O2348City Council Meeting: February 8, 2011 Santa Monica, California
ORDINANCE NUMBER 2348 (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 but less than 5% are recycled; and
WHEREAS, there are approximately eighteen hundred and seventy-five (1875)
commercial and retail establishments in the City of Santa Monica ("the City") most of
which provide single use, disposable carry out bags to their customers; and
WHEREAS, about twenty six million (26,000,000) single use carry out bags are
distributed by retail establishments in the City each year; and
WHEREAS, most of these single use carry out bags are made from plastic or
other material that does not readily decompose; and
WHEREAS, numerous studies have documented the prevalence of single use
plastic carry out bags littering the environment, blocking storm drains and fouling
beaches; and
WHEREAS, the City'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 than 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, this ordinance requires stores that decide to make recycled paper.
carry out bags available to pass-through to their customers the reasonable cost of
providing bags;
WHEREAS, the City has completed an analysis to determine the reasonable cost
pass-through that would reimburse retailers for the their costs of providing recycled
paper carry out bags to their customers; and
WHEREAS, based on this analysis, the City has determined that a minimum cost
pass-through of $0.10 per paper bag would cover the reasonable cost to a store of
providing the paper bags to its customers; and
WHEREAS, other jurisdictions have imposed paper bag fees on the customers
requesting these bags and these fees have proven very effective at generating a major
shift in consumer behavior toward the use of reusable bags and significantly reducing
bag consumption; and
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WHEREAS, the City has completed an analysis to determine the reasonable cost
pass-through that would reimburse retailers for the their costs of providing recycled
paper carry out bags to their customers; and
WHEREAS, the proceeds from the collection of the paper bag pass-through
would be retained by the retailer and this ordinance does not specify how the retailers.
must expend the monies collected; and
WHERAS, customers can. avoid this cost pass-through by using reusable bags;
and
WHEREAS, no portion of the cost pass-through will be provided to the City and
consequently, the City wilt not receive any revenues from the retailers' collection of the
paper bag pass-through; and
WHEREAS, therefore, the cost pass-through is not a fee subject to Proposition
26; and
WHEREAS, a paper bag cost pass-through is an essential element of the
proposed ordinance as it is intended to provide a disincentive to customers to request
paper bags when shopping at regulated stores and to promote a shift towards the use of
reusable bags by Santa Monica consumers; and
WHEREAS, there are several alternatives to single use carry out bags readily
available in the City, 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
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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
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 SINGLE-USE CARRYOUT BAG
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,
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restaurant, Grocery Store, delicatessen, or catering truck or
vehicle.
(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) "Paper Bag Cost Pass-Through" means the
cost which must be collected by retailers from their
customers when providing a Recycled Paper Bag.
(e) "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.
(f) "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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(g) "Recycled Paper Bag" means a paper carryout
bag provided by a store to a customer at the point of sale
that meets all of the following requirements:
{1) Except as provided in subdivision (2) of this
subsection (g), the paper carryout bag contains a minimum
of 40 percent postconsumer recycled materials
(2) An eight pound or smaller recycled paper bag
shall contain a minimum of 20 percent .postconsumer
recycled material.
(3) The paper carryout bag is accepted for recycling
in curbside programs in a majority of households that have
access to curbside recycling programs in the City.
(4) The paper carryout bag is capable of composting,
consistent with the timeline and specifications of the
American Society of Testing and Material (ASTM) Standard
Specification for Compostable Plastics D6400, as published
in September 2004.
(5) Printed on the paper carryout bag is the minimum
percentage of postconsumer content.
(h) "Retail Establishment" means any person,
including any corporation, partnership, business, facility,
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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 a bag with handles that
is specifically designed and manufactured for multiple reuse
and meets all of the following requirements: (1) has a
minimum lifetime of 125 uses, which for purposes of this
subsection, means the capability of carrying a minimum of
22 pounds 125 times over a distance of at least 175 feet; (2)
has a minimum volume of 15 liters; (3) is machine washable
or is made from a material that can be cleaned or
disinfected; (4) does not contain lead, cadmium, or any other
heavy metal in toxic amounts, as defined by applicable state
and federal standards and regulations for packaging or
reusable bags; (5) has printed on the bag, or on a tag that is
permanently affixed to the bag, the name of the
manufacturer, the location (country) where the bag was
manufactured, a statement that the bag does not contain
lead, cadmium, or any other heavy metal in toxic amounts,
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and the percentage of postconsumer recycled material used,
if any; and (6) if made of plastic, is a minimum of 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 Prohibitions
(a) No Retail Establishment in the City shall
provide aSingle-Use Plastic Carry Out Bag to a customer.
unless otherwise permitted pursuant to Section 5.45.040.
(b) No Grocery Store or Pharmacy in the City shall
provide any type of bag to a customerat the point of sale
except a Reusable Bag or a Recycled Paper Bag unless
otherwise permitted pursuant to Section 5.45.040.
(c) No person shall distribute aSingle-Use Plastic
Carry Out Bag at any City Facility, City-managed
concession, City sponsored event, or City permitted event
unless otherwise permitted pursuant to Section 5.45.040.
(d) No person shall distribute a Single Use Plastic
Carry Out Bag or any paper .bag at the Santa Monica
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Farmers Markets, except eight pound or smaller Recycled
Paper Bags for mushrooms may be distributed free of
charge.
5.45.030 Recycled Paper Bags Cost Pass-
Through
(a) Subject to subsection (b) of this Section, a
Grocery Store or Pharmacy may only provide a Recycled
Paper Bag to a customer if it collects a Paper Bag Cost
Pass-through from the customer for each Recycled Paper
Bag provided.
(b) The Paper Bag Cost Pass-through shall not be
less than 10 cents unless a-store has previously submitted a
full accounting to the City, signed by a responsible manager
under penalty of perjury that identifies all costs including bag
purchase, shipping, handling and storage, showing a lesser
actual cost to the store for each bag. Any such accounting
shall expire one year from the date of original submission
and a riew accounting would need to be resubmitted.
(e) No Grocery Store or Pharmacy collecting a
Paper Bag Pass-through. pursuant to this Section shall
rebate or otherwise reimburse a customer for any portion of
this pass-through.
(f) All Grocery Stores and Pharmacies shall
indicate on the customer transaction receipts the number of
Recycled Paper Bags provided and the total amount of the
Paper Bag Pass-through.
(g) On a semi-annual basis or as otherwise may
be required by the Director of the Office of Sustainability and
the Environment, or his or her designee, each Grocery Store
and Pharmacy required to collect a Paper Bag Pass-through
shall report to the City, on a form prescribed by the Office of
Sustainability and the Environment, all payments of Paper
Bag Pass-throughs received. 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. Every Grocery
Store or Pharmacy shall also keep complete and accurate
record or documents of the purchase and sale of any
Recycled Paper Bag by the Grocery Store or Pharmacy for a
minimum period of three (3) years from the date of purchase
and sale, which record shall be available for inspection at no
cost to the City during regular business hours by an City
employee authorized to enforce this Chapter.
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5.45.040 Exemptions
(a) Notwithstanding the prohibitions contained in
Section 5.45.020:
(1) 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 foods and liquids
intended for consumption away from the Food Provider's
premises.
(2) Retail Establishments may distribute Product
Bags and may make Reusable Bags available to customers
whether through sale or otherwise.
(b) Notwithstanding the requirements contained in
Section 5.45.030:
A store shall provide a customer participating in the
California Special Supplemental Food Program for Women,
Infants, and Children pursuant to Article 2 (commencing with
Section 123275) of Chapter 1 of Part 2 of Division 106 of the
California .Health and Safety Code and a customer
participating in the Supplemental Food Program pursuant to
Chapter 10 (commencing with Section 15500) of Part 3 of
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Division 9 of the California Welfare and Institutions Code,
with a reusable bag or a recycled paper bag at no cost at the
point of sale.
(c) 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
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 Paper Bag Pass-through cannot be collected; 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.
(d) 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
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have the exemption extended. Extensions may only be
granted for intervals not to exceed one year.
(e) 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
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.
(f) The City Manager or his or her designee may
approve the exemption application, in whole or in part, with
or without conditions.
(g) Exemption decisions are effective immediately,
are final and are not appealable.
(h) 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.
5.45.050 Remedies.
(a) The City Manager, or his or her designee, is
authorized to establish regulations and to take any and all
actions reasonable and necessary to obtain compliance with
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this Chapter, including, but not limited to, inspecting any
retail establishment's premises to verify compliance.
(b) Any person violating this Section shall be guilty
of an infraction, which shall be punishable by a fine not
exceeding two hundred fifty dollars, or a misdemeanor,
which shall be punishable by a fine not exceeding one
thousand dollars, or by imprisonment in the County Jail for a
period not exceeding six months or by both such fine and
imprisonment.
(c) The City Attorney may seek legal, injunctive, or
other equitable relief to enforce this Chapter.
(d) Administrative enforcement of this ordinance
shall proceed 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.
(e) Each violation of this Chapter shall be
considered a separate offense
(f) 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.
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(g) Notwithstanding any other provision of this
Ordinance, commencing on September 1, 2011, this
Ordinance may be enforced through any remedy as provided
for in this Section. Prior to September 1, 2011, this
Ordinance shall not be enforced.
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,. 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,
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
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official newspaper within 15 days after its adoption. This Ordinance shall become
effective thirty (30) days from its adoption.
APPROVED AS TO FORM:
MA H JO S MOUT IE
Cit Attorne
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Approved and adopted this 8th day of February, 2011.
Richard Bloom, Mayor
State of California )
County of Los Angeles ) ss.
City of Santa Monica )
1, Maria M. Stewart, City Clerk of the City of Santa Monica, do hereby certify that
the foregoing Ordinance No. 2348 (CCS) had its introduction on January 25,
2011, and was adopted at the Santa Monica City Council meeting held on
February 8, 2011, by the following vote:
Ayes: Council members: Holbrook, McKeown, O'Connor, O'Day,
Mayor Pro Tem Davis, Mayor Bloom
Naes: Council members: None
Abstain: Council members: None
Absent: Council members: Shriver
A summary of Ordinance No. 2348 (CCS) was duly published pursuant to
California Government Code Section 40806.
ATTEST:
Maria M. Stewart, City ierk