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1 ORDINANCE NO. ______
AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF MERCED, CALIFORNIA,
AMENDING CHAPTER 8.30, “REGULATION OF
SHOPPING CARTS,” OF THE MERCED
MUNICIPAL CODE
THE CITY COUNCIL OF THE CITY OF MERCED DOES ORDAIN
AS FOLLOWS:
SECTION 1. AMENDMENT TO CODE. Chapter 8.30, “Regulation of Shopping Carts,” of the Merced Municipal Code is hereby amended to read as follows:
“CHAPTER 8.30
ABANDONED SHOPPING CARTS
Sections:
8.30.010 Findings and Purpose.
8.30.020 Definitions.
8.30.030 Declaration of a Public Nuisance.
8.30.040 Mandatory Cart Markings and Signage.
8.30.050 Unlawful Possession of Carts Prohibits –
Power to Contract.
8.30.060 Effective Care Nuisance Abatement
Program.
8.30.070 Right of Entry.
8.30.080 Abandoned Carts – Abatement and
Storage.
8.30.090 Option for Immediate Impoundment.
8.30.100 Notice of Violation on Unidentified Carts.
8.30.110 Final Disposition of Unclaimed Carts.
8.30.120 Enforcement.
8.30.010 Findings and Purpose.
The City of Merced finds that abandoned shopping carts
in the City create potential hazard to the health and safety
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2 of the public and interfere with pedestrian and vehicular traffic and create a public nuisance. The accumulation of abandoned carts on public and private property tends to create conditions that reduce property values and
promote blight and deterioration that result in a public nuisance. This Chapter is intended to ensure that
measures are taken by the owners of shopping carts to
prevent the removal of the shopping carts from the
owner’s premises, to make removal of the shopping cart
without the owner’s approval a violation of this Code,
and to facilitate the retrieval of abandoned shopping carts in a manner consistent with state law.
Retail establishments owning any shopping carts are
subject to the provisions of this Chapter.
8.30.020 Definitions.
A. ‘Abandoned shopping carts’ means any cart that is
located outside the premises or parking lot of a retail establishment that owns the cart, except a cart that is in the physical possession of a person who has the express written consent of the cart’s owner.
B. ‘Business license’ means a license for operation of
a retail establishment required under Title 5 of this Code.
C. ‘Cart owner’ means any business or person who, in
connection with the conduct of a retail establishment,
owns, rightfully possesses, or makes any cart available to patrons and/or the public. This shall include the owner’s agent or authorized representative.
D. ‘City’ means the City of Merced or its designated
representatives.
E. ‘Code’ means the Merced Municipal Code unless
otherwise specified.
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3 F. ‘Commencement date’ shall mean the date that the
implementation, enforcement and applicability of this
Chapter to cart owners and retail establishments starts.
The ‘commencement date’ shall be six (6) months
following the day this Chapter takes effect following
adoption by the City Council.
G. ‘Contractor’ means an authorized independent
person approved by the City Council for the purpose of
effecting the removal of abandoned shopping carts.
H. ‘Director’ means the City’s Director (department
to be assigned) other employee designated by the
Director or the City Manager to enforce or carry out the provisions of this Chapter.
I. ‘Effective containment program’ means a system
selected by the retail establishment that results in no more than five (5) shopping carts being removed without the owner’s consent from the business premises or
parking area within the twelve (12) month period
commencing with the issuance of a business registration or the renewal of the business registration (minimum of five (5) carts in a twelve (12) month time period). An
effective containment program may include one or more
of the following measures:
1. Disabling devices on all shopping carts
which prevent them from being removed from the
business premises by locking the wheels or
otherwise preventing the movement of the carts.
2. An on-site security guard to deter customers
who attempt to remove carts from the business
premises.
3. Bollards and chains around the business
premises to prevent cart removal, if permitted by
the fire marshal.
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4 4. Any other measure approved by the Director
in writing as means to contain carts on the
premises.
J. ‘Effective retrieval program’ means no more than
five (5) abandoned shopping carts are collected by the
City or its contractor within the City limits and returned to the retail establishment within the twelve (12) month period commencing with the issuance of a business
registration or the renewal of the business registration (minimum of five (5) carts in a twelve (12) month time
period). There is a rebuttable presumption that a cart
found abandoned somewhere off the premises of the
cart’s owner was removed from the premises without the
owner’s consent and that if the City or its contractor
removes it and returns it to the retail establishment, the cart was abandoned for more than forty-eight (48) hours.
K. ‘Effective shopping cart nuisance abatement’
means the retail establishment’s ongoing activities to
prevent the theft and abandonment of shopping carts
from their parking area, combined with the retail
establishment’s ongoing activity to retrieve any
abandoned shopping cart owned by the retail
establishment from public or private property within the City within forty-eight (48) hours.
L. ‘Identified cart’ means a shopping cart that has a
permanently affixed sign that identifies, in accordance with California Business and Professions Code Section
22435.1, the owner of the cart or the retailer, or both; notifies the public of the procedure to be utilized for authorized removal of the cart from the owner’s
premises; notifies the public that the unauthorized
removal of the cart from the cart owner’s premises or cart owner’s parking area or the unauthorized possession of
the cart, is a violation of state law; and lists a valid telephone number or address for returning the cart to the owner or retailer. If the cart owner operates more than
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5 one (1) store, the sign shall identify the location of the store where the cart is used.
M. ‘Parking area’ means a parking lot or other
property provided by a retail establishment for use by a customer for parking an automobile or other vehicle. In a multi-store complex or shopping center, ‘parking area’
includes the entire parking area used by or controlled by the complex or center.
N. ‘Person’ means a natural person, firm, association,
organization, partnership, business, trust, corporation, limited liability company, or other entity.
O. ‘Private property’ means any property not owned
by the City, its successor agency, library, or other such sub-agencies or boards acting under the authority of the City.
P. ‘Public property’ means property owned by the
City, its successor agency, library, or other such sub- agencies or boards acting under the authority of the City.
Q. ‘Retail establishment’ means any trade
establishment selling articles, commodities, services, or any line of merchandise where shopping carts are made
available for and used by patrons and/or the public.
R. ‘Shopping cart’ or ‘cart’ means a basket that is
mounted on wheels or a similar device generally used in retail establishments by a patron and/or the public for the purpose of transporting goods of any kind. Shopping cart also includes a cart used in a coin-operated laundry or dry-cleaning retail establishment for purposes of
transporting clothes and necessary cleaning materials.
S. ‘Unidentified cart’ means a shopping cart that is
not an identified cart, as defined above under subdivision L.
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6 For the purpose of this Chapter, words and phrases not expressly defined in this section shall be given their
customary and usual meanings and shall be interpreted
and construed accordingly.
8.30.030 Declaration of a Public Nuisance.
The City Council finds and determines that any
abandoned shopping cart is declared to constitute a
public nuisance that could impede emergency services,
interfere with pedestrian and vehicular traffic, reduce property values, promote blight and deterioration,
comprise an attractive nuisance and create other hazards to the health, safety, and general welfare of the
community by having a tendency to degrade the
appearance of the community and thereby decrease
property values.
8.30.040 Mandatory Cart Markings and Signage.
As of the commencement date, all carts shall be
maintained as identified carts, including:
A. The cart owner shall provide signage on their
premises in a conspicuous location notifying cart users that removal of carts from the premises or parking area is prohibited without the written consent of the retail
establishment.
B. The owner of a retail establishment shall mark all carts used in its business by its customers as required by California Business and Professions Code Section
22435.1. The owner shall permanently affix a sign to
each cart that identifies the owner of the cart or the
retailer, or both; notifies the public of the procedure to be utilized for authorized removal of the cart from the cart owner’s premises; notifies the public that the
unauthorized removal of the cart from the cart owner’s
premises or cart owner’s parking area or the unauthorized possession of the cart is a violation of state law; lists a
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7 valid telephone number, or address for returning the cart to the cart owner.
8.30.050 Unlawful Possession of Carts
Prohibited—Power to Contract.
A. Unlawful Possession. It is unlawful for any person
other than a cart owner or its authorized representative to do any of the following acts:
1. To remove or cause to be removed any cart
from a retail establishment or a parking area
without the prior written consent of the owner.
2. To possess any cart that has been removed
from a parking area without the prior written
consent of the cart owner or retail establishment,
with the intent to temporarily or permanently
deprive the owner of possession of the cart.
3. To alter, convert, or tamper with any cart, or
remove any part or portion thereof, or to remove,
obliterate, or alter any identification, including, but not limited to, any serial numbers, or to possess
any cart that has been altered, converted, or
tampered with or whose identification has been
removed, obliterated, or altered, with the intent to
temporarily or permanently deprive the owner or
retailer of possession of the cart without the prior
written consent of the cart owner.
4. To abandon or leave any cart, which has been
removed from a business establishment or a
parking facility, upon any public property or upon
any private property that is not the premises of the
retail establishment or the parking facility.
5. For purposes of all provisions in this
Chapter, any person removing a cart from the retail
business or parking area with consent of the cart
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8 owner shall carry a copy of such written consent
on their person.
B. Engagement of Contractor. The City may, in
accordance with the applicable City policies and as
approved by City Council, cause the City to engage a
contractor to retrieve abandoned carts and such
contractor shall comply with the provisions of this
Chapter and applicable state law including, but not
limited to, Business and Professions Code Section
22435.10 et seq.
8.30.060 Effective Cart Nuisance Abatement
Program.
As of the commencement date, it is unlawful for any
person owning a retail establishment located in the City where carts are available for customer use not to
implement and maintain an effective cart nuisance
abatement program. Effectiveness is measured by the
performance of the retail establishment’s effective cart nuisance abatement program in compliance with this
section. Any cart owner shall implement and use any
reasonable means in any combination to: (i) prevent the removal or theft of their carts from their premises and parking area and subsequent abandonment of their carts
within the City limits; and (ii) if such prevention
measures are not one hundred percent effective, cart
owners shall retrieve any and all their abandoned
shopping carts from within the City boundaries within
forty-eight (48) hours.
A. Elements of an Effective Cart Nuisance Abatement
Program. Within the timeframes set forth in subsection B below, all retail establishments/cart owners must: (i)
notify the Director that they own carts for the use of their customers on their premises; and (ii) submit a written
plan for the implementation of an effective cart nuisance abatement program. The program shall include, but is not limited to, the following:
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9 1. A customer outreach process under which the
cart owner shall cause additional notice to be
provided to customers in addition to the standard
signage and marking of the shopping cart as per
subsections 1 and 2 of this subsection that the
removal of carts from the premises is prohibited
and is a violation of state and local law. This
customer outreach notification may include, but is
not limited to: flyers distributed at the premises,
warnings on shopping bags, direct mail,
announcements using intercom systems at the
premises, website communication, and other
available information tools. It may also include
marketing to customers their own personal cart for
use in lieu of the retail establishment’s shopping
cart. The exact means and frequency of this
outreach is to be determined by the retail
establishment.
2. Either an ‘effective containment program’ or
an ‘effective retrieval program’ as each is defined
in Section 8.30.020, or both.
3. If a retail establishment has a valid and
operational contract with a contractor recognized
by the City to retrieve abandoned shopping carts
and return them to the retail establishment on an
ongoing and regular basis of at least three (3) times
per week, then the owner is presumptively deemed
to have an effective cart nuisance abatement
program, but the presumption may be rebutted if
the cart retrieval contractor fails to meet the
standards for ‘effectiveness’ set forth in this
Section. Nothing in this section waives or limits
compliance with the signage and cart marking
mandates in Section 8.30.040.
B. Submission of Plans for Implementing Effective
Cart Nuisance Abatement Program; Annual Renewal. As
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10 of the commencement date: (i) any new retail
establishments shall submit their initial plans for
implementing an effective cart nuisance abatement
program at least thirty (30) days prior to the retail
establishment’s original business license application; or (ii) for retail establishments operating as of the
commencement date, the initial plan for implementing an effective cart nuisance abatement program shall be
submitted with their first business license renewal
application due following the commencement date. Once
an initial plan implementing an effective cart nuisance abatement program is approved, such plan shall be re-
submitted for renewal every two (2) years at least thirty (30) days prior to the retail establishment’s business
license renewal application. The proposed plan for an
effective cart nuisance abatement program shall contain the following information:
1. That the retail establishment owns carts for
the use of their customers on their premises and
parking areas;
2. The address of the retail establishment and
identity of associated parking areas utilized
directly for its carts;
3. A contact phone number and the job title of
the person at the retail establishment in Merced
who will be responsible for accepting all carts
retrieved by the City and returned to the retail
establishment during its normal hours of business;
4. The type, color and number of carts owned;
5. Whether the retail establishment is subject to
a valid and operational contract with a contractor
recognized by the City to retrieve abandoned
shopping carts and return them to the retail
establishment on an ongoing and regular basis of at
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11 least three (3) times per week, and if so a copy of
such contract;
6. Photographic proof of compliance with the
signage and cart marking mandates pursuant to
Section 8.30.040; and
7. A narrative description, and any plans,
photographs or other evidence demonstrating the
implementation of an effective cart nuisance
abatement program as defined in Section
8.30.020 and in compliance with this Section.
Approved plans for an effective cart nuisance abatement program shall be updated annually and resubmitted to the Director for renewal, based on the same findings for
issuance, every two (2) years, and at least thirty (30) days prior to the retail establishment’s business license
renewal in that year.
C. Director Review and Approval; Timeframes for
Compliance. The Director shall review the plan for the
proposed effective cart nuisance abatement program and
approve or deny the plan within thirty (30) days of its receipt. If the program plan is approved, the cart
owner/retail establishment shall implement the approved effective cart nuisance abatement program within thirty (30) days from the date of approval. If the plan is
incomplete, the Director shall notify the cart owner in writing to revise the plan and resubmit it within fifteen (15) days of Director’s notice. The Director may deny a plan for a proposed effective cart nuisance abatement
program based upon one or more of the following
grounds:
1. Implementation of the plan would violate one
or more provisions of this Code or of any county,
state, or federal law or regulation;
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12 2. The proposed program fails to include all of the information required by this Chapter;
3. The proposed plan is insufficient or
inadequate to qualify as an effective cart nuisance
abatement program as defined in Section
8.30.020 and in compliance with this Section;
4. The proposed program fails to address any
special or unique conditions to the geographical
location of the business establishment or parking
facility as such conditions relate to cart removal
prevention; or
5. Implementation of the proposed program
would violate a term or condition of any agreement
between the City on the one hand, and the retail
establishment, or owner of the parking area, or cart
owner, on the other hand.
The Director’s denial of a plan for an effective cart
nuisance abatement program shall be the final
administrative decision unless such denial is appealed to the City Manager in writing within five (5) business
days. The City Manager shall review the Director’s
decision and render a decision, which shall be the final administrative decision.
D. Noncompliance. A cart owner who fails to submit an effective cart nuisance abatement program, or whose
program is denied, or whose program is approved but
who then does not comply with the terms of the approved program, shall be subject to enforcement of these
requirements as set forth in Section 8.30.120. Each day during which a retail establishment/cart owner has not
complied with the provisions of this Chapter shall
constitute a separate violation.
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13 8.30.070 Right of Entry.
For purpose of enforcing this Chapter, the Director may enter public or private property as allowed by law, or
with the consent of the property owner, or by warrant, to examine a cart or to cause the removal of such cart if
authorized pursuant to this Chapter.
8.30.080 Abandoned carts—Abatement and
Storage.
A. Removal. The Director shall have the authority to remove any abandoned cart on public or private property, other than from the property of the cart owner, under the following conditions:
1. Identified Carts. If the abandoned cart is an
identified cart, removal may occur three (3)
business days after the Director gives the cart
owner actual notice of the cart’s discovery and
location. A cart owner is deemed to have actual
notice three (3) days after the deposit of written
notice in the United States mail, posted first-class
to the address indicated on the cart or the cart
owner’s last known address. If actual notice is
provided by telephone, the Director shall maintain
a record of the time, date, and name of the person
notified.
2. Unidentified Carts. If the abandoned cart is
an unidentified cart, but other information on the
cart provides sufficient information as to the
identification of the cart owner, removal may
occur either after the Director notifies the owner
by telephone of the cart’s discovery and location
and grants a reasonable period of time, not to
exceed twenty-four (24) hours, for the cart owner
to retrieve such cart, or immediately after
reasonable efforts by the Director to notify the
owner by telephone have failed. The Director shall
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14 maintain a record of the time, date, and name of
the person notified or attempted to be notified. If
the owner cannot be determined from information
on the cart, the cart shall be deemed an
‘unidentified cart’ subject to Section 8.30.090.
B. Storage. Any abandoned cart removed from public or private property by the Director shall be stored for thirty (30) days at the assigned Department in the City, or at a location designated by the Director, which is
reasonably convenient to the cart owner and open for
business at least six (6) hours of each business day.
C. Fees for Actual Costs Payable to City. Any
abandoned cart removed from public or private property
and stored pursuant to this Section shall be released to the lawful cart owner if claimed within thirty (30) days after such removal and upon payment of a redemption
fee. The redemption fee for the removal and storage of
any abandoned cart under this Section shall be
established by City Council resolution and shall cover the actual costs of removal, storage, and related
administrative procedures. The schedule for such fees
shall remain on file and be available in the office of the Director and the office of the City Clerk.
D. Fines. In addition to any redemption fee for which a cart owner is liable, owner shall also be liable for a fine in an amount established by resolution of the City
Council for each occurrence in excess of three (3)
occurrences during any six (6) month period for failure to retrieve a cart in accordance with Section 8.30.090(A)(4).
As used herein, an ‘occurrence’ includes all of owner’s carts impounded in accordance with this Chapter in a one (1) day period.
8.30.090 Option for Immediate Impoundment.
A. Notwithstanding Section 8.30.080(A), the City
may impound an abandoned cart that otherwise meets the
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15 criteria set forth in Section 8.30.080(A) without
complying with the three (3) business day advance-notice requirement provided that each of the following is met:
1. The cart owner of the abandoned cart is
provided actual notice within twenty-four (24)
hours following the impound and such notice
informs the cart owner as to the location where the
cart may be claimed.
2. Any cart so impounded shall be held at a
location in compliance with Section 8.30.080(B).
3. Any cart reclaimed by the cart owner within
three (3) business days following the date of actual
notice as provided pursuant to this Section, shall
be released and surrendered to the owner at no
charge whatsoever, including the waiver of any
redemption fees that would otherwise be
applicable pursuant to Section 8.30.080(C).
4. Any cart not reclaimed by the cart owner
within three (3) business days following the date of
actual notice as provided pursuant to this Section,
shall be subject to any applicable fee imposed
pursuant to Section 8.30.080(C) commencing on
the fourth (4th) business day following the date of
notice but accruing from the date of retrieval and
storage, and any applicable fine imposed pursuant
to Section 8.30.080(D). Any cart reclaimed by the
owner within three (3) business days following the
date of actual notice as provided pursuant to this
Section, shall not be deemed an ‘occurrence’ under
Section 8.30.080(D).
B. Any shopping cart involved in a violation of
Section 8.30.050(A) is subject to immediate
impoundment, and such impoundment shall follow the
procedures provided in Section 8.30.090(A).
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16 C. Sale; Final Disposition. Any cart not reclaimed by the cart owner within thirty (30) days of receipt following the date of actual notice as provided pursuant to this
Section, may be sold or disposed of in accordance with
Section 8.30.110.
8.30.100 Notice of Violation on Unidentified Carts.
Within ten (10) days of the removal of an abandoned cart pursuant to this Chapter, the Director shall provide notice to any known owner of the cart by first-class mail at the address indicated on the cart or the cart owner’s last
known address. The notice shall include the following
information: (i) date and location of removal of the cart from public or private property; (ii) procedure for
recovering such cart; and (iii) last possible date such cart may be recovered. If the cart owner is unknown and not
clearly identified on the cart, the cart shall be designated ‘unidentified.’ The Director, for each unidentified cart, shall maintain a record containing the information above and a brief description of the cart.
8.30.110 Final Disposition of Unclaimed Carts.
Thirty (30) days after notice is given to the owner, or after the cart is designated ‘unidentified’ pursuant to Section 8.30.100, any abandoned cart not claimed may be sold at public auction or otherwise disposed of. Any
proceeds derived from such auction or disposal shall be used to pay the costs of removal, storage, and related
administrative procedures. Surplus proceeds derived
from such auction or disposal shall be deposited in the general fund of the City.
8.30.120 Enforcement.
Every cart owner who violates any provision of such
owner’s effective cart nuisance abatement program, and
every person who violates any provision of this Chapter, shall be subject to enforcement procedures for each
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17 violation by any lawful means available to the City, including, but not limited to, those set forth in
California Business and Professions Code Sections
22435.3 and 22435.5, Section 1.12.020 of this Code, and Chapters 1.10, and 8.40 of this Code.”
SECTION 2. EFFECTIVE DATE. This Ordinance shall be in full force and effect thirty (30) days after its adoption.
SECTION 3. SEVERABILITY. If any section, subsection,
subdivision, sentence, clause, phrase, or portion of this Ordinance, is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional.
SECTION 4. PUBLICATION. The City Clerk is directed to cause a summary of this Ordinance to be published in the official newspaper at least once within fifteen (15) days after its adoption showing the vote thereon.
The foregoing Ordinance was introduced at a regular meeting of the City Council of the City of Merced on the ____ day of __________, 2023, and was passed and adopted at a regular meeting of said City Council held on the ____ day of ___________, 2023, by the following called vote:
AYES: Council Members:
NOES: Council Members:
ABSTAIN: Council Members:
ABSENT: Council Members:
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18 APPROVED:
___________________________
Mayor
ATTEST:
STEPHANIE R. DIETZ, CITY CLERK
BY:_____________________________
Assistant/Deputy City Clerk
(SEAL)
APPROVED AS TO FORM:
________________________________
City Attorney Date