HomeMy WebLinkAbout11A - ORD-SHOPPING CARTS
Jf/bk 09/18/06
ORDINANCE
AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF SANTA ANA ADDING ARTICLE IX
TO CHAPTER 33 OF THE SANTA ANA
MUNICIPAL CODE RELATING TO SHOPPING
CART CONTAINMENT
THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS
FOLLOWS:
Section 1. The City Council of the City of Santa Ana hereby finds,
determines and declares as follows:
A. Shopping carts are routinely abandoned on the streets and
sidewalks of the City. Data collected by the City indicates that
perhaps as many as 100,000 or more abandoned shopping carts
are being retrieved annually from the City's streets and sidewalks.
B. While shopping carts are an important amenity to customers of
many business establishments, and the removal of these carts are
damaging to the business, the presence of these abandoned carts
on the City's streets and sidewalks is found to be a public nuisance.
C. These abandoned shopping carts are a prime illustration of the
"broken window theory" (e.g., Kelling and Coles. "Fixing Broken
Windows: Restoring Order and Reducing Crime in Our
Communities"). As such, the abundance of abandoned shopping
carts on the city's streets and sidewalks encourages additional
crime and anti-social behavior. They also tend to reduce property
values and are a blight on the community. Communities from
Seattle to Lodi to San Bernardino have all identified abandoned
shopping carts as constituting classic instances of the broken
window theory.
D. Abandoned shopping carts also, as public testimony and the photos
presented to the City Council amply demonstrate, obstruct the free
passage of persons along public and private streets, sidewalks,
parking lots and other rights of way and/or interfere with pedestrian
and vehicular traffic on streets;
E. By blocking the City's streets and sidewalks, abandoned shopping
carts also impede emergency service needed to save lives.
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F. Abandoned shopping carts also clog storm drain channels reducing
their ability to function properly, by trapping debris and trash and
thereby creating flooding hazards. Carts in the storm drains, if not
removed promptly by the City, could well constitute violation of the
City's waste discharge requirements, and subject the City to tens of
thousands of dollars per day in administrative fines levied by the
Regional Water Quality Control Board.
G. The City currently spends over $80,000 per year to retrieve
abandoned shopping carts. As the industry itself has testified to
this City Council, it is appropriate that regulatory measures be
taken to reduce the burden on the City's taxpayers and provide for
those businesses that use shopping carts to take a greater hand in
controlling this problem by making efforts to contain shopping carts
used by their customers on their premises.
H. The staff reports and oral testimony before the Neighborhood
Improvement/Code Enforcement Committee (NI/CE) on June 28,
2005, July 26, 2005, August 23, 2005, October 25, 2005, January
24,2006, June 27,2006, and July 31,2006, shall by this reference
be incorporated herein, and together with this ordinance, any
amendments or supplements and the oral testimony before the City
Council, shall constitute necessary findings for this ordinance.
I. The Request for Council Action for this ordinance dated September
18, 2006, shall by this reference be incorporated herein, and
together with this ordinance, any amendments or supplements and
the oral testimony before the City Council at this meeting as well
the City Council meeting on August 21,2006 in which a work study
session was held on the Proposed Shopping Cart Regulations,
shall additionally constitute the necessary findings for this
ordinance.
J. The City Council has considered all of the written and oral
testimony offered concerning whether to adopt this ordinance.
K. Based upon this record the City Council finds that the standards set
forth in this ordinance, and each of them, are necessary to protect
the public safety and welfare of the residents of the City of Santa
Ana associated with shopping carts.
L. The police power regulations, such as those employed in this
ordinance, are legitimate, reasonable means of accountability to
help protect the public safety and welfare of the residents of the
City of Santa Ana.
M. In accordance with the California Environmental Quality Act, a
categorical exemption has been adopted for this ordinance.
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Section 2. Article IX is added to Chapter 33 of the Santa Ana Municipal
Code to read in full as follows:
Article IX - Shopping Cart Regulations
Sec. 33-210.
Definitions.
The definitions set forth in this part shall govern the application and
interpretation of this article.
(a) "Abandoned shopping cart" means any shopping cart that has been
removed, without written consent of the owner, from the owner's business
premises and is left unattended or discarded on either public or private property
other than the premises of the business establishment from which the shopping
cart was removed. For purposes of this article, any shopping cart which is
properly identified as required by this article, located on any public or private
property other than the premises of the retail business establishment from which
such shopping cart was removed, shall be presumed to be abandoned, even if in
the possession of any person unless such person in possession is either (1) the
owner, employee or agent of the owner, (2) the owner, employee or agent of a
shopping cart retrieval service hired to retrieve shopping carts from the city, or
(3) has written permission or consent to be in possession of the shopping cart
from the shopping cart's owner.
(b) "Shopping cart control plan" means a document submitted by the
owner of the shopping cart pursuant to section 33-216 of this article.
(c) "Agent" means the person or persons designated in the shopping
cart control plan who the owner of the shopping cart authorizes as the person(s)
to perform or provide retrieval services on behalf of the owner. The agent may be
the owner if so designated in the city approved shopping cart control plan.
(d) "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. The word "shopping
cart" includes laundry carts, which are shopping carts used in a laundromat or
retail dry-cleaning establishment by a customer or attendant for the purpose of
transporting textile goods.
(e) "Director" means the executive director of planning and building for
the City of Santa Ana, or such other director or officer designated by the city
manager to administer this article.
(f) "Owner" means any person or entity, who in connection with the
conduct of a business, owns, leases, possesses or makes a shopping cart
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available to customers or the public. For the purposes of this article, owner shall
also include the owner's agent.
(g) "Plan" means the approved mandatory shopping cart control plan
required by this article.
(h) "Premises" means the entire area owned, occupied, and/or utilized
by an owner which provides shopping carts for use by customers or other
persons, including any parking lot or other property provided by or on behalf of
the owner for customer parking or use.
Sec. 33-211. Findings and purpose.
(a) Many retail establishments provide shopping carts for the
convenience of customers while shopping on the establishment's premises.
However, shopping carts removed from the premises of these establishments
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, wrecked or abandoned shopping carts on public and
private property:
(1) Create conditions that reduce property values, and promote blight
and deterioration of the city neighborhoods, tending to lead to
declining property values and increases in crime;
(2) Obstruct the free passage along public and private streets,
sidewalks, parking lots and other rights of way and/or interfere with
pedestrian and vehicular traffic on streets;
(3) Impede emergency service; and
(4) Clog storm drain channels reducing their ability to function properly,
by trapping debris and trash and thereby creating flooding hazards,
and constitute violation of the city's waste discharge requirements.
(b) For the above-referenced reasons, such lost, stolen, wrecked 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 article or in any other
manner provided by law.
(c) The purpose of this article is to set forth regulations to ensure that
reasonable measures are taken by owners of businesses which provide
shopping carts on their premises for the convenience of their customers to
prevent the removal of shopping carts from business premises and parking lots,
and, when removed despite the owner's implementation of its control pan, to
provide for the prompt retrieval of such shopping carts.
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(d) The purpose and intent of this article is additionally to ensure that
measures are taken by owners to prevent the removal of shopping carts from a
business premises, to make removal of shopping carts a violation of the law, and
to facilitate the retrieval of abandoned shopping carts in a manner that
supplements and complements state law, but is not preempted with state law.
Sec. 33-212.
Applicability/Prohibition
(a) This article shall apply to all owners of business establishments or
other commercial services within the City of Santa Ana that provide more than
five (5) shopping carts for customer use.
(b) It shall be unlawful for an owner and/or owner's agent to cause or
permit any shopping cart to be abandoned upon any sidewalk, street or other
public place in the City of Santa Ana or upon any private property other than the
premises owner of such shopping cart.
Sec. 33-213.
Shopping cart identification required
(a) Every shopping cart owned or provided by any owner must have a
sign permanently affixed to the shopping cart that contains all of the following
information:
(1) Identity of owner, or owner's business establishment, or both;
(2) The address of the owner of the business establishment for
shopping cart return and a phone number at which a person may
contact the owner to retrieve the shopping cart; and,
(3) Notification to the public that the removal of the shopping cart from
the premises is a violation of state and local law.
(b) Any shopping cart found abandoned that does not have the
identification and information required by this section may be removed and
disposed of by the city in accordance with state law.
(c) No owner shall provide any shopping cart for customer use that
does not contain the signage required by this section.
Sec. 33-214.
Premises signage.
Signs shall be placed and maintained on the premises, at all customer
store entrances and exits, and in the parking area, warning customers that
removal of shopping carts from the premises is a prohibited by state and local
law. Any and all posting of signs shall comply with the provisions of the Code,
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except that the number and placement of such signs may be in excess of those
limits found in Chapter 41 hereof.
Sec. 33-215.
Unauthorized removal prohibited.
It shall be unlawful for any person:
(a) To remove a shopping cart from a premises, either temporarily or
permanently, which is properly marked in conformity with this article, without the
written consent of the owner; or
(b) To be in possession of a shopping cart that has been removed from
a premises, which is properly marked in conformity with this article, without the
written consent of the owner; or
(c) To detach the sign or deface the name or address marked on a
sign, which is properly marked on a shopping cart in conformity with this article.
(d) This section shall not apply to shopping carts removed as
authorized by the owner for the purposes of repair, maintenance or disposal.
Sec. 33-216.
Mandatory shopping cart control plan.
(a) Every owner subject to this article shall prepare, submit, implement
and comply with the terms and conditions of a shopping cart control plan to
prevent the unauthorized removal of any shopping cart from the owner's
premises and, if removed, retrieval of the shopping cart within time periods set
forth in subsection (b)(8), below. The focus of the plan shall be on means to
confine shopping carts to the owner's premises.
(b) The shopping cart control plan shall be designed to effectively
prevent the removal of all shopping carts from the premises. The owner shall
have the obligation to provide demonstrable evidence to the director that the
elements proposed will be effective. The plan shall include the following
elements.
(1) Sign affixed to cart. Every shopping cart shall have a sign
permanently affixed to it fully compliant with the requirements of
section 33-213 of this article.
(2) Premises signage. Signs shall be placed and maintained on the
premises, as required by section 33-214.
(3) Shopping cart inventory. The plan shall include a complete list of all
shopping carts maintained on or in the premises.
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(4) Community education plan. A description of a community education
and outreach program to be carried out by the owner that will
effectively inform customers that the removal of shopping carts
from the premises is prohibited and is a violation of state and local
law. This program may include, but is not limited to, flyers
distributed at the premises, warnings on shopping bags,
supplemental signage, direct mail, announcements using intercom
systems at the premises, web site or other means demonstrated to
be effective to the reasonable satisfaction of the director.
(5) Shopping cart identification. Signs and shopping cart identification
requirements which conform to state and local law.
(6) Shopping cart containment plan. The plan shall describe the
specific measures that the owner shall implement to prevent
shopping cart from being removed from the premises. These
measures may include, but are not limited to:
(i) electronic or other disabling devices on the shopping
carts so they can not be removed from the premises;
or,
(ii) bollards, chains or other physical barrier to prevent
transporting shopping carts out of the store or off the
premises; and/or,
(iji) effective management practices including use of
(A) courtesy clerks to accompany customers and
return the shopping carts to the store, (B) security
personnel assigned the responsibility to prevent
removal; (C) or other measures acceptable to the
director that the owner can demonstrate will
effectively prevent shopping cart to be removed from
the premises.
Where physical improvements such as (i) and (ii) above are not
proposed, the plan shall include justification for such omission.
(7) Employee training. The plan shall include a description of an annual
ongoing employee training program that shall be implemented by
the owner designed to educate new and existing employees on the
shopping cart control plan and conditions contained therein.
(8) Mandatory shopping cart retrieval element. The plan shall include
provisions for retrieval of abandoned shopping carts. The plan
shall ensure that all of owner's shopping care removed from the
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premises shall be recovered within 24 hours, or in the case of
shopping carts abandoned at or around a bus stop, within 12 hours.
The retrieval element shall identify the streets and bus stops which
shall be patrolled; the manner, frequency and times of such patrols;
and the procedures to be employed by the owner to retrieve
abandoned shopping carts, including but not limited to the number
of trucks and hours of operation of retrieval activities. In addition,
the retrieval element shall detail a telephone notification program,
whereby persons may notify the owner of an abandoned shopping
cart and request retrieval of any shopping cart properly identified as
belonging to the owner; and provide that each vehicle used to
retrieve shopping carts shall bear conspicuous signs identifying the
name of the owner or the retail business name and, if applicable,
the name of the contract shopping cart retrieval service.
(9) Daily cart confinement. A plan for storing shopping carts during
non-business hours, for any business which is not open 24 hours
per day, to prevent theft when closed.
(10) Collaboration with other businesses. Two or more retail
establishments located within the same shopping or retail center or
sharing a common parking area may collaborate and submit a
single shopping cart control plan.
(11) Monthly reports. The owner shall provide a written report to the
director specifying the number of abandoned shopping carts
retrieved on the owner's behalf during the preceding calendar
month. The report may be provided by an owner's contract
shopping cart retrieval service
Sec. 33-217. Fees.
Every owner subject to this article shall submit with its initial proposed plan
and thereafter annually with its annual report a fee in the amount set forth by
resolution of the city council adopted from time to time. The fee shall not exceed
the city's reasonable cost to administer and manage the activities mandated by
this article, and shall not include the city's cost of retrieving shopping carts,
except as provided for in Business and Professions Code section 22435.7.
Sec. 33-218.
Plan approval or denial and penalties.
(a) Upon this article becoming effective, all owners shall submit a
shopping cart control plan in compliance with section 33-216 to the director. For
the initial plans, the director shall establish a schedule for submittal of plans. The
director shall give written notice to each owner of its deadline for submittal of a
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plan, provided that all plans must be submitted no later than March 1,2007. The
schedule shall provide at least 60 days from notice to submit a plan. The director
may approve or deny the proposed plan and shall notify the owner of such
decision. If approved, the shopping cart control plan shall be implemented by the
owner no later than time specified in the approval, which shall not be thirty (30)
days less than the date of the director's notice.
(b) Notwithstanding the foregoing, the obligations imposed by this
article in sections 33-213 and 33-214 shall be fully implemented no later than
ninety (90) days from the effective date of this article.
(c) Thereafter, each owner must amend or update its plan at the earlier
of (1) any substantial modification of an owner's business or premises that would
adversely affect an approved plan or (2) on the fifth (5th) anniversary of approval
of its initial plan, and each fifth (5th) year thereafter. All new businesses
established after January 1, 2007 must file a plan prior to issuance of a business
license for that new business.
(d)
grounds:
(1 )
(2)
(3)
(4)
(5)
(6)
The director may deny a plan based upon any of the following
Implementation of the plan violates any provision of the building,
zoning, health, safety, fire, police or other provision of this code or
any county, state or federal law which substantially affects public
health, welfare, or safety;
The plan fails to include all of the information required by this
article;
The plan is insufficient or inadequate to prevent removal of
shopping carts from the premises;
The plan fails to address any special or unique conditions due to
the geographical location of the premises as they relate to shopping
cart retention and prevention efforts.
Implementation of the plan violates a term or condition of a plan or
other requirement of this Code;
The owner knowingly makes a false statement of fact or omits a
fact required to be revealed in an application for the plan, or in any
amendment or report or other information required to be made.
(e) If the plan is rejected as incomplete or inadequate, the director shall
indicate areas of incompleteness or inadequacy, and the owner shall have an
additional thirty days in which to resubmit a complete and adequate plan.
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(f) An owner who fails to submit a complete plan to the satisfaction of
the director, or fails to implement approved plan measures or fails to comply with
the approved plan measures will be subject to enforcement of these
requirements through any lawful means available to the city, including without
limitation institution of the administrative remedies process pursuant to Chapter 1
of the Code.
(g) The director's decision shall be final.
Sec. 33-219.
Plan modification and annual report.
(a) At any time after the director's approval of any abandoned shopping
cart plan, the owner may submit to the director a modification of the previously
approved plan to address a change in circumstances, address an unanticipated
physical or economic impact of the plan, or modify an inadequate or ineffective
plan.
(b) Each year, on or before the anniversary of the director's approval of
the plan, each owner (or multiple businesses that have collaborated on a single
approved plan) shall submit an annual report to the director (1) certifying its
compliance with the approved plan and each item specified in section 33-216,
(2) detailing compliance with each provision of its approved plan over the prior
year, and (3) summarizing its monthly cart retrieval statistics for the prior year.
The director may, based upon review of the annual report, initiate modification or
revocation proceedings.
Sec. 33-220.
Modification or revocation of plan.
An approved plan may be revoked by the director, or modified in lieu of
revocation in the exercise of the director's sound discretion, upon any of the
following occurrences:
(a) The owner is operating, or is permitting operation, of the retail
business in violation of one or more provisions of the plan and has failed to
correct such violations for a period of at least fifteen (15) calendar days following
date of receipt of written notification of such violation(s) from the city.
(b) The plan is inadequate to either reasonably prevent the removal of
shopping carts from the premises, or reasonably ensure the prompt retrieval of
abandoned shopping carts.
(c). The owner has failed to comply with any of the provisions of this
article.
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(d) The owner knowingly makes a false statement of fact or omits a fact
required to be revealed in an application for the plan, or in any amendment or
report or other information required to be made.
Sec. 33-221.
Notice of intended decision.
(a) Upon determining the existence of any of the grounds for revocation
of a plan in accordance with section 33-220, the director shall issue to the owner
a notice of intended decision to revoke or modify the plan.
(b) The notice of intended decision shall state all the grounds upon
which the revocation or modification is based.
(c) The notice of intended decision shall advise the owner that the
revocation or modification shall become final unless the owner files a written
request for hearing before the director within ten (10) calendar days of the date of
service of the notice of intended decision to revoke or modify the plan.
(d) The notice of intended decision shall specify the effective date of the
revocation or modification of the plan.
Sec. 33-222.
Procedure for hearing before the director.
(a) The written request for a hearing before the director must be
received by the director within ten (10) calendar days of the date of service of the
notice of intended decision to revoke the plan or deny the renewal application for
an exemption.
(b) Upon timely receipt of a written request for a hearing, the director
shall schedule a hearing which shall be held no later than thirty (30) calendar
days after receipt of a timely request for hearing.
(c) The director shall serve a notice of hearing on the owner at least ten
(10) calendar days prior to the scheduled date of the hearing.
(d) At the hearing before the director, or before a hearing officer at the
director's option, the owner shall be given the opportunity to present witnesses
and relevant documentary evidence.
(e) The hearing will be conducted informally and the technical rules of
evidence shall not apply. Any and all evidence which the director or hearing
officer deems reliable, relevant and not unduly repetitious may be considered.
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Sec. 33-223. Decision of the director.
(a) The director or hearing officer shall serve on the owner a written
decision sustaining, reversing or modifying the director's intended decision.
(b) The decision by the director or hearing officer after hearing shall
become final unless the owner files an appeal within the time period specified in
section 33-224.
Sec. 33-224. Chapter 3 Appeal.
(a) If an owner is dissatisfied with the written decision of the director,
the owner may file a written appeal to the city.
(b) The appeal must be in writing on a form provided by the city and
must be received by clerk of the council within ten (10) calendar days of
notification of the director's decision.
(c) The appeal, including its hearing, shall be conducted in accordance
with Chapter 3 of this Code.
Sec. 33-225. Enforcement.
Every owner shall comply with the provisions of this article and every
provision of the owner's approved shopping cart control plan.
Any owner who violates any provision of this article or any provision of the
owner's approved shopping cart control plan shall be subject to enforcement
procedures for each violation through any lawful means available to the city,
including without limitation institution of administrative remedies in accordance
with Chapter 1 of this Code.
Sec. 33-226. Retrieval notification.
The city may notify the owner of an abandoned shopping cart as identified
on the signage information permanently affixed to the shopping cart. The city
notification shall be documented and provided either by telephone or by written
notice. The notification shall require that the identified shopping cart(s) be
retrieved pursuant to the conditions for retrieval as set forth in the owner's
abandoned shopping cart retrieval plan.
Section 3. Any new use or substantial expansion to a current use, of a
use that employs more than five (5) shopping carts shall, to the extent feasible,
be required to install an electronic wheel locking system as a condition of
issuance of city entitlement or building permit. Staff shall prepare and submit for
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council review any ordinance or resolution necessary to implement this statement
of city policy.
Section 4. If any section, subsection, sentence, clause, phrase or portion
of this ordinance is for any reason held to be invalid or unconstitutional by the
decision of any court of competent jurisdiction, such decision shall not affect the
validity of the remaining portions of this ordinance. The City Council of the City
of Santa Ana hereby declares that it would have adopted this ordinance and
each section, subsection, sentence, clause, phrase or portion thereof irrespective
of the fact that anyone or more sections, subsections, sentences, clauses,
phrases, or portions be declared invalid or unconstitutional.
ADOPTED this
day of
,2006
Miguel A. Pulido
Mayor
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By:
Benjamin Kaufman
Chief Assistant City Attorney
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
Ordinance No. NS-XXX
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CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify that
the attached Ordinance No. NS-XXX to be the original ordinance adopted by the
City Council of the City of Santa Ana on , and that said
ordinance was published in accordance with the Charter of the City of Santa Ana.
Date:
Clerk of the Council
City of Santa Ana
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