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 but 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 documented the prevalence of single use plastic carry out bags littering the environment, blocking storm drains and fouling beaches; and

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 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, 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 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.

(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.

(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

(a) No Retail Establishment in the City of Santa Monica shall provide a Single-Use Plastic Carry Out Bag to a customer except as otherwise permitted by this Chapter.

(b) No person shall distribute a Single-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.

(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 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 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 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 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.

(b) Anyone violating or failing to comply with any of the requirements of this Chapter shall be guilty of an infraction.

(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, an 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.

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 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 official newspaper within 15 days after its adoption. This Ordinance shall become effective 30 days from its adoption.

APPROVED AS TO FORM:

_________________________

MARSHA JONES MOUTRIE

City Attorney