HomeMy WebLinkAbout2021-10-12; City Council; ; Adoption of Ordinance No. CS-405–Quality of Life Concerns Regarding Homelessness and Public SpacesMeeting Date: Oct. 12, 2021
To: Mayor and City Council
From: Scott Chadwick, City Manager
Staff Contact: Faviola Medina, City Clerk Services Manager
Faviola.medina@carlsbadca.gov, 760-434-5989
Subject: Adoption of Ordinance No. CS-405 – Quality of Life Concerns Regarding
Homelessness and Public Spaces
Districts: All
Recommended Action
Adopt Ordinance No. CS-405 amending Title 8 of the Carlsbad Municipal Code by amending
Chapter 8.36 and Sections 8.28.050 and 8.44.040 and by adding Chapters 8.34 and 8.38 to
address quality of life concerns regarding homelessness and public spaces.
Executive Summary/Discussion
Ordinance No. CS-405 was introduced and first read at the City Council meeting held Sept. 28,
2021. On a motion by Mayor Pro Tem Blackburn, seconded by Council Member Bhat-Patel, the
City Council voted 5-0 to introduce Ordinance No. CS-405. The second reading allows the City
Council to adopt the ordinance, which will become effective 30 days after the adoption.
Fiscal Analysis
The proposed ordinance should not have an appreciable fiscal impact. It is difficult to predict
whether enforcement of the new provisions not previously in our municipal code— unlawful
camping on private property, storage of private property in public places, obstruction, trespass
and open containers of alcohol in Pine Avenue Community Park and Pine Park — will impact
overall police calls for service. Enforcement costs for unlawful public camping offenses will
remain substantially the same, because the ordinance amendments essentially codify existing
Police Department policies.
Next Steps
The City Clerk will have the ordinance, or a summary of the ordinance, published in a
newspaper of general circulation within fifteen days following adoption of the ordinance.
Environmental Evaluation
In keeping with California Public Resources Code Section 21065, this action does not constitute
a “project” within the meaning of the California Environmental Quality Act in that it has no
potential to cause either a direct physical change in the environment, or a reasonably
foreseeable indirect physical change in the environment.
Oct. 12, 2021 Item #6 Page 1 of 14
Public Notification and Outreach
This item was noticed in keeping with the Ralph M. Brown Act and it was available for public
viewing and review at least 72 hours before the scheduled meeting date.
Exhibits
1. Ordinance No. CS-405
Oct. 12, 2021 Item #6 Page 2 of 14
ORDINANCE NO. CS-405
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, AMENDING TITLE 8 OF THE CARLSBAD MUNICIPAL CODE BY
AMENDING CHAPTER 8.36 AND SECTIONS 8.28.050 AND 8.44.040 AND BY
ADDING CHAPTERS 8.34 AND 8.38 TO ADDRESS QUALITY OF LIFE
CONCERNS
EXHIBIT 1
WHEREAS, the purpose of the foregoing proposed amended and new provisions is to address
increasing health, safety, and environmental concerns with unlawful encampments and storage of
persona I property, unauthorized fires on public property, obstruction of public property and trespass
on private property open to the patronage of the public, disorderly conduct, open containers and
consumption of alcohol in public, and solicitation; and
WHEREAS, the Ninth Circuit Court of Appeals held in Martin v. City of Boise that an ordinance
violates the cruel and unusual punishment clause of the Eighth Amendment if it imposes criminal
sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative
shelter is available to them; and
WHEREAS, the holding in Martin v. City of Boise is narrow in that it does not permit individuals
to sit, lie, or sleep on the streets at any time or at any place; nor does it prohibit cities from regulating
camping and storage of personal property. Rather, the court found that even if shelter is unavailable,
an ordinance may constitutionally prohibit sitting, lying, or sleeping outside at particular times or in
' particular locations, and an ordinance could bar the obstruction of public rights of way or the erection
of certain structures; and
WHEREAS, the city has an interest in balancing the needs of all city residents, businesses and
visitors for clean, healthy, and safe public areas; and
WHEREAS, the city also has an interest in protecting its economic viability and preventing blight
in publicly accessible areas, especially those near residential neighborhoods; and
WHEREAS, the proposed ordi na nee package would further the purpose of Title 8, of the
Carlsbad Municipal Code, which is designed to protect public peace, morals, and safety, while at the
same time fit within the limitations set forth in Martin v. City of Boise and other applicable federal and
state authorities; and
Oct. 12, 2021 Item #6 Page 3 of 14
WHEREAS, as to proposed Chapter 8.34 entitled "Solicitation," this chapter is further intended
to protect the compelling interest of public safety as against certain abusive conduct of persons
engaged in solicitation, by imposing reasonable time, manner, and place restrictions on solicitation
while respecting the constitutional rights of free speech for all citizens; and
WHEREAS, existing ordinances under Title 8 of the Carlsbad Municipal Code do not adequately
address the escalating health,. safety, and environmental concerns and increased calls for service
associated with unauthorized encampments, storage of personal property in public, unauthorized fires
on public property, obstruction and trespass of public and private property open to the patronage of
the public, disorderly conduct, possession and consumption of open alcohol containers in public, and
solicitation; and
WHEREAS, these amendments and additions to the Carlsbad Municipal Code are intended to
regulate unlawful, repeated, and compounding conduct that negatively impacts community members'
quality of life, health, and/or safety.
NOW, THEREFORE, the City Council of the City of Carlsbad, California, does ordain as follows:
Section 1.
Section 2.
follows:
The above recitations are true and correct.
That Chapter 8.36 of the Carlsbad Municipal Code is amended to read as
Chapter 8.36
UNLAWFUL CAMPING, FIRES ON PUBLIC PROPERTY, AND STORAGE OF PROPERTY
Sections:
8.36.010
8.36.020
8.36.030
8.36.040
8.36.050
8.36.060
Purpose.
Definitions.
Unlawful camping.
Fires and cooking on public property.
Storage of personal property in public places.
Severability.
Oct. 12, 2021 Item #6 Page 4 of 14
8.36.010 Purpose.
Public places within the city should be readily accessible to residents and the public at large. The use
of public places for camping can interfere with the rights of others to use these places for the purposes
for which they were intended. Camping in these places can also endanger the public health and the
environment when camping~related waste and human waste are disposed of improperly, particularly
in environmentally sensitive areas, such as native habitat, open spaces and watercourses. Human
presence in open spaces, other than on designated trails, can also increase the risk of wildfire danger
and possible injuries to and from threatened wildlife. Additionally, camping on private outdoor
property without permission of the owner or lessee interferes with the owner or lessee's property
rights and desire to utilize the private outdoor property for lawful and authorized purposes.
The purpose of this chapter is to maintain public places and private outdoor property within the city in
a clean and accessible condition and to protect the public health, safety, and environment by ensuring
that camping occurs only in those designated areas where appropriate provisions have been made for
handling camping-related waste, food preparation, and fires ..
8.36.020 Definitions.·
As used in this chapter:
"Beach" means those areas as defined in Carlsbad Municipal Code Section 11.32.020.
"~amp" means to use camping implements in an outdoor area or to erect or occupy a camp facility for
living accommodations purposes such as sleeping activities, preparations to sleep (including the
laying down of bedding for the purpose of sleeping), storing personal property, or making a camp
fire. These activities constitute camping when it reasonably appears, in light of all the
circumstances, that the participants in these activities are in fact using the area as a living
accommodation regardless of the intent of the participants or the nature of any other activities in
which they may also be engaging. Camping does not include picnicking, sitting, lying, or sleeping
in an outdoor area or in a camp facility that is not being used for living accommodations purposes.
This definition shall not limitenforcement of Chapter 8.38 "Obstruction of Property and Trespass."
"Camp facility" means a tent, hut, tarpaulin, or other temporary outdoor shelter used for sleeping,
living accommodations purposes, or carrying on cooking activities.
"Camping implements" means cots, beds, hammocks, sleeping bags, bedrolls, blankets, sheets,
luggage, backpacks, kitchen utensils, cookware, clothing, and similar gear or materials.
"City personnel" means the police department and its third-party contractors and any other city
employees or third-party contractors designated by the city manager.
"Highway" means a way or place of whatever nature, publicly maintained and open to public use for
purposes of vehicular travel.
"Open space" means any parcel of land or water which is unimproved and devoted to an open space
use, and which is designated as an Open Space Zone in the Zoning Ordinance (Title21).
"Park" means those areas as defined in Carlsbad Municipal Code Section 11.32.010.
"Parkway" means the area of the street between the back of the curb and the sidewalk that typically
is planted and landscaped.
"Person" is defined as any natural person, firm, association, business, trust, organization, corporation,
partnership, company, or any other entity recognized by law as the subject of rights or duties.
Oct. 12, 2021 Item #6 Page 5 of 14
"Personal property" includes the following items:
(i) Medication, medical devices, eyeglasses, or other prescription lenses;
(ii) Sleeping bag or bed roll which is sanitary and non-verminous;
(iii) Tents in usable and reasonably good condition
(iv) Clothes stored in a manner protecting them from the elements, which are not unsanitary,
soiled, or verminous;
(v) Non-perishable food items; and
(vi) Personal property with an estimated individual fair market value of at least $50.
"Public place" means any property in the city owned, leased, licensed, or operated by a public entity
that is accessible to the public, including any of the following: parks, beaches, alleyways, parking
lots, passageways, rights-of-way, landscaped areas or parkways, streets, highways, open space,
sidewalks, curbs, and public educational institutions.
"Shelter" means a structure designed to provide homeless persons and unstably housed individuals
with overnight sleeping accommodations and relief from the elements. The "shelter" may offer
meals, clothing, and supportive and self-sufficiency development services. "Shelter" may include
a safe parking lot owned, leased, or operated by the city, another public entity, or a non-profit
entity.
"Sidewalk" means that portion of a highway, other than the roadway, set apart by curbs, barriers,
markings, or other delineation, for pedestrian travel.
"Store" means to put pside or accumulate for use when needed, to place for safekeeping, or to put in
place or leave in a particular place, whether attended or unattended.
"Street" means every highway, avenue, lane, alley, court, place, square, sidewalk, parkway, curb,
bikeway, or other public way in the city dedicated and open to public use, or such other public
property so d~signated by state law.
"Tent" means a collapsible shelter made of fabric, such as nylon or canvas, or /a tarp stretched and
sustained by supports, which is not open on all sides and which hinders an unobstructed view
behind or into the area surrounded by the fabric.
"Unattended personal property" means no person is present with an item or items of personal property
who asserts or claims ownership over the personal property. lndicia of unattended personal
property includes, but is not limited to, the act of leaving the personal property in a public place
so that it may be appropriated by the next comer. Personal property is not considered
"unattended" if a person is present with the personal property and the person claims ownership
over the personal property.
8.36.030 Unlawful camping.
A. Public property
1. It is unlawful for any person to:
a. Camp or sleep in open space at any time.
b. Camp or sleep upon any public street, public park, public beach, or other public place,
except in areas which have been specifically posted, designated, or permitted for such
purposes, if the person has access to adequate temporary shelter, whether because
Oct. 12, 2021 Item #6 Page 6 of 14
they have the means to pay for it or because it is realistically available to them for free,
and the person willfully refuses such shelter for any reason unrelated to the exercise of
a state or federal constitutional right.
2. It is not the intent of this Section to prohibit lawful protesting, picketing, demonstrating,
signature gathering, voter registration, leafleting, or any other lawful activity.
B. Private property
1. It is unlawful for any person to camp on any private outdoor property without the express
written or verbal permission of the owner or lessee of such property.
2. This subsection is not intended to:
a. Prohibit overnight carnping on private residential property by friends or family of the
property owner, so long as the owner consents to the camping activity.
b. Prohibit or make unlawful, activities of an owner of private property or other lawful user
of private property that are normally associated with and incidental to the lawful and
authorized use of private property for residential or other purposes.
c. Prohibit or make unlawful, activities of a property owner or other lawful user if such
activities are expressly authorized by the Zoning Ordinance (Title 21) or other applicable
laws, ordinances and regulations.
C. The city manager or designee may issue a temporary permit to allow camping on public or private
property in connection with special events (Chapter 8.17) or emergency services (Chapter 6.04).
8.36.040 Fires and cooking on public property.
A. It is unlawful for any person to start or maintain any fire in a public place, except in such areas
specifically designated by the city manager or designee for such fires, including stoves, barbecue
pits, and fire rings.
B. It is unlawful for any person to cook food in a public place, except as otherwise allowed by this
code or by license or permit, or except in locations specifically designated by the city manager or
designee.
8.36.050 Storage of personal property in public places.
A. Unlawful Storage. It is unlawful for any person to store or leave unattended any personal property,
including camp facilities or camping implements, in a public place between the hours of 6 a.m.
and 10 p.m., except as otherwise provided by this code or pursuant to a valid license or permit
This subsection is not intended to permit storage of personal property where otherwise prohibited
by this code.
B. Property Removal. City personnel may remove and store personal property that is unlawfully
stored, unattended, or otherwise found in an unlawful encampment pursuant to applicable
written and publicly available police department policies and procedures.
C. Obstruction or Interference with Property Removal. It is unlawful to willfully interfere with, resist,
delay, or otherwise obstruct city personnel from moving, removing, impounding, or discardi~
personal property pursuant to Section 8.36.0S0(B).
Oct. 12, 2021 Item #6 Page 7 of 14
8.36.060 Severability.
If any portion of this chapter, or its application to particular persons or circumstances, is held to be
invalid or unconstitutional by a final decision of a court of competent jurisdiction, the decision shall not
affect the validity of the remaining portions of this chapter or the application of the chapter to persons
or circumstances not similarly situated.
Section 3:
follows:
That Section 8.28.050 of the Carlsbad Municipal Code is amended to read as
8.28.050 Distribution, solicitation or sales to persons in vehicles.
A. Except as permitted by Section 8.28.050(B), it is unlawful for any person, while on a public
sidewalk or in a public roadway, to distribute, sell, or attempt to distribute or sell materials to, or
to solicit, or attempt to solicit business or contributions from, any person who is traveling in any
type of vehicle along a public roadway.
B. Distributing materials or soliciting business or contributions is permitted on sidewalks adjacent to
public roadways with a speed limit of 35 miles per hour or less as shown on the map labeled Exhibit
A attached to the ordinance codified in this chapter and found on file in the city clerk's office,
except:
1. When the public roadway intersects with another public roadway that has a speed limit
greater than 35 miles per hour, in which case distribution or solicitation is prohibited within
100 feet of the intersection;
2. In the commercial/visitor-serving overlay zone as shown on the map labeled Exhibit B
attached to the ordinance codified in this chapter and found on file in the city clerk's office;
3. Anywhere on La Costa Avenue.
C. No more than one person at a time may distribute materials or solicit business or contributions at
the quadrant of any intersection where distribution or solicitation is permitted under Section
8.28.050(B).
Section 4: That Chapter 8.34 is added to the Carlsbad Municipal Code to read as follows:
Sections:
8.34.010
8.34.020
8.34.030
8.34.040
8.34.050
8.34.060
8.34.070
Purpose.
Definitions.
Chapter 8.34
SOLICITATION
Aggressive solicitation prohibited.
Solicitation of motor vehicles and in parking lots.
Entering private property for the purpose of sale without permission.
Restriction on hours.
Severability.
Oct. 12, 2021 Item #6 Page 8 of 14
8.34.010 Purpose.
This chapter is intended to improve the quality of life and economic vitality of the city, and-to protect
the safety of the general public against certain abusive conduct of persons engaged in solicitation, by
imposing reasonable time, place, and manner restrictions on solicitation while respecting the
constitutional rights of free speech for all citizens. Motorists have complained of solicitation activity
near signaled intersections and highway ramps, where solicitors have approached their vehicles. This
carries an implicit threat to both person and property. Similarly, the city seeks to prevent threatening
and dangerous solicitation in sensitive areas such as city parking lots or parking structures during the
evening hours. Restricting solicitation in these places will provide a balance between the rights of
solicitors and the rights of persons who wish to decline or avoid solicitations and will help prevent
potential violent confrontations.
8.34.020 Definitions.
As used in this chapter:
"Public place" means a place to which the public or a substantial group of persons has access, and
includes, but is not limited to, any street, parkway, highway, sidewalk, parking lot, plaza,
transportation facility, school, place of amusement, park, playground, open space, and any
doorway, entrance, hallway, lobby, and other portion of any business . establishment, an
apartment house, or hotel not constituting a room or apartment designed for actual residence.
"Solicit, ask, or beg" includes using the spoken, written, or printed word, or bodily gestures, signs or
other means with the purpose of obtaining an immediate donation of money or other thing of
value or soliciting the sale of goods or services. However, passively standing, sitting, or performing
music while holding a sign, with no further conduct or spoken word, except in response to an
inquiry, is exempt from this definition and regulation under this chapter. This chapter is not
intended to restrict the exercise of protected free speech.
8.34.030 Aggressive solicitation prohibited.
A. It is unlawful to solicit, ask, beg, distribute materials, or attempt to distribute materials in an
aggressive manner in any public place after first being warned by a law enforcement officer.
B. "Aggressive manner" means persisting in soliciting, asking, begging, distributing materials,
attempting to distribute materials, approaching, or closely following a person(s), after the solicitor
or distributor has been informed by unequivocal or multiple words or conduct that the person
does not want to be solicited,' does not want to give money or any other thing of value to the
solicitor, or does not want to receive any materials. All other conduct that may constitute an
assault or battery in conjunction with solicitation, asking, begging, or distribution shall be charged
separately as such crimes.
8.34.040 Solicitation of motor vehicles and in parking lots.
A. Motor vehicles. No person shall approach an operator or occupant of a motor vehicle stopped in
obedience to a traffic control sign, signal, or. light for the purpose of soliciting, asking, begging,
distributing materials, or attempting to distribute materials while the vehicle is located in any
public place.
.I
Oct. 12, 2021 Item #6 Page 9 of 14
B. Parking lots. No person shall solicit, ask, beg, distribute materials, or attempt to distribute
materials in any public parking lot or parking structure any time after dark. "After dark" means
any time from one-half hour after sunset to one-half hour before sunrise.
C. Exemptions. The provisions of section 8.34.040(B) shall not apply to any of the following:
1. Solicitations related to business which is being conducted on the subject premises by the
owner or lawful tenants;
2. Solicitations related to the lawful towing of a vehicle; or
3. Solicitations related to emergency repairs requested by the operator or other occupant of a
vehicle.
D. Penalty. After first being warned by a law enforcement officer, any violation of this subsection
may be charged as a misdemeanor.
8.34.050 Entering private property for the purpose of sale without permission.
No person shall go onto private property within the city for the purpose of selling, offering for sale, or
· soliciting orders for the sale of any merchandise, product, service, or thing whatsoever when the
occupant of such property has given notice or warned such persons to keep away. A sign posted by the
occupant of the property, with the words "no solicitors," "no peddlers," or other similar words, at or
near the front door or primary entrance to a residential structure on private property, shall constitute
sufficient notice or warning pursuant to this section. For any property used for a purpose other than a
residential use, such notice may be posted at each public entrance to any structure on the property in
any conspicuous location on the property, in such a manner so as to provide reasonable notice of the
restriction.
8.34.060 Restriction on hours.
No person shall go onto private property for the purposes of commercial or noncommercial peddling,
soliciting or canvassing before 8:00 a.m. or after 8:00 p.m., except that while the United States is on
federally mandated daylight savings time the hours shall be 8:00 a.m. to 9:00 p.m.
8.34.070 Severability.
If any portion of this chapter, or its application to particular persons or circumstances, is held to be
invalid or unconstitutional by a final decision of a court of competent jurisdiction, the decision shall not
affect the validity of the remaining portions of this chapter or the application of the chapter to persons
or circumstances not similarly situated.
Section 5: That Chapter 8.38 is added to the Carlsbad Municipal Code to read as follows:
CHAPTER 8.38
OBSTRUCTION OF PROPERTY, TRESPASS, AND DISORDERLY CONDUCT
Sections:
Oct. 12, 2021 Item #6 Page 10 of 14
8.38.010
8.38.020
8.38.030
8.38.040
8.38.050
8.38.060
Purpose.
Definitions.
Unlawful obstruction of property.
Trespass on parking lots, shopping center prop~rty, and other private property open
to the patronage of the public.
Disorderly conduct.
Severability.
8.38.010 Purpose.
The purpose of this chapter is to maintain public and private property open to the: patronage of the
public in an orderly and accessible condition to protect public health, safety, and welfare. The
obstruction of or trespass upon these areas can interfere with the rights of others to use these areas
for the purposes for which they were intended. Pedestrians, the elderly, disabled, and vision-
impaired are put at increased risk when they must see and navigate around individuals sitting or lying
upon a public walkway or otherwise obstructing public access. In some circumstances, people sitting
or lying on public walkways deter members of the public from frequenting those areas. This, in turn,
contributes to an erosion of the essential economic viability of those areas. Business failures and
relocations can cause vacant storefronts, contributing to deterioration and blight, which harms the
public health, safety, and welfare.
The city recognizes that there is a fundamental need to rest and sleep and desires to accommodate
that need while also satisfying the needs of the general public to travel freely and safely throughout
the city. The limited regulation of obstruction or trespass on public property or private property open
to the patronage of the public is reasonably necessary and appropriately balances the public interest
and individual rights.
8.38.020 Definitions.
All definitions provided in Carlsbad Municipal Code Chapter 8.36, Section 8.36.020 are applicable to
this chapter. Additionally, as used in this chapter:
"Loitering" is defined as delaying or lingering in any one place without a lawful purpose under
circumstances that would warrant a reasonable person to believe that the purpose or effect is to
commit a crime or to conceal illegal activities.
8.38.030 Unlawful obstruction of property.
A. It is unlawful for any person, after first being warned by a law enforcement officer, or where a sign
or signs have been posted in accordance with this chapter, to loiter, stand, sit, lie, sleep, maintain,
or leave any objects, possessions, or structures in any manner that partially or completely blocks,
obstructs, prevents, or otherwise hinders the free movement of people who may or may not yet
be present at the location in question, or in any manner that impedes passage in contravention of
federal or state disability access laws, either:
1. Upon any public sidewalk, street, curb, parkway, crosswalk, walkway or pathway area,
highway, or park, or
2. Upon any shopping center or other private property open to the patronage of the public.
Oct. 12, 2021 Item #6 Page 11 of 14
B. It is unlawful for any person, object, or possession to partially or completely block, obstruct,
prevent, or otherwise hinder the free access to the entrance to any building open to the public,
whether or not other persons are present at the location in question.
8.38.040 Trespass on parking lots, shopping center property, and other private property open to
the patronage of the public.
It is unlawful for any person, after first being warned by a law enforcement officer, or where a sign or
signs have been posted in accordance with this chapter, to remain on, wander, idle, or loiter on any
parking lot, shopping center property, or any other private property open to the patronage of the
public, without visible or lawful business with the owner or occupant or without the written
permission of the owner, the person entitled to immediate possession or the authorized agent of
either. This section does not apply to a public officer or employee acting within the course and scope
of employment.
8.38.050 Disorderly conduct.
A. It is unlawful for a person to commit any of the following acts with the intent to cause another
person annoyance, alarm, or disturbance, or with the intent to interfere with another person's
lawful discharge or pursuit of any lawful business or occupation:
1. Engaging in fighting or in violent, tumultuous, or threatening behavior that would put a
reasonable person in fear for the person's safety; or
2. Using language that a reasonable person would consider offensive, lewd, vulgar, profane,
threatening, abusive, or insulting, within the hearing range of another person in any public
place or any place open to the patronage of the public; or
3. Uttering or using within the hearing of another person any language, words, epithets,
expressions, or remarks, either intended to or likely to incite or create a breach of the peace;
or
4. Encouraging by words or conduct, disobedience to any lawful order or request of any law
enforcement officer pursuant to and in the performance of the officer's duties; or
5. Making or participating in making any unreasonably loud noise or engaging in offensive
conduct or behavior, as measured by an objectively reasonable person standard, in any public
place or any place open to the patronage of the public.
B. It is unlawful for a person to commit any of the acts specified in Section 8.38.0S0(A) with reckless
disregard for the risk of causing another person annoyance, alarm, or disturbance, or of interfering
with another person's lawful discharge or pursuit of any lawful business or occupation.
. C. It is unlawful for a person to congregate with two or more other persons in any public place, or in
any place open to the patronage of the public, when the purpose of congregating is, by words,
acts, or conduct generallyoffensive to the community, to annoy, disturb, or interfere with another
person's lawful discharge or pursuit of a lawful business or occupation, or to maliciously interfere
with or annoy another person lawfully at the place.
Oct. 12, 2021 Item #6 Page 12 of 14
8.38.060 Severability.
If any portion of this chapter, or its application to particular persons or circumstances, is held to be
invalid or unconstitutional by a final decision of a court of competent jurisdiction, the decision shall
not affect the validity of the remaining portions of this chapter or the application of the chapter to
persons or circumstances not similarly situated.
Section 6:
follows:
That Section 8.44.040 of the Carlsbad Municipal Code is amended to read as
8.44.040 Consuming or possessing an open container of an alcoholic beverage in certain public
places and public parks owned by the city.
A. No person shall possess any can, bottle, or other receptacle containing any alcoholic beverage
that has been opened, or a seal broken, or the contents of which have been partially removed,
nor shall any person consume any alcoholic beverage in any city-owned public place or city-owned
park identified in this section as:
1. Any public street, sidewalk, alley, highway, public parking lot, or public open space owned
by, leased to, licensed to, or operated by the city in the V-B Village Barrio Zone, as that zone
is designated in Chapter 21.35 of this code, as amended, and specifically within or adjacent
to the VC, VG, HOSP, FC, and PT districts and the VBO district (Magee and Maxton Brown
parks) of the Village and Barrio Master Plan.
2. Rotary Park located at the 2900 block of Washington Street, bordered to the west by
Washington Street, bordered to the east by the west alley of State Street immediately east
of the Atchison, Topeka and Santa Fe Rail Road tracks, bordered to the south by Carlsbad
Village Drive and bordered to the north by Grand Avenue in the City of Carlsbad.
3. Holiday Park and Pine Avenue Community Park.
B. Unlawful possession of an open container of an alcoholic beverage as described in Section
8.44.040(A) shall be charged as an infraction; unlawful consumption of an open container of an
alcoholic beverage as described in Section 8.44.040(A) may be charged as a misdemeanor.
C. Any of the prohibitions set forth in this section may be waived when a special event permit or a
park and facility use permit requesting a waiver has been granted by the city manager or designee.
D. This section does not apply when an individual is in possession of an alcoholic beverage container
within a sidewalk cafe or curb cafe that is approved and permitted as required by the Village and
Barrio Master Plan and the California Department of Alcoholic Beverage Control, or any temporary
permits issued under state or local emergency orders.
E. This section does not apply when an individual is in possession of an alcoholic beverage container
for the purpose of recycling or other related disposal activity.
Oct. 12, 2021 Item #6 Page 13 of 14
All Receive - Agenda Item #
For the Information of the:
CIT COUNCIL
Date /0//2/7/ CA k-_CC )r
CM ACM V DCM (3)
Hector Gomez
From:
Sent:
To:
Cc:
Subject:
Attachments:
Katie Taylor <katie@taylorplace.com>
Tuesday, October 12, 2021 1:55 PM
City Clerk
Matthew Hall; Keith Blackburn; Peder Norby; Teresa Acosta; Priya Bhat-Patel; Manager
Internet Email
RE: Shopping Cart Ordinance - Agenda Item #6
Shopping Cart Codes Display Text.pdf
To Mayor Matt Hall and City Council,
Carlsbad desperately needs a shopping cart ordnance that removes the use of shopping carts on the streets
and sidewalks, especially downtown. The use of carts by the homeless populations is not only unsightly, it is
dangerous and least everyone forget...the carts are stolen! Restricting the use of carts to the business
location which has the carts for their customers use will go miles in helping clean up downtown Carlsbad,
parks, greenbelt areas and our streets. It is unacceptable to see shopping carts piled high on our downtown
streets, while people are trying to shop and go out to dinner. I have seen people plant themselves with their
stolen shopping carts on State and Grand Street benches and then later see the trash they left behind.
Residents and visitors do not even want to sit on Carlsbad street benches anymore because they are so
dirty. There is no excuse for not addressing this problem.
Attached is a Sample Shopping Cart regulation to build an ordinance specifically for Carlsbad.
Please take action....IMMEDIATLEY!
Katie Taylor
Taylor Place Real Estate, Inc.
300 Carlsbad Village Dr. #108A-444
Carlsbad, CA 92008
Cell: (760) 803-1681
E-mail: katie@taylorplace.com
CALBRE#10235942
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, LEGISLATIVE INFORMATION
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BUSINESS AND PROFESSIONS CODE - BPC
DIVISION 8. SPECIAL BUSINESS REGULATIONS [18400 - 22949.51] ( Division 8 added by Stats. 1941, Ch. 44. )
CHAPTER 19. Shopping and Laundry Carts [22435 - 22435.13] ( Chapter 19 added by Stats. 1981, Ch. 687, Sec. 1. )
ARTICLE 1. Identification of Shopping and Laundry Carts [22435 - 22435.8] (Article 1 added by Stats. 1981, Ch. 687,
Sec. 1. )
22435. As used in this article:
(a)"Shopping cart" means a basket which is mounted on wheels or a similar device generally used in a retail
establishment by a customer for the purpose of transporting goods of any kind.
(b)"Laundry cart" means a basket which is mounted on wheels and used in a coin-operated laundry or drycleaning
retail establishment by a customer or an attendant for the purpose of transporting fabrics and the supplies
necessary to process them.
(c)"Parking area" means a parking lot or other property provided by a retailer for use by a customer for parking an
automobile or other vehicle.
(Added by Stats. 1981, Ch. 687, Sec. 1.)
22435.1. The provisions of Section 22435.2 shall apply when a shopping cart or a laundry cart has a sign
permanently affixed to it 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 premises; notifies the public that the
unauthorized removal of the cart from the premises or parking area of the retail establishment, 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 removed from the premises or parking area to the owner or retailer.
(Amended by Stats. 1996, Ch. 291, Sec. 1. Effective January 1, 1997.)
--)135-2.- It is unlawful to do any of the following acts, if a shopping cart or laundry cart has a permanently affixed
sign as provided in Section 22435.1:
(a)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)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)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)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)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)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.
(Amended by Stats. 1983, Ch. 436, Sec. 1.)
22435.3. Any person who violates any of the provisions of this article is guilty of a misdemeanor.
The provisions of this section are not intended to preclude the application of any other laws relating to prosecution
for theft.
(Added by Stats. 1981, Ch, 687, Sec. 1.)
22435.4. This article shall not apply to the owner of a shopping cart or laundry cart or to a retailer, or to their
agents or employees, or to a customer of a retail establishment who has written consent from the owner of a
shopping cart or laundry cart or a retailer to be in possession of the shopping cart or laundry cart or to remove the
shopping cart or laundry cart from the premises or the parking area of the retail establishment, or to do any of the
acts specified in Section 22435.2.
(Added by Stats. 1981, Ch. 687, Sec. 1.)
g-4M-,1 (a) In any civil proceeding, any shopping cart or laundry cart which has a sign affixed to it pursuant to
Section 22435.1 shall establish a rebuttable presumption affecting the burden of producing evidence that the
property is that of the person or business named in the sign and not abandoned by the person or business named
in the sign.
(b) In any criminal proceeding, it may be inferred that any shopping cart or laundry cart which has a sign affixed to
it pursuant to Section 22435.1 is the property of the person or business named in the sign and has not been
abandoned by the person or business named in the sign.
(Added by Stats. 1983, Ch. 436, Sec. 2.)
22435.7. (a) 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.
(b) A shopping cart that has a sign affixed to it in accordance with Section 22435.1 may be impounded by a city,
county, or city and county, provided both of the following conditions have been satisfied:
(1)The shopping cart is located outside the premises or parking area of a retail establishment. The parking area of
a retail establishment located in a multistore complex or shopping center shall include the entire parking area used
by the complex or center.
(2)Except as provided in subdivision (i), the shopping cart is not retrieved within three business days from the date
the owner of the shopping cart, or his or her agent, receives actual notice from the city, county, or city and county
of the shopping cart's discovery and location.
(c) In instances where the location of a shopping cart will impede emergency services, a city, county, or city and
county is authorized to immediately retrieve the shopping cart from public or private property.
(d) Any city, county, or city and county that impounds a shopping cart under the authority provided in subdivisions
(b) and (c) is authorized to recover its actual costs for providing this service.
(e) Any shopping cart that is impounded by a city, county, or city and county pursuant to subdivisions (b) and (c)
shall be held at a location that is both:
(1)Reasonably convenient to the owner of the shopping cart.
(2)Open for business at least six hours of each business day.
(f) A city, county, or city and county may fine the owner of a shopping cart in an amount not to exceed fifty dollars
($50) 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.
(g) Any shopping cart not reclaimed from the city, county, or city and county within 30 days of receipt of a notice of
violation by the owner of the shopping cart may be sold or otherwise disposed of by the entity in possession of the
shopping cart.
(h) This section shall not invalidate any contract entered into prior to June 30, 1996, between a city, county, or city
and county and a person or business entity for the purpose of retrieving or impounding shopping carts.
(i) Notwithstanding paragraph (2) of subdivision (b), a city, county, or city and county may impound a shopping
cart that otherwise meets the criteria set forth in paragraph (1) of subdivision (b) without complying with the three-
day advance notice requirement provided that:
(1)The owner of the shopping cart, or his or her agent, is provided actual notice within 24 hours following the
impound and that notice informs the owner, or his or her agent, as to the location where the shopping cart may be
claimed.
(2)Any shopping cart so impounded shall be held at a location in compliance with subdivision (e).
(3)Any shopping cart reclaimed by the owner or his or her agent, within three business days following the date of
actual notice as provided pursuant to paragraph (1), shall be released and surrendered to the owner or agent at no
charge whatsoever, including the waiver of any impound and storage fees or fines that would otherwise be
applicable pursuant to subdivision (d) or (f). Any cart reclaimed within the three-business-day period shall not be
deemed an occurrence for purposes of subdivision (f).
(4)Any shopping cart not reclaimed by the owner or his or her agent, within three business days following the date
of actual notice as provided pursuant to paragraph (1), shall be subject to any applicable fee or fine imposed
pursuant to subdivision (d) or (f) commencing on the fourth business day following the date of the notice.
(5)Any shopping cart not reclaimed by the owner or his or her agent, within 30 days of receipt following the date
of actual notice as provided pursuant to paragraph (1), may be sold or disposed of in accordance with subdivision
(9).
(Amended by Stats. 1998, Ch. 16, Sec. 1. Effective January 1, 1999.)
22435.8. This article shall not invalidate an ordinance of, or be construed to prohibit the adoption of an ordinance
by, a city, county, or city and county, which ordinance regulates or prohibits the removal of shopping carts or
laundry carts from the premises or parking area of a retail establishment except to the extent any provision of such
an ordinance expressly conflicts with any provision of this article.
(Added by Stats. 1998, Ch. 16, Sec. 2. Effective January 1, 1999.)