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HomeMy WebLinkAboutOrd. No. 1187 ������� � -�s�= o g �� c����s���o�.� ��s���ra �N� Re�ot��._...Z,�.�. � ��'�"� CITY OF � � `�... - DEVELOPMENT SERVICES J � STAFF REPORT �j � REQUEST: ORDINANCE NO. 11s� - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, CONCERNING ABANDONED SHOPPING CARTS IN THE CITY OF PALM DESERT. SUBMITTED BY: Gary Rosenblum, Risk Manager DATE: June 25, 2009 CONTENTS: I. Ordinance No. iis� II. California Codes Section 22435-22435.8 Recommendation: Waive further reading and pass Ordinance No. i�s� to second reading. Executive Summary: In order to control and reduce the number of abandoned shopping carts in the City of Palm Desert, and to permanently reduce the annual $14,000 cost of managing abandoned shopping carts, City Staff recommends that the City Council approve the attached ordinance. This is a perFormance based ordinance requiring the City's retailers who own shopping carts to control cart loss and abandonment in the City. The ordinance allows retailers up to six months to develop an "Effective Shopping Cart Nuisance Abatement Program." Retailers who do not have an "effective program" will be required to reimburse the City for the actual cost of collecting and returning the abandoned carts through a "Nuisance Abatement Fee," which will be collected at the time of annual Business license renewal. After six months, the ordinance is expected to greatly reduce the annual cost to the City to perform the shopping cart retrieval services. The ordinance does not entirely eliminate the need to maintain some kind of cart retrieval service. In order to avoid an appropriation for continuing the City's current contractor service, Public Works will implement the State-required processes for retailer notification and cart impound lot. In addition to the cart collection and impound processes, the ordinance requires the City to properly document and calculate the annual fees for the retailers with ineffective programs. After three months Public Works will be able to determine the annual estimated cost for implementing the ordinance and collecting and impounding carts. If the current contractor is maintained, it is expected that the immediate appropriation would be $8,000 with cost recovery resulting in a net ongoing cost to the City under $1,500 annually. Staff Report Shopping Cart Retrieval Ordinance iis� J u ne 25, 2009 Page 2 of 3 Discussion: In order to reduce the abandoned shopping cart problem in the City, and to transfer the cost for managing the problem to the owners of the shopping carts, the attached ordinance has been developed for Council approval. The ordinance was based on existing shopping cart ordinances in California, where Business and Professions Code 22435, (attached) covers all shopping cart issues in the state. This ordinance is the least prescriptive ordinance developed in the state which is still expected to be effective. It is designed to reduce to the extent possible the burdensome command and control effects this type of ordinance could have on local retailers. It also reduces to the extent possible the additional administrative burden on the City. Staff believes this "performance oriented" approach will be effective in meeting the goals set forth by the City Council. The ordinance has the following key elements: 1. Requires retail establishments that own carts and allow customers to use carts to register this fact with the City within 60 days of adoption or sooner as part of their normal business license renewal process. This is not a permit process. 2. Declares abandoned shopping carts a public nuisance and makes it a violation for shoppers to take the carts off the property. 3. Requires retail establishments with carts to have an "effective shopping cart nuisance abatement plan" of their own design with minimum requirements: a. Cart identification - cart's owner and phone number must be displayed. b. Customer notification - retailers must tell customers cart theft is illegal. c. Cart theft (removal) prevention - any method deemed cost effective by cart owners. d. Cart retrieval - any method deemed cost effective by cart owners. 4. "Effective" is defined as less than five carts abandoned per 12 months of business license cycle. 5. City will continue to retrieve abandoned carts left over 48 hours and track per cart cost to City to return it to the owner; this cost will be assessed as a "nuisance abatement fee" paid by the cart's owner at the time of business license renewal if there are more than five carts retrieved over the 12 month business license cycle. 6. Retail establishments who contract with an approved provider of cart retrieval services that operate in Palm Desert three or more times per week collecting carts are exempt from any fees. (Albertsons, Vons, and Ralphs are already in compliance with this) 7. Timeline: a. 60 days from adoption: cart registration b. Six months from adoption: effective program must be implemented by all retail establishments —fees for nuisance abatement begin 8. Performance standard: the City does not specify how any retail implements its effective program. It can be 100% prevention with barricades, fences, security guards, or W:Wgenda Items�2009-06-25\Shopping Cart Ordinance\Cart Ordinance 6-25-09.1a.docx Staff Report Shopping Cart Retrieval Ordinance lis� June 25, 2009 Page 3 of 3 electronic locking carts, or it can be 100% retrieval service or some combination of the two. PerFormance standard is 5 or less carts abandoned per establishment per year. Despite the ordinance, the City will still need to collect and return some abandoned carts to their owners, especially during the first six months. In order to avoid appropriation of funds to continue the current contract service, Public Works will take over and create the state required processes for impounding carts, maintaining an impound lot, providing notification to cart owners, and tracking the impounded carts. Public Works will also develop the administrative tracking process to document the actual cost of retrieving the carts, which the ordinance will enable to City to use for cost recovery. After three months, Public Works will be able to determine its annual estimated cost for implementing and enforcing the ordinance and collecting and impounding carts, notifying retailers, and tracking retailer fees. The alternative to Public Works performing the work is to fund our current contractor California Shopping Cart Retrieval Corporation (CART) through appropriation. The annual cost for this service will be reduced from $14,000 without the ordinance to under $8,000 this fiscal year if the ordinance is approved, and then, once the ordinance is fully in effect and nuisance abatement fees are collected, a net cost of under $1,500 is expected for ongoing years. CART is an ongoing contractor to Vons, Albertsons and Ralphs, so CART already patrols the entire City picking up carts for their clients. It is expected that if the ordinance is approved, more local retailers will contract with this service, because it makes sense from a time and fuel efficiency standpoint to use the same contractor who is already performing the job locally and not duplicate the time and fuel use. Submitted By: Departm nt ead: �l Gary Rosenblum Mark Gre nwood Risk Manager Director Public Works Approv � J ohlmuth it Manager W:Wgenda Items�2009-06-25\Shopping Cart Ordinance\Cart Ordinance 6-25-09.1a.docx ORDINANCE NO. 1�8�. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, 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 ORDINANCE NO. 118� multi-store complex or shopping center, "parking area" includes the entire parking area used by or controlled by the complex or center. 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 inerchandise 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 afso 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 2 ORDINANCE NO. i�s� 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 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.4 (2) and (3) 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, f�yers 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 3 ORDINANCE NO. , i18� or its contractor removes it and returns it to the retail establishment, the cart was abandoned for more than 48 hours. If a retait 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.7. 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 administrative cost for this activity through a Nuisance Abatement 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 7(1.) 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 day of , 2009, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: ROBERT A. SPEIGEL, MAYOR ATTEST: RACHELLE D. KLASSEN, CITY CLERK CITY OF PALM DESERT, CALIFORNIA 5 �-_ �� ,. Ordinance No. 1187 CALIFORNIA CODES BUSINESS AND PROFESSIONS CODE SECTION 22435-22435.8 22435. As used in this article: (a) "Shopping cart" means a basket which is mounted on wheels or a similar device generally used in a retail establishment by a customer for the purpose of transporting goods of any kind. (b) "Laundry cart" means a basket which is mounted on wheels and used in a coin-operated laundry or drycleaning retail establishment by a customer or an attendant for the purpose of transporting fabrics and the supplies necessary to process them. (c) "Parking area" means a parking lot or other property provided by a retailer for use by a customer for parking an automobile or other vehicle. 22435.1. The provisions of Section 22435.2 shall apply when a shopping cart or a laundry cart has a sign permanently affixed to it 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 premises; notifies 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 lists a valid telephone number or address for returning the cart removed from the premises or parking area to the owner or retailer. 22435.2. It is unlawful to do any of the following acts, if a shopping cart or laundry cart has a permanently affixed sign as provided in Section 22435.1: (a} To remove a shopping cart or laundry cart from the premises or parking area of a retail establishment with the intent to temporarily or permanently deprive the owner or retailer of possession of the cart. (b) To be in possession of any shopping cart or laundry cart that has been removed from the premises or the parking area of a retail establishment, with the intent to temporarily or permanently deprive the owner or retailer of possession of the cart. (c) To be in possession of any shopping cart or laundry cart with serial numbers removed, obliterated, or altered, with the intent to temporarily or permanently deprive the owner or retailer of possession of the cart. (d) To leave or abandon a shopping cart or laundry cart at a location other than the premises or parking area of the retail establishment with the intent to temporarily or permanently deprive the owner or retailer of possession of the cart. (e) To alter, convert, or tamper with a shopping cart or laundry 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 owner or retailer of possession of the cart. (f) To be in possession of any shopping cart or laundry cart while ( . , ` �. Ordinance No. 1187 that cart is not located on the premises or parking lot of a retail establishment, with the intent to temporarily or permanently deprive the owner or retailer of possession of the cart. 22435.3. Any person who violates any of the provisions of this article is guilty of a misdemeanor. The provisions of this section are not intended to preclude the application of any other laws relating to prosecution for theft. 22435.4. This article shall not apply to the owner of a shopping cart or laundry cart or to a retailer, or to their agents or employees, or to a customer of a retail establishment who has written consent from the owner of a shopping cart or laundry cart or a retailer to be in possession of the shopping cart or laundry cart or to remove the shopping cart or laundry cart from the premises or the parking area of the retail establishment, or to do any of the acts specified in Section 22435.2. 22435.5. (a) In any civil proceeding, any shopping cart or laundry cart which has a sign affixed to it pursuant to Section 22435.1 shall establish a rebuttable presumption affecting the burden of producing evidence that the property is that of the person or business named in the sign and not abandoned by the person or business named in the sign. (b) In any criminal proceeding, it may be inferred that any shopping cart or laundry cart which has a sign affixed to it pursuant to Section 22435.1 is the property of the person or business named in the sign and has not been abandoned by the person or business named in the sign. 22435.7. (a) The Legislature hereby finds that the retrieval by local government agencies of shopping carts specified in this section is in need of uniform statewide regulation and constitutes a matter of statewide concern that shall be governed solely by this section. (b) A shopping cart that has a sign affixed to it in accordance with Section 22435.1 may be impounded by a city, county, or city and county, provided both of the following conditions have been satisfied: (1) The shopping cart is located outside the premises or parking area of a retail establishment. The parking area of a retail establishment located in a multistore complex or shopping center shall include the entire parking area used by the complex or center. (2) Except as provided in subdivision (i) , the shopping cart is not retrieved within three business days from the date the owner of the shopping cart, or his or her agent, receives actual notice from the city, county, or city and county of the shopping cart's discovery and location. (c) In instances where the location of a shopping cart will impede emergency services, a city, county, or city and county is authorized ,_ + (, Ordinance No. 1187 to immediately retrieve the shopping cart from public or private property. (d) Any city, county, or city and county that impounds a shopping cart under the authority provided in subdivisions (b) and (c) is authorized to recover its actual costs for providing this service. (e) Any shopping cart that is impounded by a city, county, or city and county pursuant to subdivisions (b) and (c) shall be held at a location that is both: (1) Reasonably convenient to the owner of the shopping cart. (2) Open for business at least six hours of each business day. (f) A city, county, or city and county may fine the owner of a shopping cart in an amount not to exceed fifty dollars ($50) for each occurrence in excess of three during a specified six-month period for failure to retrieve shopping carts in accordance with this section. An occurrence includes all shopping carts impounded in accordance with this section in a one-day period. (g) Any shopping cart not reclaimed from the city, county, or city and county within 30 days of receipt of a notice of violation by the owner of the shopping cart may be sold or otherwise disposed of by the entity in possession of the shopping cart. (h) This section shall not invalidate any contract entered into prior to June 30, 1996, between a city, county, or city and county and a person or business entity for the purpose of retrieving or impounding shopping carts. (i) Notwithstanding paragraph (2) of subdivision (b) , a city, county, or city and county may impound a shopping cart that otherwise meets the criteria set forth in paragraph (1) of subdivision (b) without complying with the three-day advance notice requirement provided that: (1) The owner of the shopping cart, or his or her agent, is provided actual notice within 24 hours following the impound and that notice informs the owner, or his or her agent, as to the location where the shopping cart may be claimed. (2) Any shopping cart so impounded shall be held at a location in compliance with subdivision (e) . (3) Any shopping cart reclaimed by the owner or his or her agent, within three business days following the date of actual notice as provided pursuant to paragraph (1) , shall be released and surrendered to the owner or agent at no charge whatsoever, including the waiver of any impound and storage fees or fines that would otherwise be applicable pursuant to subdivision (d) or (f) . Any cart reclaimed within the three-business-day period shall not be deemed an occurrence for purposes of subdivision (f) . (4) Any shopping cart not reclaimed by the owner or his or her agent, within three business days following the date of actual notice as provided pursuant to paragraph (1) , shall be subject to any applicable fee or fine imposed pursuant to subdivision (d) or (f) commencing on the fourth business day following the date of the notice. (5) Any shopping cart not reclaimed by the owner or his or her agent, within 30 days of receipt following the date of actual notice as provided pursuant to paragraph (1) , may be sold or disposed of in accordance with subdivision (g) . 22435.8. This article shall not invalidate an ordinance of, or be (� � � Ordinance No. 1187 construed to prohibit the adoption of an ordinance by, a city, county, or city and county, which ordinance regulates or prohibits the removal of shopping carts or laundry carts from the premises or parking area of a retail establishment except to the extent any provision of such an ordinance expressly conflicts with any provision of this article.