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City council Meeting 11-24-87
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Santa Mon~ca, Cal~forn~a
DEe 1 1987
STAFF REPORT
TO:
Mayor and city Council
FROM:
city Attorney
SUBJECT:
Ordinance Adding sections 5250 through 5256
to the Santa Monica Municipal Code Establishing
A Redemption Value for Wine Cooler and Spirit
Cooler Containers
At its meeting on July 28, 1987, the City council directed
the city Attorney to prepare an ordinance to provide for a bottle
recycling program in the City of Santa Monica for wine coolers
and distilled spirit coolers in bottles.
In response to this
direction, the accompanying ordinance has been prepared and is
presented to the city Council for its consideration.
The accompanying ordinance is based on a model ordinance
proposed by Californians Against Waste. A similar ordinance has
been adopted by the City of Davis and County of Santa Cruz and is
currently being considered by several other cities, including
West Hollywood, Palo Alto, and Arcadia.
This ordinance is considered necessary due to the drastic
increase in the number of wine coolers sold since 1982 and the
expected increase in the sales of spirit coolers in the near
future.
Littered wine cooler and spirit cooler containers are
contributing significantly and in rapidly increasing proportion
to the destruction of the natural beauty of the city's streets
and parks and is burdening the city's solid waste disposal plan.
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The ordinance fills a gap created when the state Legislature
enacted the California Beverage container Recycling and Litter
Reduction Act, Public Resources Code Section 14500 et seq. The
Act, which requires redemption of beer, malt liquor and
non-alcoholic carbonated beverages, does not require redemption
of wine or spirit coolers.
It is the city Attorney I s opinion
that a regulation establishing a redemption value for wine cooler
and spirit cooler containers is not preempted by the Act or by
any other state law.
The accompanying ordinance adds sections 5250 through 5256
to the Santa Monica Municipal Code.
SECTION-BY-SECTION ANALYSIS
section 5250.
This section sets forth the definitions of
terms used in this Ordinance.
section 5251.
This section sets forth the distribution
requirements for the recycling program.
All wine or spirit
cooler containers sold in the City of Santa Monica will have a
refund value of $.05 per bottle.
A distributor must include in
its charge to individual dealers a $.05 refund value, which will
be returned to the dealer when the empty container is returned.
Each container sold or offered for sale must be labeled in some
fashion to indicate that there is a refund value for the empty
container.
section 5252.
This Section sets forth the retail
requirements of the recycling program. All wine or spirit cooler
containers shall have a $.05 refund value which the dealer must
charge to the consumer upon initial sale of the wine or spirit
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coolers. This amount will be refunded to the consumer when the
consumer returns the empty cooler containers to the dealer for
recycling.
Section 5253.
This Section sets forth the distributor
redemption requirements.
It is unlawful for a distributor to
refuse to accept from a dealer any empty wine or spirit cooler
containers which are appropriately marked pursuant to Section
5245 or refuse to pay to the dealer the $.05 refund value per
container.
Section 5254.
This Section sets forth the retail
redemption requirements of the recycling program. It is unlawful
for a dealer who sells wine or spirit coolers to refuse to accept
empty containers, marked as required by section 5245, from the
consumer or to refuse to pay the $.05 refund value per container
to the consumer. There are two exceptions:
if the container is
not empty, or if the container contains a brand or type of wine
or spirit cooler which the dealer is not offering for sale at the
time of redemption or has not offered for sale in the preceding
90 day period.
section 5255. This Section provides that the City Manager,
or his or her designee, is authorized to enter the premises
during business hours of any wine or spirit cooler dealer for the
sole purpose of inspecting the premises and making sure that the
dealer is in compliance with this Ordinance.
Section 5256.
This Section makes it a misdemeanor to
violate this Ordinance. Each day of a continuing violation shall
constitute a separate offense.
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COMPARISON OF ORDINANCE TO STATE RECYCLING AND
LITTER REDUCTION ACT
The state recycling law, Public Resources Code section
14500 et ~~q., took effect on October I, 1987. This law imposes
a one cent redemption value on all beer, malt, soft drink, and
carbonated water containers sold in California. This amount is
scheduled to increase at the rate of one cent depending on the
success of the program.
For instance, if 65% of redeemable
containers are not returned during the first year, then the
redemption value will increase to 2 cents in 1989, and to 3 cents
in 1992.
Each retailer is not necessarily required to redeem
containers. Rather, while retailers can redeem the containers at
their stores, they need not do so if they are within one-half
mile of a state certified redemption center.
There are two major differences between the proposed
ordinance and state law.
The ordinance proposes a 5 cent
redemption value instead of the graduated state schedule that
begins at 1 cent.
Additionally, the ordinance requires all
retailers of spirit and wine coolers to redeem these containers
if they sell the product.
There is no exemption under the
ordinance for proximity to redemption centers.
with respect to the redemption value of 5 cents, it is
widely believed that the greater the redemption value, the
greater the likelihood that the program will be successful. with
a higher redemption value, consumers have more incentive to
return the bottles.
The graduated 1 cent state law amount was
the product of intensive lobbying, much of it hostile to any
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concept of container recycling.
The fact that the Legislature
adopted a graduated redemption scheme suggests that it realizes
that the 1 cent initial return value may not be successful.
The strongest argument against the 5 cent redemption value
is that it will be confusing for retailers to administer a
program which requires one redemption rate for containers
returned under state law and a different rate for those
containers returned under the city ordinance.
It is true that
there will be some confusion for retailers to comply with two
different laws.
However f the confusion will not be created
principally by the different redemption rates. Rather, if there
is confusion, it will arise because the City ordinance permits
the return of containers not covered by state law. The retailers
would still have to segregate containers returned under the
ordinance from state returned containers even if the redemption
values for the two types of containers were identical. In short,
any confusion that occurs is inherent in having two parallel, yet
different, laws.
Consequently, it is not likely that the
different
redemption
values
will
significantly
increase
retailers' burdens.
The second major difference in the laws is that most
retailers will need some type of redemption operation at their
store in order to comply with the ordinance. This is so because
the state certified redemption centers which will be created
under state law will be of little use to retailers under the
ordinance. These centers likely will refuse to accept containers
not covered by the state law. As a result, while being within
one-half mile of a state redemption center can exempt a retailer
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from having to accept the return of a container under the state
law, and thus eliminates the need for the store to have an
on-site redemption operation, proximity to the redemption center
will provide no similar exemption with respect to containers
returned under the ordinance.
PREEMPTION AND IMPACT OF THE ORDINANCE
While the state law is comprehensive as to certain beverage
containers, there is no indication that the law was designed to
prevent municipalities from regulating containers not covered by
state law. As a result, in this setting, there is no preemption
problem.
In Park and Shop Markets, Inc. v. Berkeley, 116 Cal.
App. 3d 78, 172 Cal. Rptr. 515 (19B1), the court concluded that
there was no preemption problem in a suit by retail grocers
against Berkeley for requiring a deposit on beer and soft drink
containers.
There are no known lawsuits pending against those
municipalities or counties which have already passed similar
ordinances.
Apart from the intrinsic merit of requiring recycling of
spirit and wine cooler containers, the impact of the ordinance is
twofold. First, the ordinance may spur the state LegiSlature to
include these containers in the state law. The spirit and wine
cooler industry may prefer to have one uniform state law covering
their containers than face the prospect of several different
municipal ordinances.
Second, even if the ordinance does not
result in revised statewide regulation, it may prompt other
juriSdictions to act, thus reducing the litter that may be
brought into Santa Monica.
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RECOMMENDATION
It is respectfully recommended that the accompanying
ordinance be introduced for first reading.
PREPARED BY: Robert M. Myers, city Attorney
Joseph Lawrence, Assistant City Attorney
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CA:RMM:jld085jhpc
City Council Meeting 11-24-87
Santa Monica, California
ORDINANCE NUMBER
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF SANTA MONICA ADDING CHAPTER 2A TO ARTICLE V OF
THE SANTA MONICA MUNICIPAL CODE TO ESTABLISH A
REDEMPTION VALUE FOR WINE COOLER AND SPIRIT COOLER CONTAINERS
THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES ORDAIN AS
FOLLOWS:
SECTION 1. Chapter 2A is added to Article V of the Santa
Monica Municipal Code to read as follows:
SECTION 5250. pefinitions. For the
purpose of this Chapter, the following
words and phrases shall have the following
meanings:
(a)
City.
All that territory
within the corporate limits of the city of
Santa Monica, State of California.
(b) City Manager. The City Manager
of the city of Santa Monica, or said
manager's designated representative.
(c)
Consumer.
Every person who,
for his or her use or consumption,
purchases wine coolers or spirit coolers
in a container from a dealer in the City
for off-premises consumption.
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(d) Container. Any sealed device,
however denominated, made of glass, metal,
plastic,
or
other
material
or
any
combination of materials, which directly
holds or contains wine coolers or spirit
coolers.
"Container" does not include
cups or other similar open or loosely
sealed receptacles.
(e) Dealer. Any person who engages
in the sale to a consumer of wine coolers
or spirit coolers in a container or
containers in the City for off-premises
consumption.
(f)
Empty.
A container which is
all of the following:
(1) Has the original seal or
closure broken or removed.
(2) Does not contain foreign
materials other than the residue of wine
cooler
or
spirit
cooler
originally
packaged in the container.
(3) Bears the refund value
marking
pursuant
to
section
5251(c)
herein.
(4) Is not broken, crushed,
or dismembered.
(g)
Distributor.
Any person who
engages in the sale of wine coolers or
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spirit
coolers
in
a
container
or
containers to a dealer in the city.
"Distributor" includes any person who
imports or otherwise transports wine
coolers or spirit coolers in containers
from outside the city for sale to a dealer
in the city.
(h)
Place
of
Business.
The
location at which a dealer sells, or
offers for sale, wine coolers or spirit
coolers in a container or containers.
"Place of Business" as used herein with
respect to a distributor shall mean any
location from which said distributor
directly transports wine coolers or spirit
coolers in containers to any dealer, if
said location is within the state of
California.
(i)
Sale (or Sold or Sell).
Any
commercial transaction by any dealer in
which wine coolers or spirit coolers in a
container or containers are transferred to
a consumer for a monetary consideration
for
the
purpose
of
off-premise
consumption, or any commercial transaction
by which a distributor transfers wine
coolers or spirit coolers in a container
or containers to a dealer for a monetary
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consideration for the purpose of sale by
the dealer for off-premise consumption.
(j)
spirit
Cooler.
A
liquid
intended for human consumption containing
distilled spirits to which
is added
concentrated or unconcentrated juice or
flavoring material and containing not more
than eight percent (8%) alcohol by volume.
(k) wine Cooler. A liquid intended
for human consumption containing wine to
which
is
added
concentrated
or
unconcentrated
juice
or
flavoring
materials and containing not more than
seven percent (7%) alcohol by volume.
SECTION
5251.
Distribution
Requirements.
(a) Every wine cooler or spirit
cooler container sold or offered for sale
by a distributor to a dealer for sale by
the dealer within the city shall have a
refund value of not less than five cents
($.05) for redemption by a dealer from the
distributor.
(b) It shall be unlawful for a
distributor to knowingly sell or offer to
sell a wine cooler or spirit cooler
container to a dealer for sale by the
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dealer within the City and for a dealer to
purchase such a container for such
purposes from a distributor unless the
distributor charges and the dealer agrees
to pay a refund value of not less than
five cents ($.05).
(c) Every wine cooler or spirit
cooler container sold or offered for sale
by a dealer within the city shall clearly
indicate by embossing or by a stamp or
label or other method, securely affixed to
the container by the distributor, that the
container has a refund value of not less
than five cents ($.05).
(d) It shall be unlawful for a
distributor to knowingly sell or offer to
sell a wine cooler or spirit cooler
container to a dealer for sale by the
dealer within the City and for a dealer to
purchase
such a
container
for
such
purposes or to store or offer to sell such
a container for such purposes unless the
container is embossed, stamped, or labeled
with, or by other method indicates, the
message required by subparagraph (c)
above.
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SECTION 5252. Retail Requirements.
(a) Every wine cooler or spirit
cooler container sold or offered for sale
by a dealer within the City shall have a
refund value of not less than five cents
($ . 05) for redemption by a consumer from
the dealer.
(b) It shall be unlawful for a
dealer to sell or offer to sell a wine
cooler or spirit cooler container within
the city unless the dealer charges a
refund value of not less than five cents
($.05) .
SECTION
5253.
Distributor
Redemption Requirements.
It shall be
unlawful for a distribution to refuse to
accept from a dealer any empty wine cooler
or spirit cooler container which has been
marked in the manner prescribed by section
5251(c) above of the kind, size, and brand
sold by the distributor, or to refuse to
pay to the dealer a refund value for such
container of not less than five cents
($.05) .
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SECTION 5254.
Requirements.
(a) It shall be unlawful for a
dealer who sells wine cooler or spirit
Retail Redemption
cooler in containers to refuse to redeem a
wine cooler or spirit cooler container
from a consumer or refuse to pay a refund
value for the container of not less than
five cents ($.05) to the consumer, when
the request for redemption is made at the
dealer's place of business within the city
and the container is embossed, stamped, or
labeled with, or by other method
indicates, a message that the container
has a refund value, unless either:
( 1) The container is not
empty.
(2) The container contained a
brand or type of wine cooler or spirit
cooler which the dealer is not offering
for sale at the time redemption is
requested and has not offered for sale for
a period of at least ninety (90) days.
(b) A dealer shall be considered in
compliance with this Section if it accepts
wine and spirit cooler containers for
redemption at redemption facilities and
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centers
established
pursuant
to
the
California Beverage Container Recycling
and Litter Reduction Act.
SECTION 5255. Inspection Authority.
The City Manager or the City Manager IS
designated representative is authorized to
enter
the
business
premises
during
business hours of any dealer engaged in
the sale of wine coolers or spirit coolers
in containers in the City for the sole
purpose of inspecting said premises and
determining whether the dealer is in
compliance with this Section.
SECTION 5256.
Violation and Fine.
Any dealer or distributor
found
in
violation of any provision of this Section
shall be guilty of a misdemeanor. For
purpose of this Section, each day of a
continuing violation shall constitute a
separate offense.
SECTION 2.
Any provision of the Santa Monica Municipal
Code or appendices thereto inconsistent with the provisions of
this Ordinance, to the extent of such inconsistencies and no
further, are hereby repealed or modified to that extent necessary
to affect the provisions of this Ordinance.
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SECTION 3.
If any section, subsection, sentence, clause,
or phrase of this Ordinance is for any reason held to be invalid
or unconstitutional by a decision of any court of any competent
jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance.
The city Council hereby
declares that it would have passed this Ordinance, and each and
every section, subsection, sentence, clause, or phrase not
declared invalid or unconstitutional without regard to whether
any portion of the Ordinance would be subsequently declared
invalid or unconstitutional.
SECTION 4. The Mayor shall sign and the city Clerk shall
attest to the passage of this Ordinance.
The City Clerk shall
cause the same to be published once in the official newspaper
within 15 days after its adoption. This Ordinance shall become
effective February I, 1988.
APPROVED AS TO FORM:
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ROBERT M. MYERS
City Attorney
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CS4W. <~\' , . : NOV 2 ~ ISB7
Californians Against W~~1~4 r,1~:19
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November 23, 1987
VIA FEDERAL EXPRESS
~ANlh: ,0
Mayor James Conn
C1ty of Santa Monica
1685 Main Street
Santa Monica, CA 90401
RE: Wine Cooler Deposit Ordinance
Dear Mayor Conn:
At your council meeting on Tuesday you will have an opportunity to
move a solution to a growing litter and solid waste problem in your
community.
Over the next year Californians will consume more than 200 million
wine and spiri t coolers, nearly all of which are sold in single
serving glass containers. However, thanks to the influence of the wine
and liquor lobbyies, these containers were eXCluded from the state
recycling and litter reduction program, and are not redeemable at
recycling centers.
J
By establishing a 5-cent deposit on wine and spirit cooler containers
you will be providing an "incentive" for consumers to recycle these
otherwise non-redeemable containers, and thereby help to insure that
these bottles will not be littered in our parks and on our beaches, or
tossed and broken on our roadsides. This action will also divert a
valuable resource from our diminishing landfills.
Finally, your action will send a clear message to both the state
legislature and the wine and liquor industry which have unfairly
allowed the exemption of wine and spirit coolers from the California
Beverage Container Recycling and Litter Reduction Act which went into
effect October 1.
Thus far the ordinance has been introduced in more than a dozen oi ties
and counties, with dozens more slated to consider it in the next
month. Californians Against Waste applauds your city's leadership on
thlS issue and urges your support in its adoption.
Thank you for your consideration of th~s common sense issue.
Avr; Iii itA
NOV 2 4 1987
Mark Murray
Local Government Liaison
cc:
C1ty
Clty
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Attorney <Jdg 12th Street, #201, Sacramento. CA 95814
(916) 443-5422
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EDITORIALS
A bigger battlefield
THE WINE 'INDUSTRY WOD a tun puts dUes BDd counUes In a tough posi-
t I..tlght in Sacramento this week tiOD. They must take any heat {rom con-
. against ~rnblyman Byron Shere sUluenls that may result aDd impose reg.-
who wants wlne<ooler bottles Included ulatlons and policing mecbanlsms that
In tbe statewide recycling program thp.t may be voided 60metime SOOD.
bans no-aeposlt, no-return beer and soda But clearly, n'loe-cooler containers
containers by Sept 1 and mandates one- sbould be part of the recycUng program.
cent refunds on lhem by Oct 1. Wine Sber end stete officia.ls who wIll oversee
Industry lobbyists succeeded 10 convloc. the program have shown the. t even 8'
log enough members ot the Assembly' keen cye cennot discern dlt!ereoces
Ways and Meaas CommHtee to oppose among lebeJless bottles, so wloe-cooler
Sher's bllJ, AB 612, so Sher requested a containers cen be redeemed for a penny
year's delay on the vote. apiece from a fund supported by beer
. Sber.-J}.Palo-AltorDow.lntends to_ex. and SQ6a Jl1~Ke[S_a~d drinkers, bul not
pand the banlc!leld and st.ort a polUlca! by (hose who produce end- consume-
guerrJIIe war. He end CaJ(fornJaos wine c-oo!cnl. Further. the estimated 170
^gnlnst Waste, tbe leading botUe-blH ed- mBUoD winc-coo1cr conLolncrs should be
vocacy group, wont clUC$ Bod counties removed tram an annual '9.'R5le ,(ream
.. .. to Joohdole deposl~ ~n wloe coolers tbet 15 filling up local land!l1Is fester
· wltbfn- tnelr Jurl.&tlcUo~. Sbcr reasons thon new dumps c.en be louDd.
that (be 'wlnt: foduslry h~ less lOnUCDCO !J. polcoUol s.oluUon would be for local
at [he loc.al levt:l, wlU tire or appearing ~Yernments to' adopt y;Joe-cooler recy:_
bdore numerous cUy cou Dells and ~tnR laws out postponln~ tJ;Jelr tm~le-
boards of supervisors and (IoaBy wl1l meotaOop_1or ayear, That cen put
support hi:. bill to ensure unllorm regu- pressureon tne Wine Industry to cooper-
leHons are tn place statewIde. ate wltb Sbcr before clUes nDd counlles
. Sner's logk seems 1rrduleb1e, but it must ael OD their own.
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