The accumulation of wrecked, dismantled, lost or abandoned shopping carts, or parts thereof, on public or private property is found to create a condition tending to reduce property values, promote blight and deterioration, constitute an attractive nuisance creating a hazard to the health and safety of minors, and be aesthetically detrimental to the community and injurious to health, safety and the general welfare. Furthermore, the accumulation of these shopping carts interferes with pedestrian and vehicular traffic, waterways and storm drainage systems. Therefore, the presence of wrecked, dismantled, lost or abandoned shopping carts, or parts thereof, on public or private property, is declared to constitute a public nuisance which may be abated in accordance with the provisions of this chapter.

The purpose of this chapter is to avoid the detrimental effects of wrecked, dismantled, lost or abandoned shopping carts in accordance with state law. This chapter provides for the prompt retrieval of shopping carts by their owners and the impoundment and disposal of unclaimed shopping carts by the city, and authorizes the city to recover its costs and fines as prescribed by state law. (Ord. No. 2000-15, § II, 11-6-00)

19A.2 Definitions.

“Abandoned shopping cart” shall mean any shopping cart that has been removed from the premises of a business establishment and has been left unattended on either private or public property.

“Occurrence” shall mean a lapse of more than three (3) business days during which a shopping cart is unclaimed by its owner following the impoundment and notice of impoundment and storage, or notice of location, of the shopping cart.

“Premises” shall mean the entire area owned or utilized by the business establishment that provides shopping carts for use by customers, including any parking lot or other property provided by the storeowner for customer parking.

“Shopping cart” shall mean a basket mounted on wheels or a similar device generally used in a retail establishment by a customer for the purposes of transporting goods of any kind.

“Storeowner” shall mean any person or entity who, in connection with the conduct of a business, owns, possesses or makes available shopping carts to customers for use on the premises of the person’s or entity’s business establishment. For purposes of this chapter, “storeowner” also shall include an on-site manager or designated agent who provides shopping carts for use by customers of the business establishment. (Ord. No. 2000-15, § II, 11-6-00)

19A.3 Required signs on shopping carts.

(a) Every storeowner who makes shopping carts available to customers for the purposes of transporting goods shall have the duty to permanently affix, or cause to be permanently affixed, a sign on each shopping cart that contains the information specified in subsection (b) of this section.

(b) Every shopping cart owned or provided for the use of customers by any business establishment in the City of Gilroy shall have a sign permanently affixed to it that contains the following information:

(1) The name of the owner of the shopping cart or the name of the business establishment where the shopping cart is in lawful use, or both;

(2) Notification to the public of the procedure to be used for authorized removal of the shopping cart from the premises;

(3) Notification to the public that the unauthorized removal of the shopping cart from the premises, or the unauthorized possession of the shopping cart off premises, is a violation of state and city laws;

(4) A telephone number to contact to report the location of an abandoned shopping cart; and

(5) An address where the shopping cart can be returned to the storeowner. (Ord. No. 2000-15, § II, 11-6-00)

19A.4 Removal or possession of removed shopping carts prohibited.

(a) It shall be unlawful to either temporarily or permanently remove a shopping cart from the premises of a business establishment without the express prior written approval of the storeowner.

(b) It shall be unlawful to be in possession of a shopping cart that has been removed from the premises of a business establishment unless it is in the process of being immediately returned to the business establishment.

(c) It shall be unlawful to leave or abandon a shopping cart at a location other than the premises of the storeowner with the intent to temporarily or permanently deprive the storeowner of possession of the shopping cart.

(d) It shall be unlawful to alter, convert, or tamper with a shopping cart, or to remove any part of the shopping cart or to remove, obliterate or alter serial numbers on the cart, or to be in possession of any shopping cart with serial numbers removed, obliterated, or altered with the intent to temporarily or permanently deprive the storeowner of possession of the shopping cart. (Ord. No. 2000-15, § II, 11-6-00)

19A.5 Authority to impound.

The city may retrieve and impound any shopping cart left on public or private property when the shopping cart has a sign permanently affixed as required by section 19A.3 of this Code. The city shall deem discarded any shopping cart that lacks the signs required by section 19A.3 and may retrieve and immediately dispose of any discarded shopping cart. (Ord. No. 2000-15, § II, 11-6-00)

19A.6 Notice of retrieval or location.

The city shall provide notice of violation to the shopping cart owner of the retrieval of a shopping cart within twenty-four (24) hours following the retrieval and impoundment. The notice shall be mailed first class and postage paid, or hand-delivered to the address identified on the cart and shall inform the owner of the location where the shopping cart may be claimed. If mailed, the notice shall be deemed received three (3) days after the date of mailing. The city may opt not to retrieve a shopping cart left on public or private property and instead notify the shopping cart owner of the shopping cart’s location. (Ord. No. 2000-15, § II, 11-6-00)

19A.7 Authority to store.

The city may store an impounded shopping cart at any location that is both reasonably convenient to the owner of the shopping cart and open for business at least six (6) hours of each business day. (Ord. No. 2000-15, § II, 11-6-00)

19A.8 Authority to dispose.

The city may sell or dispose of any shopping cart not reclaimed from the city within thirty (30) days of receipt of notice by the storeowner of a shopping cart’s retrieval or location on public or private property off of the storeowner’s premises. (Ord. No. 2000-15, § II, 11-6-00)

19A.9 Reclamation by shopping cart owners.

Any shopping cart reclaimed by its owner within three (3) business days following the date of receipt of actual notice of impoundment or notice of the shopping cart’s location shall be released and surrendered to the owner at no charge whatsoever, including the waiver of any impound or storage fees or fines that otherwise would be applicable pursuant to sections 19A.10 and 19A.11. Any shopping cart reclaimed within the three (3) business-day period shall not be deemed an occurrence for the purpose of section 19A.10. Any shopping cart that is allowed to remain unclaimed on public or private property or at the place of storage for longer than three (3) business days following receipt by the owner of the shopping cart’s location shall be deemed an occurrence for the purpose of section 19A.10. (Ord. No. 2000-15, § II, 11-6-00)

19A.10 Fines.

The city is authorized to impose a fine upon the storeowner in an amount not to exceed fifty dollars ($50.00) for each occurrence in excess of three (3) during a specified six (6) month period for failure to reclaim a shopping cart in accordance with section 19A.9. (Ord. No. 2000-15, § II, 11-6-00)

19A.11 Recovery of costs.

The city may recover from a shopping cart owner all actual costs incurred in retrieving and impounding a shopping cart if the cart is not reclaimed within three (3) business days following actual notice to the storeowner of the shopping cart’s retrieval or location pursuant to section 19A.06. The city may immediately upon retrieval recover its actual costs incurred in the removal and impoundment of a shopping cart that is retrieved to prevent the impediment of emergency services. (Ord. No. 2000-15, § II, 11-6-00)

ARTICLE II. PREVENTION OF ABANDONED CARTS

19A.12 Findings, purpose and applicability.

Abandoned shopping carts constitute a nuisance, create potential hazards to the health and safety of the public, and interfere with pedestrian and vehicular traffic. The accumulation of abandoned shopping carts on public property creates conditions that may reduce property values, and promote blight and deterioration.

The intent of this article is to ensure that measures are taken by shopping cart owners to prevent the removal of shopping carts from a business premises, to make removal of shopping carts a violation of this code, and to facilitate the retrieval of abandoned shopping carts in a manner consistent with state law.

This chapter shall apply to all owners of a business establishment and other commercial services within the City of Gilroy that provide shopping carts for use by customers and members of the Public. (Ord. No. 2007-10, § II, 4-16-07)

19A.13 Definitions.

For the purposes of this article, certain words, phrases, terms and their derivatives shall be construed as specified in this section. Words, phrases, and terms that are used in this article, but not specifically defined, shall have the meaning set forth in the applicable local or state, if appropriate. Other such words, phrases and terms shall be accorded their ordinary meanings.

“Abandoned cart prevention plan” or “ACPP” shall mean a document submitted by the owner of the shopping cart pursuant to section 19A.19 of this chapter.

“Abandoned shopping cart” shall mean any shopping cart that has been removed from the premises of a business establishment and has been left unattended on either private or public property.

“Agent” shall mean the person or persons designated in the abandoned cart prevention 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 abandoned cart prevention plan.

“Director” shall mean the director of community development, or such other director or officer designated by the city administrator to administer this chapter.

“Electronic theft deterrent system” shall mean a mechanical system which automatically locks the wheels of a shopping cart when the shopping cart is pushed outside the premises. Typically, such systems include a brake on the shopping cart and some type of perimeter wire around the premises which triggers the brake on the shopping cart.

“Existing business” shall mean an establishment with a valid business license and which is open to the public on the date of approval of the ordinance from which this article derives.

“Owner” shall mean 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 purposes of this chapter, owner shall also include the owner’s designated agent.

“Shopping cart” shall mean a 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.

“Tenant improvement” shall mean a construction project which would require a building permit to modify the physical condition of an existing building or space. (Ord. No. 2007-10, § II, 4-16-07)

19A.14—19A.15 Reserved.

19A.16 Unauthorized removal prohibited.

It shall be unlawful for any person, either temporarily or permanently, to remove a shopping cart from a premises or be in possession of a shopping cart that has been removed from a premises which is properly marked in conformity with this chapter without the written consent of the owner. This section shall not apply to shopping carts removed as authorized by the owner for the purposes of repair, maintenance or disposal. (Ord. No. 2007-10, § II, 4-16-07)

19A.17 Reserved.

19A.18 Abandoned cart prevention plan required.

Owners of all businesses who provide shopping carts for customer use shall develop, implement and comply with the terms and conditions of an abandoned cart prevention plan or “ACPP,” as defined in this article, to prevent the unauthorized removal by any person of any shopping cart from the owner’s premises and, if removed, to retrieve the shopping cart within twenty-four (24) hours of the removal or notice of the removal. The ACPP shall be submitted to the director within sixty (60) calendar days of written notification by the director that such plan is required. A new owner of a business is required to submit an application to the director with either a new plan, or adoption of the plan submitted by the previous owner. (Ord. No. 2007-10, § II, 4-16-07)

19A.19 Abandoned cart prevention plan.

The ACPP shall include the following elements:

(a) Name of Business/Owner. The name of the owner and the business name, the physical address where the business is conducted, name, address and phone number(s) of the on-site and off-site owner if different.

(b) Inventory of Carts. A complete list of all carts maintained on or in the premises.

(c) Community Outreach. A description of a community outreach process under which the owner shall cause notice to be provided to customers that the removal of carts from the premises is prohibited and is a violation of state and local law. This notice may include, but is not limited to, flyers distributed at the premises, warnings on shopping bags, signs posted in prominent places near door and parking lot exits, direct mail, announcements using intercom systems at the premises, web site or other means demonstrated to be effective to the reasonable satisfaction of the director. Any and all posting of signs shall comply with the provisions of Gilroy City Code.

(d) Cart Identification. Signs and cart identification information which conform to this ordinance and state law.

(e) Loss Prevention Measures. A description of the specific measures that the owner shall implement to prevent cart removal from the premises. These measures may include, but are not limited to, electronic or other disabling devices on the carts so they can not be removed from the premises, effective management practices, use of courtesy clerks to accompany customers and return the carts to the store, use of security personnel to prevent removal, security deposit for use of cart, or other demonstrable measures acceptable to the director that are likely to prevent cart removal from the premises.

(f) Employee Training. A description of an ongoing employee training program that shall be implemented by the owner and that shall be designed to educate new and existing employees on the ACPP and conditions contained therein no less frequently than annually.

(g) Mandatory Cart Retrieval. A plan for retrieval of abandoned carts by the owner within twenty-four (24) hours of being notified. (Ord. No. 2007-10, § II, 4-16-07)

19A.20 Fees.

Every owner who, pursuant to this article, is required to submit an ACPP, or who submits an application for a modification of an ACPP, shall submit with the plan or plan modification a fee for the director’s review of the plan or plan modification in the amount set forth in the schedule of fees established by resolution of the city council. (Ord. No. 2007-10, § II, 4-16-07)

19A.21 Plan approval or denial and penalties.

(a) Each owner shall submit an ACPP in compliance with section 19A.19 to the director. The director may approve or deny the plan and notify the owner of such decision within thirty (30) days of receipt. If approved, the ACPP shall be implemented by the owner no later than thirty (30) calendar days from the date of approval.

(b) The director may deny a plan based upon any of the following grounds:

(1) Implementation of the plan violates any provision of the building, zoning health, safety, fire, police or other provision of this code or any county, state or federal law which substantially affects public health, welfare, or safety;

(2) The plan fails to include all of the information required by this chapter;

(3) The plan is insufficient or inadequate to prevent removal of shopping carts from the premises;

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

(5) Implementation of the plan violates a term or condition of a plan or other requirement of this title;

(6) The owner knowingly makes a false statement of fact or omits a fact required to be revealed in an application for the plan, or in any amendment or report or other information required to be made.

(c) If the plan is rejected as incomplete or inadequate, the director shall indicate areas of incompleteness or inadequacy, and the owner shall have an additional thirty (30) calendar days in which to resubmit a complete and adequate plan.

(d) An owner who fails to submit a complete plan to the satisfaction of the director, or fails to implement approved plan measures or fails to comply with the approved plan measures, will be subject to enforcement of these requirements through any lawful means available to the city.

(e) The director’s decision to deny a plan shall be final. (Ord. No. 2007-10, § II, 4-16-07)

19A.22 Plan modification.

At any time after the director’s approval of any ACPP, the owner may submit to the director an application for 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. (Ord. No. 2007-10, § II, 4-16-07)

19A.23 Abandoned cart prevention plan deemed ineffective; electronic theft deterrent system required.

An ACPP shall be deemed ineffective if, during any consecutive three (3) month period, more than one (1) of an owner’s shopping carts are found abandoned in the public right-of-way and have not been timely retrieved in accordance with the ACPP. In such a case, the director shall provide the owner with written notification that its ACPP has been deemed ineffective. The owner shall then submit to the director a written plan to remedy the problem, which the owner shall then implement. If the ACPP is deemed ineffective a second time, the owner shall be required to install an electronic theft deterrent system, if not already present, within ninety (90) calendar days of notification by the director. If an electronic theft deterrent system has already been installed, the owner shall revise its ACPP to include, and shall implement, supplemental loss prevention measures to ensure that the shopping cart thefts and abandonment cease. (Ord. No. 2007-10, § II, 4-16-07)

19A.24 Electronic theft deterrent systems required.

(a) New Commercial and Industrial Businesses. All new commercial and industrial businesses that employ shopping carts shall be required to implement a shopping cart electronic theft deterrent system at their business premises.

(b) Existing Development. All existing commercial and industrial businesses that employ shopping carts shall be required to implement a shopping cart electronic theft deterrent system at their business premises when constructing any tenant improvement project that exceeds a cost of one hundred thousand dollars ($100,000.00). (Ord. No. 2007-10, § II, 4-16-07)

19A.25 Electronic theft deterrent system.

Owners who are required to install electronic theft deterrent systems in accordance with this article shall maintain the systems in working order. (Ord. No. 2007-10, § II, 4-16-07)

19A.26 Business owner changes.

In the event that the ownership of a business changes, the new owner will be subject to the terms of this chapter and will be required to comply with any and all provisions of this chapter. (Ord. No. 2007-10, § II, 4-16-07)

19A.27 Enforcement.

(a) Every owner shall comply with the provisions of this chapter and every provision of the owner’s approved ACPP.

(b) Any owner who violates any provision of this article or any provision of the owner’s approved ACPP shall be subject to enforcement procedures for each violation through any lawful means available to the city, including without limitation institution of criminal enforcement in accordance with section 1.7 of the Gilroy City Code, or administrative penalties in accordance with section 6A of the Gilroy City Code. (Ord. No. 2007-10, § II, 4-16-07)

19A.28 Retrieval notification.²

The city shall notify the owner of an abandoned shopping carts as identified on the signage information permanently affixed to the shopping cart. The city notification shall be documented and provided either by telephone or by written notice. The notification shall require that the identified cart(s) be retrieved pursuant to the conditions for retrieval as set forth in the owner’s ACPP. (Ord. No. 2007-10, § II, 4-16-07)

Cross references: Garbage, refuse and weeds, § 12.1 et seq.; sidewalk obstructions, § 20.34 et seq.

Editor’s note: Previously this code contained two sections numbered 19A.27. This section was editorially renumbered during the 2009 republication to remove the duplication.

Chapter 19ASHOPPING CART MANAGEMENT, REMOVAL, IMPOUNDMENT, RETRIEVAL AND DISPOSAL1

19A.1 Findings, purpose, and applicability.