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HomeMy WebLinkAboutOrdinance 663 - Shopping CartsORDINANCE NO. 663 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MORRO BAY, CALIFORNIA, AMENDING TITLE 8 ("HEALTH AND SAFETY") OF THE MORRO BAY MUNICIPAL CODE TO ADD CHAPTER 8.15 PERTAINING TO THE UNAUTHORIZED REMOVAL OF SHOPPING CARTS FROM RETAIL ESTABLISHMENTS AND TO FACILITATE RETRIEVAL OF ABANDONED SHOPPING CARTS THE CITY COUNCIL City of Morro Bay, California WHEREAS, the City has a fundamental interest in promoting the public health, safety and welfare of its residents, visitors and businesses, and the aesthetic qualities of the City; and WHEREAS, abandoned or unattended shopping carts off the premises of retail establishments can interfere with pedestrian and vehicle traffic; the use of public streets, sidewalks, public areas, and public rights -of -way; can constitute a hazard to streams, riparian areas and other natural areas; and contribute substantially to litter, clutter and visual blight; and WHEREAS, the purpose of this ordinance is to promote the public health, safety and welfare, and the aesthetic qualities of the City by regulating and prohibiting the removal of shopping carts from the premises of retail establishments, including designated parking areas, without the authorization or consent of the cart's owner, and to regulate the retrieval and disposition of abandoned or unattended shopping carts that are found off the premises of retail establishments so as to: 1. Provide for pedestrian and vehicle safety; 2. Ensure that the flow of pedestrian or vehicle traffic, including ingress into or egress from any residence, place of business, street, sidewalk, public area, public right-of-way, or any legally parked or stopped vehicle, is not unreasonably interfered with; 3. Help protect streams, creeks, riparian areas, and other natural areas within the City; 4. Reduce litter, clutter, and visual blight associated with abandoned or unattended shopping carts; 5. Divert cart waste from the landfill; and 6. Balance the rights and interests of those engaged in commercial activities that provide shopping carts for use by customers with the rights and interests of those who do not want to be disturbed by abandoned or unattended shopping carts on private and public. property. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MORRO BAY, CALIFORNIA, HEREBY FINDS AND ORDAINS AS FOLLOWS: SECTION 1. Recitals. The above Recitals are true and correct and are hereby incorporated by this reference. SECTION 2. Adoption. A new Chapter 8.15, entitled "Unauthorized Removal of Shopping Carts from Retail Establishments" is hereby added to Title 8 of the Morro Bay Municipal Code ("Health and Safety") to read in its entirety as follows: "UNAUTHORIZED REMOVAL OF SHOPPING CARTS FROM RETAIL ESTABLISHMENTS 8.15.010 Authority and Purpose; Findings This chapter is adopted pursuant to Business and Professions Code Sections 22435 through 22435.8 and the city's general police powers for the purpose of regulating and prohibiting the removal of shopping carts from the premises of retail establishments, including designated parking areas, without the authorization or consent of the shopping cart's owner, and to regulate the retrieval and disposition of abandoned or unattended shopping carts that are found off the premises of retail establishments. The presence of abandoned or unattended carts, or parts thereof, on private or public property is found to create a condition tending to reduce the value of private property, to create blight and deterioration, interfere with pedestrian and vehicular traffic, to be injurious to health, safety, and general welfare, and contributes to landfill waste. The presence of abandoned or unattended carts, or parts thereof, on private or public property, except as expressly hereinafter permitted, is declared a public nuisance which may be abated as such in accordance with the provision of this chapter. This chapter is intended to implement, and operate in consistency with, the California Business and Professions Code (sections 22435 to 22435.13) known as the "California State Shopping Cart and Laundry Cart Law." In the event of inconsistency between the terms of this chapter and the California Business and Professions Code, which inconsistency cannot be reasonably harmonized, the terms of the Business and Professions Code shall control. 8.15.020 Applicability This chapter applies to all businesses located in the city that provide shopping carts for customer use and to all shopping carts on and off the premises of businesses within the city. 8.15.030 Administration The director is authorized to administer this chapter which includes, without limitation, the ability to promulgate administrative policies and procedures to interpret, implement and enforce this chapter. 8.15.040 Definitions "Abandoned or unattended shopping cart" means any shopping cart which is left unattended, discarded or abandoned upon any public property other than the premises from which the shopping cart was removed, without the authorization or consent of the cart's owner. "Abandoned shopping cart prevention and retrieval plan" shall mean a document required to be submitted by the responsible business owner, pursuant to this chapter. "Agent" means the person or persons designated by the owner of a shopping cart authorized to perform or provide retrieval services on behalf of the owner. The agent may be the owner, store manager, employee or a private cart retrieval company. "Director" shall mean the Assistant City Manager, or Director of Public Works, or the Fire Chief, or the Director of Community Development for the City of Morro Bay, or such other director or designee thereof as designated by the City Manager, to administer the appropriate sections of this chapter. "Occurrence" means the retrieval or impoundment by the city pursuant to this chapter of all shopping carts of an owner in a one -day period. "Owner" means a person who owns or provides shopping carts for use by customers in connection with the operation of a business. "Person" includes, without limitation, individuals, corporations, partnerships, and all other legal entities, and officers, employees, and authorized agents of an owner. "Premises" means the entire area owned and utilized by a retail establishment that provides shopping carts for use by customers, including any parking lot or other off-street area provided by an owner, or shared with other retail establishments, for use by customers for parking automobiles or other vehicles. "Public property" means the outdoor common area of any building, business premises, apartment building or complex, or other premises or portion thereof which is adjacent to public property, open to the public, and which contains a shopping cart or shopping carts visible at street or ground level from the adjacent public property. "Retail establishment," with regard to shopping carts, means any business located in the city of Morro Bay which offers or provides shopping carts for the use by 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, is a private club or business, or is a membership store. "Shopping cart" means a basket mounted on wheels or a similar device generally used by a customer for the purpose of transporting goods of any kind within a retail establishment or designated parking or loading area of that business establishment. "Physical containment system" means one of the following, as approved by the director: 1. Disabling devices on all shopping carts which prevent them from being removed from the business premises by locking the wheels or otherwise preventing the movement of the carts. 2. Any other system of equipment approved by the director that physically contains shopping carts on the premises. 8.15.050 Declaration of a Public Nuisance It is hereby declared that the removal from ownership premises and abandonment of shopping carts constitutes a public nuisance that could impede emergency services, interfere with pedestrian and vehicular traffic, reduce property values, promote blight and property deterioration, comprise an attractive nuisance and create other hazards to health, safety, and general welfare of the community. 8.15.060 Required Signs and Identification Cart Identification and Removal Warning Signs Required. Pursuant to Section 22435.1 of the Business and Professions Code, every shopping cart owned or provided by an owner shall have a sign permanently affixed to the shopping cart that includes the following information: 1. The owner's name, business address and phone number. 2. Notice of the procedure to be utilized for authorized removal of the shopping cart from the premises. 3. Notice that unauthorized removal of the shopping cart from the premises or parking area of a retail establishment, or the unauthorized possession of the shopping cart, is a violation of state law and this chapter. 8.15.070 Prohibitions A. Unauthorized Removal Unlawful. It shall be unlawful for any person, either temporarily or permanently, to remove a shopping cart from a business premises or be in possession of a shopping cart with a permanently affixed sign as provided in Section 8.15.060, or that has been removed from a premises without written consent of the cart owner as authorized by this chapter, excepting removal for the purpose of repair, maintenance, or disposal of a cart as authorized by this chapter. A cart owner may permit customer off -premises use of a shopping cart for transportation of purchased items. The authorization must be in writing with date(s) and time(s) of such authorized use. Any shopping cart taken off premises must be returned to the owner's premises within seventy-two hours. B. Abandonment Prohibited. It shall be unlawful and a public nuisance for any person to cause or permit any shopping cart to be abandoned or remain unattended on or upon any sidewalk, street, alley or other area other than the premises of the owner of such shopping cart. 8.15.080 Cart Containment and Retrieval by Owners A. Mandatory Secure Containment of Shopping Carts After Hours. Every shopping cart owner must lock or otherwise securely contain all shopping carts of the owner after business hours in a manner that reasonably prevents theft or removal from the premises. All shopping carts located on the premises of a retail establishment, other than an establishment open for business twenty-four hours per day, must be collected at the end of each business day by the owner, employees, or authorized agents of the retail establishment and be collectively confined in a secured manner in a designated cart confinement area on the premises until the commencement of the next business day. All shopping carts located on the premises of any retail establishment open for business twenty- four hours per day, other than carts then currently in use by a customer, must be collected by the owner, employees, or authorized agents of the retail establishment and returned to a designated cart confinement area on the premises at least twice per calendar day between the hours of 12:00 p.m. (noon) and 12:00 a.m. (midnight) on each day the retail establishment is open for business. This section does not apply to: 1. Shopping carts located within an enclosed building. 2. Shopping carts removed from the premises of a retail establishment for purposes of repair or maintenance that are in the possession or custody of the party to whom removal has been authorized in writing by the shopping cart owner. 3. Shopping carts being transported by the owner, or an officer, employee, or authorized agent of the owner, to or from a business location of the owner. B. Mandatory Retrieval of Carts. All abandoned shopping carts of a retail establishment that are found off the premises of the retail establishment must be retrieved as soon as practicable by the owner, or an authorized agent of the owner, including a cart retrieval service retained by the owner. The city shall notify the owner of an abandoned shopping cart when such shopping cart is located in a place that can be accessed safely by the owner. Such notice may be given by telephone, email or text message to the owner or owner's agent designated in the abandoned shopping cart prevention and retrieval plan, if an approved plan is in place, and shall include the cart's location. Within three business days from the date the owner of the cart is provided with notice by the city that an abandoned shopping cart of the owner has been located, the owner or agent shall cause the identified shopping cart(s) to be retrieved. C. Retrieval Services. Persons retained to perform shopping cart retrieval services must carry written authorization from the owner to be presented upon request by the director. Vehicles used by retrieval services must bear conspicuous signs identifying the name of the cart retrieval service. 8.15.090 Impoundment and Retrieval of Abandoned Shopping Carts A. The director may immediately retrieve and impound any shopping cart, in accordance with the provisions outlined in Business and Professions Code Section 22435.7. B. Impoundment Following Three -Day Notice. A shopping cart that has a sign affixed to it in accordance with the provisions of this chapter and Business and Professions Code Section 22435.1 may be impounded by the city provided both of the following conditions are met: 1. The shopping cart is located outside the premises or parking area of a retail establishment; and 2. Except as provided in subsection C of this section (Impoundment Without Three -Day Notice), the shopping cart is not retrieved within three business days from the date the owner of the shopping cart, or his or her agent, receives actual notice from the city of the shopping cart's discovery and location. C. Impoundment Without Three -Day Notice. 1. The city may retrieve and impound any abandoned shopping cart without first giving three days' notice provided: a. The director provides actual notice to the owner, or his or her agent, of the impoundment of the shopping cart within twenty-four hours following the impound; b. The notice informs the owner, or his or her agent, of the location where the shopping cart may be claimed; c. Any shopping cart reclaimed by the owner, or his or her agent, within three business days after the date of actual notice to the owner, or his or her agent, of the impound, must be released and surrendered to the owner, or his or her agent, at no charge, including the waiver of any impound and storage fees or fines which otherwise would be applicable; and d. The shopping cart is held at a location that is both: i. Reasonably convenient to the owner of the shopping cart; and ii. Open for business at least six hours of each business day. D. Immediate Retrieval and Impoundment by City for Impeding Emergency Services. The director may immediately retrieve and impound any shopping cart from public or private property if the location of the shopping cart impedes emergency services. E. Any cart reclaimed by the owner or their agent within three business days from the date the owner of the shopping cart, or their agent, is given actual notice by the city of the shopping cart's discovery and location, or impoundment, shall not be deemed a violation for purposes of this chapter. F. The owner of any shopping cart that is not reclaimed within three business days after the date the owner has been given actual notice by the city of the shopping cart's discovery and location, or impoundment, is subject to prosecution or the imposition of administrative costs, fees, fines, interest and other penalties applicable under this chapter commencing four business days after the date of notice. G. Following the city having retrieved more than ten (10) carts in any thirty (30)-day period or the issuance of more than ten (10) administrative citations in any twelve (12)-month period from one business, the City's Director of Community Development may require the owner to install a physical containment system. 8.15.100 Abandoned Shopping Cart Prevention and Retrieval Plan A. Abandoned Shopping Cart Prevention and Retrieval Plan Required. Every owner who provides shopping carts to customers shall develop, implement and comply with the terms and conditions of an approved abandoned shopping cart prevention and retrieval plan to prevent the unauthorized removal of shopping carts from a premises and, if removed, to retrieve the shopping cart within three business days after knowing of the cart's removal from the premises or after receiving notice from the city that the shopping cart has been abandoned. To be effective, an abandoned shopping cart prevention and retrieval plan must be approved by the director. To be eligible for approval, an abandoned shopping cart prevention and retrieval plan shall include the following elements: 1. Name. The name of the owner and the business name, the physical address where the business is conducted, name, address and phone number(s) of the on -site and off -site owner, if different. 2. Inventory of Carts. A complete list of all shopping carts maintained on or in the premises. 3. Community Outreach. A description of a community outreach process under which the owner shall cause notice to be provided to customers that the removal of shopping carts from the premises is prohibited and is a violation of state and city ordinance. This notice may include, but is not limited to, flyers distributed at the premises, warnings on shopping bags, signs posted in prominent places near door and parking lot exits, direct mail, announcements using intercom systems at the premises, website or other means demonstrated to be effective to the reasonable satisfaction of the director. 4. Cart Identification. Signs and shopping cart identification requirements which conform to state law. Owners shall attach an example of the proposed slopping cart ownership identification sign which shall conform to California Business and Professi"ons Code Section 22435.1. 5. Loss Prevention Measures. A description of the specific measures that the owner shall implement to prevent shopping cart removal from the owner's premises. These measures may include, but are not limited to, electronic or other disabling devices on the shopping carts so they cannot be removed from the premises, effective management practices, use of courtesy clerks to accompany customers and return the shopping carts to the store, use of security personnel to prevent removal, security deposit for use of shopping cart, or other demonstrable measures acceptable to the director that are likely to prevent shopping cart removal from the premises. Cart owners shall conduct regular maintenance to ensure disabling devices and/or security deposit systems are working properly. If at any time, a cart owner determines the disabling device installed on a cart is not working properly, the cart shall be pulled from circulation until it is repaired. The cart owner shall inspect, test, and repair all abandoned carts returned to the owner prior to making the returned carts available for use. 6. Employee Training. A description of an ongoing employee training program that shall be implemented by the owner and that shall be designed to educate new and existing employees on the abandoned shopping cart prevention plan and conditions contained therein at least annually. 7. Mandatory Cart Retrieval. A plan for retrieval of abandoned shopping carts by the owner within three business days after knowing of a cart's removal from the owner's premises or after receiving notice from the city that the shopping cart has been abandoned. B. Failure to Submit Plan. The plan must be submitted to the director within sixty days after this chapter becomes effective or alternatively, if a business opens after the date this chapter becomes effective, then within thirty days after a business that uses carts commences operations. Any owner who fails to provide the abandoned shopping cart prevention and retrieval plan shall be required to pay the city one hundred dollars for each calendar month the plan is not provided, as a penalty for not complying with this Section 8.15.100. 8.15.110 Recovery of Fines and Costs by City A. Pursuant to Business and Professions Code Section 22435.7(f), any owner that fails to retrieve the owner's shopping cart or shopping carts within three business days from the date of being given notice of the cart's or carts' discovery and location, or impoundment, by the city, is guilty of a violation of this chapter and may be punished with an administrative fine of fifty dollars for each occurrence in excess of three during the six-month period starting January 1 st and ending on June 30th or the six-month period starting July 1 st and ending December 31 st of each calendar year. B. In addition to the fines imposed above, the owner shall pay the city's actual costs for retrieving and storing the owner's shopping cart or carts except when the owner, or their authorized agent, reclaims their cart or carts within three business days from being given notice of the cart's or carts' discovery and location, or impoundment, by the city, in which case all fines, costs and fees shall be waived. C. Any fines recovered, or proceeds derived from such sale or disposal shall be used to pay the costs of removal, storage, and related administrative procedures. Surplus proceeds derived from such sale or disposal shall be deposited in the general fund of the city. 8.15.120 Disposal of Abandoned Shopping Carts The city may sell or otherwise dispose of any shopping cart: A. That is not reclaimed from the city within thirty (30) days of receipt by the owner, or the owner's agent, of actual notice from the city of the cart's discovery and location, or impoundment. B. If the owner of the cart cannot be determined. C. If the cart is rendered unusable (e.g., mangled or destroyed). 8.15.130 Enforcement Every cart owner who violates any provision of such owner's effective cart nuisance abatement program, and every person who violates any provision of this chapter, shall be subject to enforcement procedures for each violation by any lawful means available to the city, including, but not limited to, those set forth in California Business and Professions Code Sections 22435.3 and 22435.5, Section 8.15.010 of this code, and chapters 1.16 of the Morro Bay Municipal." SECTION 3. CEQA EXEMPTION. Pursuant to the California Environmental Quality Act (CEQA), it can be seen with certainty that there is no possibility that the proposed Municipal Code Amendment regarding the security of shopping carts will have any effect on the environment (General Rule Exemption CEQA Guidelines Sec. 15061(b)(3)) and the proposed Ordinance would be exempt per CEQA Section 15301 Existing Facilities, as there would be negligible or no expansion of use; CEQA Section 15308 Actions by Regulatory Agencies for the Protection of the Environment, as the proposed ordinance is intended to assure the maintenance and protection of the environment; and 15311 Accessory Structures, regarding potential placement on -premise signage needed for public notification associated with the proposed ordinance. SECTION 4. SEVERABILITY. If any section, subsection, sentence, clause, phrase, or portion of this Ordinance, or the application thereof to any person or circumstances, is, for any reason, held invalid or unconstitutional by any court of competent jurisdiction, such invalidity or unconstitutionality shall not affect any other provision or application, and to this end the provisions of this ordinance are declared to be severable. The City Council hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase, part or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, parts or portions thereof be declared invalid or unconstitutional. SECTION 5. EFFECTIVE DATE. This ordinance shall be in full force and effect thirty (30) days after its passage and adoption. SECTION 6. CERTIFICATION. The City Clerk shall certify as to the passage and adoption of this ordinance, and the City Clerk shall cause the same to be posted and codified in the manner required by law. INTRODUCED at a regular meeting of the City Council held on the 14"' day of November 2023, by motion of Council Member Barton and seconded by Council Member Edwards. PASSED AND ADOPTED on the 13th day of December, 2023 by the following vote: AYES: Wixom, Barton, Edwards, Ford, Landrum NOES: None ABSENT: None ABSTAIN: None RECUSE: None CARLAVVIXOM, Mayor ATTEST: CS��159 � ANA SWANSON, City Clerk APPROVED AS TO FORM: Gh!'.s L' CHRIS F. NEUMEYER, ityAttor y STATE OF CALIFORNIA COUNTY OF SAN LUIS OBISPO CITY OF MORRO BAY I, Dana Swanson, CITY CLERK OF THE CITY OF MORRO BAY, DO HEREBY CERTIFY that the foregoing Ordinance No. 663 was duly adopted by the City Council of the City of Morro Bay at a continued regular meeting of said Council on the 13th day of December 2023, and that it was so adopted by the following vote: AYES: Wixom, Barton, Edwards, Ford, Landrum NOES: None ABSENT: None ABSTAIN: None RECUSE: None IN WITNESS WHEREOF I have hereunto set my hand and affixed the official seal of the City of Morro Bay, California, this ?• day ofj4,p,_, 7-,e) DAAKA SWANSON, City Clerk