Vallejo Municipal Code Ch. 7.65 Abandoned Shopping Cart Prevention Ordinance

The city council finds and determines as follows:

A. The unauthorized removal of shopping carts from the premises or parking areas of retail establishments often leads to the abandonment of a significant amount of shopping carts on public or private property in view of the public right-of-way.

B. The proliferation of abandoned shopping carts on public and private property in view of the public right-of-way creates aesthetically detrimental conditions which reduce property values and create blight and deterioration in the city. In addition, such abandoned carts often obstruct access to both public and private sidewalks, streets, parking lots, and other right-of-ways. As such, abandoned shopping carts create potential hazards to the health and safety of the public and interfere with pedestrian and vehicular traffic within the city of Vallejo.

C. The unauthorized removal of shopping carts and their abandonment in view of the public right-of-way is hereby declared to be a public nuisance.

D. The city is authorized by the state constitution to enact local laws to protect the public health, safety and welfare. A local ordinance is needed to supplement state law to abate the shopping cart nuisance.

E. The intent of this chapter is to ensure that measures are taken by owners to prevent the removal of all carts from business premises, to make removal of all carts from the premises of a business establishment a violation of this code, and to facilitate the retrieval of all abandoned carts in a manner consistent with state law.

F. This chapter shall apply to all owners of a business establishment or other commercial services within the city of Vallejo that provide shopping and other carts for customer use or the public.

G. This chapter shall be known and may be cited as the "Abandoned Shopping Cart Prevention Ordinance of the City of Vallejo."

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

As used in this chapter, the following terms listed shall have the meaning specified:

A. "Abandoned shopping cart prevention plan" means a document submitted by the owner of the cart pursuant to Section 7.65.045 of this chapter.

B. "Abandoned shopping cart" means any shopping cart that has been removed, without written consent of the owner, from the premises of the business establishment which owns the cart, regardless of whether it has been left on either private or public property. This provision shall not apply to carts that are removed for purposes of repair or maintenance. Written permission to remove a shopping cart from a store owner's premises shall be valid for a period not to exceed seventy-two hours.

C. "Agent" means the person or persons designated in the abandoned shopping cart prevention plan whom the owner of the 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 abandoned shopping cart prevention plan.

D. "City" means designated city staff or contractor hired by the city.

E. "Consortium" means a group of two or more owners who consort to hire a single shopping cart retrieval business to retrieve their shopping carts found off their premises in the city of Vallejo.

F. "Director" means the director of development services or such other director or officer designated by the city manager to administer this chapter.

G. "Occurrence" includes all carts owned by the owner that are impounded by the city in a one day period.

H. "Owner" shall be applied to the building or land and includes any part owner, tenant in common, joint tenant or tenant by the entirety of the whole or a part of such building or land and any person or entity, who in connection with the conduct of a business, owns, possesses, or makes shopping carts available to customers for use on the premises of the store owner's business establishment. For purposes of this chapter, owner shall also include the store owner's on-site manager or designated agent who provides shopping carts for use by customers of the business establishment. For purposes of this chapter, owner shall also include the owner's designated agent.

I. "Owner identified shopping carts" means a shopping cart that has a permanently affixed sign that identifies, in accordance with California Business and Professions Code Section 22435.1.

J. "Parking area" means a parking lot or other property provided by a retailer for use by a customer for parking an automobile or vehicle.

K. "Parkway" means that area between the sidewalks and the curb of any street, and where there is no sidewalk, that area between the edge of the roadway and the property line adjacent thereto.

L. "Person" means any natural person, joint venture, joint stock company, partnership, association, club, company, corporation, business, trust organization, or the manager, lessee, agent, servant, officer or employee of any of them.

M. "Premises" means the entire area owned and utilized by the business establishment that provides shopping carts for use by customers, including any parking lot or other property provided by the owner for customer parking, excluding the public right-of-way and adjacent property owned by others over which the owner has no right of entry.

N. "Retail establishment" means any trade establishment selling articles, commodity or any line of merchandise.

O. "Shopping 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.

P. "Shopping cart retrieval service" means a business that searches for, retrieves and restores abandoned shopping carts to the possession of the rightful owner for compensation or in expectation of compensation.

Q. "Sidewalk" means that portion of a street between the curbline and the adjacent property line intended for the use of pedestrians.

R. "Street" shall include all streets, highways, avenues, lanes, alleys, courts, places, squares, curbs, or other public ways in this city which have been or may hereafter be dedicated and open to public use, or such other public property so designated in any law of this state.

S. "Unidentified shopping cart" means a shopping cart that is not an owner identified cart, or an owner identified shopping cart of a retail establishment.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

The proliferation of shopping carts abandoned on public and private property causes blighted conditions in areas of the city and results in the obstruction of free access to public and private sidewalks, streets, alleys, parking lots and other ways, thereby creating potential hazards to the health and safety of the public, and therefore abandoned shopping cart(s) are declared by the city council to be a public nuisance.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

Prior to final occupancy of a retail site, all owners of new retail establishments furnishing shopping carts for use by its customers shall install and continue to maintain a system that physically prevents shopping carts from leaving the site. Signs shall be installed on the carts and near the doorways that notify customers that the carts are equipped to prevent them from leaving the parking lot. The signs attached to the carts shall include all the information required by California Business and Professions Code 22435.1. A plan showing how this is to be accomplished shall be submitted to the planning division prior to final occupancy.

(Ord. 1563 N.C. (2d) § 1( part), 2005.)

Every shopping cart owned or provided for the use of customers by any business establishment in the city of Vallejo must have a conspicuously marked and identified sign permanently affixed to it that contains the following information:

A. The name of the owner of the shopping cart or the name of the business establishment where the shopping cart is in lawful use, or both;

B. Notification to the public of the procedure to be used for authorized removal of the shopping cart from the premises;

C. Notification to the public that the unauthorized removal of the shopping cart from the premises or the unauthorized possession of the shopping cart off premises is a violation of state law and the city of Vallejo Municipal Code.

D. A contact telephone number to report the location of an abandoned shopping cart; and

E. An address where the shopping cart can be returned to the business establishment.

Such identification shall be in the form of a metal or plastic tag or plate securely fastened to the cart or standing on the frame of the cart.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

There shall be posted by the owner of any retail establishment furnishing a parking area and shopping carts for its customers, prominently and conspicuously at all entrances to the retail establishment, a notice in substantially the following form: REMOVAL OF SHOPPING CARTS FROM THESE PREMISES WITHOUT THE PRIOR WRITTEN CONSENT OF THE OWNER OF THE CART OR THIS BUSINESS ESTABLISHMENT IS PROHIBITED BY LAW (VMC SECTION 7.65.040) AND WILL SUBJECT THE VIOLATOR TO A MINIMUM FINE OF $100.00.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

A. It shall be unlawful to either temporarily or permanently remove a shopping cart from the premises of a business establishment without the express prior written approval of the owner. This section shall not apply to carts removed as authorized by the owner for the purposes of repair, maintenance or disposal.

B. It shall be unlawful to be in possession of a shopping cart that has been removed from the premises of a business establishment unless it is in the process of being immediately returned to the business establishment.

C. It shall be unlawful to leave or abandon a shopping cart at a location other than the premises of the business establishment with the intent to temporarily or permanently deprive the owner of possession of the shopping cart.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

Every owner providing shopping carts to its customers shall develop and implement a specific written plan to prevent the unauthorized removal by any person of any shopping carts from the owners premises, and if removed, to retrieve the shopping cart within twenty-four hours of the removal or notice of the removal. The plan must include the following elements;

A. Notice to Customers. Written notification shall be provided to customers that removal of all shopping carts from the premises is prohibited and a violation of state law and the Vallejo Municipal Code. This notice may be provided in the form of flyers, warnings on shopping bags and shopping carts, or any other form of written notification that will effectively notify customers of the law.

B. Signs. Signs shall be placed in appropriate places near door exits and near parking lot exits warning customers that shopping cart removal is prohibited and constitutes a violation of state law and the Vallejo Municipal Code.

C. Inventory of Shopping Carts. A complete list of the amount of all shopping carts maintained on or in the premises.

D. Loss Prevention Measures. Specific measures shall be implemented by owners to prevent shopping cart removal from the premises. Examples of measures that may be implemented are: installing disabling devices on all shopping carts; posting of a security guard to prevent customers from removing shopping carts from the premises; security deposits required for use of all shopping carts; the rental or sale of shopping carts that can be temporarily or permanently used for transport of purchases, or any combination of the above that are acceptable to the director and necessary to effectively prevent shopping cart removal from the premises.

E. Employee Training. A description of an ongoing employee training program 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 no less frequently than annually.

F. Mandatory Shopping Cart Retrieval. A plan for retrieval of abandoned shopping carts by the owner within twenty-four hours of being notified.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

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

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

Every owner shall submit a proposed plan for preventing shopping cart removal in compliance with Section 7.65.070 for approval to the development services director within sixty days after adoption of this chapter and by July 1 of each year thereafter. In implementing this chapter, for the period of June 1, 2005 through July 31, 2006, the director shall provide not less than sixty days written notice to each owner prior to the date that the owner's initial abandoned shopping cart prevention plan is due. Any business establishment which opens after the adoption of this chapter will submit an abandoned shopping cart prevention plan to the development services director for approval within sixty days of the approval date on their city business license application. Any 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 1.12. Any owner who fails to submit an abandoned shopping cart prevention plan shall also be subject to a one thousand five hundred dollar civil penalty, plus an additional penalty of fifty dollars for each day of noncompliance.

The director may approve or deny the proposed plan and notify the owner of such decision within thirty days of receipt. If approved, the owner has no later than thirty days to implement the abandoned shopping cart prevention plan from the date of approval. If the proposed plan is the same as in previous years, prevention measures shall continue to be implemented unless the city indicates the plan needs to be modified.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

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. Unless otherwise agreed, complete and adequate modifications to a plan required by the city shall be implemented by the owner within thirty days of notification.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

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

A. 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.

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

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

D. 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.

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

F. 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.

Should the city's director of development services deny the plan, the owner may request an administrative hearing in order to resolve the dispute.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

A. Upon determining the existence of any of the grounds for denial of an abandoned shopping cart prevention plan in accordance with Section 7.65.065, the director may issue to the owner a notice of intended decision to deny the abandoned shopping cart prevention plan.

B. The notice of intended decision shall state all the grounds upon which the denial of the abandoned shopping cart prevention plan is based.

C. The notice of intended decision shall advise the owner that the denial shall become final unless the owner files a completed appeal form requesting a hearing before the code enforcement appeals board or hearing officer within fifteen calendar days of the date of service of the notice of intended decision to deny the abandoned shopping cart prevention plan.

D. The notice of intended decision shall specify the effective date of the denial of such plan.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

A. The completed appeal form together with an appeal fee as established by resolution by the city council must be received by the director within fifteen calendar days of the date of the notice of intended decision to deny the abandoned cart prevention plan. An appeal form shall be obtained from the director.

B. Upon timely receipt of a completed appeal form and appeal fee, the director shall schedule a hearing which shall be held no later than thirty calendar days after receipt of a timely request for a hearing.

C. The director shall serve a notice of hearing on the owner at least ten calendar days prior to the scheduled date of the hearing.

D. At the hearing before the code enforcement appeals board or hearing officer, the owner shall be given the opportunity to present witnesses and relevant documentary evidence.

E. The hearing will be conducted informally and the technical rules of evidence shall not apply. Any and all evidence which the code enforcement appeals board or hearing officer deems reliable, relevant and not unduly repetitious may be considered.

F. Within twenty calendar days after the hearing, the code enforcement appeals board or hearing officer shall serve on the owner a written decision sustaining, reversing or modifying the director's intended decision.

G. The decision by the code enforcement appeals board or hearing officer after hearing shall be final.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

A. An owner must submit an annual plan evaluation report to the development services department of the city of Vallejo. The report shall include, but is not limited to, an assessment of the effectiveness of the measures used to prevent the removal of shopping carts from the premises; and an inventory of shopping carts owned or used by the business establishment including the number of shopping carts replaced by the establishment due to repair, loss, theft or abandonment. Any owner who fails to submit an annual plan evaluation report in accordance with this section by July 1 of each year shall be subject to a one thousand five hundred dollar civil penalty plus an additional penalty of fifty dollars for each day of noncompliance. If a prevention plan was in place the previous year, the annual plan/evaluation report shall identify measures used and assess the effectiveness of the measures used in the prior year.

B. If the city receives complaints regarding a store's shopping carts or a store's carts are observed off site by the city more than three times in any six month period, the city may determine that the owner's abandoned shopping cart prevention plan is inadequate and require that additional removal prevention measures be added to the plan and implemented by the owner in the next plan period.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

In addition to the civil penalties set forth in this chapter, any owner who fails to submit a plan, implement the proposed plan, implement any required modifications to the plan as required by the city or submit annual plan evaluations within the time frames specified in this chapter shall be required by the director to place disabling devices on all shopping carts owned, leased or used by the business establishment to prevent removal of shopping carts from the premises. Disabling devices shall be placed on all shopping carts within sixty days of the date of service of the notice of violation from the director. Any such owner who fails to place a disabling device on all shopping carts shall be subject to a one thousand five hundred dollars civil penalty, plus an additional penalty of fifty dollars for each day of noncompliance.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

A. Upon determining that a business establishment has failed to submit an abandoned shopping cart prevention plan or failed to implement prevention measures, in accordance with Section 7.65.080, the director may issue to the owner a notice of violation.

B. The notice of violation shall state the grounds upon which the violation is based.

C. The notice of violation shall advise the owner that the applicable penalties in accordance with Section 7.65.085 shall become final unless the owner files a completed appeal form requesting a hearing before the code enforcement appeals board or hearing officer within fifteen calendar days of the date of service of the notice of violation to deny the notice of violation.

D. The notice of violation shall specify the effective date of the applicable penalties.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

A. The completed appeal form together with an appeal fee, as established by resolution by the city council must be received by the director within fifteen calendar days of the date of the notice of violation. An appeal form shall be obtained from the director.

B. Upon timely receipt of a completed appeal form and appeal fee, the director shall schedule a hearing which shall be held no later than thirty calendar days after receipt of a timely request for a hearing.

C. The director shall serve a notice of hearing on the owner at least ten calendar days prior to the scheduled date of the hearing.

D. At the hearing before the code enforcement appeals board or hearing officer, the owner shall be given the opportunity to present witnesses and relevant documentary evidence.

E. The hearing will be conducted informally and the technical rules of evidence shall not apply. Any and all evidence which the code enforcement appeals board or hearing officer deems reliable, relevant and not unduly repetitious shall be considered.

F. Within twenty calendar days after the hearing, the code enforcement appeals board or hearing officer shall serve on the owner a written decision sustaining, reversing or modifying the director's intended decision and penalties.

G. The decision by the code enforcement appeals board or hearing officer after hearing shall be final.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

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:

1. 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.

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

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

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

A. Any owner who participates in the development and ongoing implementation of an effective shopping cart retrieval consortium with other owners in the city in accordance with this chapter shall be exempt from the provisions of Sections 7.65.045 through 7.65.095, inclusive of this chapter. All owners in the city who provide shopping carts for the use of their customers may agree to form a single retrieval consortium.

B. Two or more owners may form a shopping cart retrieval consortium by continuously contracting with a single shopping cart retrieval service to retrieve and return the abandoned shopping carts of the consortium members found off the premises of the owners' business establishments. Owners who form a consortium shall submit a fully executed copy of the contract for retrieval services to the city's development services department for review. The contract shall be deemed adequate if no comment is made by the city within thirty days.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

Owners who form a retrieval consortium shall enter into a contract for services with the shopping cart retrieval service which provides that:

A. The shopping cart retrieval service shall provide daily retrieval service throughout the city;

B. The owners and retrieval service shall periodically consult with the city to determine the traditional locations where abandoned shopping carts are found off premises and shall survey those sites on a daily basis and retrieve all shopping carts found;

C. The contract shall provide financial incentives to the retrieval service to properly survey the entire city and aggressively retrieve abandoned shopping carts on a daily basis;

D. The consortium shall ensure that the city has on file at all times a copy of the current, effective retrieval contract. In the event that a consortium allows the contract for retrieval services to lapse, and effective retrieval services are no longer provided, then the owners shall no longer be exempt from and will be required to comply with the provisions of Section 7.65.045 through 7.65.095, inclusive, of this chapter within sixty days;

E. If the city determines that the efforts of the consortium to retrieve abandoned shopping carts are not effective, then the consortium members will review the contract for services for performance of the retrieval service with the city and undertake measures to improve the retrieval process. If, within sixty days, the retrieval process cannot be measurably improved, then the city may require the owners to comply with Sections 7.65.045 through 7.65.095, inclusive, of this chapter.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

Any person who engages in the business of shopping cart retrieval shall retain records showing written authorization from the owners to retrieve abandoned shopping carts and to be in possession of the shopping carts retrieved. A copy of the records showing written authorization shall be maintained in each vehicle used for abandoned shopping cart retrieval.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

Each vehicle employed for the retrieval of abandoned shopping carts shall display a sign that clearly identifies the business name of the retrieval service.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

Any person operating a retrieval service in accordance with the provisions of Section 7.65.110 engaging in abandoned shopping cart retrieval shall first obtain a business license from the city of Vallejo.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

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 7.65.100. 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 7.65.100.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

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. 1563 N.C. (2d) § 1 (part), 2005.)

The appellant may seek judicial review of the board or hearing officer's decision by filing a petition with a court of competent jurisdiction pursuant to California Code of Civil Procedure Sections 1094.5 and 1094.6. The written decision of the board shall contain a statement so advising the appellant of this time limit on seeking court review.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

Every owner shall comply with the provisions of this chapter and every provision of the owner's approved abandoned shopping cart prevention plan. Any owner who violates any provision of this chapter or any provision of the owner's approved abandoned shopping cart prevention plan shall be subject to enforcement procedures for each violation through any lawful means available to the city, including and without limitation being charged with an infraction or misdemeanor, as provided in Vallejo Municipal Code Section 1.12. Such a remedy is not exclusive, and the city may pursue other remedies available to it under state law or local ordinance.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)

The city shall notify the owner of an abandoned cart as identified on the signage information permanently affixed to the cart. The city notification shall be documented and provided either by telephone or by written notice. The notification shall require that the identified cart(s) be retrieved pursuant to the conditions for retrieval as set forth in the owner's abandoned cart prevention plan.

(Ord. 1563 N.C. (2d) § 1 (part), 2005.)