SR-011309-7D~®
c;cvor !$~/ Council ert
Santa Monica®
City Council Meeting: January 13, 2009
Agenda Item: ~ ^p
To: Mayor and City Council
From: Dean Kubani, Director of the Office of Sustainability and the Environment
Subject: Introduction and First Reading of and Ordinance Prohibiting Single-Use
Carry Out Bags
Recommended Action
Staff recommends that the City Council introduce for first reading an ordinance
prohibiting the distribution of single-use plastic carry out bags and regulating the use of
paper carry out bags in Santa Monica retail establishments.
Executive Summary
The attached ordinance prohibits -all retail establishments ih Santa Monica from
providing single-use plastic carry out bags to customers, and creates a Green Fee for
each paper bag distributed by grocery stores; convenience stores and pharmacies in
the city. The ordinance exempts restaurants from the plastic bag ban; allowing them to
provide plastic bags for take-out food. The intent of the ordinance is to significantly
reduce the environmental impacts related to single-use plastic and paper carry out bags
and to promote a major shift towards reusable bags. The level of the Green Fee will be
determined by a fee study, which is currently underway. Staff will return to Council for
second reading of the ordinance with a detailed financial impact analysis and a
recommended level for the Green Fee, to be adopted by Council resolution, once the
fee study is completed. The second reading of the ordinance will occur when the fee
study is presented to the City Council for consideration.
Discussion
On February 26, 2008 City Council directed staff to prepare an ordinance prohibiting
retail stores from distributing single-use plastic bags and regulating the use of paper
bags through the collection of a fee.
The ordinance prohibits all retail establishments in Santa Monica from providing single-
use plastic carry out bags to customers at the point of sale. Single-use plastic carry out
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bags are defined as bags made from petroleum or bio-based plastic that are less than
2.25 mils thick. The ordinance does not prohibit the distribution of plastic"product bags"
such as those distributed within a grocery store for bagging produce. The ordinance
provides an exception for restaurants and other food service providers, allowing them to
provide plastic bags to customers for the transportation of prepared take-out food. This
exception is included as a public health safeguard based on input from restaurant
owners who expressed concern that some hot and liquid foods could leak from take-out
containers and potentially cause paper bags to weaken and fail.
The ordinance also imposes a "Green Fee" on paper carry out bags at all Santa Monica
grocery stores, convenience stores; mini-marts, iquor stores and pharmacies.. These
types of stores-are by far the largest current providers of single-use plastic bags in the
city, distributing tens of millions of bags annually. If the City were to ban single-use
plastic bags but not regulate paper carry out bags it could be expected that these stores
would switch to using paper bags in equal numbers as the plastic bags they replaced.
While paper-bags are made using renewable resources and are not as problematic as
plastic bags .from a marine .debris. and .litter perspective, their manufacture,
transportation and disposal generate significant environmental. impacts,- and therefore
increasing .their use is not desirable. The Green. Fee will provide a disincentive to
customers-from requesting paper bags when shopping at the regulated stores and- js
intended to promote a major shift toward the use of reusable bags by consumers. The
fee will not apply to other types of retail stores, because those other stores (including
departmerrt stores, clothing stores, and. stores that sell durable goods). do not typically
distribute single-use plastic carryout bags to customers in large volumes; and so any
paper bags distributed by those stores would. qot likely be in response to the plastic bag
ban. The Green Fee will. also not apply to paper bags distributed by vendors at the
City's-Farmers' Markets.
The°Green-Fee will be charged for each paper carry out bag provided by .the affected
stores. Revenues generated from the fee will be used to offset the costs to the. City for
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implementation and enforcement of the ordinance, and to compensate the affected
stores for increased costs related to compliance with the ordinance. The level of the
Green Fee, the amount of the fee to be retained by the stores, and the amount to be
collected by the City will be determined based on the results of a fee study, which is
currently underway. Once the study is completed, staff will return to Council with a
recommendation and will ask Council to set the fee by resolution. At that time the
ordinance will be presented to the City Council for second reading and adoption. It is
anticipated that the fee will likely be at least $0.25 (twenty-five cents) per paper bag with
at least $0.10 (ten cents) of this amount being retained by the affected stores to offset
their costs. Stores will be required to indicate on the customer receipt the number of
paper carry out bags provided and the total amount of Green Fee charged. The stores
will be required to regularly report and remit to the City the regulatory portion of the
Green Fees collected. The ordinance will not become effective until six months after its
effective date, the effective date being 30 days after the second reading and adoption of
the ordinance.
In addition to the exemption for restaurants and other food service providers, the
ordinance allows fora one year renewable hardship exemption if it can be
demonstrated that compliance with the ordinance would cause undue economic
hardship to the retail business. An undue hardship would include any situation where
there are no reasonable alternatives to single-use plastic carryout bags and a Green
Fee cannot be charged, or situations where compliance with the requirements of the
ordinance would deprive a person of a legally protected right. The decision to provide
an exemption will be made by the City Manager or hisfher designee and will be based
on review of an exemption application that includes documentation showing the factual
support for the claimed exemption.
The Office of Sustainability and the Environment (OSE) will have primary responsibility
for enforcement of the ordinance. It is anticipated that enforcement will be primarily
conducted on a complaint basis and will be carried out by OSE inspectors as
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necessary. Inspectors will .have the power to issue notices of violations to retail
establishments that fail to comply with any of the requirements of the ordinance. For
the first violation, a written warning notice will be issued. The penalty for subsequent
violations will be a daily fine: in increasing amounts from $100 to $500, depending on the
Number of times the establishment has violated the ordinance.
The ordinance requirements will become operative six months after its effective date,
which is 30 days after final Council adoption. During the interim, OSE staff will conduct
workshops and other outreach activities to provide information and assistance to
retailers- affected by the ordinance. OSE staff will also conduct a public outreach and
information campaign to inform the public about the ordinance and encourage people to
bring their own bags to stores. Staff recommends that this outreach effort continue for a
minimum of two years following adoption of the ordinance in order to ensure that the
ordinance achieves the intended result of a major shift toward the use of reusable bags.
ih the city.
Alternatives
In addition to the recommended action, the City Council could 1) modify the ordinance
to better achieve the Council's intent; or 2) not adopt the ordinance.
The impact of the first alternative would depend. on the modifications that Council made
and could either expand or reduce the scope of the ordinance provisions, penalties and
who the ordinance applies to. Pursuing the second alternative would avoid additional
costs to the City for outreach and implementation, and would :avoid potential additional
costs to Santa Monica retail. establishments; however, it would not support the GounciPs
goal of reducing the environmental impacts related to single-use carry out bags in Santa
Monica.
-Environmental Analysis
The City's action to adopt an ordinance that .prohibits retail establishments from
providing single-use plastic carry out bags and regulates the use of paper carry out
bags is exempt from the provisions of the California Environmental Quality Act (CEQA)
pursuant to CEQA Guidelines, Section 15061(b)(3) [project is exempt when it can be
determined with certainty that there is no potential for causing a significant effect on the
environment], Section 15307 (Class 7) [action by regulatory agency to assure the
maintenance, restoration, or enhancement of a natural resource where regulatory
process involves procedures for the protection of the environment] and Section 15308
(Class 8) [action is taken by regulatory agency to assure the maintenance, restoration,
enhancement, or protection of the environment where regulatory process involves
procedures for the protection of the environment]. The proposed ordinance is
specifically designed to significantly. reduce or eliminate the use of single-use plastic
and paper bags, and to encourage a major shift to the use of reusable bags by
consumers. Implementation of this ordinance will likely result in the reduction of tens of
millions of single-use. bags and the associated environmental impacts related to their
manufacture, transportation, use and disposal. The current unregulated and
unrestricted use of these products causes significant adverse environmental impacts to
the City of Santa Monica, to local beaches, to the marine environment, and to wildlife,
and causes the depletion of natural resources and the unnecessary filling of limited
landfill capacity.
As drafted the ordinance will replace environmentally harmful products by encouraging
the use of reusable products. All of the alternative products are currently available for
use.
Financial Impacts & Budget Actions
The financial impacts from adoption of the recommended ordinance will include
additional costs to City operations to 1) establish and implement a revenue collection
system for the Green Fees; 2) conduct workshops and other outreach activities to
provide information and assistance to retailers affected by the ordinance; and 3)
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conduct an ongoing public outreach. and information campaign to inform the public
about the ordinance and encourage people to bring their own bags to stores. Since
enforcement will be carried out by existing City inspectors on an as-reported basis, it is
anticipated that enforcement can be completed without any additional budgetary..
impacts.
}
It is anticipated that all costs for implementation of the ordinance will be covered by the
revenue generated by the Green Fee. Upon completion of the fee. study, staff will
return to Council with a detailed financial .impact analysis and a recommended level for
the Green Fee to be adopted by Council resolution.
Prepared by:
Dean. Kubani, Director
Office of Sustainability and the Environment
s.
Approved: Forwarded to Council
Dean. Kubani amont Ewell
Director, Dffice of Sustainability and the City Manager
Environment
Attachment: Ordinance
F:\Atty\M u n i\Laws\MJ M\PlasticBagOrdinance01132009
City Council Meeting: 1/13/2009 Santa Monica, California
ORDINANCE NUMBER (CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA PROHIBITING RETAIL ESTABLISHMENTS FROM PROVIDING
SINGLE USE PLASTIC CARRYOUT BAGS AND REGULATING THE USE OF PAPER
CARRY OUT BAGS
WHEREAS; about Nineteen Billion (19,000,000,000) single use bags are used
annually in California buf less than 5% are recycled; and
WHEREAS, there are approximately 1718 commercial and retail establishments
in the City of Santa Monica most of which provide single use, disposable carry out bags
to their customers; and
WHEREAS, these establishments distribute about Fifty Million (50,000,000)
single use carry out bags are distributed by retail establishments in Santa Monica each
year; and
WHEREAS, many of these single use carry out bags are made from plastic. or
other material that does not readily decompose; and
WHEREAS, numerous studies have doctamented the prevalence of single use
plastic carry out bags littering the environment, blocking storm drains and fouling
beaches; and
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WHEREAS, Santa Monica's taxpayers must bear the brunt of the clean-up costs;
and
WHEREAS, plastic bags are a significant source. of marine debris and are
hazardous to marine animals and birds which often confuse single use plastic carry out
bags for a source of food. The ingestion of these bags can result in reduced nutrient
absorption and death to birds and marine animals; and
WHEREAS, even though single use paper bags are made from renewable
resources and are much less environmentally problematic thari single use plastic bags,
they do require significant environmental resources to manufacture, transport, and
recycle and/or dispose of; and
WHEREAS, from an overall environmental and economic perspective, the best
alternative to single use plastic carryout bags is a major shift to reusable bags; and
WHEREAS, carryout bag fees have been imposed by other jurisdictions and
have proven very effective at generating a major shift in consumer behavior toward the
use of reusable bags and significantly reducing bag consumption; and
WHEREAS, there are several alternatives to single use carry out bags readily
available in the City of Santa Monica, including reusable bags produced locally from
sustainable materials; and
WHEREAS, an important goal of the City's Sustainable City Plan is to procure
and use sustainable products and services; and
WHEREAS, it is the City's desire to whenever possible conserve resources,
reduce the amount of green house gas emissions, waste, beach litter and marine
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pollution and to protect the public health and welfare including local wildlife, all of which
increase the quality of life for Santa Monica's residents and visitors.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Chapter 5.45 is hereby added to the Santa Monica Municipal Code
as follows:
CHAPTER 5.45 DISPOSABLE BAG REDUCTION
ORDINANCE
Section 5.45.010 Definitions
(a) "Carry Out Bag" means any bag that is
provided by a Retail Establishment at the point of sale to a
customer for use to transport or carry away purchases, such
as merchandise, goods or food, from the retail
establishment. Carry Out Bags do not include Product Bags
as defined in this Chapter.
(b) "Food Provider" means any person or
establishment in the City of Santa Monica, that provides
prepared food for public consumption on or off its premises
and includes, without limitation, any store, shop, sales outlet,
restaurant, Grocery Store, delicatessen, or catering truck or
vehicle.
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(c) "Grocery Store" means any Retail
Establishment that sells groceries, fresh, packaged, canned,
dry, prepared or frozen food or beverage products and
similar items, and includes, without limitation, supermarkets,
convenience stores, liquor stores and gasoline stations.
(d) "Green Fee" means a fee imposed pursuant to
this Chapter upon customers for receipt of a Paper Carry
Out Bag.
(e) "Paper Carry Out Bag" means any Carry Out
Bag made from any.type or thickness of paper with a 100%
recycled content and a minimum of 40% post-consumer
recycled content.
(f) "Pharmacy" means any retail store, where
prescriptions, medications, controlled or over the .counter
drugs, personal care products or health supplement goods
or vitamins are sold, but excluding any licensed pharmacy
located within a hospital.
(g) "Product Bag" means any bag, provided to a
customer for use within a Retail Establishment to assist in
the collection or transport of products to the point-of-sale
within the Retail Establishment.
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(h) "Retail Establishment" means any person,
including any corporation, partnership, business, facility,.
vendor, organization or individual that sells or provides
merchandise, goods or materials, including, without
limitation, clothing, food, or personal items of any kind,
directly to a customer; Retail Establishment includes, without
limitation, any Grocery Store, department store, hardware
store, Pharmacy, liquor store, restaurant, catering truck,
convenience store, and any other retail store or vendor.
(i) "Reusable Bag" means any bag with handles
that is specifically designed and manufactured for multiple
reuse, and is"either; (1) made of cloth or other washable
fabric; or (2) .made of other durable material, including
plastic,-that is at least 2.25 mils. thick..
(j) "Single Use Plastic Carry Out Bag" -means any
bag that is less.- than 2.25 mils. thick and is made
predominately of plastic derived from petroleum or from bio-
based sources, such as corn or other plant sources.
5.45.020 - Prohibition on the Use of Single Use
Plastic- Carry Out Bags
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(a) No Retail Establishment in the City of Santa
Monica shall provide aSingle-Use Plastic Carry Out Bag to a
customer except as otherwise permitted by this Chapter.
(b) No person shall distribute aSingle-Use Plastic-
Carry Out Bag at any City Facility, City-managed
concession, City sponsored event, or City permitted event
except as otherwise permitted by this Chapter.
(c) This Section does not prohibit the distribution
of Product Bags.
(d) This Section does. not prohibit Retail
Establishments from. making Reusable Bags available to
customers whether through sale or otherwise.
5.45.030 Regulation of the use of Paper
Carryout Bags
(a) No Grocery Store or Pharmacy in the City of
Santa Monica shall provide to any customer at the point of
sale any bag except a Reusable Bag or Paper Carry Out
Bag.
(b) No Grocery Store or Pharmacy may provide a
Paper Carry Out Bag to a customer without charging a
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Green Fee to the customer for each Paper Carry Out Bag
provided.
(c) The City Council is authorized to set the
amount of the Green Fee by resolution. The fee shall be set
in an amount at least sufficient to allow Grocery Stores and
Pharmacies to recover the costs of complying with the
requirements of this Chapter and may include an .amount
sufficient to allow the City to recover solely its regulatory
costs.
(d) No Grocery Store or Pharmacy charging a
Green Fee pursuant to this section shall rebate or otherwise
reimburse a customer for any portion of the fee.
(e) All Grocery Stores and Pharmacies shall
indicate on the customer transaction receipts the number of
Paper Carry Out Bags provided and the total amount of the
Green Fee charged.
(f) On a quarterly basis or as otherwise may be
required by the Director of Finance, or his or her designee,
each Grocery Store and Pharmacy required to collect Green
Fees under this Chapter shall report and remit to the City of
Santa Monica the regulatory portion of the Green Fees
collected. All payments and receipts of Green Fees shall be
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reported on a form prescribed by the Director of Finance.
The form shall be signed by a responsible officer or agent of
the Grocery Store or Pharmacy who shall swear or affirm
that the, information provided on the form is true and
complete.
(g) If payment of any amounts due -under this
section are not received by the Director of Finance on or
before the due date, the Director may impose a penalty of
Ten Percent (10%) on any amount due.
(h) Nothing in this Chapter shall be construed to
deem any Green Fee required under this chapter to be a tax.
5.45.040 Exemptions
(a) Notwithstanding the prohibitions contained in
Section 5.45.020, Single-Use Plastic Carry Out Bags may be
distributed to customers by Food Providers for the purpose
of safeguarding public health and safety during the
transportation of prepared take-out food intended for
consumption off of the Food Provider's premises.
(b) The City Manager, or his or her designee,
including the Director of the Office of Sustainability and the
Environment (OSE), may exempt a Retail Establishment
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from the requirements of this Chapter for up to a one year
period, upon a showing by the Retail Establishment that the
conditions of this Chapter would cause undue hardship. An
"undue hardship" shall only be found in:
1: Circumstances or situations unique to the
particular Retail Establishment such that there are no
reasonable alternatives to Single-Use Plastic Carryout Bags
or a Green Fee cannot be charged; or
2. Circumstances or situations unique to :the
Retail Establishment such that compliance with the
requirements of this Chapter would deprive a person of a
legally protected right.
(c) If a Retail Establishment requires an exemption
beyond the initial exemption period, the Retail Establishment
must re-apply prior to the end of the exemption .period and
must demonstrate continued undue hardship if it wishes to
have the exemption extended. Extensions may only be
granted for intervals not to exceed one year.
(d) An exemption application shall include all
information necessary for the City to make its decision,
including but not limited to documentation showing the
factual support for .the claimed exemption: The City
w~
Manager or his or her designee may require the applicant to
provide additional information to permit the City to determine
facts regarding the exemption application.
(e) The City Manager or his or her designee may
approve the exemption application, in whole or in part, with
or without conditions.
(f) Exemption decisions are effective immediately,
are final and are not appealable.
(g) The City Council may by resolution establish a
fee for exemption applications. The fee shall be sufficient to
cover the costs or processing the exemption application.
5.45.040 Enforcement and Notice of Violations
(a) The Director of OSE, or his or her designee,
shall have primary responsibility for enforcement of this
Chapter. The .Director of OSE is authorized to establish
regulations and to take any and all actions reasonable and
necessary to obtain compliance with this Chapter, including,
but not limited to, inspecting any retail establishment's
premises to verify compliance.
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(b) Anyone violating or failing to comply with any
of the requirements of this Chapter shall be guilty of an
infraction.
(c) The City Attorney may seek legal, injunctive, or
other equitable relief to enforce this Chapter.
(d) The remedies and penalties provided in this
section are cumulative and not exclusive, and nothing in this
Chapter shall preclude any person from pursuing any other
remedies provided by law.
5.45.050 Penalties for Violations
Violations of this ordinance shall be punishable as
follows:
(a) For the first violation, the Director of OSE or his
or her designee, upon determination that a violation of this
Chapter has occurred, shall issue a written warning notice to
the Retail Establishment, specifying the violation and the
potential penalties in the event of future violations.
(b) For any subsequent violation, ah administrative
citation shall be issued pursuant to Santa Monica Municipal
Code Chapter 1.09, with the fines to be graduated for repeat
violations in amounts set forth by City Council resolution.
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(c) Each violation of this Chapter shall be
considered a separate offense
5.45.060 Operative Date
This Chapter shall become operative six months after
its effective date, which is 30 days after its adoption by City
Council.
5.45.070 No Conflict with Federal or State Law
Nothing in this Chapter is intended to or shall be
interpreted as conflicting with any applicable federal or state
law or requirement.
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
ihcohsistencies and no further, is hereby repealed or modified to that extent necessary
to effect the provisions of this Ordinance.
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 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,
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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 30 days from its adoption.
APPROVED AS TO FORM:
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/ ' 1 ,~iii~Y ' v ~ Al /,~ ,i4 ~ ..(~! --
MASHA ~NES M UT IE
Cit Attor e '
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