Part 3 — REGULATIONS

It shall be unlawful for any person to cause or permit any cart to be abandoned on or upon any sidewalk, street or other public area, other than the premises of the owner of such cart.

(Ord. 26292.)

A.

Every cart owned or provided by any owner must have a sign permanently affixed to the cart that contains all of the following information:

Identity of owner, business establishment, or both.

Notification to the public that the removal of the cart from the premises is a violation of state law.

The address or phone number of the owner of the business establishment for cart return.

B.

Any cart found abandoned on public property that does not have the identification and information required by this section may be removed from such public property and disposed of by the city in accordance with state law.

(Ord. 26292.)

It shall be unlawful for any person, either temporarily or permanently, to remove a cart from a premises or be in possession of a cart that has been removed from a premises which is properly marked in conformity with this chapter without the written consent of the owner. This section shall not apply to carts removed as authorized by the owner for the purposes of repair, maintenance or disposal.

(Ord. 26292.)

Every owner who provides twenty-six or more carts who allows or intends to allow the use of carts shall develop, implement and comply with the terms and conditions of an abandoned cart prevention plan to prevent the unauthorized removal by any person of any carts from the owner's premises and, if removed, to retrieve the cart within twenty-four hours of the removal or notice of the removal. The abandoned cart prevention plan shall include the following elements:

A.

Name of Business/Owner. 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.

B.

Inventory of Carts. A complete list of all carts maintained on or in the premises.

C.

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 carts from the premises is prohibited and is a violation of state and local law. 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, web site or other means demonstrated to be effective to the reasonable satisfaction of the director. Any and all posting of signs shall comply with the provisions of the San José Municipal Code, including, without limitation, Title 23.

D.

Cart Identification. Signs and cart identification requirements in accordance with Section 9.60.310.

E.

Loss prevention measures. A description of the specific measures that the owner shall implement to prevent cart removal from the premises. These measures may include, but are not limited to, electronic or

other disabling devices on the carts so they can not be removed from the premises, effective management practices, use of courtesy clerks to accompany customers and return the carts to the store, use of security personnel to prevent removal, security deposit for use of cart, or other demonstrable measures acceptable to the director that are likely to prevent cart removal from the premises.

F.

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 cart prevention plan and conditions contained therein no less frequently than annually.

G.

Mandatory Cart Retrieval. A plan for retrieval of abandoned carts by the owner within twenty-four hours.

H.

For any retailers with 76 or more carts, the mandatory cart retrieval plan must include at least one of the following elements:

Use of a device or mechanism designed to physically prevent the removal of shopping carts from the owner's premises, such as, but not limited to, an electronic wheel locking mechanism or poles attached to carts that prevent them from being taken outside of a retailer's interior premises.

Use of a device or mechanism that requires customers to make a security deposit before being allowed to use a cart.

Maintaining an agreement with a cart retrieval service that makes weekly, proactive efforts to retrieve the owner's abandoned carts over the course of a year and is capable of retrieving an abandoned cart within twenty-four hours upon notice of the abandoned cart's location by the City. If this option is selected, a copy of the agreement with the cart retrieval service must be submitted along with the abandoned cart prevention plan.

(Ords. 26292, 31195.)

Every owner who is required to submit an abandoned cart prevention plan or an application for a modification of an abandoned cart prevention plan pursuant to this chapter shall submit with the plan or plan modification, a fee for the director's review the plan or plan modification in the amount set forth in the schedule of fees established by resolution of the city council.

(Ord. 26292.)

A.

Each owner shall submit an abandoned cart prevention plan in compliance with Section 9.60.330 to the director on an annual basis. In implementing this chapter, for the period from January 20, 2001 through December 31, 2001, the director shall provide not less than sixty days' written notice to each owner of the date that the owner's initial abandoned cart prevention plan is due. The director may approve or deny the proposed plan and notify the owner of such decision within thirty days of receipt. If approved, the abandoned cart prevention plan shall be implemented by the owner no later than thirty days from the date of approval. After December 31, 2001, owner is obligated to comply with the provisions of this chapter regardless of receipt of written notice from the director.

B.

The director may deny a plan based upon any of the following grounds:

Implementation of the plan violates any provision of the building, zoning, health, safety, fire, police or other provision of this Code or any county, state or federal law which substantially affects public health, welfare, or safety;

The plan fails to include all of the information required by this chapter;

The plan is insufficient or inadequate to prevent removal of carts from the premises;

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

Implementation of the plan violates a term or condition of a plan or other requirement of this title;

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.

C.

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.

D.

An owner who fails to submit a complete plan to the satisfaction of the director, or fails to implement approved plan measures or fails to comply with the approved plan measures will be subject to enforcement of these requirements through any lawful means available to the city, including without limitation institution of the administrative remedies process pursuant to Chapter 1.14.

E.

The director's decision to deny a plan shall be final.

(Ord. 26292.)

At any time after the director's approval of any abandoned 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.

(Ord. 26292.)

A.

Any owner may request an exemption on an annual basis from the requirements of this chapter if the owner provides written documentation and demonstrates to the satisfaction of the director that the owner has a physical device or mechanism in place or a management practice currently implemented that prevents the unauthorized removal of carts from the owner's premises and that none of the owner's carts have been found abandoned during the period of six continuous months immediately preceding the date the application for an exemption is submitted to the director.

B.

A written application for the exemption shall include all of the following:

The name of the owner and the name of the business, the physical address where the business is conducted, and the name, address and phone number of the on-site and off-site owner.

The method, management practice or physical device that will ensure that the carts will not leave the premises.

C.

Any exemption granted to an owner shall be void upon the sale or transfer of ownership of a business.

(Ord. 26292.)

Any owner granted an exemption from the abandoned cart prevention plan shall file with the director a written application for a one year renewal of the exemption annually in accordance with the provisions of Section 9.60.370. The written application for a renewal of the exemption shall include the information required to be submitted in the initial application for the exemption in accordance with the provisions of Section 9.60.370.

(Ord. 26292.)

An application for a renewal of an exemption may be denied or revoked by the director upon any of the following grounds:

A.

Any of the owner's carts is or has been abandoned on public property or in a right of way for longer than three business days after notification by the city on three occasions in any six-month period.

B.

The owner has failed to comply with any of the provisions of this chapter.

C.

The owner knowingly makes a false statement of fact or omits a fact required to be revealed in an application for the exemption, or in any amendment or report or other information required to be made.

(Ord. 26292.)