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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 1 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 2 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 3 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) 5 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 1 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 2 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. 3 (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. 4 (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 5 (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 6 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 7 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 8 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. 10 (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. 11 (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, 12 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: ~r / ' 1 ,~iii~Y ' v ~ Al /,~ ,i4 ~ ..(~! -- MASHA ~NES M UT IE Cit Attor e ' 13