HomeMy WebLinkAboutOrdinance #3759 ORDINANCE NO. 3 7 5 9
AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH
AMENDING THE HUNTINGTON BEACH MUNICIPAL CODE
BY ADDING CHAPTER 5.80 TITLED SHOPPING CART
CONTAINMENT AND RETRIEVAL BY OWNERS
The City Council of the City of Huntington Beach does hereby ordain as follows:
SECTION 1. That new Chapter 5.80 be, and is hereby added to Title 5 of the Huntington
Beach Municipal Code, said chapter to read as follows:
Chanter 5.80
SHOPPING CART CONTAINMENT`AND RETRIEVAL BY OWNERS
Sections:
5.80.010 Purpose. Declaration of Nuisance.
5.80.020 Definitions.
5.80.030 Cart Containment Plan.
5.80.040 Cart Retrieval Plan.
5.80.050 Plan Submission and Approval.
5.80.060 Appeals
5.80.070 Unauthorized Removal or Possession of a Shopping Carta
5.80.080 'Unlawful Acts.
5.80.010 Purpose. Declaration of Nuisance.-Many retail establishments provide shopping carts
for the convenience of customers while shopping on the premises of such businesses. However,
shopping ,carts removed from the premises of such businesses 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 or abandoned shopping carts on public and
private property causes blighting conditions in the community, results'in the obstruction of free
access-to-public and private sidewalks, streets, parking,lots and other ways, interferes with
pedestrian and vehicular traffic on public and private streets, and impedes emergency services. For
the aforesaid reasons, such lost, stolen or abandoned shopping carts are declared to be a public
nuisance which shall be subject to abatement in the manner set forth in this chapter or in any other
manner provided by law. The purpose of this, chapter is to set forth regulations to ensure that
reasonable measures are taken by the owners and operators of businesses which provide shopping
carts for the convenience of customers to either prevent the removal of shopping carts from business
premises and parking lots, or provide for the prompt retrieval of lost, stolen or abandoned shopping
carts, to complement and supplement provisions of state law, and to adopt local regulations to the
extent not otherwise preempted by state statute.
5.80.020 Definitions. Except as otherwise expressly set forth herein; the following words and
terms as used in this chapter shall have the following meanings:
a) "City"means the City of Huntington`Beach, California.
b), "Director of Planning" means the Planning Director of the City and his/her designee(s).
06-525/5572 1
Ordinance No 3759
c) "Enforcement personnel" means any police officer or code enforcement officer employed by
the City.
d) "Laundry cart means a basket which is mounted on wheels and used in a coin-operated
laundry or dry-cleaning retail establishment by a customer or an attendant for the purpose of
transporting fabrics and the supplies necessary to process them.
e) "Lost, stolen or abandoned shopping cart" means a shopping cart which is either:"
(1) removed from the premises of a retail establishment by any person without the
written:permission or consent of the owner of the shopping cart or the retailer
otherwise entitled to possession of such cart, or
(ii) left unattended, discarded or abandoned upon any public or private`property other
than the premises of the retail establishment from which the shopping cart:was
removed, regardless of whether such shopping cart was removedfrom the premises
with the permission of the owner.
For purposes of this chapter, any shopping cart located on any public or private property other
than the premises of the retail establishment from which such shopping cart was removed shall
be presumed lost, stolen or abandoned, even if in the possession of any person, unless such
person in possession thereof either:
(i) is the owner, or an employee or authorized agent of the owner, entitled to
possession of the shopping cart,
(ii) is an officer, employee or agent of a cart retrieval"service hired by the`owner to
retrieve such carts,
(iii) is an enforcement officer retrieving, storing or disposing of the cart pursuant to the
provisions of this chapter.
f) "Owner"means any owner, manager, or operator of any retail establishment.
g) "Parking area" means a parking lot or other property provided by a retail establishment for the
use of customers of such retail establishment for parking of customer vehicles. The parking
area of a retail establishment located in a multistore complex or shopping center shall include
the entire parking area used by the multistore complex or shopping center.
h) "Planning Commission" means the Planning Commission of the City.
i) "Premises" means any building, property or other area upon which any retail establishment
business is conducted or operated in the' City, including the parking area provided for
customers of such retail establishment.
j) "Retail establishment" means any business located in the City which offers or provides
shopping carts for the use of the customers of such business regardless of whether such
business is advertised or operated as a retail or wholesale business, and regardless of whether
such business is open to the general public, or is a private club or business, or is a membership
store.
06-525/5133 2
Ordinance No . 3759`
k) "Shopping cart" or "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. The term shopping cart or cart includes a laundry cart.
5.80.030 Cart Containment Plan. Except as otherwise provided in this chapter, every owner who
provides shopping carts to customers for use on the premises of any retail establishment shall
develop, implement and comply with the provisions of`a written plan` approved by the City to
prevent customers from removing shopping carts from the premises of such business without
authorization of the owner (the"cart containment plan"). The Cart containment plan, at a minimum,
shall include the following elements:
A. Siizns Affixed to Carts. Every shopping cart made available for use by customers shall have
a sign permanently affixed to it that identifies the owner of the cart of 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 of
the business, 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 to the
owner or retailer.
B. Notice to Customers. Written notice shall be provided to customers, both in English and
Spanish, that removal of shopping carts from the premises is prohibited by state law. Such
notice may be provided in the form of flyers distributed on the premises, warnings printed
on shopping bags, direct mail, website notices or any;other means demonstrated to be
effective. The cart containment plan shall identify the specific measures to be implemented
to comply with this notice requirement. In addition, conspicuous signs shall be placed and
maintained on the premises near all customer entrances and exits and throughout the
premises, including the parking area, warning customers that removal of shopping carts
from the premises is prohibited by state law.
C. Physical Measures. Specific physical measures shall be implemented and maintained by the
owner to prevent, deter or impede the removal of shopping carts from the premises. Such
physical measures- shall be specifically identified in the cart containment plan and may
include, but are not limited to, the following: disabling devices installed and maintained on
carts, maintaining'one or more security guards assigned the responsibility to deter orstop
customers from removing shopping carts from the premises, preventing any shopping carts
to be taken outside the confines of building exits unless accompanied by an employee of the
business, bollards and chains in locations between the business exits and the parking area
which effectively prevent transporting shopping carts into the parking area or off the
premises, requiring security deposits by customers for cart use, or rental or sale of carts to
customers.
D. Daily Cart Confinement. All shopping carts located on the premises of the retail
establishment (other than an establishment'open for business 24 hours per day) shall be
collected at the end of each business day by employees of the retail establishment'and shall
be collectively confined in a secure manner at the cart containment area on the premises as
designated in the cart containment plan until the commencement of the next business day.
All shopping carts located on the premises of any retail'establishment open for business 24
hours per day, other than carts then'currently in use by a customer or patron, shall be
collected by employees of the retail establishment and returned to the cart confinement area
06-525/5133"
Ordinance No . 3`759
on the premises as designated in the cart containment plan at least once per calendar day,
between thehours of 9:00 p.m. and 12:00 midnight on each day the retail establishment is
open for business. The provisions of this subsection shall not apply to any shopping carts
located within an enclosed building.
E. Employee Training. The owner of the retail establishment shall implement and maintain a
periodic training program for its new and existing employees designed to educate such
employees concerning the requirements of the cart containment plan and the provisions'of
state law prohibiting the unauthorized removal of shopping carts from the premises of the
retail establishment. The,cart containment program shall expressly describe-the employee
training program.
F. 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 cart containment plan.
G. Exemptions. The requirements of this Section 5.80.030 shall not apply to any retail
establishment which provides a total of less than ten (10) shopping carts for use by
customers of such business, or which retail establishment complies with the requirements of
Section 5.80.040 of this chapter.
5.80.040 Cart Retrieval Plan. Except as otherwise provided'in this chapter, every owner who
provides shopping carts to customers to use on the premises of any retail establishment shall
develop, implement and comply with the provisions of a written plan approved by the City to
provide for the retrieval of lost, stolen or abandoned shopping which have been removed:from the
premises of the retail establishment(the "cart retrieval plan"). The cart retrieval plan, at a minimum
shall include the following elements:
A. Signs Affixed to Carts. Every shopping cart made available for use by customers shall have
a sign permanently affixed to it that identifies'the owner of the cart of 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 of
the business, 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 to the
owner or retailer.
B. Retrieval Personnel. The owner shall provide personnel for purposes of the retrieval of lost,
stolen or abandoned shopping carts. Such personnel may be either employees of the business
or one or more independent contractors hired by the owner to provide shopping cart retrieval
services, or a combination of both.The cart retrieval plan shall either:
(i) identify the number of employees who will be assigned such cart retrieval duties,the
number of total hours per week that each assigned employee will perform such
services (in addition to any on-premises retrieval duties to which such employee may
be assigned, and the training each of such personnel has receive or will receive
concerning the retrieval of lost, stolen or abandoned shopping carts, or
(ii) include a copy of each contract with a cart retrieval service (other than confidential
financial information which may be redacted from the contract).
05-525/5133 4
Ordinance No . 3759
For purposes of this Section 5.80.040, those persons identified in the cart retrieval plan as
providing cart retrieval services,whether employees of the business or independent contract
services, shall be referred to in this Section as "retrieval personnel." The owner shall
provide 'written authorization to all retrieval personnel which authorization shall be carried
by each such person while performing cart retrieval services on behalf of the owner and
shall be provided to any enforcement personnel upon request. Each vehicle used by retrieval
personnel shall bear conspicuous signs on the vehicle identifying either the name of the
retail establishment for which such retrieval service,is being performed or, if applicable,the
name of the cart retrieval service with which the retail establishment has contracted for such
services.
C. Prompt Retrieval of Carts. The owner shall provide retrieval personnel in sufficient number
to assure that all public streets within a minimum one mile radius of the premises of the
retail establishment are patrolled not less often than every 48 hours, and all bus stops within
a minimum one mile radius of the retail establishment are patrolled not less often than every
24 hours, and each lost, stolen or abandoned shopping cart owner or provided by the retail
establishment that is found as a result of such patrols is immediately retrieved and removed
from any public or private property upon which the cart is found. The cart retrieval plan
shall identify the streets and bus stops which will be patrolled as required by this subsection;
the manner, frequency and times of such patrols; and the procedures to be employed by the
retail establishment to identify and retrieve any lost, stolen or abandoned shopping carts.
The cart retrieval plan shall identify the number of trucks, hours of operation of the retrieval
personnel, and such other information as reasonably required by the City to assure that the
owner is devoting sufficient resources to cart retrieval operations to comply with the
provisions of this Section 5.80.040 and the approved cart retrieval plan.
D. Exemptions. The requirements of this Section 5.80.040 shall not apply to any retail
establishment which provides a total of less than ten (10) shopping carts for use by
customers of such business, or which retail establishment complies with the requirements of
Section 5.80.030 of this chapter.
5.80.050 Plan Submission and Approval.
A. New or Relocated Retail Establishments. Unless otherwise expressly exempt hereunder,
each new retail establishment, and any existing retail establishment relocating to a different
location within the City, shall submit a proposed plan complying with the requirements of
either Section 5.80.030 or Section 5.80.040' of this chapter to the Director of Planning, and
obtain approval thereof by the City,;prior to providing any shopping carts to customers of
the retail establishment. Each proposed plan shall be accompanied by a processing fee in an
amount as set by resolution of the City Council. No proposed plan shall be accepted for
filing and processing by the Director of Planning unless accompanied by the processing fee
established by the City Council.
B. Existing Retail Establishments. Unless otherwise expressly exempt hereunder, each existing
retail establishment shall submit a proposed plan complying with the requirements of
Section 5.80.030 or Section 5.80.040 of this chapter to the Director of Planning within 120
calendar days following the date of adoption of this chapter. No such retail establishment
existing on the date this chapter is adopted shall provide or continue to provide shopping
carts for the use of its customers after the 180th calendar day following the date of adoption
06-525/5133' 5
Ordinance No . 3759
of this chapter without a plan approved by the City as conforming to the requirements of
either Section 5.80.030 or Section 580.040 of this chapter; provided, however, such date
shall be extended for the period, if any, during which an appeal of the denial of such plan is
pending pursuant to the provisions of this chapter.Each proposed plan shall be accompanied
by a processing fee in an amountasset by resolution of the City Council. No proposed plan
shall be accepted for filing and processing by the Director of Planning unless accompanied
by the processing fee as established by the City Council.
C. Plan Review and Approval. Upon the filing of any proposed plan pursuant to either Section
5.80.030 or Section 5.80.040 of this chapter (collectively referred to herein as the"plan"),
and receipt of the required processing fee,the Director of Planning or his/her designee shall
review said proposed;plan and either approve,or deny approval`of said proposed plan within
30 calendar days following the receipt thereof by the Director of Planning. If the proposed
plan complies with each of the applicable requirements of this chapter, the Director of
Planning shall approve the plan, otherwise the proposed'plan shall be denied. The decision
of the Director of Planning shall be made in writing and notice thereof shall be transmitted
to the owner of the retail establishment by the United States Postal Service, first-class mail,
postage prepaid, or by personal delivery or fax transmission. The notice of decision of the
Director of Planning-shall be deemed given to the owner on the date of personal delivery or
on the date of the fax transmission to the owner; notices given by the United States Postal
Service, first-class mail, postage prepaid, shall be deemed given to the owner on the third
day following the date of deposit in the course of transmission with the United States Postal
Service, first-class mail, postage prepaid. If the proposed plan is denied, the notice of
decision given to the owner shall state the grounds upon which the proposed plan was
denied.A decision of the Director of Planning may be appealed by the owner in the time and
manner provided in Section 5.80.060.
D. Amendments by Owner. The owner of any retail establishment which has an approved plan
conforming:to the requirements of this chapter may, at any time, submit a proposed
amendment to the approved plan which amendment shall`be processed in accordance with
the procedure provided for a proposed plan as set forth in subsection C above. Each
proposed amendment shall be accompanied by a processing fee in an amount as set by
resolution of the City Council. No proposed amendment shall be accepted for filing and
processing by the Director of Planning unless accompanied by the processing fee as
established by the City Council.
E. Revocation or Amendment by Cites
1. Grounds. An approved plan may be revoked by the City upon any of the following
grounds:
a. The owner of any retail establishment is operating, or is permitting operation
of, the retail establishment in violation of one or more of the provisions of
said approved plan and has failed to correct said violation(s) for a period of at
least 15 calendar days following the date of receipt of written notice of such
violation(s) from the City; or
b. The owner of any retail establishmentwith an approved plan is operating, or
is permitting the operation of the retail establishment in violation of one or
06-525/5133 6
Ordinance No . 3759
more of the requirements of this chapter and has failed to correct said
violation(s) for a period of at least 15 calendar days following the date of
receipt of written notice of such violation(s)from the City; or
c.- The cart containment plan, as approved, is inadequate to reasonably prevent
the removal of shopping carts from the premises of the retail establishment;
or
d. The cart retrieval plan, as approved, is inadequate to ensure the prompt
retrieval of lost, stolen or abandoned shopping carts removed from the retail
establishment.
2. Order to Show Cause. If at any time following the approval of a plan, the Director of
Planning obtains information or evidence that any of_the grounds set forth in
paragraph E(l) above may exist,the Director of Planning shall issue a written order
to show cause as to why,the approved plan should not be revoked and schedule a
hearing thereon which hearing shall not be less than 15 calendar days nor more than
30 calendar days following the date such order to show cause is given to the owner
of the retail establishment. The order shall state the grounds upon which it is
proposed to revoke the approved plan and shall include the information and
evidence, or a summary thereof, upon which such order was issued.
3. Notice of Hearing. Notice of the hearing on any order to show cause issued pursuant
to this Section shall be given in the time and manner provided in subsection C above.
4. Conduct of Hearing. The hearing shall be conducted informally and the legal rules of
evidence shall not be applicable. The owner and the City shall each have the
opportunity to present evidence and witnesses. The parties may each be represented
by legal counsel or other representatives of their -choice. The City shall bear the
burden of proof to establish, by a preponderance of the evidence, that grounds exist
to revoke the plan. The Director of Planning, at his or her discretion, and as an
alternative to revocation, may consider amendment of the plan`if the grounds for the
order to show cause are solely the inadequacy of the approved plan.
5. Decision of Director of Planning. Within 15 calendar days following conclusion of
the hearing,the Director of Planning shall render his or her decision in writing either
dismissing the proceedings or revoking or amending the plan. If the,plan is revoked
or amended, the decision shall specify the findings of fact and the reasons for such
action. If the plan is amended, the decision shall also specify the amendment(s) to
the plan.
6. Notice of Decision.Notice of the decision of the Director of Planning shall be given
in the time and manner specified in subsection C above.
7. Appeal of Decision. The decision of the Director of Planning shall be subject to
appeal by the owner within the time and manner specified in Section 5.80.060. In the
absence of a timely appeal,the decision of the Director of Planning shall be final and
conclusive.
06-525/5133 7
Ordinance No . 3759
8. ' Use of Shopping Carts Following_Revocation Prohibited. No owner of any retail
establishment which is subject to the requirements of this chapter shall provide or
make available shopping carts for the use of customers following the date any
decision revoking a plan required and approved pursuant to this chapter becomes
final unless and until a new proposed plan is approved by the City for such retail
establishment. Notwithstanding any other provision of this chapter, an owner of a
retail establishment shall not be eligible to submit a new proposed plan to the City
for processing for a minimum of 180 days following the date any decision revoking
the prior plan for such retail establishment becomes final. Any"proposed plan
submitted to the City for such retail establishment during said 180 day period shall
be returned to the owner of the retail establishment as untimely.
5.80.060 Appeals.
A. Appeal of Decision. Any owner aggrieved by any adverse decision of the Director of
Planning pursuant to this chapter may appeal such decision to the City Planning
Commission within ten (10)-calendar days following the date of giving of notice of such
decision. The notice of appeal shall be in the form provided by Huntington Beach
Subdivision and Zoning Ordinance Section 248.20 A and B, as the same now reads or may
be hereafter amended, and shall be accompanied by the fee fixed by resolution of the City
Council. The Director shall schedule the appeal for consideration by the Planning
Commission within thirty (30) calendar days and shall give the appellant ten (10) calendar
days notice of the time and place of the hearing. The hearing shall be conducted in the
manner provided by Huntington Beach Subdivision and Zoning- Ordinance Section
248.20.D, as the same now reads or may be hereafter amended.
B. Decision by Planning Commission. The Planning Commission shallxender a decision on
the appeal in'conformance with Huntington Beach Subdivision and Zoning Ordinance
Section 248.20.E within thirty (30) calendar days following the conclusion of said hearing.
The Planning Commission's decision shall be final and conclusive on the date said decision
is deemed given to the appellant as provided in Section 5.80.060.0 below.
C. Notice of Decision. The notice of decision of the Planning Commission shall be deemed
given on the date of personal delivery or on the date of the fax transmission to the
appellant; notices given by the United States Postal Service, first-class mail, postage
prepaid, shall be deemed given to the appellant on the third day following the date of deposit
in the course of transmission with the United States Postal Service.
5.80.070 Unauthorized Removal or Possession of a Shopping Cart. It is unlawful for any
person to do any of the following, if a shopping cart has a permanently affixed sign pursuant to
Sections 5.80.030.A'and 5.80.040.A:
A. Remove a shopping cart from the premises or parking area of a business
establishment.
B. Leave or abandon a shopping cart at a location other than the premises or parking
area of the retail establishment.
06=525/5133 8
Ordinance No . 3759
C. Alter, convert, or tamper with-a shopping cart, or to remove any part or portion
thereof or to remove, obliterate or alter serial numbers on'a cart.
D. Be in possession of any shopping cart while that cart is not located on the premises
or parking lot of a business establishment.
5.80.080 Unlawful Acts.
A. Except as otherwise expressly provided in this chapter, it shall be unlawful for the
owner of any retail establishment to provide or offer, or permit to be provided or
offered, any shopping carts to customers of said retail establishment without an
approved cart containment plan or cart retrieval plan as required by either Section
5.80.030 or Section 5.80.040 of this chapter; provided, however, this prohibition
shall not apply to any retail establishment, or the owner thereof, which provides a
total of less than ten (10) shopping carts for the use of customers of said retail
establishment.
B. It shall be unlawful for the owner of any retail establishment to provide or offer, or
permit to be provided or;offered, to customers of said retail establishment any
shopping cart which does not have a sign permanently affixed thereto containing all
of the information specified in Section 22435.1 of the Business and Professions Code
of the State of California.
SECTION 2. This ordinance shall become effective 30 days after its adoption.
PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular
meeting thereof held on the 4 t h day of December , 200 6 .
f ' a
ATTEST: AREROVED AS TO FORM:
104,
City Clerk V IJt, City Attorney -Ja, l I l y
REVIEWED AND APPROVED: INITIATF,4D AND APPROVED:
f . Cit Administrator 151rector of tlanning it/7/0
06-525/5133 9
Ord.No. 3759
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss:
CITY OF HUNTINGTON BEACH )
I JOAN L. FLYNN, the duly elected, qualified City Clerk of the City of
Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby
certify that the whole number of members of the"City Council of the City of Huntington
Beach is seven; that the foregoing ordinance was read to said City Council at a regular
meeting thereof held on the 20th day of November,2006,and was again read to said
City Council at a regular meeting thereof held on the 4th day of December,2006, and
was passed and adopted by the affirmative vote of at least a.majority of all the members
of said City Council.
AYES: Bohr, Carchio, Cook, Coerper, Green, Hansen,Hardy
NOES: None
ABSENT: None
ABSTAIN: None
I,Joan L.Flynn,CITY CLERK of the City of Huntington
Beach and ex-officio Clerk of the City Council,do hereby
certify that a synopsis of this ordinance has been
published in the Huntington Beach Fountain Valley
Independent on December 14,2006.
In accordance with the City Charter of said City
Joan L. Flynn, Ci1y Clerk CUy Clerk and ex-officio Verk
Deputy City Clerk of the City Council of the City
of Huntington Beach, California