1. Meet or exceed 18 inches in width and 24
inches in height.
2. Using block lettering not less than one-half
inch in width and two inches in height, contain a statement in two or more languages to the effect that unauthorized
removal of a shopping cart from the business premises, or possession of a shopping cart in a location other than on the business premises, is a violation of state law and City ordinance.
3. List a local or toll-free telephone number for
cart retrieval.
4. Be affixed to an interior wall of the building or
otherwise permanently and prominently displayed within two feet of all customer entrances and exits.
B. Cart removal warnings on the exterior of the
building are not considered “signs” for the purpose of
calculating any maximum allowable signage in the City.
C. Each shopping cart owned or used within the
City shall have, permanently affixed and easily visible, a cart identification sign or engraved surface which includes all of the following information: the name of the cart owner, the telephone number of the cart owner and/or commercial
establishment to which the cart belongs, an address for returning the cart to the owner or business premises,
the individual cart identification number, a valid toll-free phone number for cart retrieval, the procedure (if any) to be followed to obtain permission to remove the cart from the business premises, and a notice to the public that
unauthorized removal of the cart from the business premises is a violation of state law and City ordinance.
D. It shall be the responsibility of each cart owner
to comply with subsections A and C of this section, and to continuously maintain, or cause to be maintained, the cart identification sign so that all of the required information is accurate and clearly legible.
8.16.065 Prohibited Conduct
A. It shall be unlawful to either temporarily or
permanently remove a cart from the business premises
or parking area of a cart owner without the express prior written approval of the owner or designee. Written
approval shall be for a period not to exceed 72 hours.
B. It shall be unlawful to be in possession of a
cart that has been removed from a business premises or
parking area of a cart owner unless it is in the process of being immediately returned to the owner or business
premises.
C. This section shall not apply to carts that are
removed for lawful purposes, such as repair or
maintenance.
8.16.070 Nuisance cart abatement by the City.
Mandatory cart containment and retrieval.
A. Purpose. The purposes of this chapter are:
1. To reduce neighborhood nuisance and blight
caused by abandoned shopping carts in the public
rights-of way;
2. To protect public health and public safety;
3. To encourage shopping cart owners to contain
their carts on their respective business; and
4. To balance the rights and interests of those
engaged in commercial activities requiring shopping
carts with the rights and interests of those who do not want to be disturbed by such activities on private and
public property.
A. B. Cart Containment Plan System—Required.
1. Every cart owner shall implement, operate,
and maintain an on-site cart containment program plan.
The cart owner shall implement, operate, and maintain
the following measures in the on-site cart containment
plan:
a. Install and maintain electronic or other
disabling devices on all carts which prevent them from
being removed from the business premises by locking
the wheels or otherwise preventing the movement of the
carts.
b. Install and maintain physical measures
to prevent the removal of carts from the business
premises. These measures may include physical
barriers and security guards to deter unlawful removal
of carts from the business premises. All carts shall be securely locked and stored at all times while the
business is closed.
c. Conduct ongoing employee training to
educate new and existing employees about procedures
to prevent cart removal, including the operation of the on-site cart containment plan.
d. Secure and continuously maintain a
qualified cart retrieval service to retrieve carts which have been removed from their business premises. The
qualified cart retrieval service shall respond to
complaints from the public or notifications from the City in a manner which results in the retrieval of carts within 24 hours of receiving the notification. Additionally,
qualified cart retrieval services shall actively locate removed carts within a one-mile radius of the business
premises at least once per week. The qualified cart
retrieval service shall not place any limits on daily loads or days per week to retrieve carts within the City.
2. Each cart owner must contain all shopping
carts on the business premises at all times. All carts must be accounted for at the end of each business day.
3. Cart owners shall conduct regular
maintenance to ensure disabling devices 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.
4. A cart that does not have an electronic or other
disabling device shall not be in circulation unless and until such device is added to the cart.
B. On-site cart containment plan review. The
review of on-site cart containment plans shall be
conducted pursuant to this subsection.
1. Existing cart owners must develop and submit
an on-site cart containment plan within 60 days from the date of the City notice stating that such a plan is
required pursuant to this chapter.
2. New cart owners or cart owners who have
relocated must submit an on-site cart containment plan
at the time of applying for a business license or
certificate of occupancy. A cart owner applying for a
renewed license or certificate, but which did not
previously submit an on-site cart containment plan,
shall submit such plan upon application for renewal.
3. Two or more cart owners located within the
same shopping or retail center or sharing a common
parking area may collaborate and submit a single onsite cart containment plan.
4. At the time a cart owner submits an on-site
cart containment plan, the cart owner shall pay a fee for the review and administration of the plan as set forth by resolution of the City Council.
5. The City Manager or designee shall review onsite cart containment plans and may approve, deny, or require modifications. Once a plan is approved, the cart owner shall have thirty (30) days to begin
implementation. Cart owners may appeal a denial of an
on-site cart containment plan within 14 calendar days.
The applicable provisions of chapter 4.36 of this code
shall govern the proceedings of such an appeal.
3. Any instance in which a shopping cart owned
or provided by a cart owner is found off of the business premises shall be considered a violation by the cart
owner of subsection (B)(2) of this section.
a. For each violation of subsection (B)(2) of this
section, a civil fine pursuant to Title 4 (Code
Enforcement), Section 4.28.070 (Infraction penalties) of the City’s municipal code shall be assessed by means of an administrative citation issued by an enforcement
officer and shall be payable directly to the City as
follows:
b. Fines shall be assessed for up to $100 for a first
violation; up to $200 for a second violation of this code section within a 12-month period commencing upon the
date of the first violation; and up to $500 for a third violation within a 12-month period commencing upon
the date of the first violation. For purposes of this
section, a violation includes all of a cart owner’s
shopping carts found off of the business premises in a
one-day, 24-hour period. (See Title 4, Section 4.28.070, Infraction penalties, of the City’s municipal code, Ord. 1998-03, adopted 11-17-98)
4. Following the issuance of more than 10
administrative citations to the same cart owner within a 30-day period, in addition to the administrative penalty set forth in this chapter, subsequent violations by that cart owner shall be referred by the enforcement agency
for criminal prosecution.
C. Employee Training—Cart Removal
Prevention. Each cart owner shall conduct ongoing
employee training to educate new and existing
employees about procedures to prevent cart removal,
including the operation of the cart containment system.
D. Cart Removal from Business Premises—
Written Permission Required. No person shall be
deemed to be authorized to remove a cart unless he or
she possesses written authorization from the cart
owner. This section shall not apply the possession of a shopping cart removed from the business premises at
the direction of the cart owner for the purposes of repair or maintenance.
E. Physical Containment System. A cart owner will
be required to install a physical containment system to the satisfaction of the City Manager or his or her
designee and the city prosecutor within 90 days of the
effective date of the ordinance codified in this chapter; except that cart owners will not be subject to
administrative citations as provided for herein within
180 days of the effective date of the ordinance codified in this chapter.
F. Retrieval. All shopping cart owners shall
secure and continuously maintain a qualified cart
retrieval service to retrieve shopping carts which have been removed from their business premises, and
provide evidence thereof, to the City Manager or his or her designee upon request.
G. Regulatory Fee Authorized. A regulatory fee
shall be established to enforce this regulation and to
fairly apportion the cost of mitigating the negative
effects of off-site shopping carts. A business which
installs a physical containment system to the
satisfaction of the director of planning and building, or which does not provide any shopping carts to its
customers, shall be exempted from this fee.
An administrative citation subject to this chapter
shall be issued on a form approved by the City Manager
or his or her designee, and may be served upon by mail
to any cart owner by an enforcement officer in the
following manner:
1. The administrative citation or duplicate thereof
shall be mailed to the cart owner(s); and
2. A proof of service of the notice shall be made by
declaration of the enforcement officer effecting the
service.
H. Contents of Notice. Each administrative citation
issued pursuant to this chapter shall contain the
following information:
1. The date of service of the citation and the date,
time, address or description of the location where the
violation(s) was observed;
2. The code section(s) and condition(s) violated and
a description of the violation(s);
3. A photographic image depicting the cart at the
location of the violation(s);
4. The amount of the fine for the violation(s);
5. An explanation of how the fine shall be paid and
the fine payment due date;
6. Notice of the right to appeal the citation, the time within which the citation may be appealed and the place to obtain a request for hearing form to appeal the
administrative citation; and
7. The name and signature of the enforcement
officer.
I. Satisfaction of Administrative Citation. Upon
service of an administrative citation issued pursuant to this chapter, the cart owner shall do the following:
1. Pay the fine no later than 30 days from the date
of issuance of the citation as specified on the
administrative citation. Payment of a fine shall not bar further enforcement action by the City. Late charges
shall be imposed for fine payments made after the fine
payment due date. The late charge shall be calculated at a rate of 25 percent of the fine, and will be imposed in addition to any outstanding fine.
2. Failure of the cart owner(s) to pay the civil fine
and any accrued late penalties in a timely manner may
result in the imposition of a special assessment and/or lien against the real property on the business premises, and/or filing of an action with the small claims court for recovery of the fine and any late penalty. The only issue to be adjudicated by the small claims court shall be
whether or not the fines and possible late fees were
paid. A cart owner may only obtain judicial review of the validity of the citation by first requesting and
participating in an administrative appeal hearing before a hearing officer. In the small claims court action, the City may also recover its costs, according to proof.
3. The City may also refuse to issue, extend, or
renew to any cart owner who has unpaid delinquent
fines, interest, penalties, liens, or assessments, any City
permit, license, entitlement, or other City approval
pertaining to the business premises that is the subject of the fine and administrative citation.
4. Any permit, license, entitlement, or land use
approval issued by the City may be subject to
suspension or revocation of the permit, license,
entitlement, or land use approval in accordance with the procedures set forth in the respective City municipal
code if any unpaid fine, interest or penalties remain
delinquent for a period of more than 30 days.
J. Appeal of Administrative Citation.
1. Any recipient of an administrative citation issued
pursuant to this chapter may appeal said citation by
making a written request for hearing form from the
enforcement agency designated on the citation, and
returning it to said City agency within 30 calendar days from the date the administrative citation was served or deemed to have been served, together with a deposit in
the total amount of the fine.
2. A failure to file a timely appeal of the
administrative citation shall be deemed a waiver of the right to appeal and to seek judicial review.
3. The administrative appeal hearing shall be set for
a date not sooner than 15 calendar, and not more than
60 calendar days from the date the request for hearing is completed and submitted in accordance with the
provisions of this chapter. The cart owner requesting
the hearing shall be notified in writing of the time and place set for the hearing at least 10 calendar days prior to the date of the hearing.
4. The hearing provided for in this chapter shall be
conducted by a Hearing Officer or Hearing Body
appointed by the City Manager or his or her authorized
designee.
5. The Hearing Officer/Body shall only consider
evidence that is relevant to whether the appellant is the bona fide cart owner, and whether appellant created,
committed, or maintained the violation(s). Courtroom
rules of evidence shall not apply. Relevant hearsay
evidence and written reports may be admitted whether
or not the speaker or author is present to testify, if the Hearing Officer/Body determines that such evidence is
reliable. Admission of evidence and the conduct of the
hearing shall be controlled by the Hearing Officer/Body in accordance with the fundamentals of due process.
The Hearing Officer/Body may set reasonable limits on
the length of the hearing, and shall allow the appellant at least as much time to present his or her case as is
allowed the City.
6. The appellant contesting the administrative
citation shall be given the opportunity to testify and
present witnesses and evidence concerning the citation.
The City’s case shall be presented by any person
designated by the City Manager. The appellant and City
may be represented by counsel.
7. The failure of the appellant to appear at the
hearing shall constitute a forfeiture of the fine and a failure to exhaust administrative remedies.
8. The administrative citation and any additional
documents prepared by the City in connection with the
violation(s) may be submitted and shall constitute prima facie evidence of the respective facts contained in those documents.
9. If the enforcement officer or his or her designee
submits any additional documents concerning the
administrative citation to the Hearing Officer for
consideration at the hearing, then, whenever possible, a copy of such document(s) shall be served by mail on the appellant at least five calendar days prior to the date of the hearing.
10. The Hearing Officer/Body may continue the
hearing or request additional information from the
enforcement officer, his or her designee or the appellant prior to issuing a written decision.
11. After considering all of the testimony and
evidence submitted at the hearing, the Hearing
Officer/Body shall issue a written decision within 15
business days of the hearing. The decision of the
Hearing Officer shall be final.
12. If the Hearing Officer/Body denies the appeal,
then the deposit shall be retained by the City.
13. If the Hearing Officer/Body grants the appeal,
then the City shall refund the deposit within 30 business days from the date of the final written decision.
14. The Hearing Officer/Body shall serve the
appellant and the City with a copy of the written
decision.
K. Dismissal of Citation. The Enforcement Officer,
with the approval of the director of the respective
enforcement agency, may dismiss an administrative
citation issued pursuant to this chapter at any time if it is determined to have been issued in error, in which
event any deposit will be refunded.
L. Right to Judicial Review. Either the City or the
appellant aggrieved by a decision of a Hearing
Officer/Body on an administrative citation issued
pursuant to this chapter, may obtain review of the
decision by filing a petition for review with the County Superior Court in accordance with the time lines and
provisions as set forth in California Government Code
Section 53069.4(b). Said procedure shall be available for all judicial review under this chapter, notwithstanding that the term or condition being enforced pursuant to
this chapter may not be a matter covered by Section
53069.4(a). Judicial review of a citation shall not be
available unless all administrative remedies have been
exhausted as provided in this chapter.
M. Recovery of Abatement Costs. The
administrative citation process described in this chapter does not preclude the City from recovering any other
code violation or nuisance abatement costs incurred by
the City in performing its code enforcement efforts.
N. City Powers not Limited by this Chapter.
Nothing in this section is intended to limit the ability of the City to remove or dispose of any cart to which a cart identification sign is not attached, or to remove or
dispose of any cart which impedes the provision of
emergency services, or which is an immediate threat to
public health and safety, to the full extent permitted by state law.
O. Additional Nonadministrative Penalty. The
procedures established in this chapter shall be in
addition to any criminal, civil or other legal remedy
established by law for violation of the sections defined in this chapter of the municipal code.
8.16.075 Impoundment procedures.
A. Pursuant to Business and Professions Code
Section 22435.7(b), as may be amended, the City
Manager or designee may provide notice to the cart
owner of any abandoned or removed carts that has been
located within the City. If three (3) business days after such notice is given the cart has not been retrieved by the owner or his or her agent, the cart may be
impounded by the City. The City may recover the actual
costs of retrieving the cart and fines against the cart owner. A cart impounded pursuant to this subsection
that is not reclaimed within thirty (30) days of the
owner’s receipt of the notice provided for herein shall be sold or otherwise disposed of by the city.
B. Pursuant to Business and Professions Code
Section 22435.7(i), as may be amended, the City
Manager or designee may immediately impound any
abandoned or removed cart located within the City, and
give the cart owner notice that the cart has been
impounded within twenty-four hours of the
impoundment. Any cart impounded pursuant to this
subsection that is reclaimed within three (3) business
days following the date of notice to the cart owner shall be released and surrendered to the owner or his or her
agent at no charge whatsoever. Any cart reclaimed
within the three (3) business day period shall not be
deemed an occurrence or violation for the purposes of
this chapter. Where a cart owner fails to reclaim a cart, the City may recover the actual costs of retrieving the cart and fines against the owner commencing on the
fourth business day following the date of the notice. Any cart not reclaimed within thirty (30) days of the actual notice provided to the owner of the cart shall be sold or otherwise disposed of by the City.
8.16.080 Other pPenalties.
A. Any person who violates any provision of this
chapter for which no penalty is otherwise provided shall be guilty of a misdemeanor.
B. The owner, occupant, or agent of any lot or
premises within the City who permits or otherwise
allows the existence of a public nuisance upon any lot
or premises owned, occupied or controlled by him or
her, shall be guilty of a misdemeanor.
B. Except as to subsection F, a violation of any
provision of this chapter shall constitute a public
nuisance and may be abated according to the
provisions of this code or by any other means provided
by law.
C. The remedies set forth in this chapter shall be
cumulative and in addition to any and all other
remedies, civil, equitable or criminal, afforded to the City under the law.
D. A separate offense occurs for each day a
violation of, or failure to comply with, any provision of this chapter is committed, continued, permitted,
maintained, or allowed to be continued.
E. The failure of a cart owner to submit,
establish, or maintain a cart containment plan as
required by this chapter shall subject the owner to a
civil penalty of up to one thousand dollars, plus an
additional penalty of fifty dollars for each day of
noncompliance.
F. Fines. Pursuant to Business and Professions
Code Section 22435.7(f), a fine in the amount of fifty
($50) dollars is hereby imposed upon each cart owner of a cart for each occurrence in excess of three during a
specified six-month period for failure to retrieve carts in accordance with this chapter. An occurrence includes
all shopping carts impounded in accordance with this
chapter in a one-day period. This subsection does not
apply to and does not limit or prohibit any other fee, fine
or penalty that the City may charge for violation of this chapter.
Section 3. CEQA
This Ordinance is exempt from the requirements of the
California Environmental Quality Act (“CEQA”) pursuant to State CEQA Guidelines because there is no possibility that this Ordinance or its implementation would have a significant negative effect on the environment. (14 Cal. Code Regs. § 15061(b)(3).) City staff shall cause a Notice of Exemption to be filed as authorized by CEQA and the State CEQA
Guidelines.
Section 4. SEVERABILITY
That, should any provision, section, paragraph,
sentence or word of this ordinance be rendered or declared invalid by any final court action in a court of competent jurisdiction or by reason of any preemptive legislation, the remaining provisions, sections, paragraphs, sentences or words of this ordinance as hereby adopted shall remain in full force and effect.
Section 5. REPEAL OF CONFLICTING
PROVISIONS
That all the provisions of the Municipal Code as
heretofore adopted by the City of Desert Hot Springs that are in conflict with the provisions of this ordinance are hereby repealed.
Section 6. AMENDING OF BAIL
SCHEDULE
That the City Attorney’s Office is hereby directed to
determine whether this ordinance necessitates amendment of the City’s Bail Schedule and to cause such necessary amendments to be made and filed with the local branches of the Superior Court of the County of Riverside.
Section 7. EFFECTIVE DATE
That this ordinance shall be effective thirty days after the second reading of the ordinance.
Section 8. CERTIFICATION
That the City Clerk shall certify to the passage of this ordinance and shall cause the same to be published
according to law.
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PASSED AND ADOPTED by the City Council of the City of
Desert Hot Springs at a regular meeting held on the ___ day of ______, 2022 by the following vote:
Ayes:
Noes:
Abstain:
Absent:
ATTEST:
____________________________________
Jerryl Soriano, City Clerk
_______________________________
Scott Matas, Mayor
APPROVED AS TO FORM:
____________________________________
Jennifer A. Mizrahi, City Attorney