Oceanside Municipal Code Art. XII Regulation and Containment of Shopping Carts

Footnotes:

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Editor's note— Ord. No. 18-0396-1, § 1, adopted August 8, 2018, amended art. XII, §§ 7-102—7-114 in its entirety. Former art. XII pertained to similar subject matter and derived from Ord. No. 08-OR0521-1, adopted September 3, 2008. The ordinance set out provisions intended for use as §§ 7-101—7-113. To avoid duplication of sections numbers and at the editor's discrection, these provisions have been included as §§ 7-102—7-114.

(a) The Oceanside City Council finds that abandoned shopping carts cause blighting conditions in our community. More specifically, abandoned shopping carts detract from the aesthetics of streets, sidewalks, neighborhoods, and residences and tend to diminish property values. The abandonment of shopping carts is a public nuisance. Left in streets or on sidewalks, abandoned shopping carts are a danger to the safety and welfare of persons using public rights-of-way and interfere with pedestrian and vehicular travel. Abandoned shopping carts are an attractive nuisance to children and may cause injury to children.

(b) The ordinance codified in this article is enacted for the purpose of promoting the public health, safety, and general welfare of our citizens by requiring owners to contain their shopping carts on their premises. This article is not intended to be construed or applied in any manner inconsistent with California Business and Professions Code section 22435 et seq., or any other provisions of state law.

(Ord. No. 18-0396-1, § 1, 8-8-2018)

In this article, the following terms have meanings as set forth below:

Abandoned shopping cart shall mean any shopping cart that has been removed from a business' premises without written permission of the owner. This does not include carts that are removed for purposes of repair or maintenance. Written permission shall be valid for a period not to exceed seventy-two (72) hours.

Owner(s) shall mean any person, entity, firm, business, corporation, partnership, company or similar entity who, in connection with the conduct of a business, owns, leases, possesses, uses, or otherwise makes five (5) or more shopping carts available for customer or public use within the boundaries of the business' premises. For purposes of this article, owner shall also include the owner's onsite or designated agent.

Premises shall mean the entire area owned, maintained, or managed by the owner, including the building, parking lot, walkways, or other property provided for customer use or parking.

Shopping cart or cart shall mean a non-motorized basket 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.

Shopping cart containment plan or plan shall mean the document submitted by the owner pursuant to section 7.110 of this article.

Shopping cart containment system shall mean a permanent physical mechanism or system employed to prevent the removal of shopping carts from an owner's premises.

Shopping cart retrieval service shall mean a service operated by an independent contracted business that searches for, retrieves and returns abandoned shopping carts to the possession of the owner.

(Ord. No. 18-0396-1, § 1, 8-8-2018)

(a) It shall be unlawful for any person to violate or fail to comply with any of the provisions of this article, and such violations shall be punishable in accordance with this article and the provisions of chapter 1 of this code.

(b) Except as otherwise provided, the provisions of this article shall be administered and enforced by the city manager, his or her designees, and includes any police officer, code enforcement officer, or other designated City of Oceanside employee, each of whom shall have the authority to enter onto private property to examine a shopping cart to determine its owner or to facilitate its removal or return pursuant to the provisions of this article.

(Ord. No. 18-0396-1, § 1, 8-8-2018)

This article shall apply to:

(1) All owners who provide more than five (5) shopping carts for customer or public use; and

(2) Any person in possession of a shopping cart off the owner's premises and without the owner's permission pursuant to the provisions of section 7.113.

(Ord. No. 18-0396-1, § 1, 8-8-2018)

(a) Each owner shall secure and continuously maintain a contract with a shopping cart retrieval service to search for, locate, and return shopping carts removed from the business' premises. At a minimum, the contract must require that off-premises shopping carts will be actively located and returned and that complaints from the public or notifications from city personnel will be responded to in a manner which results in the retrieval and return of off-premises shopping carts no later than three (3) business days after the owner or retrieval service is notified.

(b) All owners shall provide evidence of an active retrieval service contract on an annual basis as part of their application to obtain or renew a business license or at any other time upon the city's request.

(c) Owners who elect to contract with a shopping cart retrieval service rather than implementing an approved shopping cart containment system shall securely store all shopping carts while the owner's business is closed.

(d) Any owner who fails to ensure its off-premises shopping cart(s) are retrieved within the time specified in subsection (a) shall pay the city's actual costs for retrieving, impounding and storing the cart(s). Any owner who fails to retrieve its carts in accordance with this article in excess of two (2) times in a six (6) month period or three (3) times in a calendar year, shall be subject to further enforcement pursuant to chapter 1.

(e) An owner may be exempted from the requirements of contracting with a cart retrieval service if he or she maintains an approved shopping cart containment system that complies with sections 7.107 and 7.108.

(Ord. No. 18-0396-1, § 1, 8-8-2018)

(a) Each owner shall implement and continuously maintain a shopping cart containment system to prevent the removal of shopping carts from the premises and otherwise contain and control all carts within the boundaries of the premises, except as expressly provided for in Business and Professions Code Section 22435.4.

(b) A shopping cart containment plan must be submitted on an annual basis as part of the application to obtain or renew a business license, or at any other time upon the city's request, and must comply with section 7.108.

(c) An owner may be exempted from maintaining a shopping cart containment system if he or she provides proof of contracting with a qualified cart retrieval service pursuant to section 7.106.

(Ord. No. 18-0396-1, § 1, 8-8-2018)

A shopping cart containment plan shall, at a minimum, include:

(a) Identification of owner: The name, address, phone number, and store number of the business establishment and owner. The plan must also include the address where the shopping carts are offered for use.

(b) Shopping cart inventory: The total number of shopping carts maintained in or on the premises.

(c) Mandatory signage: A complete description of all signs to be placed in or on the premises and the shopping carts pursuant to section 7.109 and section 7.110. These descriptions must include size, wording, and location where the signs will be placed.

(d) Physical shopping cart containment measures: Owners shall describe the specific physical measures to be implemented to prevent unauthorized removal of shopping carts from the premises. These measures may include, but are not limited to, disabling devices on all shopping carts, posting of a security guard to deter and stop customers who attempt to remove carts from the premises, bollards and chains around premises to prevent cart removal, security deposits required for use of carts, or the rental or sale of carts that can be temporarily or permanently used for transport of purchases.

(e) Unless otherwise in compliance with section 7.106, any owner who fails to submit a shopping cart containment plan pursuant to this section, or who fails to implement or maintain the approved plan measures or any modifications to the plan within the specified time frames required by the city, may be required to place disabling devices on all shopping carts owned/leased/used by the business establishment to prevent removal of carts from the premises.

(f) Any owner who fails to implement and continuously maintain the approved shopping cart containment plan as required by this article or fails to place disabling devices on all shopping carts, where applicable, shall be subject to enforcement as provided for in chapter 1.

(Ord. No. 18-0396-1, § 1, 8-8-2018)

Conspicuous signs shall be placed within two (2) feet of all customer entrances and exits to the owner's business and near all parking lot exits warning that removal of shopping carts is strictly prohibited and constitutes a violation of state and local law.

(Ord. No. 18-0396-1, § 2, 8-8-2018)

Every owner must permanently affix a sign to each shopping cart that contains the following information:

(a) Identifies the owner of the cart or the retailer, or both, and an address for return of the cart if not otherwise readily discernable from the name of the establishment;

(b) Notifies the public of the procedure to be utilized for authorized removal of the cart from the premises;

(c) Notifies the public that the unauthorized removal of the cart from the premises is a violation of state and local law; and

(d) Provides a telephone number(s) for reporting the location of any unlawfully removed shopping cart.

(Ord. No. 18-0396-1, § 2, 8-8-2018)

(a) Approval. Within thirty (30) calendar days of receipt of the shopping cart containment plan, the owner shall be notified whether the plan is approved. If the plan is not approved, the notice shall state the reasons and provide recommendations to the owner to obtain plan approval. The owner shall submit a new shopping cart containment plan within fifteen (15) calendar days of receiving this notice. Notice shall be deemed received five (5) days after being placed in U.S. Mail, First Class. Once a shopping cart containment plan is approved, the proposed measures shall be implemented by no later than thirty (30) calendar days after city approval is given. Unless otherwise agreed, any subsequent modifications to the plan required by the city shall be implemented within thirty (30) calendar days after the city notifies the owner of the needed modifications.

(b) Revocation. The city may deny or revoke a shopping cart containment plan for any of the following reasons:

(1) The implementation of the plan would violate any city code, law or ordinance, or state or federal law, statute or regulation;

(2) The plan fails to include all of the information required by section 7.107;

(3) The plan omits facts, including special or unique conditions of the premises, which are required to be provided to ensure adequacy of the plan; or

(4) If an owner has five (5) or more carts or twenty-five (25) percent of their total cart inventory, whichever is less, noticed for retrieval by the city within a six (6) month period, the owner's shopping cart containment plan may be revoked upon notification by the city and the owner will be required to submit a new plan to the business license division manager within fifteen (15) calendar days of receiving notice of the revocation.

(c) Multiple revocations. Upon the second shopping cart containment plan revocation within three (3) years, the owner shall be required to place disabling devices on all carts owned/leased/used by the business establishment to prevent removal of carts from the premises, if such disabling devices are not already in use. If disabling devices are already in use, owner shall be required to show proof of proper maintenance and repairs ensuring the disabling devices on all carts are in proper working order. Any subsequent shopping cart containment plan submitted shall include the implementation of a maintenance plan for all disabling devices. Upon the third shopping cart containment plan revocation within three (3) years, in addition to the installation of locking devices, the city may require the owner to comply with section 7.106.

(d) If, at any time, the owner wants to modify an approved shopping cart containment plan, the owner shall submit the modified plan to the business license division pursuant to the provisions set forth herein.

(e) Any owner who fails to submit a complete shopping cart containment plan, or otherwise fails to correct a rejected plan, implement an approved plan, or maintains an ineffective plan in violation of this article, and who is not otherwise in compliance with section 7.106, shall be subject to enforcement as provided for in chapter 1.

(Ord. No. 18-0396-1, § 2, 8-8-2018)

A business, including a recycling center, which may not own, rent, lease, or otherwise possess its own carts, but which receives a benefit by the use of carts owned by other businesses, merchants, grocers, or other similar establishments, shall provide a location upon its premises for the storage of carts and shall immediately contact the owner or owner's agent to retrieve any carts that are left on the business' premises.

(Ord. No. 18-0396-1, § 3, 8-8-2018)

(a) An owner may appeal the imposition, denial, or revocation of a shopping cart containment plan. The appeal must be submitted in writing and filed within ten (10) calendar days upon receipt of the notice by the city informing an owner of the imposition, denial, or revocation of a shopping cart containment plan. Upon timely receipt of a written request for an appeal, the city manager or his or her designee shall schedule a hearing which shall be held no later than thirty (30) calendar days after the receipt of the request for appeal. The city manager or his or her designee shall serve by first-class mail notice of the hearing to the shopping cart owner at least ten (10) calendar days prior to the scheduled date of the hearing. Notice shall be deemed received five (5) days after being placed in U.S. Mail, First Class.

(b) At the hearing, the owner shall be given the opportunity to present witnesses and relevant documentary evidence. The hearing will be conducted informally and the technical rules of evidence shall not apply. Any and all evidence which is deemed reliable, relevant and not unduly repetitious may be considered. The city shall provide the owner with a written decision sustaining, reversing or modifying the shopping cart containment plan revocation or denial action within ten (10) calendar days after the hearing.

(c) During the pendency of a properly submitted appeal, a provisional business license will be issued to an already-established business to avoid interruption to the business pending the outcome of the appeal. If the appeal is denied, the owner shall submit a new shopping cart containment plan within fifteen (15) calendar days of receiving written notice of denial. Failure to do so, or to comply with instruction from notice shall be deemed received five (5) days after being placed in U.S. Mail, First Class. Failure to submit a new shopping cart containment plan shall result in immediate expiration of the provisional business license.

(Ord. No. 18-0396-1, § 3, 8-8-2018)

It is unlawful for any person to do any of the following, if a shopping cart has a permanently affixed sign pursuant to section 7.110:

(1) To remove a shopping cart from the premises of a business establishment with the intent to temporarily or permanently deprive the owner of possession of the shopping cart;

(2) To leave or abandon a shopping cart at a location other than the owner's premises with the intent to temporarily or permanently deprive the owner of possession of the cart;

(3) To be in possession of a shopping cart that has been altered, converted or otherwise tampered with to remove any part or portion thereof or to remove, obliterate, or alter serial numbers or the shopping cart signage required by section 7.110 with the intent to temporarily or permanently deprive the owner of possession of the cart;

(4) To be in possession of any shopping cart while that cart is not located on the owner's premises and with the intent to temporarily or permanently deprive the owner of possession of the cart;

(5) The lack of written permission by the owner to be in possession of the off-premises shopping cart shall constitute evidence of an intent to temporarily or permanently deprive the owner of possession of the shopping cart.

(Ord. No. 18-0396-1, § 3, 8-8-2018)