FLA. JUDGE INVALIDATES SHOPPING CART RULE 2004-07-19 (1)

Christine Blank

KISSIMMEE, Fla. -- In a recent preliminary ruling, a state judge here decided that the city of Kissimmee, a suburb of Orlando, could not enforce an ordinance requiring retailers to implement technology to keep shopping carts within their parking lots.

Publix Super Markets, Lakeland, Fla., Winn-Dixie Stores, Jacksonville, Fla., and the Florida Retail Federation have been battling with the city since it passed the ordinance in 2001. They filed a suit against the city that year, after Kissimmee officials refused to consider other, non-regulatory methods of controlling shopping carts. The ordinance fined violators up to $250 per day per cart.

A final written ruling is expected to affirm the preliminary judgment.

Kissimmee is part of a wave of local communities nationwide that has passed such rules or is considering them. The problem of shopping cart theft has mushroomed as teenagers, the homeless and others have taken to stealing shopping carts and abandoning them off-property, leaving city workers responsible for removing them.

The Kissimmee ordinance apparently ran counter to Florida law, which mandates that retailers cannot be charged for carts that leave their lots, unless their employees take them off the lots. Osceola County Circuit Judge James Stroker ruled that the city's ordinance is invalid, and is preempted by state statute. "It's a victory for retailers, but more importantly, it is a validation of the [state law]," said Tucker Byrd, an attorney for FRF.

"The real victim is the retailer whose cart has been stolen," Byrd said. "Retailers have their own economic interest in lost carts. Leave it to them to decide how they want to solve the problem."

The surge of local ordinances has been a boon to technology companies that provide the sort of anti-theft systems Kissimmee wanted to make mandatory. Retailers that have invested in technology from Carttronics, Carlsbad, Calif., include Wal-Mart Stores, Albertsons and Safeway. The company's device triggers wheel brakes when a cart leaves a store's parking lot.

Carttronics estimated the cost of shopping carts taken off property is thousands of dollars per year per store. Stores are faced not only with the expense of replacing the carts -- estimated at $100 per unit -- but also the employee time and other costs associated with retrieving them.

Other technology providers include Kart Saver, Sacramento, Calif., which has a device that beeps when a cart leaves store lots, and Gatekeeper Systems, Irvine, Calif., which offers a system that makes cart wheels lock when the cart leaves the store's parking lot.

FRF estimated the systems cost between $30,000 and $40,000 per store -- a cost not all retailers wish to bear. "It creates a tremendous cost to do business that we would be forced to pass along to customers," said Kathy Lussier, director of communications for Winn-Dixie. The retailer fought the ordinance from the beginning because it is an "unwarranted and unnecessary intrusion into the business operations of Winn-Dixie," she said. "It has not been demonstrated that there is an underlying problem requiring this onerous regulation."

Scott Dick, vice president of government affairs for FRF, contended that cities should not penalize retailers for shopping cart theft. The problem can be handled "without statutory change," he said. "It can be worked out with individual companies."

Retailers and the FRF tried to work with Kissimmee officials on an alternative solution to the ordinance before they sued, but the city did not want to compromise. "We were willing to fund a business that would go pick up shopping carts," Dick said.

Dick said a better solution has been implemented in Hillsborough County, Fla., which has an ordinance that encourages retailers to retrieve the carts, but does not fine them when carts are removed from their lots. Stores in that county have placed signs on their carts, and they retrieve the carts themselves.

Still, that program is not ideal, according to Dick, because the government is still legislating how retailers should handle shopping cart theft.