Del Norte County Municipal Code § 7.55 Shopping Carts

• 7.55.10 Authority And Purpose

• 7.55.120 Penalty For Failure To Prepare And Implement Written Plan

• 7.55.130 Cumulative Effect

• 7.55.140 Severability And Validity

• 7.55.60 Prohibition Of Removal, Abandonment, Alteration, Possession

1. Under Section 7 of Article XI of the California Constitution, a county may make and enforce within its limits all local, police, sanitary and other ordinances and regulations not in conflict with general laws.

2. California law, specifically Division 8 Chapter 19 of the Business and Professions Code Section 22435 et seq. prohibits the removal and abandonment of shopping carts under certain conditions and regulates the retrieval of shopping carts by local government agencies. This ordinance is intended to implement the California Business and Professions Code Section 22435 et seq.

3. The Board of Supervisors finds that abandoned shopping carts are unsightly, interfere with pedestrian and vehicular traffic, accumulate over time on public and private property causing blight and similar conditions resulting in reduction of property values, constitute a public nuisance, and are detrimental to the public health, safety, and welfare.

4. This ordinance is enacted in order to promote the public health, safety and welfare by facilitating the removal of wrecked, dismantled, and abandoned shopping carts and parts thereof from public and private property within the unincorporated area of the county, thereby alleviating the health and safety hazards, unsafe conditions, and the impairment of property values resulting from the abandonment of such carts.

1. "Abandoned shopping cart" means any cart removed from a business establishment's premises without written permission of the owner and located on either public or private property.

2. "Business of shopping cart retrieval" means a business that searches for, gathers and restores possession to the owner, or an agent thereof, for compensation or in expectation of compensation, of shopping carts located outside the premises or parking area of a business establishment.

3. "Director" refers to either the director of the Community Development Department. The definition includes any employees designated by the director.

4. "Owner" means any person or entity within a business establishment who owns, possesses, or has the power to make a shopping cart available to customers. For the purpose of this chapter, owner includes, but is not limited to, the store owner, manager, on-site manager, on-duty manager or other designated agent of a business establishment providing shopping carts for customer use.

5. "Parking area" means a parking lot or other property provided by a business establishment for use by a customer for parking an automobile or other vehicle. The parking area of a business establishment located in a multi-store, store complex or shopping center shall include the entire parking area used by the complex or center.

6. "Premises" means the entire area owned, rented, leased, or utilized by a business establishment that provides shopping carts for customer use, including parking areas.

7. "Shopping cart" means a basket which is mounted on wheels or a similar device generally used in a business establishment by a customer for the purpose of transporting goods of any kind. This includes, but is not limited to, laundry, grocery or shopping carts, or platform carts or dollies.

This chapter shall be administered and enforced by the Community Development Department. The director of such department and his/her designee is hereby authorized and directed to promulgate and implement rules, regulations and procedures necessary or appropriate for enforcement of this chapter.

To the extent otherwise permitted by law, the director and any of his/her code enforcement officers or anyone acting under his/her direction and control is authorized to enter into, on or upon any property to examine a shopping cart or parts thereof, or to obtain information as to the identity of the owner of any shopping cart, or to retrieve shopping carts in accordance with the provisions of this chapter. Nothing contained in this chapter shall be deemed a limitation upon the director to enter private property pursuant to permission from the owner or occupant thereof or pursuant to a duly issued inspection warrant or other court order.

Every shopping cart owned or provided by a business establishment in the county must have a sign permanently affixed to it that contains the following information:

1. Identifies the owner of the shopping cart or the name of the business establishment, or both;

2. Notifies the public of the procedure to be used for authorized removal of a shopping cart from the establishment's premises;

3. Notifies the public that the unauthorized removal of a shopping cart from the premises or parking area of a business establishment, or the unauthorized possession of a shopping cart is a violation of Business & Professions Code § 22435.1;

4. Lists a valid telephone number or address for returning the shopping cart removed from the premises or parking area to the owner or retailer.

Any owner who maintains or permits the use of shopping carts in violation of the provisions of Section 7.55.40 shall be guilty of an infraction.

It is unlawful to do any of the following acts, if a shopping cart has a permanently affixed sign as required by Section 7.55.40:

1. To remove a shopping cart from the premises or parking area of a business establishment with the intent to temporarily or permanently deprive the owner or retailer of possession of the cart;

2. To be in possession of any shopping cart with serial numbers removed, obliterated, or altered, with the intent to temporarily or permanently deprive the owner or retailer of possession of the cart;

3. To leave or abandon a shopping cart at a location other than the premises or parking area of the retail establishment with the intent to temporarily or permanently deprive the owner or retailer of possession of the cart;

4. To 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, with the intent to temporarily or permanently deprive the owner or retailer of possession of the cart; or

5. To be in possession of any shopping cart while that cart is not located on the premises or parking lot of a business establishment, with the intent to temporarily or permanently deprive the owner or retailer of possession of the cart.

6. Violation of this Section is a misdemeanor.

1. Section 7.55.60 shall not apply to any person who has written consent from the owner of the shopping cart authorizing possession or removal of the cart from the business establishment's premises or authorizing any of the acts specified in Section 7.55.60(A)- (E).

2. For all persons authorized by an owner to remove a cart from the premises or parking area of a business establishment, the owner shall issue to such persons an "authorization card" in a form approved by the director.

A shopping cart that has a sign affixed to it in accordance with Section 7.55.40 may be impounded by the County if:

1. The shopping cart is located outside the premises or parking area of a retail establishment; and

2. Except as provided in Section 7.55.90 the shopping cart is not retrieved within three (3) business days from the date the owner of the shopping cart, or his or her agent, receives actual notice of the shopping cart's discovery and location.

1. In instances where the location of a shopping cart will impede emergency services, the county is authorized to immediately retrieve the shopping cart.

2. Notwithstanding the provisions of Section 7.55.80, and as an alternative thereto, Code Enforcement or any authorized employee may retrieve and impound any abandoned shopping cart without providing the three (3) day notice specified in Section 7.55.80, provided the director shall give actual notice to the owner of the impounded shopping cart within twenty-four (24) hours following the impound, which notice shall inform the owner of the location where the shopping cart may be claimed. Any shopping cart reclaimed by the owner within three (3) business days following the date of such notice shall be released and surrendered to the owner at no charge, including waiver of any impound and storage fees or fines which otherwise would be applicable. The abandonment of any such shopping cart so retrieved within the three (3) day period shall not be deemed an occurrence for purposes of prosecution or imposition of administration costs and fines under this chapter. The owner of any shopping cart not reclaimed within three (3) business days following the date of actual notice as provided herein shall be subject to the imposition of costs, fees and fines applicable under this chapter commencing on the fourth business day following the date of notice. Any shopping cart not reclaimed by the owner within thirty (30) days of the date of receipt of actual notice as provided herein may be sold or disposed of pursuant to Section 7.55.100.

1. Any shopping cart that is impounded by the county pursuant to this section shall be held at a location that is both:

   1. Reasonably convenient to the owner of the shopping cart; and

   2. Open for business at least six hours of each business day.

2. Any shopping cart not reclaimed from the county within thirty (30) days of receipt of a notice of violation by the owner of the shopping cart may be sold or otherwise disposed of by the county.

3. The county may impose an administrative penalty on the owner of a shopping cart in an amount not to exceed fifty ($50) dollars for each occurrence in excess of three (3) during a specified six (6) month period for failure to retrieve shopping carts in accordance with this section. An occurrence includes all shopping carts impounded in accordance with this section in a one (1) day period.

4. In addition to the fines authorized herein, the county is authorized to recover actual costs incurred for impounding a shopping cart under the authority of this section.

5. In the event the number of occurrences exceeds three during any six-month period, the director may request the owner to submit an amended or modified plan pursuant to Section 7.55.110 which amended or modified plan shall specify what additional or modified steps or elements are being taken to reduce or eliminate the number of such occurrences. This shall be in addition to any penalties implemented by this code.

Every owner who allows or intends to allow the use of carts outside a building or enclosed area of a business shall develop, implement and comply with an abandoned cart prevention plan.

1. The plan must include, at a minimum, the following information:

   1. The name of the business, address and phone number of the premises where the business is conducted, and the address and phone number of the cart owner, if different;

   2. A procedure for providing notification to customers that removal of carts from the premises is prohibited and a violation of state and local law in addition to the notice required under Section 7.55.40. This notice may be provided in the form of flyers, warnings on shopping bags, or any form of written notification that will effectively notify customers of the prohibition;

   3. A description of the physical measures that will be implemented to prevent the removal of carts from the premises. Physical measures may include, but are not limited to: devices on carts that prevent their removal from the premises; posting of a designated employee or security guard to deter and stop customers from removing carts from the premises; or prohibiting carts outside the building of the business unless accompanied by an employee; and

   4. A procedure for the retrieval of abandoned carts by its employees, or proof that the owner has entered into a contract for cart retrieval services that has been approved by the director.

2. Two or more businesses may collaborate and submit a single plan.

3. Every plan submitted shall be subject to the director's reasonable approval. The director shall approve, reject as incomplete, or deny the proposed Abandoned Cart Prevention Plan within sixty (60) days of plan submission. The director may deny a plan based on the following grounds:

   1. Implementation of the plan violates any provision of the building, zoning, health, safety, fire, police code or other provision of this code or any city, 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 chapter;

   3. The plan fails to address any special or unique conditions due to the geographical location of the premises as they relate to cart retention and prevention efforts;

      4. Implementation of the plan violates a term or condition of a plan or other requirement of this chapter;

      5. 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 documents required for submission.

   4. If the plan is rejected as incomplete, the director shall indicate areas that are incomplete, and the Owner shall have an additional thirty (30) days within which to resubmit a complete and adequate plan. The director shall approve or deny the resubmitted plan within thirty (30) days of the date of resubmission.

4. Once the plan is approved, the measures included in the plan shall be implemented as soon as commercially feasible but in no event later than sixty (60) days after the plan's approval, with the exception of cart containment systems and disabling devices on carts, which if included in the plan shall be installed within a commercially feasible timeframe based on factors including, but not limited to, ownership rights and permits required.

   6. A plan may be reevaluated at any time by the director if operation of the plan demonstrates the plan's insufficiency or inadequacy in preventing removal of carts from the premises. If the director requires a new plan, the owner shall have the same right to appeal as set forth in subsection (G) of this section.

   7. Anyone whose Abandoned Cart Prevention Plan has been denied by the director may request an appeal hearing before the county hearing officer by filing a written notice of appeal stating the grounds with the director not later than ten (10) calendar days after the date of the denial. The fee for filing an appeal fee and a deposit equivalent to one (1) hour of the hearing officer's time shall be included. The director shall schedule the appeal for a hearing before the hearing officer within thirty (30) business days of the appeal being received and shall serve written notice of such time and date upon the appellant at least ten (10) days before the hearing. The appellant shall have the right to appear in person at the hearing and present oral, written and/or photographic evidence. The hearing officer shall review the basis for appeal, the evidence submitted by appellant, the proposed Abandoned Cart Prevention Plan, all of the grounds for denial set forth in Section (C) above, as well as the director's determination and evidence in support thereof, and shall provide a written decision with factual findings granting or denying the appeal within thirty (30) days of the hearing. The decision by the hearing officer shall be final and binding, and no further appeal shall be authorized. If the final decision of the hearing officer confirms the director's decision, the owner shall be responsible for paying the county's costs, including, but not limited to, the costs of administration. If the hearing officer finds in favor of the appellant, the county shall refund the amount deposited for the hearing officer's time.

   8. Whenever an owner makes revisions to a plan, the revised plan shall be submitted in writing to the director for approval.

• 7.55.120 Penalty For Failure To Prepare And Implement Written Plan

  1. Any owner who fails to submit to the director for approval the plan required under Section 7.55.110 within sixty (60) days of the effective date of the ordinance enacting this chapter, or within sixty (60) days of the commencement of the owner's business, whichever is later, or who fails to implement the measures established in an approved plan, shall be guilty of an infraction.

2. In addition to the penalties provided herein, and as an administrative remedy upon a finding of violation of any provision in this chapter, the director is hereby authorized to require and may require such remedial, preventative, retrieval or other action, at owner's sole expense, to deter or prevent the unauthorized removal of shopping carts from owner's premises, with respect to any owner who fails to timely submit a plan as required herein or otherwise fails to comply with the provisions of this chapter.

3. Failure to comply may also subject the violator to any civil, criminal, or administrative remedies as provided by law.

The provisions of this chapter are cumulative and in addition to any and all other procedures or remedies provided in ordinances of the county or by state law for the abatement of, or prosecutions for, nuisances. Proceedings for abatement pursuant to this part shall not prejudice or affect any other action, whether civil, criminal, equitable or administrative, for abatement or other remedy of such conditions. Nothing contained herein shall be deemed to invalidate, supersede, or render ineffective any other provision of any ordinance of this county. Neither the inclusion, nor the failure to include, under the terms of this chapter, any act or condition otherwise in violation of any provision of this code or other ordinance of this county, unlawful or constituting a nuisance, shall be deemed to render such act or condition lawful.

If any section, subsection, paragraph or portion of this ordinance is for any reason found to be unconstitutional, invalid or beyond the authority of the county by a court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this ordinance.