any commercial retail establishment with a current and valid business license that
provides shopping carts for use by its customers as of the effective date of this
Ordinance shall submit a proposed cart containment plan that complies with the
provisions of Subsection 4133(d) to the Public Works Department within ninety
(90) calendar days following the effective date of adoption of this Ordinance, and
shall obtain approval thereof by the City. Each proposed plan shall be
accompanied by a non-refundable fee in an amount set by resolution of the City
Council, and such fees shall not be pro -rated.
(3) City review: Within 30 calendar days of receipt of a completed cart containment
plan and corresponding fee, the Public Works Director shall review the proposed
plan and determine whether the cart containment measures set forth in the
proposed plan comply with the provisions of Subsection 4133(d), and whether
such measures are otherwise adequate to reasonably prevent the removal of
shopping carts from the business premises and to ensure the prompt retrieval of
lost, stolen, or abandoned shopping carts from the business premises.
(A) The Public Works Director shall issue a written Notice of Decision and
serve it upon the cart owner via either personal delivery or by United
States Postal Service, first-class mail. If the cart owner has provided an e-
mail address with the cart containment plan, the Notice of Decision may
alternatively be issued via e-mail to that e-mail address. Notice shall be
deemed effective upon personal delivery, upon transmission of e-mail, or
upon placement in a United States Postal Service receptacle in the
ordinary course of business.
(i) A Notice of Decision denying a proposed cart containment plan
shall set forth the reasons for denial, and may include
ORDINANCE NO,.
PAGE 6
recommendations for additional measures to adequately contain
shopping carts or ensure timely retrieval of lost, stolen, or
abandoned shopping carts. Any cart owner may appeal the Public
Works Director's denial of a proposed cart containment plan to the
City Manager, or designee thereof, within fifteen (15) calendar days
of a Notice of Decision in the manner set forth in Subsection
4133(f)(3).
(B) All containment and recovery measures approved in a cart containment
plan shall be implemented within thirty (30) calendar days of City approval
of the cart containment plan.
(4) Cart containment plans shall be effective through December 31st of the calendar
year in which the cart containment plan was approved.
(A) Cart owners that are proposing any modification of a current and valid cart
containment plan shall submit a new cart containment plan that adheres to
the provisions of Subsection 4133(4), along with corresponding
nonrefundable fees in an amount set by resolution of the City Council, no
later than October 31St of each calendar year. Any such containment plan
shall be processed as set forth in Subsection 4133(e).
(B) Cart owners that are not proposing any modifications to a current and valid
cart containment plan shall apply to renew the cart containment plan no
later than October 31 s' of each calendar year. An application to renew an
existing cart containment plan shall be accompanied by a nonrefundable
renewal fee in an amount set by resolution of the City Council.
(i) An application to renew an existing cart containment form does not
negate the Public Works Director's authority to review the existing
containment plan that is proposed to be renewed and to determine
whether the cart containment measures comply with the provisions
of Subsection 4133(4), and whether such measures are otherwise
adequate to reasonably prevent the removal of shopping carts from
the business premises and to ensure the prompt retrieval of lost,
stolen, or abandoned shopping carts from the business premises.
In any instance where the Public Works Director denies the
renewal of a cart containment plan, the Public Works Director shall
issue a Notice of Decision as set forth in Subsection
4133(e)(3)(A)(i).
:• i C t ( • ' i i • . • is i . • • •
(1) Grounds for modification or revocation. An approved cart containment plan may
be modified or revoked by the Public Works Director upon any of the following
grounds:
(A) The cart owner is causing, allowing, permitting, or suffering any violation of
the provisions of an approved cart containment plan and has failed to
correct the violation within fifteen (15) calendar days of the issuance of
written notification from the City of such violation. Written notification is
ORDINANCE NO.
PAGE 7
only required upon a first violation, and the City is not required to provide
additional notice or an opportunity to correct upon a subsequent violation
of the same provision of a cart containment plan before modifying or
revoking a cart containment plan approval.
(B) The cart owner is causing, allowing, permitting, or suffering any violation of
the provisions of Section 4133 and has failed to correct the violation within
fifteen (15) calendar days of the issuance of written notification from the
City of such violation. Written notification is only required upon a first
violation, and the City is not required to provide additional notice or an
opportunity to correct upon a subsequent violation of the same provision of
Section 4133 before modifying or revoking a cart containment plan
approval.
(C) The cart containment plan, as approved, is inadequate to reasonably
prevent the removal of shopping carts from the premises of the retail
establishment.
(D) The cart containment plan, as approved, is inadequate to ensure the
prompt retrieval of lost, stolen, or abandoned shopping carts from the
business premises.
(E) A previous cart containment plan for the same commercial establishment
has been revoked within the previous 180 calendar days.
(2) Upon determining the existence of grounds set forth in Subsection 4133(f)(1) and
that a cart containment plan approval should be modified or revoked, the Public
Works Director shall issue a written Notice & Order either modifying or revoking
the cart containment plan approval, and shall serve the cart owner with the Notice
& Order in the same manner as set forth in Subsection 4133(e)(3)(A).
(A) The Notice & Order shall contain, at a minimum, the grounds upon which
the modification or revocation is based, along with the information and/or
evidence (or a summary thereof), constituting the basis for the modification
or revocation. The Notice & Order shall also advise the cart owner of the
cart owner's right to appeal the modification or revocation to the City
Manager, or designee thereof, within fifteen (15) calendar days of the
Notice & Order in the manner set forth in Subsection 4133(f)(3).
(3) Appeals
(A) Any cart owner whose proposed cart containment plan has been denied,
or whose approved cart containment plan has been modified or revoked,
may appeal the determination of the Public Works Director to the City
Manager, or designee thereof, by filing a written request for an appeal with
the City Clerk, accompanied by an appeal fee as approved by resolution of
the City Council, within fifteen (15) calendar days of the issuance of the
Public Works Director's determination. The request for an appeal must
contain, at a minimum, the following information:
ORDINANCE NO.
PAGE 8
(i) The name, address, telephone number, and e-mail address of each
appellant;
(ii) The date of the Public Works Director's notice that is being
appealed;
(iii) A statement as to all grounds for appeal in sufficient detail to
enable the City Manager or designee thereof to understand the
nature of the controversy; and,
(iv) The signature of each appellant under penalty of perjury as to the
contents of the request for appeal.
(B) Failure of the City Clerk to receive a timely appeal and payment of
corresponding appeal fee(s) constitutes a waiver of the right to challenge
the Public Works Director's determination, and the Notice of Decision or
Notice & Order shall be deemed final and binding.
(C) Upon a timely receipt of a request for an appeal and applicable fees, the
City Manager shall conduct an appeal hearing within thirty (30) calendar
days. The cart owner shall be provided with written notice of the date,
time, and location of the appeal hearing at least ten (10) calendar days
prior to the hearing.
(D) Appeal hearings are informal proceedings, and the legal rules of evidence
shall not be applicable. Appeal hearings shall proceed solely on those
issues or defenses raised in the request for an appeal filed by the
appellant(s), and all matters not contested in said request shall be deemed
admitted into evidence. The Notice of Decision and/or Notice & Order shall
be admitted into evidence and shall constitute prima facie evidence of the
grounds for the denial, modification, and/or revocation. The Public Works
Director (or designee thereof) and the cart owner may present written
and/or oral evidence relating to the request for an appeal and grounds for
denial, modification, and/or revocation, and the City Manager or designee
thereof may question any person who presents evidence or who testifies.
(E) The City Manager or designee thereof shall render a decision on the
appeal and adopt findings of fact in support of such decision, and issue a
written Order on Appeal setting forth the decision and findings of fact in
support thereof within thirty (30) calendar days of the conclusion of the
appeal hearing. The Order of Appeal shall be served upon the appellant in
the same manner as set forth in Subsection 4133(e)(3)(A).
(F) The decision of the City Manager or designee thereof shall be deemed
final and binding, and judicial review of any final administrative decision is
subject to the provisions and time limits set forth in California Code of Civil
Procedure Sections 1094.6, et seq.
(G) No owner of a commercial establishment which is subject to the
requirements of this Section shall provide or make available shopping
carts for use by its customers following the date any decision denying or
ORDINANCE NO.
PAGE 9
revoking a cart containment plan approval becomes final, unless and until
a new proposed cart containment plan is approved by the City for such
commercial establishment.
(1) An abandoned shopping cart that has a cart identification sign permanently affixed
to it may be impounded by the City, provided any of the following conditions have
been satisfied:
(A) The shopping cart is located on any public street, alley, sidewalk, parkway,
other public place or upon any private property except that of the business
premises of the cart owner.
(B) The shopping cart has not been retrieved within three calendar days from
the date the City provides the cart owner notice of the shopping cart's
discovery and location.
(C) Notwithstanding Municipal Code Section 4133(f)(1)(B), in instances where
the location of a shopping cart will impede emergency services, or is a
threat to public safety, the City may immediately impound the shopping
cart.
(D) In addition to any civil, criminal, or administrative penalties, the City may
recover its actual costs for any impounded shopping carts as otherwise
authorized by the California Business & Professions Code and/or other
applicable law.
(2) Upon impounding an abandoned shopping cart, the City shall provide notice of
impoundment to the cart owner.
(3) Any shopping cart not reclaimed by the cart owner from the City within 10 days of
receipt of an impoundment, the shopping cart may be sold or otherwise disposed.
(4) Nothing in this Subsection shall be interpreted to prevent the City from contracting
with a third party to impound, store, and dispose of abandoned shopping carts
pursuant to the provisions of this section."
SECTION 2. If any section, subsection, paragraph, sentence, clause or phrase of this
Ordinance is declared by a court of competent jurisdiction to be unconstitutional or otherwise
invalid, such decision shall not affect the validity of the remaining portions of this Ordinance.
The City Council declares that it would have adopted this Ordinance, and each section,
subsection, sentence, clause, phrase or portion thereof, irrespective of the fact that any one or
more sections, subsections, phrases, or portions be declared invalid or unconstitutional.
SECTION 3. The repeal of the former Chapter 1 to Article IV, Sections 4133, 4133.1
and 4133.2 shall not affect or excuse any violation of said Sections that occurred prior to the
effective date of this Ordinance, nor shall such repeal impede, deter, impact, or negate any
ORDINANCE NO.
PAGE 10
administrative, civil, or criminal enforcement of any violation of said Chapter that occurred prior
to the effective date of this Ordinance.
SECTION 4, The City Clerk shall certify the adoption of this Ordinance and cause the
same to be published in the manner prescribed by law.
BLANCA PACHECO, Mayor
ATTEST:
MARIA ALICIA DUARTE, CMC
City Clerk
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES) ss:
CITY OF DOWNEY )
I HEREBY CERTIFY that the foregoing Ordinance No. 20- was introduced at a
regular meeting of the City Council of the City of Downey held on the _ day of 12020,
and adopted at a regular meeting of the City Council of the City of Downey held on the
day of , 2020, by the following vote, to wit:
AYES:
Council Members:
NOES:
Council Member:
ABSENT:
Council Member:
ABSTAIN:
Council Member:
I FURTHER CERTIFY that a Summary of the foregoing Ordinance No. 20- , was
published in the Downey Patriot, a newspaper of general circulation in the City of Downey, on
2020 (after introduction), and on —, 2020 (after
adoption, including the vote thereon). It was also posted in the regular posting places in the City
of Downey on the same dates.
MARIA ALICIA DUARTE, CMC
City Clerk