Loading...
Ordinance 2007-10 ORDINANCE 2007-10 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GILROY AMENDING GILROY CITY CODE, CHAPTER 19A, ARTICLE 1 ENTITLED "SHOPPING CART MANAGEMENT, REMOVAL, IMPOUNDMENT, RETRIEVAL AND DISPOSAL" TO BE RENAMED "SHOPPING CARTS" AND GILROY CITY CODE, CHAPTER 19A IS FURTHER AMENDED TO ADD A NEW ARTICLE II ENTITLED "PREVENTION OF ABANDONED CARTS." WHEREAS, the City Council finds that abandoned shopping carts constitute a nuisance, create potential hazards to the health and safety of the public, and interfere with pedestrian and vehicular traffic; and, WHEREAS, the City Council finds that the accumulation of abandoned shopping carts on public property creates conditions that may reduce property values, and promote blight and deterioration; and, WHEREAS, the City Council further finds that the intent of Gilroy City Code, Chapter 19A, Article II is to ensure that measures are taken by shopping cart owners to prevent the removal of shopping carts from a business premises, to make removal of shopping carts a violation of this code, and to facilitate the retrieval of abandoned shopping carts in a manner consistent with state law. NOW THEREFORE, the City Council of the City of Gilroy does ordain as follows: SECTION I Gilroy City Code, Chapter 19 A, "Shopping Cart Management, Removal, Impoundment, Retrieval and Disposal," is amended to be renamed, "Article I, Shopping Carts." The existing Gilroy City Code, Chapter 19 A, sections 19.A.l through 19.A.11 are retained in their entirely under the Article I, entitled "Shopping Carts. " SECTION II Gilroy City Code, Chapter 19A is amended to add a new Article II, entitled "Prevention of Abandoned Carts," to read as follows: ARTICLE II. PREVENTION OF ABANDONED CARTS Sec. 19.A.12. Findings, purpose and applicability. Abandoned shopping carts constitute a nuisance, create potential hazards to the health and safety of the public, and interfere with pedestrian and vehicular traffic. The accumulation of abandoned shopping carts on public property creates conditions that may reduce property values, and promote blight and deterioration. The intent of this article is to ensure that measures are taken by shopping cart owners to prevent the removal of shopping carts from a business premises, to make removal of shopping carts a violation of this code, and to facilitate the retrieval of abandoned shopping carts in a manner consistent with state law. \JH\705205.2 031807-04706083 Ordinance No. 2007-10 This chapter shall apply to all owners of a business establishment and other commercial services within the City of Gilroy that provide shopping carts for use by customers and members of the public. Sec. 19.A.13 Definitions. For the purposes of this article, certain words, phrases, terms and their derivatives shall be construed as specified in this section. Words, phrases, and terms that are used in this article, but not specifically defined, shall have the meaning set forth in the applicable local or state, if appropriate. Other such words, phrases and terms shall be accorded their ordinary meanings. Abandoned shopping cart shall mean any shopping cart that has been removed from the premises of a business establishment and has been left unattended on either private or public property. Abandoned cart prevention plan or "ACPP" shall mean a document submitted by the owner of the shopping cart pursuant to section 19 A.19 ofthis chapter. Agent shall mean the person or persons designated in the abandoned cart prevention plan who the owner of the shopping 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 cart prevention plan. Director shall mean the Director of Community Development, or such other director or officer designated by the City Administrator to administer this Chapter. Owner shall mean any person or entity, who in connection with the conduct of a business, owns, leases, possesses, or makes a shopping cart available to customers or the public. For purposes of this chapter, owner shall also include the owner's designated agent. Premises shall mean the entire area owned or 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. Electronic Theft Deterrent System shall mean a mechanical system which automatically locks the wheels of a shopping cart when the shopping cart is pushed outside the premises. Typically, such systems include a brake on the shopping cart and some type of perimeter wire around the premises which triggers the brake on the shopping cart. Existing business shall mean an establishment with a valid business license and which is open to the public on the date of approval of this ordinance. Shopping Cart shall mean a basket 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. Tenant improvement shall mean a construction project which would require a building permit to modify the physical condition of an existing building or space. Sec. 19.A.16. Unauthorized removal prohibited. It shall be unlawful for any person, either temporarily or permanently, to remove a shopping cart from a premises or be in possession of a shopping 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 shopping carts removed as authorized by the owner for the purposes of repair, maintenance or disposal. \JH\705205.2 031807-04706083 Ordinance No. 2007-10 Sec. 19.A.18. Abandoned cart prevention plan required. Owners of all businesses who provide shopping carts for customer use shall develop, implement and comply with the terms and conditions of an abandoned cart prevention plan or "ACPP," as defined in this article, to prevent the unauthorized removal by any person of any shopping cart from the owner's premises and, if removed, to retrieve the shopping cart within twenty-four (24) hours of the removal or notice ofthe removal. The ACPP shall be submitted to the director within sixty (60) calendar days of written notification by the director that such plan is required. A new owner of a business is required to submit an application to the director with either a new plan, or adoption of the plan submitted by the previous owner. Sec.19.A.19. Abandoned cart prevention plan. The ACPPshall 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 ofthe director. Any and all posting of signs shall comply with the provisions of Gilroy City Code. (d) Cart Identification: Signs and cart identification information which conform to this ordinance and state law. (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. (t) 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 ACPP 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 of being notified. Sec. 19.A.20. Fees. Every owner who, pursuant to this article, is required to submit an ACPP, or who submits an application for a modification of an ACPP, shall submit with the plan or plan modification a fee for the director's review of the plan or plan modification in the amount set forth in the schedule of fees established by resolution of the city council. \JH\705205.2 031807-04706083 Ordinance No. 2007-10 Sec. 19.A.21. Plan approval or denial and penalties. (a) Each owner shall submit an ACPP in compliance with section 19.A.19 to the director. The director may approve or deny the plan and notify the owner of such decision within thirty days of receipt. If approved, the ACPP shall be implemented by the owner no later than thirty (30) calendar days from the date of approval. (b) The director may deny a plan based upon any of the following grounds: (I) Implementation of the plan violates any provision of the building, zoning, health, safety, fire, police or other provision ofthis code or any county, 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 is insufficient or inadequate to prevent removal of shopping carts from the premises; (4) The plan fails to address any special or unique conditions due to the geographical location of the premises as they relate to cart shopping retention and prevention efforts. (5) Implementation of the plan violates a term or condition of a plan or other requirement of this title; (6) 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 (30) calendar days in which to resubmit a complete and adequate plan. (d) An owner who fails to submit a complete plan to the satisfaction ofthe 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. (e) The director's decision to deny a plan shall be final. Sec. 19.A.22. Plan Modification. At any time after the director's approval of any ACPP, the owner may submit to the director an application for 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. Sec. 19.A.23. Abandoned cart prevention plan deemed ineffective; Electronic theft deterrent system required. \JH\705205.2 031807-04706083 Ordinance No. 2007-10 An ACPP shall be deemed ineffective if, during any consecutive three (3) month period, more than one (1) of an owner's shopping carts are found abandoned in the public right-of-way and have not been timely retrieved in accordance with the ACPP. In such a case, the director shall provide the owner with written notification that its ACPP has been deemed ineffective. The owner shall then submit to the director a written plan to remedy the problem, which the owner shall then implement. If the ACPP is deemed ineffective a second time, the owner shall be required to install an electronic theft deterrent system, if not already present, within ninety (90) calendar days of notification by the director. If an electronic theft deterrent system has already been installed, the owner shall revise its ACPP to include, and shall implement, supplemental loss prevention measures to ensure that the shopping cart thefts and abandonment cease. Sec. 19.A.24. Electronic Theft Deterrent Systems Required. (a) New Commercial and Industrial Businesses: All new commercial and industrial businesses that employ shopping carts shall be required to implement a shopping cart electronic theft deterrent system at their business premises. (b) Existing Development: All existing commercial and industrial businesses that employ shopping carts shall be required to implement a shopping cart electronic theft deterrent system at their business premises when constructing any tenant improvement project that exceeds a cost of $100,000.00. Sec. 19.A.25. Electronic theft deterrent system. Owners who are required to install electronic theft deterrent systems in accordance with this ordinance shall maintain the systems in working order. Sec. 19.A.26. Business owner changes. In the event that the ownership of a business changes, the new owner will be subject to the terms of this chapter and will be required to comply with any and all provisions ofthis chapter. Sec. 19.A.27. Enforcement. (a) Every owner shall comply with the provisions ofthis chapter and every provision of the owner's approved ACPP. (b) Any owner who violates any provision of this article or any provision of the owner's approved ACPP shall be subject to enforcement procedures for each violation through any lawful means available to the city, including without limitation institution of criminal enforcement in accordance with section 1.7 of the Gilroy City Code, or administrative penalties in accordance with section 6A of the Gilroy City Code. Sec. 19.A.27. Retrieval notification. The city shall notify the owner of an abandoned shopping cart as identified on the signage information permanently affixed to the shopping 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 ACPP. \JH\705205.2 031807-04706083 Ordinance No. 2007-10 SECTION III If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Gilroy hereby declares that it would have passed and adopted this Ordinance, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that anyone or more sections, subsections, sentences, clauses or phrases may be declared invalid or unconstitutional. SECTION IV This Ordinance shall be in full force and effect thirty (30) days after its passage and adoption. PASSED AND ADOPTED this 16th day of March 2007, by the following vote: AYES: COUNCILMEMBERS: ARELLANO, BRACCO, CORREA, VALIQUETTE, VELASCO and PINHEIRO NOES: COUCILMEMBERS: GARTMAN ABSENT: COUNCILMEMBERS: NONE ~"cX ," ~~ ~~ Rhon a Pellin, City Clerk ~" \JH\705205.2 031807-04706083 Ordinance No. 2007-10 '4" ',.$1 I, RHONDA PELLIN, City Clerk of the City of Gilroy, do hereby certify that the attached Ordinance No. 2007-10 is an original ordinance, or a true and correct copy of a city ordinance, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 16th day of April, 2007, at which meeting a quorum was present, and has been published or posted pursuant to law. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Gilroy this 27th day of April, 2007. Wf~ (.t1uA: City Clerk of the City of Gilroy (Seal)