Whittier Municipal Code Ch. 9.61 Shopping Carts

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, clogs storm drains, results in the obstruction of free access to public and private sidewalks, streets, parking lots and other ways, interferes with pedestrian and vehicular traffic on public and private streets, and impedes emergency services. For the aforesaid reasons, such lost, stolen or abandoned shopping carts are hereby declared to be a public nuisance, which shall be subject to abatement in the manner set forth in this chapter or in any other manner provided by law. 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.

(Ord. No. 3092, § 1, 7-24-18)

For purposes of this chapter, the following words or phrases, when used in this chapter, shall have the following meanings ascribed to them:

A. "Abandoned shopping cart" means any cart that has been removed without written permission of the owner or on-duty manager from the premises of the business establishment, regardless of whether it has been left on either private or public property. Written permission shall be valid for a period not to exceed seventy-two hours. This provision shall not apply to carts that are removed for purposes of repair or maintenance.

B. "Cart" means a basket, which is mounted on wheels, or a similar device provided by a business establishment for use by a customer for the purpose of transporting goods of any kind, including, but not limited to grocery store shopping carts. This definition shall exclude from enforcement under this chapter those devices, which do not have a "basket" mounted on wheels in which goods can be placed for transport. This shall not apply to laundry carts typically found at self-service laundromats.

C. "Containment plan" means a document submitted by the owner of the shopping cart pursuant to Section 9.61.120 of this chapter.

D. "Code enforcement supervisor" means the supervisor of the code enforcement department or his/her designee.

E. "City" means the city of Whittier.

F. "City council" means the city council of the city.

G. "Enforcement personnel" means any police officer, code enforcement officer, or other city of Whittier employee designated by the city manager.

H. "Identified cart" means a cart that has a permanently affixed sign that identifies, in accordance with Business and Professions Code Section 22435.1, 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 owner's premises; notifies the public that the unauthorized removal of the cart from the cart owner's premises or cart owner's parking area or the unauthorized possession of the cart, is a violation of state law; lists a valid telephone number or address for returning the cart to the owner or retailer.

I. "Owner" means any person or entity, who in connection with the conduct of a business, owns, leases, possesses, uses, or otherwise makes any cart available to customers or the public. For purposes of this chapter, owner shall also include the owner's onsite or designated agent that provides the carts for use by its customers.

J. "Premises" means the entire area owned, leased, or rented and utilized by the business establishment that provides carts for use by customers, including any parking lot or other property provided by the owner for customer parking.

K. "Shopping cart retrieval service" means a contract with a commercial service to retrieve and return shopping carts to their respective owners, which meets minimum service requirements as established by the code enforcement supervisor. A contract with a commercial service to retrieve and return shopping carts to the owners, which fails to meet minimum service requirements established by the code enforcement supervisor, is not a shopping cart retrieval service within the meaning of this chapter.

L. "Unidentified cart" means a cart that is not an owner-identified cart, or an identified cart of a retail establishment located outside the city.

(Ord. No. 3092, § 1, 7-24-18; Ord. No. 3112, § 4, 2-25-20)

Every cart owned or provided by any business establishment in the city must have a sign permanently affixed to it that contains the following information:

A. Identifies the owner of the cart or the name of the business establishment, or both;

B. Notifies the public of the procedure to be utilized for authorized removal of the cart from the business premises;

C. Notifies the public that the unauthorized removal of the cart from the premises or parking area of the business establishment is a violation of state and city law;

D. Lists a telephone number to contact to report the location of the abandoned cart; and

E. Lists an address for returning the cart to the owner or business establishment.

(Ord. No. 3092, § 1, 7-24-18)

It is unlawful to do any of the following if a cart has a permanently affixed sign as set forth in Section 9.61.030:

A. Remove a cart from the business premises with the intent to temporarily or permanently deprive the owner or retailer of possession of the cart.

B. To be in possession of any cart that has been removed from the business premises, with the intent to temporarily or permanently deprive the owner or retailer of possession of the cart.

C. To be in possession of any cart with owner identification information 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 cart at a location other than the business premises 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 cart, or to remove any part or portion thereof or to remove, obliterate or alter owner identification information 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 cart while that cart is not located on the business premises of a business establishment, with the intent to temporarily or permanent deprive the owner or retailer of possession of the cart.

(Ord. No. 3092, § 1, 7-24-18)

Once an unidentified cart is discovered on public or private property, the city or its authorized contractor may remove and impound said cart. If the removal is from private property, the city or its authorized contractor must first obtain the property owner's consent. The unidentified cart shall be marked with a tag indicating the date and location of its discovery and shall be stored for thirty calendar days at a location selected by the city. Any claims for an unidentified cart shall be presented to the code enforcement supervisor and shall be accompanied by proof of ownership of the cart. A person demonstrating proof of ownership of an unidentified cart stored by the city shall pay the city's nuisance abatement fee prior to the cart being released by the city.

(Ord. No. 3092, § 1, 7-24-18)

A. The city, or its authorized contractor, may remove and impound any abandoned identified shopping cart from any public property, or from private property with the property owner's consent, provided that the identified cart is located outside the premises or parking area of the retail establishment, which owns the cart.

B. In the event the city, or its authorized contractor, removes and impounds an identified cart, the city, or its authorized contractor, shall provide actual notice to the owner of the identified cart or his/her representative within twenty-four hours following the impound of the cart, indicating the location where the cart may be claimed.

C. Notwithstanding subsection A of this section, the city or its authorized contractor may remove and impound any identified cart from any public or private property in instances where the location of the cart may impede emergency services.

(Ord. No. 3092, § 1, 7-24-18; Ord. No. 3112, § 2, 2-25-20)

A. Any identified or unidentified cart not reclaimed from the city within thirty days of receipt of a notice of impoundment by the owner of the cart, may be sold or otherwise disposed of by the city.

B. In the event a cart remains unclaimed, is disposed of or destroyed, the city reserves the right to collect any applicable redemption fees and/or fines from the cart owner.

(Ord. No. 3092, § 1, 7-24-18)

A. Cost Recovery. The city may recover from the owner of a shopping cart, actual costs incurred in impounding the shopping cart pursuant to California Business and Professions Code Section 22435.7(d).

B. Fine. In addition to the payment of the city's costs as set forth in subsection A, 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. No. 3092, § 1, 7-24-18)

A. A cart owner or authorized representatives may, upon prior appointment, inspect impounded carts to determine if any of the owner's carts are present and may redeem such carts upon proof of ownership and payment of all applicable cost recovery or administrative fines.

B. An impounded cart may be redeemed by the owner at any time during normal business hours prior to disposal or destruction. The owner shall be entitled to receive the cart upon payment of all applicable cost recovery or administrative fines.

C. Any impounded cart redeemed by the owner or authorized representative within three business days following the date of actual notice of impoundment shall be released and surrendered to the owner or authorized agent at no charge.

D. Any impounded cart redeemed by the owner or authorized representative within three business days following the date of actual notice of impoundment shall not be deemed an occurrence for purposes of Section 9.61.080(B) of this chapter.

E. Any impounded cart that is not redeemed by the owner or authorized representative within three business days following the date of actual notice of impoundment shall be subject to any applicable cost recovery or administrative fines imposed pursuant to Section 9.61.080 of this chapter, commencing on the fourth business day following the date of the notice of impoundment.

F. No cart shall be released to a person seeking to redeem an impounded cart, unless such person submits, to the sole satisfaction of the city, proof of ownership or right to possession of the impounded cart.

G. Any release of a cart to a person deemed by the city to be entitled thereto, shall be an absolute defense of the city against any other person claiming to be entitled thereto.

(Ord. No. 3092, § 1, 7-24-18)

A person who can demonstrate that they are the owner of an impounded cart may appeal the imposition of the nuisance abatement cost recovery or administrative fine by presenting evidence that the cart removal and storage was not performed substantially in accordance with the provisions of this chapter. Appeals shall be made in writing to the code enforcement supervisor within ten calendar days of paying the cost recovery or fine. An office hearing will be held within thirty calendar days of the receipt of a request for an appeal. The cart owner or authorized representative shall appear and be heard on the matter. If the code enforcement supervisor determines that the shopping cart was not removed and stored in substantial accordance with the provisions of this chapter, the nuisance abatement cost recovery or administrative fine shall be refunded. The decision of the code enforcement supervisor or his/her designee shall be final.

(Ord. No. 3092, § 1, 7-24-18; Ord. No. 3112, § 2, 2-25-20)

Every owner shall develop and implement a containment plan to prevent the removal of carts from the business premises.

A. Existing businesses: Each person who owned or controlled a business in existence within the city's jurisdiction on the effective date of this ordinance who provided ten or more shopping carts for use by customers or the public, shall submit a written containment plan to the code enforcement supervisor for review within one hundred twenty days of the effective date of this ordinance.

B. New businesses:

1. For new businesses established after the effective date of this ordinance that have a minimum of ten carts, the owner shall be required to submit a written containment plan to the code enforcement superior for review within thirty days after establishing the new business.

2. This subsection shall not apply to existing businesses that relocate, operating under the same name, to another location in the city. Said business shall not be closed for more than thirty days.

(Ord. No. 3092, § 1, 7-24-18)

At a minimum, the containment plan must include the following elements and a detailed description of how they will be implemented:

A. Notice to customers. Written notification shall be provided to customers that removal of carts from the premises and parking lots are prohibited and a violation of state and city law. This notice may be provided in the form of flyers, warnings on shopping bags, or any other form of written notification that will effectively notify customers of the prohibition.

B. Signs. Signs shall be placed in conspicuous locations proximate to exits and shopping cart collection areas that warn customers that cart removal is prohibited and constitutes a violation of state and city law.

C. Loss prevention measures. A description of the specific effective measures the owner will implement to prevent shopping cart removal from the premises. These measures may include, but are not limited to, electronic or other disabling devices on the shopping carts so they cannot be removed from the premises, use of courtesy clerks to accompany customers and return carts to the store, use of security personnel to prevent cart removal, security deposit for use of cart, or other demonstrably effective measures acceptable to the code enforcement supervisor, likely to prevent shopping cart removal from the premises.

D. Mandatory cart retrieval.

1. Nine or fewer carts. Cart retrieval is mandatory; however, the owner shall be responsible for retrieving their own carts.

2. Every owner who maintains ten or more carts for use by customers shall provide evidence of a contract with a shopping cart retrieval service with terms requiring collection of abandoned shopping carts within twenty-four hours of removal. The retrieval service must be approved by the code enforcement supervisor and the owner shall not place limits on daily loads or days per week to retrieve carts within the city.

3. As an alternative to subsection (2) above, stores with ninety carts or less may elect to retrieve their own carts rather than enter into a contract with a shopping cart retrieval service. Abandoned shopping carts shall be retrieved within twenty-four hours of removal. At the discretion of the code enforcement supervisor, should carts not be retrieved within twenty-four hours, the owner shall enter into a contract with a shopping cart retrieval service.

E. After hours cart containment. A plan for securing shopping carts whenever the store is not open for business.

(Ord. No. 3092, § 1, 7-24-18)

The code enforcement supervisor may approve, conditionally approve, or deny the proposed plan, and notify the owner of such decision in writing, within thirty days after receipt of the plan.

A. If approved, the containment plan shall be implemented by the owner no later than thirty days from the date of approval.

B. If conditionally approved, the owner may accept in writing the conditions stipulated by the code enforcement supervisor, after which the owner shall implement the conditionally approved containment plan within thirty days of the date of conditional approval.

C. If the submitted containment plan is denied, the reasons for denial shall be set out in writing and the owner shall have fifteen days to revise and resubmit the plan.

D. Even though approved, a containment plan may be reevaluated at any time by the code enforcement supervisor if operation of the plan demonstrates that the plan's insufficiency or inadequacy in preventing removal of carts from the premises.

(Ord. No. 3092, § 1, 7-24-18)

The code enforcement supervisor may deny a containment plan based upon any of the following grounds:

A. Implementation of the containment plan would violate provisions of the building, zoning, health, safety, fire, police or other provisions of the city's code, or any county, state, or federal law which substantially affects public health, welfare or safety;

B. The containment plan fails to include all the information required by this chapter;

C. The containment plan is insufficient or inadequate to prevent removal of carts from the owner's premises;

D. The containment plan fails to address any special or unique conditions due to the geographical location of the premises as they relate to shopping cart retention and prevention efforts;

E. Implementation of the containment plan would violate a term or condition of another city policy or requirement of the municipal code;

F. The owner has knowingly made a false statement of fact, or omits a fact required to be revealed in the application for the containment plan, or in any addendum or report or other information required to be provided regarding the containment plan;

G. If the containment plan is rejected as incomplete or inadequate, then the code enforcement supervisor shall indicate the areas of incompleteness or inadequacy, and the owner shall have an additional fifteen days in which to resubmit a corrected containment plan; or

H. An owner who fails to submit a complete containment plan, or fails to implement approved plan measures, or fails to comply with the approved plan measures, shall be subject to enforcement of these requirements through any lawful means available to the city, including without limitation, institution of the administrative remedies provided for in this chapter.

(Ord. No. 3092, § 1, 7-24-18)

At any time subsequent to the code enforcement supervisor's approval of a containment plan, the owner may submit to the code enforcement supervisor a request of a modification of the previously approved plan to address a change in circumstances, address an unanticipated physical or economic impact of the plan or modify an inadequate or ineffective plan. The code enforcement supervisor may also modify an approved plan, which has been demonstrated to be ineffective or inadequately implemented. Grounds for code enforcement supervisor modification include, but are not limited to, a high number of abandoned shopping carts. The code enforcement supervisor may require the owner to install and maintain electronic or other geographic disabling devices to prevent carts from being removed from the premises. The code enforcement supervisor shall notify the owner of a proposed modification of a previously approved plan and provide the owner an opportunity to respond within a ten-day period prior to the code enforcement supervisor's decision.

(Ord. No. 3092, § 1, 7-24-18)

In the event that owner(s) fail to utilize the shopping cart retrieval service or to follow cart prevention measures which result in shopping carts being abandoned off premise resulting in city personnel picking up and storing shopping carts, and/or shopping carts are not being collected within twenty-four hours, the owner may be required to either submit a new containment play or install a standardized cart containment system with a wheel locking or stopping mechanism that is used in conjunction with an electronic or magnetic barrier along the perimeter of the store premises. The wheel locking or stopping mechanism would activate when the shopping cart crosses the electronic or magnetic barrier.

(Ord. No. 3092, § 1, 7-24-18)

If an owner has equipped carts with disabling devices, either voluntarily or by order from the city, the owner shall conduct regular maintenance to ensure the disabling devices are working properly. If at any time, the owner determines the disabling device installed on a cart is not working properly, the cart shall be pulled from circulation until it is repaired. The owner shall inspect, test, and repair all abandoned carts returned to the owner prior to making the returned carts available for use.

(Ord. No. 3092, § 1, 7-24-18)

Any person who violates any provision of this chapter is subject to being charged with (i) a misdemeanor or infraction, (ii) subject to the administrative penalty and citation process set forth in Chapter 1.09 of this code, and (iii) subject to a civil penalty of fifty dollars for every day of non-compliance in excess of three during a six-month period.

The remedies and penalties provided herein are cumulative, alternative and nonexclusive. The use of one does not prevent the use of any other civil or administrative remedy or penalty authorized by, or set forth in the Whittier City Municipal Code. None of the penalties or remedies authorized by or set forth in the city's municipal code shall prevent the city from using other penalty or remedy under state statute which may be available to enforce this chapter or to abate a public nuisance.

(Ord. No. 3092, § 1, 7-24-18)