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The Crime of Pushing a Shopping Cart
by Mike Rhodes (MikeRhodes [at] Comcast.net)
Tuesday Sep 19th, 2006 8:13 PM
Under a new ordinance passed in Fresno today, the man in the above photo, could be arrested, fined $1,000, and spend up to a year in jail. It does not matter that the police could not prove that he was not returning this abandoned shopping cart to a grocery store. The ordinance says that if you are in possession of a shopping cart, away from the business that owns it, you could be arrested, fined, and jailed. Photo by Chris Schneider
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The Crime of Pushing a Shopping Cart
By Mike Rhodes

The City of Fresno is in the process of adopting an ordinance that would make it a crime to be in the possession of a shopping cart. The proposed ordinance (see below) would criminalize the homeless who use shopping carts as a means of transporting their possessions. As one person at today’s hearing said, the ordinance would make it illegal for millionaires to use shopping carts too, but we all know who this law is targeting. The ordinance, if passed, will subject any person with a shopping cart that has been removed from a business, to a $1,000 fine and up to one year in jail. The ordinance is part of an ongoing attack against this communities homeless population. These attacks have included the bulldozing of homeless encampments, destruction of homeless persons personal possessions, an ordinance against aggressive panhandling, and the building of fences to prevent the homeless from accessing vacant state owned land. For background information about these attacks see:

http://www.indybay.org/newsitems/2006/08/26/18301032.php
http://www.indybay.org/newsitems/2006/08/05/18294991.php
http://www.indybay.org/newsitems/2006/06/22/18281976.php

Several speakers at today’s City Council meeting spoke out against the proposed shopping cart ordinance and linked it to the city’s attack on the homeless. Harley Turner said “the wheels begin to fall off a city’s government when elected officials and city managers begin to harass and attack the poor, hungry and homeless in our city. The City of Oakland attempted to make the homeless disappear. That didn’t happen and a precedent was set in court to give the homeless assistance, not taking their life long belongings and kicking them in the teeth.”

Barbara Hunt, a regular at Fresno City Council meetings asked what happened with all of the money coming into the city to address the homeless issue. Ms. Hunt said “we have to protect these homeless, we have to have a place for them to stay, we’ve got to give them food, we got to get them off the streets.” Hunt concluded with saying that the city must address the issue of affordable housing and must provide services for the poor.

Walt Parry, director of Metro Ministry, said “the shopping cart ordinance is part of a much larger issue.” Parry said that some of the homeless own their own carts and that the ordinance does not address the private ownership of shopping carts. The ordinance assumes that all of the shopping carts in town are owned by businesses. Parry said “we do not have the emergency shelters that we need in this community...and we need to work on that so long and short term affordable housing is available. There are also civil liberties issues as to whether a specific vehicle, a shopping cart, can be determined to be illegal and again, some people do own their own shopping carts and there have been some churches that have provided shopping carts to the homeless.” Parry said Metro Ministry would like to work with the city to look at the situation of the homeless and work out short and long term solutions.

Chris Schneider, director of Central California Legal Services, also focused on the big picture that the shopping cart ordinance is a part of. “Last year the Brookings Institute published Katrina’s Window. The study brought to light that Fresno has the highest rate of concentrated poverty of all major U.S. metropolitan areas,” Schneider said. See: http://www.brookings.edu/metro/pubs/20051012_concentratedpoverty.htm . “In second place was pre-Katrina New Orleans.” Schneider said that when the report was released city officials promised to address the issue but that after a year he has seen no results. Challenged at this point in his presentation by Council president Jerry Duncan to address the issue of the shopping cart ordinance, Schneider replied, “this is about poverty.” Schneider argued that the city should be developing a plan to address the homeless issue. He said “the recent actions of the city through the police department, the sanitation department, and now the city council are directed at eradicating the homeless rather than eradicating the causes of homelessness.”

Several city council members were upset by the public comments and argued that they were not against the homeless. Council member Tom Boyajian said “there are several of us on this board that believe strongly that a lot of the federal money should be diverted to the poor and the homeless.” Boyajian said Community Development Block Grant (CDBG) money should be used for affordable housing and jobs for the poor. “Those monies go to the police department and code enforcement and I’m sick and tired of having people come up here and saying that some of us don’t care. I care a lot, we advocate until we are blue in the face.” Boyajian challenged the homeless advocates at the meeting to show up when the budget is discussed and lobby to have CDBG funds used to help the poor and homeless.

Cynthia Sterling, who represents the district where many homeless people live, said she did not see the ordinance as being directed at the homeless. However, in response to the presentations made before the council by the homeless advocates, she moved to pull the item from the consent calendar. Sterling said she was concerned about the possibility that some of the shopping carts might be the property of homeless people and that the ordinance would violate their rights.

After the hearing was continued, Sterling said she had checked with the city attorney and was convinced that the ordinance would not be used to target the homeless. Deputy Chief Robert Nevarez, from the Fresno Police Department, assured the council that the ordinance was intended to reduce blight and would not be directed against the homeless. James Sanchez, the City Attorney agreed, saying shopping carts that were not identified as belonging to a business would not be taken from the homeless. Sterling said that “this ordinance repeats State law” and that the police would not take a cart that was not identifiable.

Following these assurances that the ordinance would not target the homeless, council member Tom Boyajian said “lets state in the ordinance that it is not targeting the homeless.” Council member Brian Calhoun, who helped write the ordinance, objected and said that while the point is not to target the homeless, he was against including stating that in the ordinance. Council member Larry Westerlund said that he did not think the homeless were in possession of any of their own shopping carts and that the ordinance would apply equally to both millionaires and the homeless. Westerlund said he was offended that people would say that this was a piece meal attack on the homeless. Earlier, several speakers had complained about the city’s lack of a plan to address homeless issues and were concerned that this shopping cart ordinance, a panhandling ordinance, and razor wire topped fences were an ad hock approach to the problem. Westerlund was offended at the suggestion.

Sterling moved to approve the ordinance, without changing the wording to say it would not target the homeless, and it passed unanimously. After 30 days, the ordinance will become law.


///////////////////////////////////////////////////////////////////////////////

City of Fresno

REPORT TO THE CITY COUNCIL
AGENDA ITEM NO. 2C

August 29, 2006

FROM: MAYOR ALAN AUTRY CITY MANAGER
COUNCILMEMBER BRIAN CALHOUN
COUNCILMEMBER HENRY T. PEREA


SUBJECT BILL — (For introduction) - Adding Article 14 to Chapter 9 of the Fresno Municipal Code relating to Abandoned Shopping Carts


PURPOSE

The general purpose of the Proposed Abandoned Shopping Cart Ordinance is to prevent the removal of the shopping carts from an owner's premises, to make removal of the cart a violation of the Fresno Municipal Code, and to facilitate the retrieval of abandoned shopping carts in a manner consistent with State law.

KEY RESULT AREA

Public Safety
One Fresno

RECOMMENDATIONS

We recommend that the City Council adopt the Abandoned Shopping Cart ordinance to prevent and eliminate the potential hazards to the public's health and safety associated with abandoned shopping carts, including interference with pedestrian and vehicular traffic, accumulation of carts which tend to create conditions that reduce property values and promote blight and deterioration of neighborhoods and commercial centers, which individually and collectively constitute public nuisances.


EXECUTIVE SUMMARY

The City of Fresno seeks, by the adoption of this ordinance, to acquire the means by which to address the negative impact abandoned shopping carts have on the City and the public as a whole. Through careful research, we have learned that other major cities in California have adopted similar ordinances to address the same concerns described above. A review of these similar ordinances reveals that the concerns about the detrimental impact abandoned shopping carts can have on the public's health and safety is consistent among the Cities which have adopted a similar ordinance.

Cities such as San Jose, Merced, Concord, and Modesto have similar ordinances. Each of these cities requires a cart retrieval plan. The retrieval plan generally requires a notice to customers that it is illegal to take arts from the premises (signage on carts and on the store premises), physical measures to prevent the carts from being taken, mandatory cart retrieval, and an annual
evaluation report on the effectiveness of the plan. Each of the cities whose ordinances were reviewed also require an outreach effort to educate the community on the ordinance as well as on state law which makes the removal and possession of shopping carts away from the business which owns them illegal.

In preparing this ordinance, staff worked closely with the California Grocers Association and California Retailer's Association, who have indicated that the ordinance is fair and acceptable and consistent with other cities' ordinances.

KEY OBJECTIVE RESULT

Public safety will be significantly improved by the adoption of the Abandoned Shopping Cart Ordinance because the ordinance creates an incentive for shopping cart owners to become diligent in policing their property and in recovering their carts in a timely fashion. This, along with active enforcement of the ordinance, will have a significant positive effect on the City by making the City safer, and by reducing blight.

FISCAL IMPACT

The fiscal impact of adopting a shopping cart ordinance will be minimal. If implemented, the ordinance will become a routine area of enforcement by the Code Enforcement Division. The ordinance includes a cost recovery plan that allows the City to collect its costs for retrieving carts. The fees associated with the review of submitted retrieval plans will be established under the master fee schedule to recover those costs entirely. As for the overall enforcement effort, these costs will be recovered through the process of issuing a fine for failure to comply with the retrieval plan requirement under the ordinance. Citations will provide an effective measure of cost recovery as well. The amount of fines relative to Shopping Cart ordinance violations will
be established under the Master Fee schedule.

An Amendment to the Master Fee Schedule will be submitted to Council at the time this Ordinance is adopted, should Council support it's introduction.

Attachment:

Ordinance
///////////////////////////////////////////////////////

ORDINANCE OF THE COUNCIL OF THE CITY OF FRESNO

BILL NO._____________

ORDINANCE NO. _______

AN ORDINANCE OF THE CITY OF FRESNO, CALIFORNIA,
ADDING ARTICLE 14 TO CHAPTER 9 OF THE FRESNO
MUNICIPAL CODE, RELATING TO ABANDONED SHOPPING
CARTS.


THE COUNCIL OF THE CITY OF FRESNO DOES ORDAIN AS FOLLOWS:

SECTION 1. Article 14 is added to Chapter 9 of the Fresno Municipal Code to
read:

ARTICLE 14

ABANDONED SHOPPING CARTS
Section 9-1401. Title.
9-1 402. Findings and Purpose.
9-1403. Definitions.
9-1404. Unlawful Possession and Abandonment of Carts.
9-1405. Cart Owner Requirements.
9-1406. City Retrieval of Carts.
9-1 407. Impoundment, Retrieval, Payment of Costs.
9-1 408. Immediate Retrieval by City of Identified Carts.
9-1 409. Severability Clause.
9-1 41 0. Cumulative Remedy.


SECTION 9-1401. TITLE. This article shall be known as the "Abandoned Shopping Cart Ordinance."

SECTION 9-1402. FINDINGS AND PURPOSE. The Council of the City of Fresno finds that abandoned shopping carts in the city create potential hazard to the health and safety of the public, and interfere with pedestrian and vehicular traffic and create a public nuisance. The accumulation of abandoned carts, sometimes wrecked and/or dismantled on public and private property tends to create conditions that reduce property values, and promote blight and deterioration and result in a public nuisance. This article is intended to insure 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 cart a violation of this Code, and to facilitate the retrieval of abandoned shopping carts in a manner consistent with State law.

SECTION 9-1403. DEFINITIONS. The definitions set forth in this section shall govern the application and interpretation of this article.

(a) "Abandoned Cart" shall mean any cart that has been removed, without the written consent of the owner, from the owner's business premises or parking area of the retail establishment of which the cart owner's business premises are located and is located on either public or private property. The owner's business premises may include a multi-store shopping center with shared areas of parking and public access.

(b) "Abandoned Cart Prevention Plan" shall mean a document submitted by the owner pursuant to this article that provides a plan for how the owner will prevent carts from becoming abandoned and, if accepted by the Director as adequate, an implied promise by the owner to comply with the plan.

(c) "Cart" or "Shopping Cart" means a basket which is mounted on wheels or a similar device generally used in a retail or commercial establishment by a customer for the purpose of transporting goods of any kind, including a basket used in a Laundromat or similar business.

(d) "Director" means the Director of the Planning and Development Department or his/her designees or such other person designated by the City Manager to administer this article.

(e) "Owner" shall mean a person or business owning or using shopping carts in connection with its business.

SECTION 9-1404. UNLAWFUL POSSESSION AND ABANDONMENT OF

CARTS. Any person who violates any prohibition of this section is guilty of a misdemeanor as provided in California Business and Professions Code Section 22435.2. This section shall not apply to carts removed as authorized by the owner, including for the purposes of maintenance, repair or disposal.

(a) It shall be unlawful for any person to remove a shopping cart or laundry cart from the premises or parking area of a retail establishment with the intent to temporarily or permanently deprive the owner or retailer of possession of the cart.

///

(b) It shall be unlawful for any person to be in possession of any shopping cart or laundry cart that has been removed from the premises or the parking area of a retail establishment, with the intent to temporarily or permanently deprive the owner or retailer of possession of the cart.

(c) It shall be unlawful for any person to be in possession of any shopping cart or laundry cart with serial numbers removed, obliterated, or altered, with the intent to temporarily or permanently deprive the owner or retailer of possession of the cart.

(d) It shall be unlawful for any person to leave or abandon a shopping cart or laundry cart at a location other than the premises or parking area of the retail establishment with the intent to temporarily or permanently deprive the owner or retailer of possession of the cart.

(e) It shall be unlawful for any person to alter, convert, or tamper with a shopping cart or laundry cart, or to remove any part or portion thereof or to remove, obliterate or alter serial numbers on a cart, with the intent to temporarily or permanently deprive the owner or retailer of possession of the cart.

(f) It shall be unlawful to be in possession of any shopping cart or laundry cart while that cart is not located on the premises or parking lot of a retail establishment, with the intent to temporarily or permanently deprive the owner or retailer of possession of the cart.

SECTION 9-1405. CART OWNER REQUIREMENTS. All owners of carts shall comply with
the requirements of this section.

(a) Cart Identification Required. Every owner of shopping carts, as defined by this article, shall mark or cause the cart to be marked and identified conspicuously with: the name, address, and telephone number of the owner; and a notice that provides that the removal of the cart from the premises of the owner is a violation of State law. Every owner of more than twenty-five (25)
shopping carts shall also mark or cause the cart to be conspicuously marked to provide a name and toll free telephone number of a party that is responsible for retrieval of the cart.

(b) Daily Cart Retrieval. All owners, regardless of the number of carts owned, shall ensure that all carts are secured from public access after close of business hours.

(c) Abandoned Cart Prevention Plan. Every owner who provides more than twenty-five (25) carts to their customers shall develop, implement and comply with the terms and conditions of an Abandoned Cart Prevention Plan to prevent the unauthorized removal by any person of any carts from the owner's premises and, if removed, to retrieve the cart within forty-eight (48) hours of the removal or notice of the removal. The Abandoned Cart Prevention Plan shall be submitted on a renewable annual basis and shall include the following elements:

(1) 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.

(2) Inventory of Carts. A complete list of all carts maintained on the owner's premises.

(3) 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, direct mail, announcements using intercom systems at the premises, web site or other means demonstrated to be effective to the reasonable satisfaction of the director.

(4) Signs. Multi-lingual signs shall be placed prominently and conspicuously at all entrances and exits to the cart owner's premises, including the parking areas, that provide a notice of substantially the following information:
"REMOVAL OF SHOPPING CARTS FROM THESE PREMISES IS PROHIBITED BY STATE LAW (B&P § 22435.2) AND WILL SUBJECT THE VIOLATOR TO A MAXIMUM FINE OF $1000.00 AND/OR ONE YEAR IN JAIL"

(5) Physical 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.

(6) Employee Training. A description of an ongoing employee training program that shall be implemented and designed to educate new and existing employees on the Abandoned Cart Prevention Plan and conditions contained therein no less frequently than annually.

(7) Mandatory Cart Retrieval. A plan for retrieval of abandoned carts, including the requirements of sub-section (b), and plans for recovery of all abandoned carts within forty-eight (48) hours. This plan must include either a plan for the owner or the owner's employees to retrieve the carts or for the owner to have entered into a contract for cart retrieval services that is approved by the city. The plan for retrieval shall include providing to the city, the name and toll free phone number of the party who will be responsible for the retrieval of the carts which
the city may publish. Whoever is identified by the owner as the party responsible for retrieval of the carts shall be made available for cart retrieval six (6) days a week, eight (8) hours a day or during the owner's business hours, whichever is shorter.

(8) Multiple Businesses. Two or more businesses may collaborate and submit a single plan.

(d) Administration of the Abandoned Cart Prevention Plan. The ~bandoned Cart Prevention Plan shall be administered under the provisions )f this subsection.

(1) At the time the owner submits the Abandoned Cart Prevention Plan, the owner shall pay a fee for the review and administration of the plan as set forth in the Master Fee Schedule.

(2) The Director must approve or deny the Abandoned Cart Prevention Plan within forty-five (45) days of its submission. The plan may be denied on the grounds that it fails to include the elements required under this section or the plan is inadequate or insufficient to fulfill those required elements. If the plan is denied, the Director shall do so in writing and provide an
explanation for the basis of his or her decision. The owner has twenty (20) days, subject to an extension by the Director, to submit a new plan or appeal the Director's decision to the Administrative Hearing Officer pursuant to the Administrative Hearing Ordinance in Article 5 of Chapter 1.

(3) Once a plan is approved, the owner has thirty (30) days to begin implementation. If, at any time after the plan has been approved, the Director determines that the plan is inadequate to fulfill the required elements of this section, the Director may, in writing, require the owner to modify or submit a new plan. Such a modification may include, but is not limited to, requiring the owner to identify a new person to retrieve abandoned carts or changing the physical loss prevention measure. If the Director requires the owner to modify or submit a new plan, the owner shall be given a reasonable time to comply and shall be provided an appeal to the Administrative Hearing Officer pursuant to Chapter 1, Article 5. A new plan or modified plan is subject to a fee for its review as provided in the Master Fee Schedule.

(e) Violations. Violation of any provision of this section, including, but not limited to, failure to submit a plan or comply with a plan submitted, or failure to conduct the required daily sweep, is a violation of this article and the city may pursue any available remedy provided under the Code for a code violation, including the issuance of an administrative citation under Section 1-406.

SECTION 9-1406. CITY RETRIEVAL OF CARTS. The city may retrieve an abandoned
cart from public property (or private property with the consent of the property owner) in the following circumstances:

(a) Where the location of the shopping cart will impede emergency services.

(b) When the abandoned cart does not identify the owner of the cart as required in Section 9-1405.

(c) When the city has contacted either the owner, the owner's agent, or the entity contracted with by the owner under the Abandoned Cart Prevention Plan and actually notified them of the abandoned cart and the cart has not been retrieved within seventy-two (72) hours.

SECTION 9-1407. IMPOUNDMENT, RETRIEVAL, PAYMENT OF COSTS.

(a) If the city retrieves a cart, the city shall hold the cart at a location that is reasonably convenient to the owner of the shopping cart and open for at least six (6) hours on business days.

(b) Where the city has not already provided notice to the owner that an abandoned cart needs to be retrieved, the city shall notify the owner that the city has impounded their cart and provide information as to the carts location, how the cart may be retrieved, that failure to retrieve the cart may result in the cart's sale or destruction, that the owner will be responsible for the city's costs, and that the city may fine owners after the city has picked up the owner's carts more than three times. In the case of a cart that does not provide adequate identification or markings to determine its owner the city shall only be required to notify the cart owner if the city obtains actual knowledge of the owner's identity.

(C) If a cart is not retrieved by its owner within thirty (30) days after the owner has received notice of the cart being impounded, or if the cart's owner cannot be determined, within thirty (30) days after the cart has been impounded, the cart may be sold or destroyed by the city or its agents and/or contractors.

(d) The Director may issue an administrative citation of fifty dollars ($50), under the procedures in Section 1-406, against any cart owner for any day, after the first three days, during any specified six-month period, in which the city picks up a cart under the circumstances found in Section 9-1406.

(e) No cart shalt be released to its owner under the procedures in this section unless the owner pays a fee for the city's actual costs to retrieve and store the cart. The city's costs to retrieve and store may be provided in the Master Fee Schedule.

SECTION 9-1408. IMMEDIATE RETRIEVAL BY CITY OF IDENTIFIED CARTS.

Notwithstanding any other section of this article, the city may immediately retrieve a cart that does have the appropriate markings and identification under section 9-1405 provided the city actually notifies the owner within twenty-four (24) hours that the city has impounded the cart and provides information to the owner where and how the cart may be retrieved. The city may not collect a fee or impose a fine, nor count a retrieval for purposes of a fine under Section 9-1407(d), if the cart retrieved by the city under this section, is collected by the owner within three (3) business days of the actual notice to the owner by the city. If the cart is not retrieved within three (3) business days by its owner, the city may collect its actual costs and impose a fine and dispose of the cart consistent with the provisions of Section 9-1407.

SECTION 9-1409. SEVERABILITY CLAUSE. If any provision, paragraph, word or section of this article is invalidated by any court of competent jurisdiction, the remaining provisions, paragraphs, words, and sections shall not be affected and shall continue in full force and effect.

SECTION 9-1410. CUMULATIVE REMEDY. Nothing herein is intended to limit the city from pursuing any other remedy available at law or in equity against any person or entity maintaining, committing, or causing a public nuisance or any other violation of the Code or State or Federal law.

SECTION 2. This ordinance shall become effective and in full force and effect at 12:01 a.m. on the thirty-first day after its final passage.
LATEST COMMENTS ABOUT THIS ARTICLE
Listed below are the latest comments about this post.
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TITLE AUTHOR DATE
The American Holocaust. Thousands of Homeless Disappear!KevinTuesday Jan 4th, 2011 7:37 AM
STILL FOR MY DADKATIETuesday Sep 28th, 2010 9:25 AM
what if it was ur familykatieTuesday Sep 28th, 2010 9:12 AM
Re; The Questioner commentA Homeless advocateTuesday Sep 26th, 2006 11:39 PM
It doesn't matter whether you are homeless or you own a mansion!Larry WesterlundMonday Sep 25th, 2006 3:04 PM
An answerThe QuestionerMonday Sep 25th, 2006 8:09 AM
The law, in its majestic equality...Anatole FranceWednesday Sep 20th, 2006 4:47 PM

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