HomeMy WebLinkAboutNS-2725 - Relating to Shopping Cart Containment
Jf/bk 09/18/06
ORDINANCE NS-2725
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.
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
Ordinance No. NS-2725
Page 1 of 13
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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 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.
Ordinance No. NS-2725
Page 3 of 13
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.
(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.
Ordinance No. NS-2725
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(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, 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
Ordinance No. NS-2725
Page 5 of 13
(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.
(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:
Ordinance No. NS-2725
Page 6 of 13
(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,
(iii) effective management practices including use of
(A) courtesy clerks to accompany customers and return the
shopping carts to the store, (6) 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 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
Ordinance No. NS-2725
Page 7 of 13
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 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) The director may deny a plan based upon any of the following grounds:
(1) 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;
(2) The plan fails to include all of the information required by this article;
Ordinance No. NS-2725
Page 8 of 13
(3) The plan is insufficient or inadequate to prevent removal of shopping carts
from the premises;
(4) 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.
(5) Implementation of the plan violates a term or condition of a plan or other
requirement of this Code;
(6) 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.
(I) 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 lawfui 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:
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Page 9 of 13
(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.
(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.
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Page 10 of 13
(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.
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 ex1ent feasible, be required
to install an electronic wheel locking system as a condition of issuance of city
Ordinance No. NS-2725
Page 11 of 13
entitlement or building permi!. Staff shall prepare and submit for 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 2nd day of October, 2006.
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
By: h
Be
Ch
:4'
I !
AYES Councilrnernbers Alvarez. Bis!. Bustamante. Christv. Garcia.
Pulido. Solorio (7)
NOES: Councilmembers None (0)
ABSTAIN: Councilmembers None (0)
NOT PRESENT: Councilmembers None (0)
Ordinance No. NS-2725
Page 12 of 13
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-2725 to be the original ordinance adopted by the City
Council of the City of Santa Ana on October 2, 2006 and that said ordinance was
published in accordance with the Charter of the City of Santa Ana. /
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Patricia E. Healy
Clerk of Council
City of Santa Ana
Date:
Ordinance No. NS.2725
Page 13 of 13