Ordinance 2018-4205ORDINANCE NO. 2018 -4205
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER
82 OF THE CODE OF THE CITY OF MIAMI BEACH, ENTITLED
"PUBLIC PROPERTY," BY AMENDING ARTICLE IV, ENTITLED
"USES IN PUBLIC RIGHTS -OF- WAY," BY AMENDING
DIVISION 5, ENTITLED "SIDEWALK CAFES," BY AMENDING
SUBDIVISION II, ENTITLED "PERMIT," BY AMENDING
SECTION 82 -385, ENTITLED "MINIMUM STANDARDS,
CRITERIA, AND CONDITIONS FOR OPERATION OF
SIDEWALK CAFES," BY MODIFYING THE CIRCUMSTANCES
UNDER WHICH SUBSECTION (Z), RELATING TO SINGLE -USE
CARRY OUT PLASTIC BAGS, WOULD TAKE EFFECT;
PROVIDING FOR REPEALER, SEVERABILITY,
CODIFICATION, AND AN EFFECTIVE DATE.
WHEREAS, the City of Miami Beach ( "City "), a world - renowned tourist destination,
declares that it is in the interest of the public health, safety, and welfare of its residents and
visitors to reduce litter and pollutants on the lands and in the waters of the City, and along its
shores and famous beaches; and
WHEREAS, the City is comprised of a number of islands with approximately 70 miles of
shoreline along numerous canals and waterways, the Atlantic Ocean, and the Biscayne Bay
Aquatic Preserve, all of which support a wide variety of flora and fauna; and
WHEREAS, the waters surrounding the City support threatened and endangered
species such as the West Indian manatee and Johnson's seagrass; and
WHEREAS, the City's beaches are a designated nesting habitat for the protected
loggerhead, green, and leatherback sea turtles, and support shorebird species, including royal
terns and seagulls; and
WHEREAS, single -use carry out plastic bags are neither readily recyclable nor
biodegradable, and take hundreds to thousands of years to degrade in the environment; and
WHEREAS, the distribution of single -use carry out plastic bags by businesses to
consumers and patrons for use in carrying purchased goods has a detrimental effect on the
environment of the City, County, and State; and
WHEREAS, discarded single -use carry out plastic bags contribute to overburdened
landfills, threaten wildlife and marine life, and degrade and litter drainage and sewage systems,
as well as the beaches and waters off the Florida coast, which include areas within the City; and
WHEREAS, single -use carry out plastic bags are photo- biodegradable and break down
into smaller pieces which can make their way into the food chain via such animals as jellyfish
and endangered sea turtles; and
WHEREAS, plastic bags constitute a portion of the litter in the City's streets, parks,
public places, stormwater management system, and waterways; and
WHEREAS, as an environmental leader among local governments in the State of
Florida, the goal of the City is to replace single -use carry out plastic bags with reusable,
recyclable, or compostable alternatives whenever possible; and
WHEREAS, the City Commission finds that this Ordinance is necessary for the
preservation of the City's environment and the public health, safety and welfare of City residents
and visitors and future generations; and
WHEREAS, in Florida Retail Federation, Inc. and Super Progreso Inc. v. The City of
Coral Gables, in the Circuit Court of the Eleventh Judicial Circuit for Miami -Dade County, Florida
(Case No. 2016- 018370- CA -01), the Court held that Sections 403.708(9) and 403.7033 of the
Florida Statutes, relating to packaging and plastic bags, are unconstitutional. The Plaintiffs
appealed the trial court ruling, and the case is currently pending before the Third District Court
of Appeal; and
WHEREAS, on July 26, 2017, the Mayor and City Commission adopted Ordinance No.
2017 -4117, amending Chapter 82 of the City Code, entitled "Public Property," to create a
definition for "single -use carry out plastic bag," and to create Section 82- 385(z), which provides
that, at sidewalk cafes, single -use carry out plastic bags shall not be allowed on the right -of -way
and shall not be provided to sidewalk cafe patrons. The provisions in Section 82- 385(z), and the
definition of "single -use carry out plastic bag," would only take effect upon the issuance of a final
mandate by the Third District Court of Appeal or the Florida Supreme Court which upholds the
unconstitutionality of Section 403.7033, Florida Statutes; and
WHEREAS, this Ordinance modifies the circumstances under which City Code Section
82- 385(z), relating to single -use carry out plastic bags, would take effect.
NOW, THEREFORE, BE IT DULY ORDAINED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
SECTION 1. Division 5, entitled "Sidewalk Cafes," of Article IV, entitled "Uses in Public Rights -
of- Way," of Chapter 82, entitled "Public Property," of the Miami Beach City Code, is hereby
amended as set forth below. The definition in Section 82 -366 is provided for reference
purposes.
Sec. 82 -366. Definitions.
CHAPTER 82
PUBLIC PROPERTY
* * *
Article IV. Uses in Public Rights -of -Way
* * *
Division 5. Sidewalk Cafes
* * *
Subdivision I. Generally
* * *
* * *
Single -use carry out plastic bag means a bag provided by a sidewalk cafe permittee to a
sidewalk cafe patron, for the purpose of transporting purchases or goods, including, but not
limited to, food and beverages, which is made predominantly of plastic derived from petroleum
or a biologically -based source. A single -use carry out plastic bag does not include a
compostable carry out bag that:
(1) Conforms to current ASTM D6400 standards;
(2) Is certified and labeled as meeting ASTM D6400 standard specifications by a
recognized verification entity; and
(3) Must be capable of undergoing biological decomposition in a compost site such that
the material breaks down into carbon dioxide, water, inorganic compounds, and
biomass at a rate consistent with known compostable materials.
* * *
Subdivision II. Permit
* * *
Sec. 82 -385. Minimum standards, criteria, and conditions for operation of sidewalk cafes.
* *
*
(z) Single -use carry out plastic bags shall not be allowed on the right -of -way and shall not be
provided to sidewalk cafe patrons.
(1) Notwithstanding the above, beginning on August 6, 2018, the city shall engage in public
education efforts to inform the public of the provisions in this subsection (z), and to
provide assistance with identifying alternatives to single -use carry out plastic bags.
Beginning on November 1, 2018, and continuing through January 31, 2019, the city shall
provide for a warning period, during which the code compliance department shall issue
written warnings for violations of the provisions of subsection (z). Beginning on February
1 2019 the code compliance de.artmen shall enforce the •rovisions in subsec ion z
that pertain to single -use carry out plastic bags.
SECTION 2. REPEALER.
All ordinances or parts of ordinances in conflict herewith are hereby repealed.
SECTION 3. SEVERABILITY.
If any section, subsection, clause or provision of this Ordinance is held invalid, the
remainder shall not be affected by such invalidity.
SECTION 4. CODIFICATION.
It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is
hereby ordained that the provisions of this ordinance shall become and be made part of the
Miami Beach City Code. The sections of this ordinance may be renumbered or relettered to
accomplish such intention, and the word "ordinance" may be changed to "section," "article," or
other appropriate word.
SECTION 5. EFFECTIVE DATE.
This Ordinance shall take effect on the 1/ -day of At-f Gt , 2018.
PASSED and ADOPTED this dS day of c/U1
ATTEST:
Rafao E. Gra ado
City Clerk
, 2018.
Dan Gelber
Mayor
Underline denotes additions
Strikethrough denotes deletions
Double underline denotes additions made after First Reading
denotes deletions made after First Reading
(Sponsored by Mayor Dan Gelber, and co- sponsored by Commissioners John Elizabeth
Aleman, Ricky Arriola, Michael Gbngora, Kristen Rosen Gonzalez, Mark Samuelian, and Micky
Steinberg)
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
7,
it tk
City Attorney Date
1\4—
F :\ATTO \KALN \ORDINANCES \Ordinance Amending Sec 82 -385 Single Use Carry Out Plastic Bags - 2nd reading.docx
MIAMI BEACH
Ordinances - R5 F
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Raul J. Aguila, City Attorney
DATE: July 25, 2018
1:30 p.m. Second Reading Public Hearing
SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING CHAPTER 82 OF THE CODE OF THE CITY
OF MIAMI BEACH, ENTITLED "PUBLIC PROPERTY," BY AMENDING ARTICLE IV,
ENTITLED "USES IN PUBLIC RIGHTS -OF- WAY," BY AMENDING DIVISION 5,
ENTITLED "SIDEWALK CAFES," BY AMENDING SUBDIVISION II, ENTITLED
"PERMIT," BY AMENDING SECTION 82 -385, ENTITLED "MINIMUM STANDARDS,
CRITERIA, AND CONDITIONS FOR OPERATION OF SIDEWALK CAFES," BY
MODIFYING THE CIRCUMSTANCES UNDER WHICH SUBSECTION (Z),
RELATING TO SINGLE -USE CARRY OUT PLASTIC BAGS, WOULD TAKE
EFFECT; PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN
EFFECTIVE DATE.
Legislative Tracking,
Office of the City Attorney
Sponsor
Mayor Dan Gelber and Co- Sponsored by the City Commission
ATTACHMENTS:
Description
a City Manager's Memorandum
a City Attorney's Memorandum
E) Exhibit A to City Attorney's Memorandum
CI Ordinance
Page 932 of 1464
MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.rniarnibeachfl,gov
COMMISSION MEMORA
TO: Mayor Dan Gelber and Members of he City Corn ission
cc: Rafael E. Granada, City Clerk
FROM: Jimmy L. Morales, City Manager
DATE: July 25, 2018
SUBJECT: AN ORDINANCE OF THE MAYOR »ND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, AMENDING CHAPTER 82 OF THE CODE OF THE
CITY OF MIAMI BEACH, ENTITLED "PUBLIC PROPERTY,'" BY AMENDING
ARTICLE IV, ENTITLED "USES IN PUBLIC RIGHTS-OF-WAY," BY
AMENDING DIVISION 5, ENTITLED "SIDEWALK CAFES," BY AMENDING
SUBDIVISION I, ENTITLED "GENERALLY," BY AMENDING SECTION 82.366
THEREOF, ENTITLED "DEFINITIONS," TO DEFINE THE TERM "SINGLE.USE
CARRY OUT PLASTIC BAG"; BY AMENDING SUBDIVISION II, ENTITLED
"PERMIT," BY AMENDING SECTION 82.385 THEREOF, ENTITLED
"MINIMUM STANDARDS, CRITERIA, AND CONDITIONS FOR OPERATION
OF SIDEWALK CAFES" TO PROVIDE PROVISIONS RELATING TO SINGLE-
USE CARRY OUT PLASTIC BAGS; AND PROVIDING FOR REPEALER,
SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
DUM
BACKGROUNq
On April 26, 2017, the Mayor and City Commission adopted Resolution Na. 2017-29822,
supporting Florida House Bill 93 and Senate Bill 162, which authorized the establishment of a
two-and-a-half year pilot program by certain coastal municipalities to regulate or ban disposable
plastic bags; and, alternatively, in the event these Bills were not adopted, urging the repeal of
Section 4017033, Florida Statutes, so that local governments are no longer preempted from
enacting legislation relating to the regulation of disposable plastic bags,
On July 26, 2017 the City Commission adopted an Ordinance requiring sidewalk cafes to
discontinue the use of plastic bags upon a favorable outcome in the Florida Retail Federation v.
City of Coral Gables litigationl, At the City Commission meeting on June 6, 2018, the Mayor and
City Commission adopted a motion to amend the proposed Ordinance, to immediately
implement restrictions on the use of single-use carry out plastic bags at sidewalks cafes. The
Motion was made by Mayor Gelber, and seconded by Commissioner Gongora. The motion was
1 See City Attorney's Memorandum, also attached to this agenda Item,
Page 933 of 1464
adopted by a vote of 7-0 and the Second Reading Public Hearing is scheduled for the July 25,
2018 Commission meeting.
ANALYSIS
According to the Environmental Protection Agency (EPA), over one trillion plastic bags are used
each year. In U.S., Americans use over 380 billion plastic bags and wraps every year, each
typically discarded after a single use. Plastic bags are comprised of high-density polyethylene,
the production of which requires both petroleum and natural gas. It takes an estimated twelve
million barrels of oil to produce the amount of plastic bags estimated to be used annually in the
United States. That's equivalent to over 1,000 bags per person per year, with less than 10% of
these bags being recycled or reused. In addition, as litter, a plastic bag can take hundreds of
years to break down at the landfill.
The Florida Department of Environmental Protection (FDEP) asserts that plastic bags are
detrimental to our community because they do not fully degrade in our oceans or land
environment and introduce unsafe chemicals into our environment. FDEP's Retail Bags Report,
FDEP recognizes that plastic bags create the potential for injury to or death of marine animals
through entanglement and ingestion. Moreover, plastic bags can block sunlight from reaching
into the depths of the water, leading to stress on aquatic vegetation, plant death and a reduction
in the oxygen level of the water. Unnaturally low oxygen levels kill fish and other animals.
According to the National Geographic, filter feeders, known as known as larvaceans, ingest the
plastic particulates that are produced by the degradation of plastic In the water, and then the
plastic gets into their fecal pellets or into the "mucus houses" in which the larvaceans live, made
of excreted mucus. Their fecal pellets and their houses sink Into the deep ocean, carrying the
plastic with it. A wide range of marine animals consume larvaceans, their fecal pellets or their
mucus houses, accounting for microplastics in the marine food webs and potentially on our
plates.
Further, the expansive usage of single-use plastic bags and their typical disposal rates creates
unsightly litter and is an impediment to the City's waste reduction and recycling goals Plastic
bags are easily picked up by the wind and end up as litter throughout our City's beaches, parks,
greenspaces, and waterways. In addition, plastic bags that enter our stormwater system clog
our pollution control devices causing increased maintenance costs and localized flooding. The
widespread use of single-use plastic bags also presents recycling challenges and frequently
contaminates material sent to recycling facilities. Plastic bags cause equipment and operational
problems at recycling facilities, landfills and waste transfer stations. The machinery on trucks
and separators is frequently impaired because plastic bags wrap around wheels, gears and
other parts of the equipment, forcing work to stop while someone extracts the plastic and
restarts the process. This happens daily at recycling facilities and employees risk injury by
reaching into sharp or pinching areas to free the plastic from the machinery.
The discontinuation of plastic bag usage by the City's sidewalk cafe permittees will support the
City's waste reduction and recycling goals, promote environmental health, protect wildlife, and
conserve resources. Reducing the availability of plastic bags also encourages the use of more
sustainable products. As an alternative, reusable bags reduce overall litter by allowing
customers to reuse a single bag on multiple occasions. Moreover, brown paper bags can be
recycled, which also reduces overall litter.
Similar to the city's polystyrene restrictions, the Ordinance proposes a phased implementation.
• During the first three months, a public education campaign would be conducted in order
Page 934 of 1464
to inform sidewalk cafe permittees, city contractors, and special event permittees of the
provisions of the Ordinance, and to provide assistance with identifying alternatives to
plastic bags (Le, from August 6, 2018) through October 31, 2018).
Following the City's public education efforts, the City would provide for a three-month
written warning period (Le, from November 1, 2018, through January 31, 2019), during
which time written warnings shall be issued by the Code Compliance Department for
violations of the Ordinance.
• Beginning on February 1, 2019, the Code Compliance Department would enforce the full
enforcement and penalty provisions in the Ordinance.
City staff is currently working on the development of a "plastic-free" oampalgn that ill asslst
with the public outreach implementation phase,
FISCAL IMPACT STATEMENT
According to the City's Code Compliance Department, the City will use existing resources to
enforce this Ordinance. Accordingly, the Ordinance is anticipated to have no more than a
nominal impact on the City's resources,
CONCLUSION
The attached amended Ordinance is presented to the Mayor and City Commission for Second
Reading/Public Hearing. The Administration recommends approving the above-referenced
Ordinance.
VESW/ECT
Page 935 of 1464
MAM BEACH
OFFICE OF THE CITY ATTORNEY
RAUL J. AGUILA, CITY ATTORNEY
COMMISSION MEMORANDUM
To: Mayor Dan Gelber Date: July 25, 2018
Members of the City Commission
From: Raul J. Agui t. E
City Attorne
Subject: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 82 OF THE CODE OF
THE CITY OF MIAMI BEACH, ENTITLED "PUBLIC PROPERTY," BY
AMENDING ARTICLE IV, ENTITLED "USES IN PUBLIC RIGHTS-OF-WAY,"
BY AMENDING DIVISION 5, ENTITLED "SIDEWALK CAFES," BY
AMENDING SUBDIVISION II, ENTITLED "PERMIT," BY AMENDING
SECTION 82485, ENTITLED "MINIMUM STANDARDS, CRITERIA, AND
CONDITIONS FOR OPERATION OF SIDEWALK CAFES," BY MODIFYING
THE CIRCUMSTANCES UNDER WHICH SUBSECTION (Z), RELATING TO
SINGLE -USE CARRY OUT PLASTIC BAGS, WOULD TAKE EFFECT;
PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN
EFFECTIVE DATE.
Introduction
Pursuant to the request of Mayor Dan Gelber, the above- referenced Ordinance has been placed
on the July 25, 2018 City Commission meeting agenda for consideration on Second
Reading /Public Hearing. The Ordinance passed on First Reading at the June 6, 2018 City
Commission meeting.
II. Ordinance No. 2017 -4117
On July 26, 2017, the Mayor and City Commission adopted Ordinance No. 2017 -4117, amending
Chapter 82 of the City Code, entitled "Public Property," to create a definition for "single -use carry
out plastic bag," and to create Section 82- 385(z), which provides that, at sidewalk cafes, single -
use carry out plastic bags shall not be allowed on the right -of -way and shall not be provided to
sidewalk cafe patrons.
Pursuant to Ordinance No. 2017 -4117, the provisions in Section 82- 385(z) and the definition of
"single -use carryout plastic bag" shall only take effect upon the issuance of a final mandate from
the Third District Court of Appeal or, if appealed to the Florida Supreme Court, the issuance of a
final mandate from the Florida Supreme Court, regarding the opinion rendered in Florida Retail
Federation Inc. and Super Progreso, Inc. v. The City of Coral Gables (Florida Eleventh Judicial
Circuit Case No. 2016- 018370- CA -01) (the "Coral Gables Litigation "), which final mandate
upholds the unconstitutionality of Section 403.7033, Florida Statutes. (See Commission
Memorandum for Ordinance No. 2017 -4117, attached hereto and incorporated herein as Exhibit
“A13.)
Page 936 of 1464
Single -use carry out plastic bags
July 25, 2018
Page 2
111. Proposed Ordinance
The proposed Ordinance modifies the circumstances under which the provisions in City Code
Section 82- 385(z), and the definition of "single -use carry out plastic bag," would take effect.
Pursuant to the City Commission's direction on June 6, 2018, the Ordinance has been revised for
Second Reading to provide that, beginning on August 6, 2018, the City shall engage in public
education efforts to inform the public of the provisions in Section 82- 385(z), and to provide
assistance with identifying alternatives to single -use carry out plastic bags. Beginning on
November 1, 2018, and continuing through January 31, 2019, the City shall provide for a warning
period, during which the Code Compliance Department will issue written warnings for violations
of Section 82- 385(z). Beginning on February 1, 2019, the Code Compliance Department shall
enforce the provisions of Section 82- 385(z).
Notwithstanding the above, if, in the context of the Coral Gables Litigation, the Third District Court
of Appeal or the Florida Supreme Court upholds Section 403.7033, Florida Statutes, as
constitutional, or as otherwise valid, an Ordinance repealing City Code Section 82- 385(z), and
the definition of "single -use carry out plastic bag," will be presented to the City Commission for its
adoption.
Page 937 of 1464
„fr fr
; Y Y
OFFICE OF THE CITY ATTORNEY
RAULJ. AGUILA, CITY ATTORNEY
COMMISSIO
MEMORANDUM
To: Mayor Philip Levine
Members of the City Commission
Jimmy Morales, City Manager
cc: Rafael Granado, City Clerk
From: Raul J. Aguila, City Attorn
Date: July 26, 2017
Subject: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER
82 OF THE CODE OF THE CITY OF MIAMI BEACH, ENTITLED
"PUBLIC PROPERTY,” BY AMENDING ARTICLE IV, ENTITLED
"USES IN PUBLIC RIGHTS-OF-WAY," BY AMENDING DIVISION
5, ENTITLED "SIDEWALK CAFES," BY AMENDING
SUBDIVISION I, ENTITLED "'GENERALLY," BY AMENDING
SECTION 82-368 THEREOF, ENTITLED "DEFINITIONS," TO
DEFINE THE TERM "SINGLE-USE CARRY OUT PLASTIC
BAG"; BY AMENDING SUBDIVISION II, ENTITLED "PERMIT,"
BY AMENDING SECTION 82-385 THEREOF, ENTITLED
"MINIMUM STANDARDS, CRITERIA, AND CONDITIONS FOR
OPERATION OF SIDEWALK CAFES" TO PROVIDE
PROVISIONS RELATING TO SINGLE-USE CARRY OUT
PLASTIC BAGS; AND PROVIDING FOR REPEALER,
SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
L Introduction
Pursuant to the request of Commissioner Michael Grieco, the above-referenced Ordinance has
been placed on the July 26, 2017 City Commission meeting agenda for consideration on
Second Reading/Public Hearing, The Ordinance passed on First Reading at the June 7, 2017
City Commission meeting. The Ordinance amends Chapter 82 of the City Code to define
"single-use carry out plastic bags" and to provide that, at sidewalk cafes, single-use carry out
plastic bags shall not be allowed on the right-of-way and shall not be provided to sidewalk cafe
patrons, The provisions in the Ordinance would only become effective as explained in Section
IV of this Memorandum,
11. Section 4031033, Florida Statutes
In 2008, the Florida Legislature created Section 4031033, Florida Statutes, which directed the
Florida Department of Environmental Protection ("DEPTto "undertake an analysis of the need
for new or different regulation of auxiliary containers, wrappings, or disposable plastic bags
used by consumers to carry products from retail establishments." ("Plastic Bag Statute" or
"Statute"), The Plastic Bag Statute required DEP to submit a report with conclusions and
Page 938 of 1464
recommendations to the Legislature no later than February 1, 2010. Lastly, the Statute states
that, "[u]ntil such time that the Legislature adopts the recommendations of the department, no
local government, local governmental agency, or state government agency may enact any rule,
regulation, or ordinance regarding use, disposition, sale, prohibition, restriction, or tax of such
auxiliary containers, wrappings, or disposable plastic bags."
Consistent with the Statute's mandate, DEP issued such a report ("Retail Bags Report" or
"Report") on February 1, 2010. However, the recommendations set forth in the Report were
never adopted by the Legislature. Accordingly, the preemptive clause in Section 4037033
remains in effect.
111. Florida Retail Federation, Inc. and Super Progreso Inc. v. City of C Gables
(Fla. 1 ith Jud. Cir. Case No. 2016-18370.CA-01)
On July 18, 2016, Plaintiffs Florida Retail Federation, Inc. and Super Progreso Inc, filed a
complaint in the !Miami-Dade County Circuit Court against the City of Coral Gables, challenging
the Coral Gables Polystyrene Ordinance, and seeking a declaratory judgment and injunctive
reliefl The Plaintiffs argued that the Polystyrene Ordinance not only violated State statutory
provisions regarding polystyrene regulations, but also violated several other Florida Statutes,
including Section 4037033, the Plastic Bag Statute, which addresses disposable plastic bags.
On September 28, 2016, the Court granted the State of Florida's motion to intervene in the
litigation
After reviewing the parties cross-motions for summary judgment, the Circuit Court entered an
order granting the City of Coral Gables's motion for summary judgment, which order upheld the
Coral Gables Polystyrene Ordinance, The Court reasoned, among other things, that the Plastic
Bag Statute set forth in Section 403.7033, Florida Statutes, "lack[s] the necessary standards
and guidelines for implementation, rendering [it] unconstitutionally vague . The Plaintiffs
and the State of Florida, as an intervenor, have appealed the Circuit Court ruling to the Third
District Court of Appeal (Case No. 3D17-562), where that appeal is currently pending.
IV., Contingent effective date
Given that the Circuit Court's order regarding the unconstitutionality of the Plastic Bag Statute is
currently subject to appeal, the attached proposed Ordinance has been carefully drafted so that
it would only take effect upon the issuance of a final mandate by the Third District Court of
Appeal or the Florida Supreme Court which upholds the unconstitutionality of the Plastic Bag
Statute set forth in Section 403.7033, Florida Statutes.
The City may condition the effectiveness of legislation on the outcome of the Coral Gables
litigation. "Legislation, the effectiveness of which is conditioned upon the happening of a
contingency, has generally been upheld." Helmsley v. Borough of Ft Lee, 394 A.2d 66, 82 (N.J.
1978) (upholding an ordinance contingent on the final outcome of litigation, including appeals)
(citing City of Miami Beach v. Lansburgh, 218 So. 2d 519 (Fla, 3d DCA 1969), reh'g denied, 226
So. 2d 821 (Fla. 1969) (municipal ordinance to take effect upon passage of bill pending in state
legislature)); see also Gaulden v. Kirk, 47 So. 2d 567, 675 (Fia. 1960) ("In the absence of
constitutional or statutory provisions to the contrary, statutes may become effective on the
happening of certain conditions or contingencies specified in the act, or implied therefrom:).
1 On February 9, 2016, the City of Coral Gables adopted Ordinance No, 2016-08, prohibiting the sale and
use of expanded polystyrene by City vendors and contractors, special event perrnittees, food service
providers, and stores (the "Polystyrene Ordinance"),
2
Page 939 of 1464
if, following all appeals in the Coral Gables litigation, the Circuit Court is reversed and Section
4031033, Florida Statutes, is found to be constitutional, rather than unconstitutional, then the
Office of the City Attorney will prepare a second Ordinance repealing the attached Ordinance,
3
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