9-3102 9-3103 9-3104 9-3108 9-3109 - Fresno · SECTION 1. Article 31 of Chapter 9 of the Fresno...

BILL NO. B-15

ORDINANCE BILL NO. 2014-18

AN ORDINANCE OF THE CITY OF FRESNO, CALIFORNIAAMENDING ARTICLE 31 OF CHAPTER 9 OF THEFRESNO MUNICIPAL CODE RELATING TO ABANDONEDSHOPPING CARTS.

THE COUNCIL OF THE CITY OF FRESNO DOES ORDAIN AS FOLLOWS:

SECTION 1. Article 31 of Chapter 9 of the Fresno Municipal Code is amended to read:

ARTICLE 31

ABANDONED SHOPPING CARTS

Section 9-3101 Title.9-3102 Findings and Purpose.9-3103 Definitions.9-3104 Unlawful Possession and Abandonment

of Carts.Cart Owner Requirements.City Retrieval of Carts.lmmediate ilmooundl by City ofldentified Carts.

9-3108 Possession of Carts by RecyclingCenters.

9-3109 Enforcement and Remedies.9-3110 Severability Clause.9-3111 Cumulative Remedy.

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 aþlbandoned sþlhopping eBlarts 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

Date Adopted: 03 12012014

Date Approved:03 I 25 I 2014Effective Date: 04 I 25 I 201 4

9-31059-31069-3107

Page I of20

Ordinance No.2014-18

aþlbandoned e[Ç]arts, 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 s[$]hopping e[Ç]arts

to prevent the removal of the sþlhopping e[9arts from the lCartl elOlwner's

lBusinessl p[P]remises, to make removal of the [Q]eart a violation of the Code,

and to facilitate the retrieval of aþlbandoned s[$]hopping e[Q]arts in a manner

consistent with State law land to use an administrative citation proqram to

establish appropriate fines intended to act as a reasonable deterrent in

preventinq violations.l

SECTION 9-3103. DEFINITIONS. The definitions setforth in this section

shall govern the application and interpretation of this article.

(a) "Abandoned Cart" lor "Abandoned Shoppinq Cart"l shall

mean any Cart that has been removed, without the written consent of the

lCartl e[O]wner, from the [B]usiness p{Plremises or p[!]arking

aþlrea of the retail establishment of which the e[Ç]art elOlwner's

b{Blusiness p[!]remises are located and is located on either public or

private property. The lCart] elOlwner's b[E]usiness p[!]remises 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 lin writinql by the [a Cartl elOlwner pursuant lto Section 9-

3105(c) ofl te this article that provides a plan for hew the

Page2 of 20

lPrevention of Cart removal

and for the recoverv of Off-site Carts.l

adequate; an implied premise by the ewner te eemply.with the plan'

[(c) "Business Premises" means the interior of a Cart Owner's

Parkinq Area. as defined herein. The Cart Owner's Business Premises

and public access.l

þ)-tßDl "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 t[]aundromat or similar

business. [A Cart sold bv a commercial establishment to a retail customer

for that customer's personal use is not a Shoppinq Cart for the purposes

of this article.l

[(e) "Cart ldentification Sign" means a siqn or enqraved surface

which is permanentlv affixed to a Shoppinq Cart containinq all of the

information specified in Section [9-31 05(a)..|

(f) "Cart Owne/' means the owner or operator of a commercial

establishment which provides Carts for use bv its customers for the

purpose of transportinq goods of anv kind.

(q) "Cart Removal Warninq" means a placard. siqn or painted

text which meets the requirements specified in Section [9-3105(cX4).1

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(h) "Cart Retrieval Companv" or "Cart Retrieval Service" means

Shoppinq Carts to the Cart Owner.l

(d)-lQl "Directod' 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.

iness-ewning-€+-{Jsing

shepping earts in eenneetien with its business,

(il "Off-site" means not within the Business Premises.

(k) "On-site Cart Containment Proqram" means one or more of

the followinq measures:

(1) Disablinq devices on all Shoppins Carts which

prevent them from beinq removed from the Business Premises bv

lockino the wheels or othenruise preventinq the movement of the

Carts.

(2) An on-site securitv quard 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 bv the applicable zoning and the

site plan. and if approved bv the fire marshal.

(4) Obtaininq a securitv deposit from customers for the

on-site use of Shoppinq Carts.

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(5) The rental or sale of Carts that can be temporarilv or

permanentlv used for the transport of qoods.

(6) Anv other measure approved bv the Director as a

means to contain Carts on the Business Premises.

(l) "Parkinq Area" means a parkinq lot or other propertv

controlled bv the complex or center.

(m) "Phvsical Containment Svstem" means one of the followinq.

as approved bv the Director:

(1) Disablinq devices on all Shoppinq Carts which

prevent them from beinq removed from the Business Premises bv

lockinq the wheels or othenvise preventinq the movement of the

Carts.

(2) Anv other svstem of equipment approved bv the

Director which phvsicallv contains Shoppinq Carts on the Business

Premises.l

(n) "Recvclinq Center" means anv facilitv that is used in the

process of collectinq. sortinq. cleansinq. treating. processinq.

reconstituting. or storinq materials that would otherwise become solid

waste and returninq them to the economic mainstream in the form of raw

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standards necessarv to be used in the marketplace.l

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

W 12243s.31. This section shall not apply to Carts removed as authorized

by the tCartl elOlwner, pursuant to Business and Professions Code Section

22435.4, including for the purposes of maintenance, repair or disposal.

ilt is unlawful to do anv of the followinq acts. if a Cart has a permanentlv

affixed siqn as provided in Business and Professions Code Section 22435.1:

(a) lt shall be unlawful fer any persen te remeve a shepping eart

er laundry eart frem the premises er parking area ef a retail establishment

with the intent te temperarily er errantly deprive the ewner er retailer ef

pessessie+e+tne-ea+

the parking area ef a retail establishment; with the intent te temperarily ere

permanently deprive the ewner er retailer ef pessessien ef the eart,

shepping eart er laundry eart with serial numbers remeved; ebliterated; er

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shepping eart er laundry eart at a leeatien-ether than the premises er

permanenUV Oeprlv

with a shepping eart er laundry eart' er te remeve any part er-pertien

intent te temperarily er permanently deprive the ewner er retailer ef

pessessien-e++ne-ea+

er laundry eart while that eart is net leeated en the premises er parking let

(a) To remove a Cart from the Business Premises of a retail or

commercial establishment with the intent to temporarilv or permanentlv

deprive the Cart Owner of possession of the cart.

(b) To be in possession of anv Cart that has been removed from

the Business Premises of a retail or commercial establishment with the

of the Cart.

(c) To be in possession of anv Cart with serial numbers

permanentlv deprive the Cart Owner of possession of the Cart.

PageT of 20

r abandon a Cart at a location other than the

Business Premises of the retail or commercial establishment with the

of the Cart.

(e) To alter. convert, or tamper with a Cart or to remove anv

part or oortion thereof or to remove. obliterate or alter serial numbers on a

or retailer of the possession of the Cart.

(f) To be in possession of anv 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 temporarilv or

SECTION 9-3105. CART OWNER REQUIREMENTS. All owners of

Carts shall comply with the requirements of this Sþection.

(a) Cart ldentification Required.

ef the ewner; and a netiee that prevides that the-remeval ef the eart frem

the premises ef the ewner is a vielatien ef State law. Everyewner ef mere

than twenty five (25) shepping earts shall alse mark er eause the eart te

number er a party that is respensible fer retrieval ef the eart, [All Carts

Page I of 20

notifvinq 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 complving with this section and

continuouslv maintaining. or causing to be maintained. the Cart

(b) Daily Cart Retrieval. All lCart] elOlwners, regardless of the

number of Carts owned, shall lretrieve all Carts dailv tol ensure tha+-all

Ithel e[Ç]arts are secured from public access after close of business

hours.

(c) Abandoned Cart Prevention Plan. Every lCartl elOlwner

wne-previAes lofl more than twenty-five (25) Carts te their eustemers shall

develop, implement and comply with the terms and conditions of an

Abandoned Cart Prevention Plan to prevent the unauthorized removal by

any-persen of any Carts from the lBusinessl p[!]remises and, if

removed, to retrieve the e[Ç]art within ø*feight-(48) lthree (3) business

davsl h€u{€ of the removal or notice of the removal. The Abandoned Cart

Prevention Plan shall be submitted lto the Director in writinql on a

renewable annual basis and shall include the following elements:

(1) Name of Business/Owner. The name of the owner

and the business Ra+Re, the physical address where the business is

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conducted, land thel name, address and ltelelphone numbers(s) ef

lwherel the en-site and eff site ewner if different lall notices and/or

citations are to be sent.l

(2) lnventory of Carts.

. [The number of Carts owned.l

(3) Community Outreach. A description of a community

outreach process under which the lCartl elOlwner shall cause

notice to be provided to customers that the removal of e[Q]arts from

the [Business] p[!]remises is prohibited 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 [Businessl

plPlremises, þl web site or other means demonstrated to be

effective to the reasonable satisfaction of the [p]director.

(4) Signs. Multi-lingual signs shall be placed prominently

and conspicuously at all entrances and exits to the eBlart

elOlwner's [Businessl p[!]remises, including the p[!]arking

alAlreas, that provide a notice e+--sugstan+¡ally lcontaininql 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.''

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(5) Physical [Containment Svstem.l tess Preventien

Measures, lEverv Cart Owner shall providel Aþ] description of the

specific measures that the lCartl e[Q]wner shall implement to

prevent e[Ç]art removal from the lBusinessl p[P]remises [which

meets the requirements specified in Section 9-3103(m).1 These

measures may include, but are not limited to, lanl electronic or

other disabling devices on the þ] e[Q]arts so they ean--net tit

cannotl be removed from the [Business] p[!]remises, e#e€tive

@iees lrental or sale of utilitv carts that can be

temporarilv or permanentlv used to transport purchasesl, security

personnel to prevent removal, security deposit for use of [a] eBlart,

or other demonstrable measures acceptable to the Director that are

likely to prevent Cart removal from the lBusinessl p[!]remises.

(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 mavl

and submit a single plan lAbandoned Cart Prevention Plan.l

Pagel1of20

(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 lCartl elOlwner submits the

Abandoned Cart Prevention Plan, the lCartl elOlwner 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 se€t¡€n larticlel or the plan is

inadequate or insufficient to fulfill th€se lthel required elements. lf

the plan is denied, the Director shall do so in writing and provide an

explanation for the basis of his or her decision. The lCartl elOlwner

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 lCartl elOlwner 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 seetien larticlel,

the Director may, in writing, require the lCartl e[Q]wner to modify or

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submit a new plan. such a modification may include, but is not

limited to, requiring the lCartl elOlwner to identify a new person to

retrieve abanC€ned e[Qarts or changing the physical loss

prevention measure. lf the Directorllrequires the lCartl e[Q]wner to

modify or submit a new plan, the lCartl elOlwner 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 Svstem Proqram Required.l

ineluding the requirements ef sub seetien (b)' and plans fer reeevery ef all

either a plan fer the ewner er the ewner's empleyees te retrieve the earts

i€es

that is appreved by the eity, The plan fer retrieval shall inelude previding

te the eity, the name and tell free phene number ef the party whe will be

lEverv

Cart Owner shall operate and maintain an On-Site Cart Containment

Proqram as defined in Section 9-3103(k). A Cart Owner mav be

with a qualified Cart Retrieval Service and submits information to the

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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 Shoppinq Carts within twentv-four (24) hours after receivino

complaints.l Whoever is identified by the tCartl elOlwner as the party

responsible for retrieval of the eBlarts shall be made available for e[Ç]art

retrieval six (6) days a week, eight (8) hours a day or during the lCartl

elOìwner'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, er failure te eenduet the required daily sweep; 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 a[A]bandoned eBlart from public property (or private property with the

consent of the property owner) in the following circumstances:

(a) Where the location of the s{Slhopping eB}art will impede

emergency services.

(b) When the a[fbandoned e[Qart does not identify fþs e{¡únerE

ef+h€-€a# lCart Ownerl as required in Section 9-3105'

(c) When the city has contacted eithe+ the lCartl elQwner'-the

ewner's agent, er the entity eentraeted with by the ewner under the

of 2O

and a€tuaily notified them him or her of

the a{Albandoned e[Qart and the e[Ç]art has not been

lreclaimedl within @ lthree (3) business davsl.

SEGTION 9 3107TA1. IMPOUNÐMENT; RETRIEVAT; PAYMENT OF

eos+g

ewner that the eity has impeunded their eart and previde infermatien as te

eart may result in the eart's sale er destruetien' that the ewner will be

eity has pieked up the ewner's earts mere than-three times. In the ease ef

if the erty ebtains aetual knewledge ef the ewner's identifts

in

thirty (30) days after the ewner has reeeived netiee ef the eart being

impeunded, er if the eart's ewner eannet be determined; within thirty (30)

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fifty dellars ($50), under the preeedures in Seetien 1 306; against any eart

ix-

s¡x (0) mentn per¡o

eifeumstanGes feun€l in Seetien 9-1 106 ro-2rrì^I, rrtn nna,rrranna ¡nal',¡lao

Sehedule=

sEcïoN 9-310e81. |MMEDTATE RETRTEVAt IMPOUND] BY CrrY OF

IDENTIFIED CARTS. Notwithstanding any other section of this article, the city

may immediately retrieve limpoundl a e[Q]art

lwithout complvinq with the

three (3) dav advance notice requirementl provided the city actually notifies the

lCartl elOlwner within twenty-four (2Ð hours that the city has impounded the cart

and provides information to the [Cartl elOlwner where and how the e[Ç]art may

be retrieved lreclaimedl. The eity may net eelleet a fee er impese a fine; ner

eeunt a retrieval fer purpeses ef a fine under Seetien I3107(d); if the eart

retrieved by the[ leity under this seetien, is eelleeted by the ewner within three (3)

[The Citv shall hold

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shall be released and surrendered to the Cart Owner at no charge. includinq a

Section 9-3109(a).|. lf the e[Q]art is not retrieved lreclaimed bv the Cart Ownerl

within three (3) business days Ofit+ewne+, the city may collect its actual costs[,]

and impose a finefi and dispose of the e[Ç]art consistent with the provisions of

Section 19-31 091. S€1€7ÍÊ[.

ISECTION 9-310I8I. POSSESSION OF CARTS BY RECYCLING

this section as follows:

(a) Carts with ldentification Sions. Anv Recvclinq Center that

shall hold the Cart on its premises for three (3) business davs to ensure

that the Cart will not be sold or othenruise recirculated to the public. lf the

Cart is not reclaimed bv the Cart Owner within three (3) business davs

Department and arrange for the Citv to retrieve the Cart.

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(b) Carts without ldentification Siqns. Anv Recvclinq Center that

Police Department and arrange for the Citv to retrieve the Cart. The

Recvclinq Center shall hold the Cart on its premises to ensure that the

Cart will not be sold or othenvise recirculated to the public.

SECTION 9-31191. ENFORCEMENT AND REMEDIES. The Citv mav

exercise the followinq remedies:

(a) Pursuant to Business and Professions Code Section

three (3) business davs after receivinq notice from the Citv. shall pav the

notification to the Cart Owner. Anv Cart Owner who fails to retrieve

Abandoned Carts in accordance with this Chapter in excess of three times

fine for each occurrence. An occurrence includes all Carts owned bv the

Cart Owner that are impounded bv the Citv for a one-dav period.

(b) lf a Cart is not retrieved bv its owner within thirtv (30) davs

after the Cart Owner has received notice of the Cart beinq impounded.

the Citv sees fit.

(c) Followinq the citv havinq retrieve more than ten (10) Carts in

anv thirty (30) dav period or the issuance of more than ten (10)

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require the Cart Owner to install a Phvsical Containment Svstem.l

SECTION 9-310q101. 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 fullforce and effect.

SECTION 9-311q111. 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.

SECTION 2. This ordinance shall become effective and in full force and effect at 12:01

a.m. on the thirty-first day after its passage.

**************

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COUNTY OF FRESNOCITY OF FRESNO

l, WONNE SPENCE, City Clerk of the City of Fresno, certify that the foregoingordinance was adopted by the Council of the City of Fresno, at a regular meeting held

on the 20th day of March, 2014.

)

) ss.

)

AYESNOESABSENTABSTAIN

Mayor Approval:Mayor Approval/No Return:

: Brand, Caprioglio, Quintero, Xiong, Brandau: Baines, Olivier: None: None

March 25,2014N/A ,2014

Mayor Veto: N/A 2014Council Override Vote:

APPROVED AS TO FORM:CITY ATTORNEY'S OFFICE

N/A ,2014

WONNE SPENCE, CMCCity Clerk

By: f\Lf'/r\/ 4ul.|,n, Deputy

TNP:ns:elb [6310Ons/elb/tnp] - Ord. 2126114

Page20 of 20

March 21,2014 R[CEIVED councilAdoption: 3l2ol2ot4Mayor Approval:

TO: MAYOR ASHLEY SWEARENGIN î Mayor Veto:* tn T 31 override Request:

FROM: WONNE SPENCE, CMC \''

City ClerkRH, FRESIIO CA

SUBJECT: TRANSMITTAL OF COUI FOR APPROVAL OR VETO

At the Council meeting of 3120114, Council adopted the attached Ordinance No. 2014-18Amending Article 31, Ghapter 9 of the Fresno Municipal Code relating to abandonedshopping carts, ltem No. 1G1, by the following vote:

Ayes :

Noes :

Absent :

Abstain :

NO RETURN:

Brand, Brandau, Caprioglio, Quintero, XiongNoneBaines, OlivierNone

Please indicate either your formal approval or veto by completing the following sections andexecuting and dating your action. Please file the completed memo with the Clerk's office onor before March 31,2014. In computing the ten day period required by Charter, the first dayhas been excluded and the tenth day has been included unless the 1Oth day is a Saturday,Sunday, or holiday, in which case it has also been excluded. Failure to file this memo withthe Clerk's office within the required time limit shall constitute approval of the ordinance,resolution or action, and it shall take effect without the Mayor's signed approval.

Thank you.

VETOED for the following reasons: (Written objections are required by Charter; attachadditional sheets if necessary.)

Date:AyesNoesAbsentAbstain

COUNCIL OVERRIDE AGTION:

9-3102 9-3103 9-3104 9-3108 9-3109 - Fresno · SECTION 1. Article 31 of Chapter 9 of the Fresno...

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