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HomeMy WebLinkAboutORD 1187ORDINANCE NO. 1187 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, ADDING CHAPTER 5.91 - CONCERNING ABANDONED SHOPPING CARTS IN THE CITY OF PALM DESERT NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS: 5.91.010. Findings and Purpose. The City of Palm Desert 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 on public and private property tends to create conditions that reduce property values, and promote blight and deterioration that result in a public nuisance. This ordinance is intended to ensure that measures are taken by the owners of shopping carts to prevent the removal of the shopping carts from the owner's premises, to make removal of the cart a violation of this code, and to facilitate the retrieval of abandoned shopping carts in a manner consistent with State law. 5.91.020. Definitions. A. "Abandoned shopping carts" 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. B. "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. C. "City" means the City of Palm Desert or its designated representatives. D. "Contractor" means an authorized independent contractor approved by the City Council for the purpose of effecting the removal of abandoned shopping carts. E. "Identified cart" means a shopping cart that has a permanently affixed sign that identifies, in accordance with California Business and Professions Code Section 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 owner's 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 (1) store, the sign shall identify the location of the store where the cart is used. F. "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. ORDINANCE NO. 1187 G. "Person" means a natural person, firm, association, organization, partnership, business, trust, corporation, limited liability company, or other entity. H. "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. I. "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. J. "Effective Shopping Cart Nuisance Abatement Program" means the retail establishment's ongoing activities to prevent the theft and abandonment of shopping carts from their parking area, combined with the retail establishment's ongoing activity to retrieve any abandoned shopping cart owned by the retail establishment from public or private property within the City within 48 hours. K. "Unidentified cart" means a shopping cart that is not an identified cart, as defined above. 5.91.030. 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. 5.91.040. Mandatory Effective Shopping Cart Nuisance Abatement Program. It shall be unlawful for any person owning a retail establishment located in the City where shopping carts are available for customer use not to implement and maintain an effective shopping cart nuisance abatement program. Effectiveness is defined by the performance of the retail establishment's program. The retail establishment may use any reasonable means in any combination to (1) prevent the removal or theft of their shopping carts from their premises and parking area and subsequent abandonment of their shopping carts within the City limits, and (2) if their prevention program is not 100% effective, to retrieve any and all their abandoned shopping carts from within the City boundaries within 48 hours. The effective program must also have the following minimum requirements: A) The retail establishment must register that they own shopping carts for the use of their customers on their premises with the City Finance Department within 60 days of adoption of the ordinance or at the time of business license application or renewal, whichever is first, and must have an Effective Shopping Cart Nuisance Abatement Program within 6 months of adoption of this ordinance or commencing with the issuance of a business license or the renewal of the business license, whichever is first. This registration must include a contact phone number at the retail establishment in 2 ORDINANCE NO. 1187 Palm Desert for the person or persons, or job title of the person who will be responsible for accepting all shopping carts retrieved by the City and returned to the retail establishment during its normal hours of business. B) The owner shall provide signage on their premises in a conspicuous location 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. C) The owner of a retail establishment shall mark all shopping carts used in its business by its customers as required by California 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 owner's 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. 1) Each day during which the retail establishment owning more than five (5) shopping carts has not registered with the City and each day all of the carts of a retail establishment are not marked as required by this section shall constitute a separate violation. D) Customer Outreach. A customer outreach process under which the owner shall cause additional notice to be provided to customers in addition to the standard signage and marking of the shopping cart as per Sec.5.91.040 (B) and (C) that the removal of carts from the premises is prohibited and is a violation of state and local law. This customer outreach notification may include, but is not limited to, flyers distributed at the premises, warnings on shopping bags, direct mail, announcements using intercom systems at the premises, web site. It may also include marketing to customers their own personal cart for use in lieu of the retail establishment's shopping cart. The exact means and frequency of this outreach is to be determined by the retail establishment. E) Either an effective containment program for physically preventing the shopping carts from being removed from the retail establishment parking area, or an effective program to retrieve abandoned carts within 48 hours, or both. For purposes of this section, "effective containment system" shall mean a system selected by the retail establishment that results in no more than five (5) shopping carts being removed without the owner's consent from the business premises or parking area within the 12-month period commencing with the issuance of a business license or the renewal of the business license. An "effective retrieval program" shall mean no more than five (5) abandoned shopping carts are collected by the City or its contractor within the City limits and returned to the retail establishment within the 12-month period commencing with the issuance of a business license or the renewal of the business license. 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 and that if the City or its contractor removes it and returns it to the retail establishment, the cart was abandoned for more than 48 hours. 3 ORDINANCE NO. 1187 If a retail establishment has a valid and operational contract with a contractor recognized by the City to retrieve abandoned shopping carts and return them to the retail establishment on an ongoing and regular basis of at least 3 times per week, the owner automatically is deemed to have an Effective Shopping Cart Nuisance Abatement Program and exempt from any Nuisance Abatement and Administrative Fees per Sec. 5.91.070. 5.91.050. Removal of Shopping Carts from Retail Establishments 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. 5.91.060. Retrieval of Abandoned Carts from within the City. The City, or its contractor, may retrieve any abandoned shopping cart and return the cart to its owner if it has been abandoned outside the parking area of the retail establishment and not retrieved by the owner or their contractor after 48 hours. The owner of the shopping cart must make a store employee available to be present during normal store hours to receive the returned carts and document that they were returned. The City shall recover its cost for this activity through a Nuisance Abatement and Administrative Fee. 5.91.070. Nuisance Abatement and Administrative Fees. 1. Nuisance Abatement Fee. Retail establishments that have ineffective abatement programs are subject to an annual nuisance abatement fee at the time of renewal of their business license equal to the cumulative cost to the City for retrieval and return of the retail establishment's abandoned shopping carts over a 12-month period commencing with the issuance of a business license or the renewal of the business license. 2. Administrative Fee. An administrative fee to cover the City's administrative cost for the activities performed in Sec 5.91.060 above by the City may also be imposed upon the owners of abandoned carts at the time of business license renewal. Such fee shall not exceed the City's reasonable estimate of actual cost for such services. 5.91.080. Penalty for Violation. Violation of any provision of this section 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 1.12.010 of the Palm Desert code. 4 ORDINANCE NO. 1187 1. 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 Shopping Cart Nuisance Abatement Program pursuant to Section 4, above. 5.91.090. Severability Clause. If 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. 5.91.100. Publication. The City Clerk shall certify to the passage and adoption of this ordinance and shall cause the same to be published once in The Desert Sun, a newspaper of the general circulation, printed, and published in the County of Riverside and circulated within the City of Palm Desert, and the same be in force and effect thirty (30) days after its adoption. PASSED, APPROVED, AND ADOPTED by the City Council of the City of Palm Desert, California, at its regular meeting held this 9th day of Jam, 2009, by the following vote, to wit: AYES: BENSON, FERGUSON, KELLY, and FINERTY NOES: NONE ABSENT: SPIEGEL ABSTAIN: NONE CINDY FINERTY, MAYOR PRO TEMPORE ATTEST: RAC ELLS D. K SE , CITY CLERK CITY OF PALM DESERT, CALIFORNIA -1-( 5 J c'T