Wasco Municipal Code Ch. 9.32 Abandonment of Shopping and Laundry Carts

Sections: 9.32.010 Purpose and intent. 9.32.020 Definitions. 9.32.030 Shopping cart control plans. 9.32.040 Retrieval, storage and disposal of shopping carts. 9.32.050 Notice of removal and storage. 9.32.060 Agreements with owners. 9.32.070 Fees. 9.32.080 Fines for violations. 9.32.090 Hearing. 9.32.100 Appeal. 9.32.110 Unauthorized use of shopping carts prohibited. 9.32.120 Penalties.

Prior legislation: Ord. 409.

Many retail establishments provide shopping carts for the convenience of customers while shopping on the premises of such businesses. However, shopping carts removed from the premises of such businesses and left abandoned on public or private property throughout the city constitute a public nuisance and a potential hazard to the health and safety of the public. The proliferation of lost, stolen, or abandoned shopping carts on public and private property causes blighting conditions in the community, results in the obstruction of free access to public and private sidewalks, streets, parking lots, and other ways, interferes with pedestrian and vehicular access on public and private streets, and impedes emergency services. Abandoned shopping carts also clog storm drain channels, reducing their ability to function properly, by trapping debris and trash and thereby creating flooding hazards. The purpose of this chapter is to set forth regulations to ensure that reasonable measures are taken by the owners and operators of businesses which provide shopping carts for the convenience of customers to either prevent the removal of shopping carts from business premises and parking lots, or provide for the prompt retrieval of lost, stolen, or abandoned shopping carts, to complement and supplement provisions of state law, and to adopt local regulations to the extent not otherwise preempted by state statute. This chapter may be cited as the "shopping cart ordinance." (Ord. 694 §1, 2018).

"Abandoned, lost, or stolen shopping cart" means a shopping cart which is either: (1) removed from the premises of a retail establishment by any person without the written permission or consent of the owner of the shopping cart or retailer otherwise entitled to possession of such cart; or (2) left unattended, discarded, or abandoned upon any public or private property other than the premises of the retail establishment from which the shopping cart was removed shall be presumed lost, stolen, or abandoned, even if in the possession of any person, unless such person in possession thereof either: (a) is the owner, or any employee or authorized agent of the owner, entitled to possession of said shopping cart, (b) is an officer, employee, or agent of a cart retrieval service hired by the owner to retrieve such shopping carts, (c) is an enforcement officer retrieving, storing, or disposing of said cart pursuant to provisions of this chapter, or (d) has written permission or consent to be in possession of said shopping cart from the owner entitled to possession of said shopping cart.

"Agent" means the person or persons designated by the shopping cart control plan who the owner of the shopping cart authorizes as the person(s) to perform or provide retrieval services on behalf of the owner. The agent may be the owner if so designated in the city approved shopping cart control plan.

"City" means the city of Wasco, California.

"Director" means the public works director of the city.

"Enforcement personnel" means any police officer or code enforcement officer employed by the city.

"Highway" means a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes street.

"Laundry cart" means a basket which is mounted on wheels and used in a coin-operated laundry or dry-cleaning retail establishment by a customer or an attendant for the purpose of transporting fabrics and the supplies necessary to process them.

"Owner" means any person or entity who, in connection with the conduct of a business, owns, leases, possesses or makes a shopping cart available to customers or the public. For the purposes of this chapter, owner shall also include the owner’s agent.

"Parking area" means a parking lot or other property provided by a retail establishment for the use of customers of said retail establishment for parking of customer vehicles. The parking area of a retail establishment located in a multi-store complex or shopping center shall include the entire parking area used by the multi-store complex or shopping center.

"Premises" means the entire area owned, occupied, and/or utilized by an owner which provides shopping carts for use by customers or other persons, including any parking lot or other property provided by or on behalf of the owner for customer parking use.

"Retail establishment" means any business located in the city which offers or provides shopping carts for the use of the customers of such business regardless of whether such business is advertised or operated as a retail or wholesale business, and regardless of whether such business is open to the general public, or is a private club or business, or is a membership store.

"Shopping cart" or "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.

"Sidewalk" means that portion of a highway, other than the roadway, set apart by curbs, barriers, markings or other delineation for pedestrian travel.

"Street" means a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Street includes highway. (Ord. 694 §1, 2018).

Every owner of a retail business establishment or other commercial use within the city that provides more than ten shopping carts for customer use shall prepare, implement, and comply with the terms and conditions of a shopping cart control plan to prevent the unauthorized removal of any shopping cart from the owner’s premises and, if removed, provide for the retrieval of the shopping cart within time periods set forth in this chapter. The shopping cart control plan, at minimum, shall include the following:

A. Shopping Cart Identification Required. Every shopping cart made available for use by customers shall have a sign permanently affixed to it that identifies the owner of the cart or the retailer. Any shopping cart found abandoned that does not have the identification required by this section may be removed and disposed of by the city in accordance with state law.

B. Notice to Customers. Written notice shall be provided to customers, in both English and Spanish, that removal of shopping carts from the premises is prohibited by state law. Conspicuous signs shall be placed and maintained on the premises near all customer entrances and exits warning customers that removal of shopping carts from the premises is prohibited by state law.

C. Daily Cart Confinement. All shopping carts located on the premises of the retail establishment (other than an establishment open for business twenty-four hours per day) shall be collected at the end of each business day by employees of the retail establishment and shall be collectively confined in a secure manner at the cart containment area on the premises until the commencement of the next business day. All shopping carts located on the premises of any retail establishment open for business twenty-four hours per day, other than carts then currently in use by a customer or patron, shall be collected by employees of the retail establishment and returned to the cart confinement area on the premises at least once per calendar day on each day the retail establishment is open for business. The provisions of this subsection shall not apply to any shopping carts located within an enclosed building.

D. Employee Training. The owner of the retail establishment shall implement and maintain a periodic training program for its new and existing employees designed to educate such employees concerning the requirements of the cart containment plan and the provisions of state law prohibiting the unauthorized removal of shopping carts from the premises of the retail establishment.

E. Retrieval Personnel. The owner shall provide personnel for purposes of the retrieval of lost, stolen, or abandoned shopping carts. Such personnel may be either employees of the business or one of more independent contractors hired by the owner to provide shopping cart retrieval services, or a combination of both. For purposes of this section, those persons identified in the cart retrieval plan as providing cart retrieval services, whether employees of the business or independent contract services, shall be referred to in this section as retrieval personnel. The owner shall provide written authorization to all retrieval personnel, which authorization shall be carried by each such person while performing cart retrieval services on behalf of the owner and shall be provided to any enforcement personnel upon request.

F. Prompt Retrieval of Carts. The owner shall provide retrieval personnel in sufficient number to assure that all public streets within a minimum one-mile radius of the premises of the retail establishment are patrolled not less than every forty-eight hours, and each lost, stolen, or abandoned shopping cart owned or provided by the retail establishment which is found as a result of such patrols is immediately retrieved and removed from any public or private property upon which the cart is found.

G. Owner of retail business establishments or other commercial uses within the city that provide more than ten shopping carts with an electronic locking system or other similar disabling/prevention device will not be subject to subsections A through F of this section.

H. It is unlawful for any owner to provide any shopping cart for customer use that does not contain the signage required by this chapter. (Ord. 694 §1, 2018).

A. The city may immediately retrieve any lost, stolen, or abandoned shopping cart within the city where the location of the shopping cart will impede emergency services.

B. If the shopping cart has the name or other identifying marks of any retail establishment or person thereon, the city shall attempt to notify such establishment or person of the retrieval and location of the shopping cart and provide an opportunity for such establishment or person to establish ownership or the right to possession of the retrieved shopping cart to the custodian. In addition, if the shopping cart was retrieved from private property, the city shall attempt to notify the owner or occupant, if any, of such property and provide an opportunity for such owner or occupant to establish ownership or the right to possession of the retrieved shopping cart to the custodian.

C. The city may immediately retrieve any lost, stolen or abandoned shopping cart within the city which shopping cart does not have the required identification affixed.

D. The city may immediately retrieve any lost, stolen, or abandoned shopping cart within the city which shopping cart has the required identification affixed thereto, provided the city provides notice to the owner of the shopping cart, or his or her agent, within twenty-four hours of retrieval, unless such notice has been voluntarily waived by the owner or his or her agent.

E. Any shopping cart retrieved by the city shall be impounded and removed to the cart storage yard.

F. Any shopping cart impounded by the city shall be stored and disposed of as follows:

1. The public works personnel retrieving the shopping cart shall attach a tag thereto, or make a written report, identifying the date, time, and general location where the shopping cart was removed as well as the

name of the enforcement personnel who retrieved the shopping cart.

2. The shopping cart shall be delivered and custody thereof given to the custodian at the cart storage yard.

G. The shopping cart shall be released to any establishment or person who submits evidence satisfactory to the custodian to prove ownership or the right to possession of the shopping cart.

H. Notwithstanding subsection D of this section, where notice to the owner cannot be provided within twenty- four hours, any shopping cart not reclaimed by the owner within three business days following the date of actual notice shall be subject to the applicable removal and storage fees commencing on the fourth business day following the date of the notice. Notice of such fees shall be noted in the initial notice.

I. No fee shall be required in any instance where the owner or person entitled to possession of the shopping cart proves to the satisfaction of the custodian that said shopping cart was not a lost, stolen, or abandoned shopping cart within the meaning of this chapter.

J. Any shopping cart not reclaimed by the owner within thirty days of the date the cart was first removed may be sold at public auction. If, in the reasonable determination of the city’s purchasing officer, the shopping cart or part thereof has no resale value, it may be destroyed or sold as salvage. (Ord. 694 §1, 2018).

Upon the abatement, removal and storage of any shopping cart under this chapter, the city shall attempt to notify the owner of the shopping cart by sending a notice of abatement by first-class mail to the last known address of the owner or retailer as shown on the shopping cart. Such notice shall state substantially the following:

On (date), your shopping cart was found unattended on (private or public) property located at (address). Pursuant to the Wasco Municipal Code, unattended shopping carts are deemed to be a nuisance. The shopping cart is being stored at the City Yard. You may retrieve your shopping cart by calling 661-758-7270 or personally appearing at City Hall (746 8th Street, Wasco, CA). You will be required to pay the City’s costs for removing and storing the shopping cart prior to it being released into your possession. If you believe that the shopping cart was removed in error you may request a hearing by submitting a written request for such a hearing to the Director of Public Works at 801 8th Street, Wasco, CA 93280. Such a request for hearing must be received by the City within fifteen (15) calendar days of the date of the notice. Failure to request a hearing within this time period shall result in a waiver of such hearing. The shopping cart will be sold or destroyed after thirty (30) days of its removal if unclaimed. Shopping carts which have insufficient information to apprise the City of ownership of the retailer may be sold or destroyed after thirty (30) days of removal without notice.

(Ord. 694 §1, 2018).

Notwithstanding any other provision of this chapter to the contrary, nothing contained in this chapter shall be deemed to impose a requirement upon the city to provide advance notice to a shopping cart owner or retail establishment prior to the retrieval and impounding of a shopping cart to the extent the city and the owner or retail establishment have entered into an agreement which waives such requirement. The director is hereby authorized to enter into such agreements on behalf of the city. (Ord. 694 §1, 2018).

Unless otherwise provided in this chapter, the fees to be charged for the removal and storage of shopping carts by the city shall be established by resolution of the city council and shall not exceed the city’s estimated reasonable cost for such removal and storage. (Ord. 694 §1, 2018).

A. Each method set forth herein is not intended to be mutually exclusive and does not prevent concurrent or consecutive methods being used to achieve compliance against continuing violations. In addition to the payment of the city’s costs, as set forth in Section 9.32.070, the owner of a shopping cart may also be subject to a fine in the maximum amount established by Business and Professions Code Section 22435.7(f), as may be amended from time to time, for each occurrence in excess of three during any six-month period for failure to retrieve identified carts in accordance with this chapter. An occurrence includes all identified carts impounded by the city or its authorized contractor in a one-day period. (Ord. 694 §1, 2018).

If a hearing is requested in writing in accordance with this chapter, it shall be held within thirty calendar days of receipt of such request. The hearing shall be conducted by the director public works or designee. The director shall serve a notice of hearing on the owner at least ten days prior to the scheduled date of the hearing. The hearing officer shall conduct the hearing and receive evidence. 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 the director or hearing officer deems reliable, relevant, and not unduly repetitious may be considered. The city shall have the burden of proving by a preponderance of the evidence that such removal was valid under this chapter. If the city fails to carry its burden, the shopping cart shall be released without the payment of the city’s costs. The owner or agent may retrieve the cart anytime within thirty days of the date the cart was first removed. Retrieval of the shopping cart shall be the responsibility of the owner. The decision by the director or hearing officer after hearing shall become final unless the owner files an appeal within the time period specified in Section 9.32.100. (Ord. 694 §1, 2018).

Any person aggrieved by the findings and determination of the director after a hearing under this chapter may, within ten days after notice thereof has been sent by mail to the owner, file a written request with the city clerk for a hearing by the city council to review such decision. Upon the filing of such a request, the city clerk shall set such hearing and, unless waived in writing by such person, shall serve a notice of the time and place thereof by mail to the person making such request at the address shown in city records at least fifteen days in advance of such hearing. The city council may affirm, affirm with conditions or deny the appeal of the decision of the director and such decision of the city council shall be final and conclusive. (Ord. 694 §1, 2018).

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 9.32.030(A):

A. Removal. No person shall remove any shopping cart or laundry cart from the premises or parking area of any business establishment with the intent to temporarily or permanently deprive the owner or retailer of possession of the cart.

B. Possession. No person shall have in his or her possession any shopping cart or laundry cart that has either been removed from the premises or parking area of any business establishment or 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.

C. Serial Numbers. No person shall have in his or her possession 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. In addition, no person shall alter, convert, or tamper with a shopping cart or laundry cart, or to remove any part or portion thereto or to remove, obliterate or alter serial numbers on a shopping cart or laundry cart, with the intent to temporarily or permanently deprive the owner or retailer of possession of the cart.

D. Abandonment. No person shall abandon or leave any 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. This section shall not apply to the owner of a shopping cart or laundry cart or to a retailer, or to the 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 areas of the retail establishment. (Ord. 694 §1, 2018).

A. It is hereby declared to be a public nuisance for unattended shopping carts to be located on either public property or on private property without the owner’s consent. Any retail establishment in the city that maintains, or allows to be maintained, shopping carts contrary to, and in violation of, the provisions of this chapter is hereby declared to be a public nuisance. Any violation may be abated by the city through civil proceedings by means of a restraining order, preliminary or permanent injunction or in any other manner provided by law for the abatement of such nuisances. Any person who violates any of the provisions of this chapter shall be responsible for the city’s reasonable attorney fees and legal costs associated with the abatement.

B. Violations of this section and/or this chapter shall be punishable as provided in Chapter 1.20. Each day of violation of any provision of this chapter shall be a new and separate violation.

C. The first violation of any provisions of this chapter committed by the owner of any retail establishment or by any person or entity shall be an infraction punishable in accordance with the applicable provisions of the Wasco Municipal Code. (Ord. 694 §1, 2018).