2017-4117 Ordinance ORDINANCE NO. 2017-4117
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 82-366 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.
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 takes 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 plastic bags and packaging,
are unconstitutional.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
SECTION 1. That Division 5 of Article IV of Chapter 82 of the Code of the City Miami
Beach is hereby amended as follows:
CHAPTER 82
PUBLIC PROPERTY
* * *
ARTICLE IV. Uses in Public Rights-of-Way
* * *
DIVISION 5. Sidewalk Cafes
Subdivision I. Generally
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Sec. 82-366. Definitions.
Single-use carry out plastic bag means a bag provided by a sidewalk café
permitee to a sidewalk café 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 café patrons. The provisions in this
subsection (z), and the definition of single-use carry out plastic bag in
Section 82-366, 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, in the Circuit Court of
the Eleventh Judicial Circuit for Miami-Dade County, Florida (Case No.
2016-018370-CA-01), which final mandate upholds the unconstitutionality
of Section 403.7033 of the Florida Statutes.
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.
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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 Code of the City of Miami Beach, Florida. 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 $ day of g_y_9_"451- , 2017.
PASSED AND ADOPTED this 26, day of 1y/ , 2017
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ATTEST: Philip - •r
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Rafael E. Granado, City Clerk •�"""`ik��
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F:\ATTO\TURN\ORDINANCE\single use plastic bags June 2017.docx
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Ordinances - R5 I
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Raul J.Aguila, City Attorney, and Jimmy L. Morales, City Manager
DATE: July 26, 2017
10:20 a.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 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.
RECOMMENDATION
ANALYSIS
The Ordinance and supporting Commission Memoranda are attached.
Legislative Tracking
Office of the City Attorney and Environment and Sustainability Department
Sponsor
Commissioner Michael Grieco&Co-sponsored by Commissioner Kristen Rosen Gonzalez
ATTACHMENTS:
Description
❑ City Manager's Memorandum
❑ City Attorney's Memorandum
❑ Ordinance
Page 1268 of 2495
MIAMI BEACH
City of Miami Beach,1700 Convention Center Drive,Miomi Beach,Florida 33139,www.miomibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Philip Levine and Members of the City Com%'ssion
cc: Rafael E. Granado, City Clerk
FROM: Jimmy L. Morales, CityManager 411.
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 82-366
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.
BACKGROUND
On April 26, 2017, the Mayor and City Commission adopted Resolution No. 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 403.7033, Florida Statutes, so that local governments are no longer preempted from
enacting legislation relating to the regulation of disposable plastic bags. Additionally, the Mayor
and City Commission referred a discussion to the Sustainability and Resiliency Committee
("SRC") regarding House Bill 93 and Senate Bill 162. Both City Commission items were
sponsored by Commissioner Michael Grieco.
On May 10, 2017, the Sustainability and Resiliency Committee adopted a motion directing City
staff and the City Attorney's Office to draft an ordinance requiring sidewalk cafés to discontinue
the use of plastic bags.
The above-referenced Ordinance was placed on the June 7, 2017 City Commission meeting
agenda for First Reading.The Ordinance was adopted on First Reading by a vote of 7-0.
Page 1269 of 2495
ANALYSIS
Pursuant to the mandate in Section 403.7033, Florida Statutes (the "Plastic Bag Statute"), the
Florida Department of Environmental Protection ("DEP") submitted a report to the Governor and
the Florida Legislature on February 1, 2010, containing 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("Retail Bags Report"or"Report").'
The DEP's Retail Bags Report explained that improperly discarded plastic bags, "besides being
unsightly litter, can harm land and marine wildlife, interfere with landfill operations, clog flood
control systems, and breed mosquitos." Retail Bags Report, at 1. DEP stated that 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." Retail Bags Report, at
8. Additionally, the Report described how plastic "nurdles" or pellets released into the
environment as a byproduct of the manufacture of plastics "have actually been found to absorb
and become a transport medium for toxic chemicals, including PCB (polychlorinated biphenyl)
and DDE (Dichlorodiphenyldichloroethylene, a DDT breakdown product)." Retail Bags Report,
at 10. Specifically, as related to waste management, the Report noted that retail bags cause
"equipment and operational problems at recycling facilities, landfills and waste transfer stations."
Retail Bags Report, at 6.
The Report concluded that some strategies were more effective than others, with bans
producing the fastest results closely followed by user fees and taxes. Retail Bags Report, at 18.
Although voluntary efforts were helpful in changing consumer behavior patterns, their
effectiveness seemed to be dependent upon the number of retailers participating in the efforts.
The Retail Bags Report added that "[pjublic education is crucial to any approach, to illuminate
the damages caused by single-use bags, and the cost to undo the harm, and promote reusable
bags."Retail Bags Report, at 2.
However, the recommendations set forth in the Retail Bags Report were never adopted by the
Legislature. Consequently, the preemptive clause in the Plastic Bag Statute remains in effect!
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. The production of plastic bags is a highly energy-intensive process. It
takes approximately twelve million barrels of oil to produce 100 billion plastic bags, which is the
amount of plastic bags used every year by Americans. In addition, as litter, the life expectancy
of a plastic bag is more than 1,000 years.
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 or composted, which
also reduces overall litter.
1 Florida Department of Environmental Protection, Retail Bags Report for the Legislature(Feb. 1, 2010),
available at http:l/www.dep.state.fl.uslwaste/retailbagsl.
2 See City Attorney's Memorandum, which is also attached to this item on the July 26, 2017 City
Commission meeting agenda.
Page 1270 of 2495
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 Ordinance is presented to the Mayor and City Commission for Second
Reading/Public Hearing. The Administration recommends approving the above-referenced
Ordinance.
SMT/MieT/AMB
Page 1271 of 2495
BEACH
OFFICE OF THE CITY ATTORNEY
RAULJ.AGUILA,CITY ATTORNEY
COMMISSION MEMORANDUM
To: Mayor Philip Levine
Members of the City Commission
Jimmy Morales, City Manager
cc: Rafael Granado, City Clerk
From: Raul J. Aguila, City Attom Q•
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 82-366 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.
I. 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.
II. Section 403.7033, Florida Statutes
In 2008, the Florida Legislature created Section 403.7033, Florida Statutes, which directed the
Florida Department of Environmental Protection ("DEP") to "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 1272 of 2495
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 403.7033
remains in effect.
Ill. Florida Retail Federation, Inc. and Super Progreso Inc. v. City of Coral Gables
(Fla. 11th 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
relief.' 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 403.7033, 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 65, 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, 575 (Fla. 1950) ("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.").
' 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 permittees, food service
providers,and stores(the"Polystyrene Ordinance").
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Page 1273 of 2495
If, following all appeals in the Coral Gables litigation, the Circuit Court is reversed and Section
403.7033, 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.
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