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HomeMy WebLinkAboutTutor ltr & dec Denis Law Mayor IR City Clerk-Jason A.Seth,CMC August 30, 2018 Robert Tutor 1121 124th Av NE Bellevue, WA 98005 Re: Hearing Examiner's Decision Code Case No: CODE-18-000297 Dear Mr. Tutor: I have attached the Hearing Examiner's Decision dated August 28, 2018, in the above referenced matter. If you have any questions or concerns, please feel free to contact me. Sincerely, Jason A. Seth City Clerk cc: Hearing Examiner Craig Burnell, Building Official Donna Locher, Code Compliance Inspector Robert Shuey, Code Compliance Inspector Kevin Louder, Code Compliance Inspector Alex Tuttle, Assistant City Attorney Chip Vincent, CED Administrator Angie Mathias, Long Range Planning Manager Sandra Pedersen, Finance 1055 South Grady Way,Renton,WA 98057 • (425)430-6510/Fax (425)430-6516 • rentonwa.gov BEFORE THE HEARING EXAMINER OF RENTON DECISION FILE NUMBER: CODE18-000297 ADDRESS: Safeway Store 1563 Accounting 1121 124t Ave NE Bellevue, WA 98005 PROPERTY OWNER: Safeway REVIEW AUTHORITY: City of Renton TYPE OF CASE: Finding of Violation SUMMARY Safeway has appealed $500 in fines imposed by the City of Renton for violation of its shopping cart ordinance, Chapter 6-27 RMC. The fines are for five shopping carts taken off-premises by third parties and then abandoned, creating a public nuisance. RMC 6-27-5 imposes a fine of$100 per abandoned shopping cart. In its appeal, Safeway requests a reduction or elimination of the fines on the basis that it's done everything it reasonably can to prevent shopping cart theft. Safeway makes some compelling arguments, but the Examiner has no authority to reduce fines under the circumstances identified by Safeway. For this reason, the appeal is denied and the fines are sustained. As outlined in the Testimony section of this decision, Safeway has undertaken extensive and costly efforts to control the number of Safeway shopping carts abandoned off-premises from Safeway stores. Safeway has gone to the'trouble of hiring a cart retrieval company that spends over 20 hours per week retrieving abandoned carts from several stores throughout the City. Using this retrieval company, Safeway retrieves over 150 carts per month. Safeway has added self-locking wheels to many of its carts, which lock themselves when the carts are wheeled off-premise. Self- locking wheels cost $50-60,000 per 100 carts. As acknowledged by the City during the appeal hearing, self-locking wheels have a limited success rate in preventing cart theft and if someone is determined to steal a cart the self-locking wheels won't stop them. Safeway made a compelling case that, short of hiring full time shopping cart security personnel, there is nothing that Safeway can do to further prevent shopping cart theft. Safeway currently pays $400 to $600 per month for shopping cart retrieval fines. Safeway doesn't contest the basis of the $500 fines, i.e. that five of its shopping carts have been abandoned off-premises and impounded by the City. Rather, Safeway asserts that the fines imposed should be reduced or eliminated because it has taken all reasonable effort to retrieve its Code Enforcement Decision - 1 carts and to prevent their theft. However, unlike for most other types of code violation appeals, the City's regulations confer no authority upon the Examiner to waive or reduce fines based upon the good faith conduct of code violators. Even if the Examiner did have discretion to reduce shopping cart fines, Safeway wouldn't qualify for a reduction in this appeal. As noted by the Examiner during the appeal hearing, if there is authority to reduce fines it would only be for unique circumstances that weren't already contemplated by the City Council in its enactment or amendment of the shopping cart ordinance. For the circumstances presented by Safeway, the City Council has already adopted provisions to provide for a reduction in fines. RMC 6-27-5(E) authorizes a reduction in fines (eliminating the first three fines every month) if shopping carts are marked with identification tags and the owner of the carts has taken specified security measures,which includes hiring a cart retrieval company. Given that the use of a cart retrieval company is already contemplated in the shopping cart ordinance, Safeway's arguments that its fines should be further reduced because it uses a cart retrieval company is essentially an argument that the fine reduction adopted by the City Council doesn't go far enough to address the efforts taken by Safeway. That argument constitutes a disagreement with the requirements of the ordinance, not an argument for equitable fine reduction. As recognized by Ms. Locher during the appeal hearing, arguments regarding the reasonableness of the ordinance need to be addressed to the City Council,not the Examiner. If the Examiner were to grant the requested reduction in fines, he would have to do the same for all future fines assessed against Safeway as well as any other store that uses a cart retrieval company. Setting a precedent of such broad scope and magnitude would equate to a legislative amendment of the ordinance, which is a matter solely within the jurisdiction of the City Council. HEARING A hearing on the subject appeal was held on July 24, 2018 at the Renton City Hall Council Chambers, 1055 South Grady Way, Renton, WA 98057. TESTIMONY Donna Locher, City of Renton Code Compliance Inspector, noted that the appeal hearing may not be the correct forum. She noted that the shopping cart ordinance has been implemented for a long time. Every Tuesday the City removes shopping carts from City right of way. Notices are then sent out to each store responsible for them. When the shopping cart ordinance was adopted, every affected store was personally visited and apprised of the ordinance requirements. The City also had a meeting with all the stores affected by the ordinance. It appears that Safeway is concerned because it's still getting fined despite the fact that it's using a shopping cart pick up service. The City gives three free pick ups to each store each month. The number of carts picked up by the City fluctuates. The shopping cart ordinance has helped push stores into taking measures to reduce off- premises carts. Several stores have incorporated wheels into their carts that lock when the carts are taken off-premises. Many stores also use one of two shopping cart retrieval companies. No store has done everything required by the shopping cart ordinance. The most frequent violation is failing to mark all the carts with addresses and phone numbers to facilitate the return of the carts. This is the first time someone has challenged the ordinance and it doesn't appear this is the proper forum to do that. Code Enforcement Decision-2 Robert Tutor, Appellant, was present to represent all three Safeways in Renton. He represents all Safeways and Albertsons in Alaska,Washington and a small part of Idaho. He asked that the fines be reduced in recognition of the efforts Safeway has taken to reduce off-premises abandoned shopping carts. It's in the best interests of Safeway and the City to work cooperatively. Safeway already has incentive to control shopping cart theft since it has to purchase replacements. Safeway has implemented wheel locks for problem areas, even though it's a significant investment of$50- 60,000 per 100 carts. Safeway uses a cart retrieval service that retrieves carts in Renton four days per week. Mr. Tutor only recently started working for Safeway,which is why this is the first time Safeway is expressing concern over the shopping cart fines. The fines are a concern because they give the impression that Safeway is not being a good community partner. Safeway wants to see if there's a way to correct the situation. Preventing cart theft altogether is almost impossible and it is unreasonable to make stores such as Safeway to continue paying fines when they are working hard to prevent theft. Referencing Mark Johnson's written statement, Ex. 7 Mr. Tutor noted that the 179 carts picked up last month for Safeway constituted an entire store inventory of shopping carts. Mr. Tutor said that it's impossible for Safeway to avoid getting fined every month no matter what it does to resolve the situation. He doesn't see fines as helping the City meet its objectives. He is appealing to try to get relief on the fines levied thus far and he's asked his legal team to work with Renton to find a long term resolution, such as more actively prosecuting cart thefts as is done in municipalities such as Bellevue. Mark Johnson works for Ramco Services, which contracts with Safeway to retrieve stolen shopping carts. On Mondays and Thursdays Ramco is retrieving carts for eight hours or more in Renton and on Tuesdays and Wednesdays its retrieving carts in the mornings. 279 carts were picked up in Renton for several stores in the month of May. The problem is that they can pick up every cart they find along for example Rainier Avenue and by the time they're done loading up the truck more carts have been dumped along the avenue. The carts have been tagged with addresses and phone numbers so that people can report them for pick up. Sometimes the carts aren't even located where reported. He's talked to some other stores about offering his service and some refuse and don't care about the shopping cart problem. Businesses that make the effort such as Safeway shouldn't be fined. Ramco has been picking up carts for the Renton Safeways for eight years. It uses three trucks to pick up the carts. Ramco talks to apartment complex owners, the police, store owners etc. to find the carts. Safeway is Ramco's prime Renton customer. Ms. Locher noted that she hasn't seen the cart decals, Ex. 6, before. Mark Johnson noted they've been using the decals for about a year. In response to questions from Ms. Locher, Mr. Johnson noted that Ramco has gone through all the shopping carts in the Safeway stores to affix identification decals. Ramco spent an entire day affixing the decals. Ms. Locher stated that she had checked out several carts at the second and Rainier Safeway and had not seen any decals. Ms. Locher didn't identify when she did her site visit. Ms. Locher also noted that Safeway had not been using a cart retrieval service when the cart ordinance went into effect. No store had been using retrieval services prior to the ordinance. Mr. Johnson noted that only one other company does cart retrieval in Renton. Mr. Johnson noted that the City provides lists of where carts can be found, but the carts are scattered everywhere and are still difficult to find. Some carts picked up by the City are just located outside the Safeway parking lot on the other side of a six inch curb and the City still packs them into a van and then fines Safeway. Code Enforcement Decision-3 In response to examiner questions, Mr. Tutor noted that Safeway uses the locking wheels but not at all locations. He noted that all stores have courtesy clerks who regularly monitor Safeway parking lots but not on a full-time basis as that wouldn't be feasible. Storage of carts can be outside or inside a store, depending on the store design. He noted that even the double locking wheel carts don't work 100%, since as Mr.Johnson testified he retrieved 30 such carts for Wal Mart last month. Short of hiring a full time security guard there's nothing else Safeway could do. Without more active police enforcement, the shopping cart problem isn't going to change. Renton is the only municipality fining Safeway for shopping carts. Since he started working for Safeway in April, Safeway has been paying $400-$600 per month in shopping cart fines. The reason why he's presenting Safeway's side of the story now is that he received notice that the first three free cart policy will soon be changed by Renton such that fines will be imposed for all off-premises carts. The 4-6 carts fined each month is fairly constant and has not changed over the years. This is in comparison to the 150 plus carts that Safeway retrieves itself every month. In response to Examiner questions Mr. Tutor responded that under his management a greater effort has been made to engage the services of the cart retrieval service and to work with the City's public works department to get information on the number of carts retrieved by the City. He noted that the locking wheels work under technology similar to invisible fences for dogs, where an electronic signal locks shopping cart wheels when they're pushed outside the Safeway properties. Ms. Locher noted that although the appeal was the proper forum for addressing the amount of the fines, it wasn't the proper venue for advocating change to the ordinance. When the shopping cart ordinance was adopted the City engaged the input of numerous stores throughout the city. The ordinance has been refined over the years as input has been acquired from the stores. Ms. Locher agreed that carts shouldn't be fined if they're just located right outside the Safeway property but doesn't believe that's been the norm. She will talk to persons working for Bellevue to see how their efforts have worked in resolving the shopping cart problem. EXHIBITS Ex. 1 Scheduling letter Ex. 2 Finding of Violation Ex. 3 Appeal Ex. 4 RMC 6-27 Ex. 5 7/24/18 Letters from Vincent to Carter Ex.6 Cart decals Ex. 7 Mark Johnson written comments FINDINGS OF FACT 1. Finding of Violation. The City of Renton issued a Finding of Violation ("FOV") against Safeway on May 31, 2018 for violation of RMC 6-27-2, which prohibits the abandonment of off- premises shopping carts. The FOV alleges that five shopping carts were taken off the premises of Safeway stores and were found abandoned at four different locations within the City of Renton in the month of May, 2018. Safeway filed an appeal of the Finding of Violation on June 12, 2018. Code Enforcement Decision-4 2. Safeway Carts Abandoned. Safeway does not contest the fact that five of its shopping carts were impounded by City staff after the staff found them abandoned in various parts of the City of Renton in the month of May, 2018. It is determined that five Safeway carts were left abandoned and as a result impounded by City staff from various parts of the City of Renton off-premises from the Safeway stores in the month of May, 2018. CONCLUSIONS OF LAW 1. Authority of Examiner: The Hearing Examiner has the authority and jurisdiction to review appeals of fines imposed pursuant to the City's shopping cart ordinance, Chapter 6-27 RCW, pursuant to RMC 6-27-6(B). 2. Violation Committed. RMC 6-27-5(D) imposes a $100 fine for every off-premises abandoned shopping cart impounded by the City. As determined in Finding of Fact No. 2, the City impounded five abandoned off-premises Safeway shopping carts in the Month of May, 2018. The fines are fully authorized by RMC 6-27-5(D). 3. No Reduction in Fines Authorized. Except for some specified circumstances when the total number of abandoned carts is less than four in any calendar month, RMC 6-27-5(D) grants no discretion by City staff or the examiner to reduce the $100 fine for shopping cart ordinance violations. RMC 6-27-5(D) provides that the City "shall" issue a $100 fine for each impound of an abandoned off-premises shopping cart. Unlike the provisions that apply to most other Findings of Violation, which authorize fines to be levied "up to" $250 (see RMC 1-3-1(D)'), there is no "up to"or similar discretionary flexibility for the issuance of shopping cart fines. Further, no City regulation gives the hearing examiner express authority to reduce shopping cart fines based upon any principles of equity. Even if the Examiner had implied authority to reduce fines for good cause, there is no basis to do so for this appeal for the reasons identified in the Summary section of this decision. DECISION The $500 fines and violations asserted in the citation for CODE18-000297 are sustained. The appeal is denied. No refund of fines is due. Decision issued August 28, 2018. Pht A.Olbrechts Hearing Examiner ' During the appeal hearing,the examiner intimated that he may have the authority to reduce the shopping cart fines. This was erroneously based by the examiner upon the citation form used by the City,which was labelled a"Finding of Violation." "Findings of Violation"are expressly regulated by Chapter 1-3 RMC for$250 fines,which includes the"up to"provision that authorizes reduction of fines. The$100 Shopping cart fines are not imposed by Chapter 1- 3 RMC,but are uniquely applicable to shopping cart violations only pursuant to RMC 6-27-5(D). Code Enforcement Decision -5 NOTICE OF RIGHT TO APPEAL Appeal to Superior Court. An appeal of the decision of the Hearing Examiner must be filed with Superior Court. Code Enforcement Decision-6