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HomeMy WebLinkAbout17 ABAND SHOPNG CARTS 04-07-97NO. 17 4-7-97 DATE: APRIL 7, 1997 Inter-Com TO: WILLIkM A. HOSTON, CITY MANAGER FROM' COM/vfUNITY DEVELOPMENT DEPARTMENT SUBJECT: ABANDONED SHOPPING CART ALTERNATIVES RECOMMENDATION That the City Council select an alternative, or combination of alternatives, to address the issue of abandoned shopping carts and direct staff to develop an implementation strategy or ordinance. FISCAL IMPACT A detailed discussion of fiscal impacts is provided under the "Alternatives" section. The information provided below is a summary of fiscal impacts associated with each Alternative: Alternative 1: Alternative 2:~ Alternative 2 (a) : Alternative 3: Estimated $300 - $600 in monthly staff costs Estimated staff cost per cart retrieval and storage, $110.80 plus daily storage costs. Estimated contract service for cart retrieval $7,000 per month. Same costs as Alternative 2 plus $635 for Zoning Administrator action for enforcement per retailer. There are unknown potential litigation costs associated with this alternative. Same costs as Alternative 2. DISCUSSION. This report provides a brief history on the issue of abandoned shopping carts within Tustin; discusses how existing and proposed State legislation affects the City's ability to regulate abandoned City Council Report Abandoned Shopping Cart Alternatives April 7, 1997 Page 2 shopping carts; and, outlines abatement alternatives for the Council's consideration. BACKGROUND History of the Shopping Cart Issue and the Tustin pride Committee's Activities Since 1993, eliminating abandoned shopping carts on public and private property throughout the City has been a concern and focus of the Tustin Pride Committee. In the last four years, staff and Committee members have initiated significant outreach efforts to encourage local retailers, shopping cart retrieval services, and the California Grocer's Association to reduce cart theft and retrieve stray carts in a timely manner. Despite these efforts, abandoned carts remain an issue and Tustin Pride has recommended that the City adopt an ordinance to allow the City or the City's contractor to collect abandoned carts. However, with the passage of AB 317, which became effective on January 1, 1997, the City's ability to collect carts was constrained (a detailed discussion is provided under item #2). Below is a brief outline of Tustin Pride's outreach efforts: In 1993, the continual presence of abandoned carts on public and private property was recognized by the Tustin Pride Committee as an issue that should be addressed. Tustin Pride members and staff began working with the California Grocery Association (CGA), the California Shopping Cart Retrieval Corporation, and local retailers to reduce cart theft and eliminate stray carts. The response from the retrieval services and retailers was positive although carts continued to be left abandoned on city streets. During 1994, the Committee continued to monitor the level of abandoned carts and encourage voluntary cooperation in preventing cart theft and retrieving carts. Between August and October 1995, Public Works staff conducted a three month investigation to assess the magnitude of the abandoned cart problem. During one week in August 1995, one- hundred and forty (140) carts were retrieved and stored by Public Works personnel. Although store .representatives and retrieval services were claiming carts routinely, 170 carts were still stored at the City yard at the end of October 1995. City Council Report Abandoned Shopping Cart Alternatives April 7, 1997 Page 3 In November 1995, Tustin Pride initiated a proactive, voluntary "Action Plan" to reduce cart theft. Ail Tustin retailers were asked to implement a number of voluntary measures, however, only two store managers participated. In April 1996, Tustin Pride recommended that staff draft a shopping cart retrieval ordinance for adoption by the City Council since voluntary efforts to curtail the problem of abandoned shopping carts had not been effective. The Community Development Department began drafting a preliminary ordinance based on input from the City Attorney, Police, and Public Works Departments. In brief, the draft ordinance was designed to treat instances of stray carts as public nuisances and allow the City to collect stray carts in accordance with State law. During the development of the ordinance, staff surveyed affected retailers in Tustin for information about their cart retrieval procedures. Of twenty-one (21) retailers contacted, four responded. The responses revealed stores do not retrieve carts on a daily basis and that allowing customers to use carts to carry groceries to their homes is viewed as good customer service. In November 1996, retailers were given the opportunity to comment on the draft ordinance. Staff received one comment letter from the California Grocer's Association challenging, primarily, the legality of the public nuisance provisions of the ordinance (Attachment #1, CGA letter). Existing and Proposed State Legislation On January 1, 1997~ the "shopping cart retrieval bill" (AB 317 or Section 22435 of the Business and Professions Code) became effective. This bill preempts, local control and prescribes the manner in which cities may collect abandoned carts. In summary, AB 317 requires the. following: · Cities must provide notice to retailers that their carts were found abandoned; · Cities must wait three business days after providing notice to the retailers before removing or collecting abandoned carts; · Cities must store collected carts for a minimum of 30 days; and, City Council Report Abandoned Shopping Cart Alternatives April 7, 1997 Page 4 Cities may charge retailers the actual cost of abating abandoned carts. Cities objected to the preemption-emption of local control and, more specifically, to the three day waiting period prior to cart removal. A three day waiting period does not encourage prompt removal by a retailer nor does it help to reduce the perception of blight within a community. In response to these concerns, AB 1427 was introduced in the Assembly on February 28, 1997, and has been sent to the Assembly Local Government Committee. AB 1427 would amend Section 22435 of the Business and Professions Code'to give cities the choice between two shopping cart collection methods. The first method was added by AB 317 last year and will not be modified by the proposed legislation. The second method would allow cities to retrieve/store abandoned carts immediately. Notice to the property owner would be required within 24 hours, and property owners would have three business days to collect the carts. In contrast to existing law, cities would be able to collect stray carts immediately, but they would not be able to recoup any abatement/storage costs incurred during the first three (3) days. ALTERNATIVES Given the issues described above, the following four alternatives to abate abandoned shopping carts have been developed for the City Council's consideration: Alternative 1: Continue Voluntary Efforts to Achieve Compliance Staff would continue community and retailer outreach/education to encourage voluntary compliance as needed. Fiscal Impact: The cost for outreach activities would vary depending upon the level of effort and staff time that would be required. For a minimum level of effort, approximately 8- 16 hours of staff time at a cost of between $300 - $600 would be required each month to target problematic areas. City Council Report Abandoned Shopping Cart Alternatives April 7, 1997 Page 5 Alternative 2: Enforce Existing State Law Staff would enforce State law by locating, tagging, and retrieving carts if they are not removed by their owners within three (3) business days. Enforcement could be conducted throughout the entire City or focused on areas that appear to have higher concentrations of stray carts. Staff could perform this function or contract with a private retrieval service. If a retailer removes the cart within three days, the City would not be able to recoup any costs associated with tagging, tracking, or providing notice to the cart owner'- an amount that equals approximately $78.35 per cart. As such, the total cost of this alternative will vary depending upon how aggressively it is implemented by the City. and whether retailers remove their carts within 3 business days. For example, during the one week period in August 1995 when Field Services collected 140 carts throughout the City the cost would have been $4,550 based on the estimated costs in Attachment 2. . As an option, the City could contract with a retrieval service to tag, monitor, retrieve, and store carts on a daily basis. Staff has contacted other cities who use contract services who have estimated the cost to be $7,000 per month. Funding for contract service for cart retrieval has not been included in the City budget. However, if this service is funded by the General Fund there would be some cost recovery dependent upon how many.carts the contractor actually abated and was able to charge t© the cart owners. Fiscal Impact: State law allows the City to charge the actual cost of retrieving carts that have not been removed within three (3) business days to the cart owner. Staff estimates costs to 'retrieve abandoned carts at $110.80 per cart plus daily storage costs as shown in Attachment 2. Contract services for cart retrieval is estimated at $7,000 per month, regardless of the number of carts actually retrieved. City Council Report Abandoned Shopping Cart Alternatives April 7, 1997 Page 6 Alternative 2 (A). Adopt Ordinance Provisions with' Public Nuisance In addition to enforcing State law, staff would present an ordinance for City Council adoption that would set forth public nuisance provisions. The public nuisance provisions would allow the Zoning Administrator to impose conditions on retailers that are found to be causing public nuisance conditions. Conditions may include requiring retailers to implement strategies to prevent cart loss. Under this option, however, the City would still be unable to abate carts within the three day waiting period established by State law. In addition, the California Grocers Association has challenged the legality of this option (Attachment #1, CGA letter). Fiscal Impact: As with Alternative 2, costs associated with abating carts would be charged to the cart owner, unless the carts are removed within the three business day waiting period. In addition, there would be costs related to staff's efforts in determining that a nuisance condition exits and convening a public hearing with the Zoning Administrator. Staff estimates that a minimum of twenty (20) staff hours of enforcement and processing for one Zoning Administrator hearing at a cost of approximately $635. A portion of these costs could be recovered by an administrative fine charged to the cart owner. Also, there are unknown legal costs associated'with this Alternative. Alternative 3: Support Proposed Legislation The City would send a letter of 'support for AB 1427 which would give the City the option of collecting carts immediately, at the City's cost, instead of waiting three business days. This may be a preferable abatement strategy in certain instances or areas of the City. Although the letter would express support for the added flexibility, it would also state that the City's preference would be to recoup the cost of immediately abating.anY carts. Fiscal Impact: Costs associated with this alternative would be similar to those estimated for Alternative 2 except in those cases in which the City deemed it necessary to retrieve carts within the three day waiting period. In those cases, the City would assume the $110.80 cost per cart plus $15.00 daily storage cost described under Alternative 2. City Council Report Abandoned Shopping Cart Alternatives April 7, 1997 Page 7 Staff is requesting City Council direction on which alternative, or combination of alternatives, the Council prefers. If directed, staff will return with an implementation strategy or ordinance based on the Council's preference. Tustin Pride Conunittee Preference The Tustin Pride Committee supports Alternative 2(a), a proactive enforcement approach. The Committee has transmitted their position of AB 1427 (Alternative 3) to the Assembly Local Government Committee. While they support the flexibility of immediate cart retrieval, they have requested an amendment to AB 1427 to permit cities to be reimbursed for all cart retrievals regardless of the three day waiting period. Karen Peterson Associate Planner ~zabeth A. Binsack Community Development Director Attachments: 1. California Grocer's Association Letter 2. Table 1: Estimated Costs of Abandoned Cart Abatement KS: kbm\shopcart, kp iq'lcr I I .,rkm Board of Dircctors Officers ¢.ha~rn~.lm ,,: thc J, ~'y ~', l.cc Mucllcr Trca. u r c r ~'] R. 'Bill' MaC.~uncv Kc,th Tr,n~m ~ard Mem~ 1)~ ,n Ah'ar.M, ~ b ~U .'M~czl ~mck Evan~ k:~ron Fonhncl ~om Honer ;obJcwcll lllltt ~lH~trtt ~11 Kaplan 'tfltt~'.llar~','t~ lhlpiht{ ~rry Kranich ck London ti ii1 J.i ii cji '~t'.L' ('~'~ · ~, :d .Mc~rcn :,l ~:~i.~./iL,,~-~.; l,,( 'LiiiI.iIHi 1~. ~, L-. l.lt'J J'j-. ~( IJl.lll, i t ,.,1. ,, A'~. C'.alifo ' iia ( .,-, '. December 16, 1996 ~, '. Ms. Elizabeth A. Binsack c... - ; .. '";' Community Development Director '"? ..... ' City of Tust/n '"/,c,... 300 Centennial Way -::.v. · .:.:.;. Tustin, CA 92780 Nacr,, mc,ilo ()il'icc: '"' ' ' · x~l, , I ', ~. , Soulhcrn California Office: ',:111,. {'11 lax (.tlU) t i~.-,/;I Dear Ms. Binsack: Thank you for providing us with a copy of the proposed shopping cart ordinance prepared by your stall After reviewing the proposal, we offer the following comments and concerns: Secti.___~0n 1 Findings~ A. Aesthetic evaluations of shopping carts are not appropriate as they have no legal bearing on the ordnance. Free access issues are only relevant if they impede emergency services (AB 317- California Business and Profession Code Section 22435.7 (c). B. Shopping carts in and of themselves are not injurious to the public health, safety and welfare. C. Shopping cart retrieval is not a voluntary action by cart owners, but a necessary and costly one. Value judgements as to the effectiveness of private cart retr/eval businesses is inappropriate in ordinance language. D. The City is only author/zed to impound stray shopping carts if certain con~tioas er;~t (AB 317- Ca!ffo,,~a Business and Profession..Code S-c..on 22435.1 - 22435.7) '~ *; E. The City cannot include shopping carts in their declaration of public nuisances because, effective January 1, 1997 the California Business and Professions Code Section 22345.7 (a) states "The Legislature hereby finds that the retrieval by local government agencies of shopping carts specified in this section is in need of uniform statewide regulation and constitutes a matter of statewide concern that shall be governed solely by this section." This dearly and directly states that no other local or state law may govern shopping carts.- F. Yes, but not in regard to shopping carts. In fact, cities are preempted from applying such laws t° shopping carts. ATTACHMENT Section 2. 5900 As stated previously, the California Business and Profession Code Section 22345.7 (s) declares that "The Legislature hereby finds that the retrieval by local government agencies of shopping carts specified in this section is in need of uniform statewide regulation and constitutes a matter of statewide concern that shall be governed solely by this section. As such the City has the authority to impound shopping carts as long as they do so in compliance w/th AB 317. It is not necessary to pass a local perta/ning to shopping carts. The City may not supplement state law and most certainly cannot use the Zoning Administrator to impose conditions on the operation of' the establishment. 5900 (a) (1) We call your attention to the California Business and Profession Code Section 22345.7 (f)"A city, county or city and county may fine the owner of a shopping cart in an amount not to exceed fifty dollars for each occurrence in excess of three during a specified six-month period for failure to retrieve shopping carts in accordance with this section. An occurrence includes all shopping carts impounded in accordance with this section in a one-day period." The sentence irt the proposed ordinance "Additionally, if the City, or its authorized representative, impounds one or more of your carts on more than three separate days during a six-month period, you will be assessed an administrative fine of $50.00 for each subsequent occu.rrence." should be modified to accurately reflect California law. Section 5906 (b) of the proposed ordinance accurately reflects state law on this same sUbject. Perhaps language in the section could supersede language in 5900 (a) (1). '5900 (d) The California Business and Professions code clearly states in section 22345.7 (c) "Instances where the location' of a shopping cart-.v,411 impede emergency services, a city, county 'or city and county is authorized to immediately retrieve the shopping cart from public or private property." · . The interpretation in your language does not accurately reflect the language in the state law and should be modified to be consistent. Language in the notice to be sent to cart owners that suggests that the city may impound any cart on property that may be used for emergency services is also inconsistent with state law. Furthermore, language in the notice to the cart owners regarding multiple occurrences should be modified to reflect state law (see discussion of 5900 (a) (1). Also, see section 5906 (b) which accurately reflects state law. It may make sense to be consistent throughout the ordinance. · 5908 As the Commun/ty Development Department is vested with authority to ~mplement and enforce this ordinance, they should not be in a position to review their own actions. We respectfully request that another non-vested. party be designated as the decision maker regarding appeals. 5910 Please see Business and Professions Code Section 22435.7 which gives the state law sole authority regarding shopping carts. This entire section is invalid and out of comp/./ance w/th state law. In conclusion please 'know that CGA continues to be comm/tted to seeking mutually benefic-/al solutions.'However, it rema/ns/mperative that any city law governing shopping carts be cons/stent and follow state law. Sincerely, CALIFO~M GROCERS ASSOCIATION BETH BEEMAN Vice Pres/dent, Local Government Table 1: Estimated Costs of Abandoned Cart Abatement Task Explanation Cos t 1. Locating and Tagging Cart Includes staff time (salary $40.85 and benefits) to locate and tag cart, and a standard 15% overhead rate. 2. Notifying Cart Owner Includes staff time (salary $ 5.00 and benefits) to generate notice and postage. 3. Tracking Cart Includes staff time (salary $32.50 and benefits) to locate tagged cart, truck rental, and a standard 15% overhead rate. Subtotal per Cart: If a retailer removes the $78.35 cart within three days, the City would not be able ~o charge any costs associated wi ~h Tasks 1, 2, or 3 above to the car~ owner. This represents a possible $78.35 cost to the City per cart. 4. Retrieving Cart Includes staff time (salary $32.50 and benefits) to locate tagged cart, truck rental, and a standard 15% overhead rate. Based on similar daily $15.00 5. Daily Storage impound fees for bicycles, motorcycles, etc. Total per Cart: $110.80 ATTACHMENT 2